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Month: September 2023

National Commission For Backward Classes

In addition to the scheduled castes and scheduled tribes, there are other socially and educationally disadvantaged groups known as the “other backward classes.” This neighborhood was found to suffer the most from social exploitation and has limited access to educational opportunities.The Indian government established a national committee for the other backward classes on August 14, 1993, with the goal of uplifting these groups.The commission was created following the Supreme Court’s ruling in the Indra Sawhney v. Union of India case.

The court refuted the claim that the country’s caste system was sparked by the reservation criterion in the petition. Caste is a relevant component to assess backwardness, the supreme court ruled in its landmark decision. The creation of a commission to look into the socially and economically underprivileged areas of the country was one of the many changes that came about as a result of the disputed case.

The commission’s main duty is to safeguard and advance the interests of other underprivileged classes. The Indian constitution also has unique provisions protecting the interests of the socially and educationally underprivileged populations.The National Sample Survey Organization’s most recent data (2004–2005) show that OBCs make up roughly 41% of the population in cities.

Composition of the OBC Commission:

The commission comprises the following members as appointed by the Union Government  

  • A chairperson who is or has acted as a judge at the high court of the Supreme Court of India
  • A social scientist
  • Two members with robust knowledge in matters pertaining to Other Backward Classes (OBCs)
  • A member secretary, who is or has served at the Centre as the secretary to the Indian government
  • The term to hold office for each member is three years. The Central government has the power to impeach any member due to reasons such as conviction, unsound mind, or inefficiency in their work.

Historical Events in OBC Reservation: 

  • The First Backward Classes Commission in accordance with Article 340 of the Indian constitution was set up in 1953 under the chairmanship of Kaka Kalelkar. The commission was thus commonly referred to as the Kalelkar Commission. It was the first commission to recognize disadvantaged sections other than the SCs and STs, known as the Other Backward Classes (OBCs). It had recognized more than 800 castes as ‘most backward’ and recommended up to 70 per cent reservation of seats for such strata.
  • Following this, the second backward classes commission led by BP Mandal also concluded that caste is a primary indicator of backwardness. The commission claimed the OBC population to be 52 percent. After the Indira Sawhney vs Union of India case, the Supreme Court capped reservation for SCs, STs, and OBCs at 50 percent. Jobs in the central government were reserved at 27 percent for OBCs.

Constitutional Provisions of OBC Commission:

  • Article 340 of the Indian constitution provides for the appointment of a Commission delegated with the responsibility to investigate the poor conditions of backward classes. It also provides inputs on how their conditions can be improved. The National Commission of Other Backward Classes was composed by the President by exercising this article.
  • By the 102nd Constitutional Amendment Act of 2018, Article 338B was incorporated in the constitution of India. The National Commission of Other Backward Classes was bestowed with a constitutional status with this amendment. The President’s assent to the 123rd constitutional amendment bill of 2017, made it possible for the commission to be accorded such a status. Previously, it acted as a statutory body under the Ministry of Social Justice and Empowerment. The amendment delineated the structure, functions, and objectives of the commission. Earlier, the commission was constituted under the National Commission for Backward Classes Act, of 1993. Before the amendment, the commission was not empowered to hear the grievances of the backward classes.
  • Article 342A was also incorporated in the 102nd constitutional amendment act. It empowered the President to entitle or recognize any caste as a part of socially and educationally backward class. However, it is mandatory to get prior parliamentary approval for the addition or deletion of any community.

Duties of the OBC Commission:

  • The primary function of the commission has been to oversee and regulate the inclusion of various socially and educationally disadvantaged sections. The commission also receives complaints regarding overinclusion and underinclusion of any backward class. By 2006, the number of castes that fall under OBCs increased to more than 5000.
  • The commission is required to investigate those matters pertaining to safeguarding the socially and economically backward strata of society. These safeguards are related to the constitutional provisions available to such people or as per the orders of the government. The commission is also obliged to evaluate the working and efficiency of such safeguards.
  • The commission responds to cases and complaints that involve deprivation of social, economic, and political resources to the backward classes. It tries to restore the rights of socially and educationally backward people through the means of using safeguards available at their disposal.
  • To advise the union government for the socio-economic development of the concerned community. It also evaluates the progress of such developmental plans periodically. The President of India is also notified about the progress of the concerned classes. The commission presents the report of progress to the President annually or as required to do so.
  • The commission brainstorms on effective policies implementation for the protection and welfare of the social and economic backward classes. It advises and recommends the union and the state government into taking certain political actions that could safeguard the rights and identity of the backward classes.
  • The President of India proposes the report in the House of Parliament. The Union and the state government are recommended certain actions in favour of the disadvantaged sections.

Powers of the Commission: 

  • The Commission is conferred with powers equivalent to that of a civil court when trying a suit. It can summon any person within the territory of India to be produced for the oath. It may also order for requisition of any public record or evidence in association with the affidavit.
  • Subject to the parliamentary provisions, The National Commission of Other Backward Classes discharge functions for the welfare, development, and advancement of the target group.
  • With an aim to bring social equality in the nation, the commission is entrusted with the responsibility to provide quick justice against the atrocities faced by backward sections of society.

Since the commission’s formation in 1993, it has been reformed to strengthen its structure and functioning. The political move to grant the statutory body a constitutional status was radically approved by the public. The primary role of the commission is to protect the backward classes and suggest ways that could reduce the existing social and class inequalities in society.

Highlights of the Women Reservation Bill 2023

Twenty-seven years after the women’s reservation Bill was first introduced in Parliament, the Lok Sabha on September 20 passed a Bill with near unanimity to amend the Constitution and provide one-third reservation to women in the Lok Sabha and State Assemblies.  

The Bill will now be taken by the Rajya Sabha for passage in the remaining two days of the Special Session of Parliament, and might require approval from half of the States. 

Highlights of the Bill

  • The Constitution (One Hundred and Eighth Amendment) Bill, 2008 seeks to reserve one-third of all seats for women in the Lok Sabha and the state legislative assemblies.  The allocation of reserved seats shall be determined by such authority as prescribed by Parliament.
  • One-third of the total number of seats reserved for Scheduled Castes and Scheduled Tribes shall be reserved for women of those groups in the Lok Sabha and the legislative assemblies.
  • Reserved seats may be allotted by rotation to different constituencies in the state or union territory.
  • Reservation of seats for women shall cease to exist 15 years after the commencement of this Amendment Act.

Key Issues and Analysis

  • There are divergent views on the reservation policy. Proponents stress the necessity of affirmative action to improve the condition of women. Some recent studies on panchayats have shown the positive effect of reservation on the empowerment of women and on the allocation of resources.
  • Like the previous Bill, the new Bill proposes to introduce new articles – 330A and 332A – in the Constitution to introduce the changes for Lok Sabha and Assemblies respectively.
  • Opponents argue that it would perpetuate the unequal status of women since they would not be perceived to be competing on merit. They also contend that this policy diverts attention from the larger issues of electoral reform such as the criminalisation of politics and inner-party democracy.
  • The reservation of seats in Parliament restricts the choice of voters to women candidates. Therefore, some experts have suggested alternate methods such as reservation in political parties and dual-member constituencies.
  • Rotation of reserved constituencies in every election may reduce the incentive for an MP to work for his constituency as he may be ineligible to seek re-election from that constituency.
  • The report examining the 1996 Women’s Reservation Bill recommended that reservations be provided for women of Other Backward Classes (OBCs) once the Constitution was amended to allow for reservations for OBCs. It also recommended that reservation be extended to the Rajya Sabha and the Legislative Councils. Neither of these recommendations has been incorporated into the Bill.

What is Article 368 of the Indian Constitution?

Article 368 grants constituent power to make formal amendments and empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision, which is different from the procedure for ordinary legislation.

How can Women’s Representation in Politics be Improved in India

  • Women’s representation in politics in India has been a topic of discussion for several years, and although progress has been made, there is still a long way to go. Here are some ways forward to improve women’s representation in politics in India:
    • Reservation of Seats: The reservation of seats for women in local bodies and legislative assemblies has been a successful way to increase women’s representation in politics. More such reservation policies could be implemented to provide women with more opportunities to participate in decision-making processes.
    • Increasing Awareness and Education: Creating awareness among women about their rights and the importance of their participation in politics is essential. Educational programs and awareness campaigns can help to increase women’s political participation.
    • Addressing Gender-based Violence and Harassment: Gender-based violence and harassment are major obstacles to women’s participation in politics. Addressing these issues through policy and legal measures can create a safer and more supportive environment for women in politics.
    • Reforms in the Electoral Process: Reforms such as introducing proportional representation and preferential voting systems can help to increase women’s representation in politics by ensuring that more women get elected.
  • These are only a few approaches to increasing the number of women in Indian politics. To effect long-lasting change, a multifaceted strategy addressing multiple challenges is required.

History of Women’s Reservation of Bill:

1931
The issue of reservation for women in politics can be traced back to the Indian national movement.
In 1931, leaders Begum Shah Nawaz and Sarojini Naidu wrote a letter to the British PM regarding the status of women in the new Constitution.
According to them, seeking any form of preferential treatment would violate the integrity of the universal demand of Indian women for absolute equality of political status.
1947
The issue of women’s reservation was rejected as being unnecessary in the Constituent Assembly debates.
It was assumed that a democracy would accord representation to all groups.
In 1947, noted freedom fighter Renuka Ray said, “We always held that when the men who have fought and struggled for their country’s freedom came to power, the rights and liberties of women too would be guaranteed.”
1971
The Committee on the Status of Women in India (1971), commented on the declining political representation of women in India.
A majority within the Committee continued to be against reservation for women in legislative bodies but all of them supported reservation for women in local bodies.
Slowly, many State Governments began announcing reservations for women in local bodies.
1988
The National Perspective Plan for Women recommended in 1988 that reservation be provided to women’s rights from the level of the panchayat to that of Parliament.
1992 The enactment of the 73rd and 74th amendments to the Indian Constitution mandated:
 All State Governments to reserve one-third of the seats for women in Panchayati Raj Institutions and
One-third of the offices of the chairperson at all levels of the Panchayati Raj Institutions, and in urban local bodies, respectively.
Of these seats, one-third are reserved for Scheduled Caste/Scheduled Tribe women.
Many States such as Maharashtra, Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand and Kerala have made legal provisions to ensure 50% reservation for women in local bodies.
1996
The Women’s Reservation Bill proposes to reserve 33% of seats in the Lok Sabha and State Legislative Assemblies for women.
It was first introduced in the Lok Sabha as the 81st Amendment Bill in September 1996 by the then Government.
The Bill failed to get the approval of the House and was referred to a joint parliamentary committee which submitted its report to the Lok Sabha in December 1996.
But the Bill lapsed with the dissolution of the Lok Sabha.
1998
In 1998, the then Government reintroduced the Bill in the 12th Lok Sabha. The Bill failed to get support and lapsed again.
The Bill was reintroduced in 1999, 2002 and 2003. Even though there was support for it, the Bill failed to receive majority votes.
2008
In 2008, the then Government tabled the Bill in the Rajya Sabha and it was passed with 186-1 votes on March 9, 2010.
However, the Bill was never taken up for consideration in the Lok Sabha and lapsed with the dissolution of the 15th Lok Sabha…. Read more at: https://www.studyiq.com/articles/womens-reservation-bill-in-india/

What is Rule of Law?

Understanding “law” and “law in force” is necessary in order to comprehend the fundamental principles of the Rule of Law.

Meaning of law:

The word ‘law‘ has been defined in Article13(3)(a) and ‘law in force’ defined in Article 13(3)(b). It does not expressly include a law enacted by the legislature/ Parliament, for such enactment is obviously the law.

The definition of the law comprises of following things or we could say that law includes :

The ordinance, as it is made by passing the bill in Parliament or legislatures and it is the exercise of executive’s legislative power. In Dwarka Nath v. State(1959) Supreme Court held that if any administrative order is made by executive officers and that is subject to the law, then that order will come under the ambit of the word ‘law’.

Order, bye-laws, rules, regulations & notifications having the same status as of law, because they plunge into the classification of subordinate delegated legislation and are not passed by the legislature or parliament.

Custom or usage having the force of law in the territory of India as they are not enacted law at all. In Gazula Dasaratha Rama Rao v. State of Andhra Pradesh(1961) Supreme Court observed that the law is not only The acts of parliament or legislature but it also includes customs and its practices that has the force of law. But such customs can not be violative of Fundamental Rights.

Ordinance by the President & the governors, a government notification, any sub-rule of a municipality body, sports rule(customs), etc are examples of law.

Law in force:

The term ‘law in force’ had not been defined in the Indian Constitution. The law in force means a law made by a Legislature or competent authority in India before the commencement of this Constitution and not previously repealed by any such authority.  Supreme Court in Edward Mills Co. Ltd. vs Ajmer(1995) held that law in force means the same thing as existing law which has been defined under article 372.

By the evolution of time, Another question arises whether the amendment of the Constitution is law or not!

The Supreme Court in Shankari Prasad’s case held that law means rules and regulations made in the exercise of ordinary legislative power and not in the exercise of constituent power. But in Golaknath’s case the Supreme court held that law included statutory as well as constitutional law. Later the 24th amendment was challenged in the Keshvananda Bharti case and the present position by judgement is that the word ‘law’ does not include a constitutional amendment.

Rule of law:

The result of centuries’ long struggles and hardships to have their fundamental rights recognized is the rule of law. Le Principe de legalite, which translates to “the principle of legality” in French, is the source of the English phrase “Rule of Law.”

The 13th century A.D. is when the Rule of Law first emerged. Henry de Bracton, a judge during the reign of Henry III, said, “The King is not supreme,” in the 13th century during the hearing of one of the cases. He is ruled by both the law and the Almighty. Because he is only a king as a result of the law, the king is bound by it.

The phrase “rule of law” simply indicates that the law is supreme and that no one, regardless of status or authority, is above the law. It also signifies that everyone in India is subject to the jurisdiction of the Indian courts. Even the executive, administrative, and judicial branches of government in India are required to operate in accordance with the law. India borrowed this idea from England.  

If a law is supreme over the government and others, only the state and others can be progressive, and the growth of the state and others will be in the right direction. This is what the term “rule of law” means. It states that laws shouldn’t be subject to anyone or any government because doing so will bring down the law and the state. But in a perfect society, both the State and everyone else would be subject to the law.

No one should be subjected to severe or unfair treatment, according to the rule of law. Rule of law states that everyone should be subject to the law rather than being ruled by anyone, including men, authorities, or anyone else who satisfies the criteria of a person. Rule of law refers to the rule of the land, which is the law that governs everything pertaining to Indian territory.

Dicey’s Rule Of Law

Professor Dicey states theory for achieving Rule of law, three principles must be followed that are:

  • Supremacy Of law means the government or state must not be given wide powers so that they cannot make the use of their power arbitrarily but they must be governed according to the laws. And it is the law that should dominate over any other power to avoid any arbitrariness and that is possible only when the Law is supreme.
  • Equality before the law means there must be equality between all classes of people irrespective of their position i.e. No man is more supreme than the law and every person should be treated equally in the eyes of the law.
  • The predominance of legal spirit here refers to a spirit of fairness. This suggests that justice should be followed when making or enacting laws, not the other way around. To reinforce the Rule of Law under the Indian Constitution, the Indian Judiciary adheres to this notion. According to the concept of the rule of law, all administrative or judicial actions must be carried out in accordance with Indian legal regulations.

Role of ‘Rule of Law’ in India 

Rule of Law has played a significant role in developing democracy and the supremacy of law in India. Our Constitution framers had framed the Rule of law from England. The Indian Constitution is supreme and no person is more supreme than the Indian Constitution. Basically, Part 3 of the Indian Constitution enshrined the Rule of law as a fundamental rights.

Equality of law under Article 14 is one of the considerations of the Dicey rule. Also, Article 22 provides the Right of liberty which means etc are the rights that are governed and implemented by the theory of the Rule of law.

In case of violation of Part-3, the person can move to the Supreme Court or High Court respectively under Articles 32 and Articles 226 of the Indian Constitution. The Constitution of India supports the Rule of law with the principles of law i.e. justice, equality, and liberty.  So, it means any law made by the parliament must be in accordance with the Constitution. So, the law in the Constitution is supreme.

Basic principles of rule of law 

The doctrine of rule of law comprises several basic principles. Some of them are as follows:

  1. Supremacy of Law. Law is above everyone irrespective of an individual’s rank, status or position. 
  2. Whims and Fancies play no role in a state where rule of law prevails. All the actions of the legislature and the executive are held in accordance with laws. 
  3. No person shall suffer due to the arbitrariness of another. One can be punished only by the procedure established by law and for the violation of such law.
  4. The absence of arbitrariness and discretionary decision-making is the heart and soul of the Rule of Law. 
  5. The rule of law entails equality before the law and equal protection of the law.
  6. There are powers provided to people holding specific authority. Such power shall be exercised keeping in mind the limitations and boundaries that are set by the law itself. 
  7. Law provides protection and justice against any tyrannical action taken by the executive. 
  8. The judiciary is the preserver as well as the protector of the rule of law. It is meant to be independent and free from biases.
  9. For every action taken by the executive, just procedure should be followed, and fair treatment should be provided to all the individuals. 
  10. A speedy trial is the basic component of rule of law. It entails ‘Justice delayed is justice denied’. 

Judiciary’s role in the Rule of law

The “Habeas Corpus case” is one of the well-known cases. The court was asked whether there was any other form of the rule of law in India outside what was outlined in Article 21 of the Indian Constitution. According to the Supreme Court, no one had the right to pursue a petition of habeas corpus under the Emergency. The presidential order suspending the right to life and liberty prevents anybody from challenging it in court on the principles of the rule of law. Later, the 44th amendment to the constitution stated that Articles 20 and 21’s enforcement cannot ever be stopped. In the Kesavananda Bharati case, the Supreme Court held that the Rule of law is one of the most important parts for constituting the doctrine of basic structure.

Conclusion:

One could argue that achieving the Supremacy of Law depends on the Rule of Law. By establishing a connection between the Rule of law and human rights, the court also contributed to the achievement of this objective. The court is responsible for requiring the government to uphold the rule of law and conduct its operations in a way that does not jeopardize peoples’ other rights and fundamental freedoms. The finest illustration of how the rule of law in Indian society has advanced in a new direction toward protecting citizens’ rights is provided by Writs, Public Interest Litigation (PIL), and other similar actions. the legislation states as a result

Why Do We Need Rights in a Democracy?

Democracy is the term that is opposed to autocracy, aristocracy or monarchy means a government by people. Democracy combines two words I.e. ‘Demos‘ means people and ‘Kratos‘ means government, overall it is a Greek word. The people irrespective of factors like caste, religion, economic status, etc. are equal in the eyes of the law and manage their own affairs. They have an inalienable right to rule themselves. The concepts of justice, equality, liberty, and fraternity are an embodiment of democratic principles in the preamble. In India democracy is in the wider sense of political, economic, and social democracy. The institutions set up under the constitution shall seek to give effect to democracy in India which is to be sustained by adult suffrage, fundamental rights, and independent judiciary.

Why is it necessary in a democracy to have rights?

1. A democratic government is one that is controlled by, for, and for the people. The country is ruled by elected officials, who answer to the people. In the case of Indira Nehru Gandhi v. Raj Narain, the Supreme Court ruled that both free and fair elections and democracy are essential elements of the Indian Constitution. So, the right to vote is one of the fundamental rights in a democratic government. The Supreme Court ruled in Union of India v. Association for Democratic Reforms that a democracy cannot function successfully without free and fair elections and informed voters.

2. The existence of checks and balances in the government’s power is crucial because, without them, the state can act arbitrarily. In R.C. Poudyal v. The Union of India, the Supreme Court ruled that democracy is the people’s power and that the people have the right to control the government. The institution of Panchayati Raj and local self-government, which contribute to the decentralization of power and openness at all levels of government, have secured the public’s participation, which is a requirement for a democratic government.

3. Right is an important part of the nourishment of democracy. Without rights, democracy in a country has no values and democracy becomes meaningless without rights.

4. Rights play a vital role in securing minorities from the suppression of the majority. Suppression of minorities by the majority must be stopped and to achieve that goal, a democratic government must provide rights to every class of persons.

5. Rights are the reason to maintain the balance between state and people and law and order. It regulates citizens from harming other citizens by rights and duties imposed on them.

6. Public opinion is very important to control the government because people will give apt replies in the next election to the government. There is no legal force, only public opinion, a democratic force that can control the government to work for the people.

7. If there is no right in democracy then there will be a lack of dignified life of people and moral values in people will also be absent. So, to maintain a dignified life, rights are vital for a democratic government.

8. Citizens have the right to form political parties and participate in political activities for a fruitful democratic government or elections.

Finally, it is clear that the government constantly seeks to limit or revoke rights by legislation or other means. The foundation of Indian parliamentary democracy is an executive that is answerable to the legislature. To keep a proper distance between the state and its citizens and to control the state’s use of arbitrary power over them, the judiciary always steps in. One component of democratic administration is the judiciary. Every citizen of a democratic country must have their rights protected and inherit them in a reasonable manner. Therefore, it is essential that some rights exist that are superior to governmental authority.

Lokpal and Lokayukta Act 2013

It is crucial to hold these public servants responsible since the long-term viability of any democracy rests on public confidence in public institutions. The First Administrative Reforms Commission (ARC) of India (1966–1970) recommended the establishment of two special institutional commands, called “Lokpal” and “Lokayukta,” to address citizens’ complaints against the government on the model of the Ombudsman institution in Scandinavian countries (Sweden, Denmark, Finland, and Norway).

Lokpal and Lokayukta Act, 2013 origin

In 1963, Dr. L.M. Singhvi created the words “Lokpal” and “Lokayukta.” This organization was established primarily to combat the corruption threat in India. It offers a practical means of thwarting corruption at all levels of government and improves the system’s transparency and accountability. Over the past fifty years, various anti-corruption authorities and ombudsmen have been proposed. The Lokpal and Lokayukta Bill, 2013, was eventually passed in Lok Sabha with the support of all major political parties, but only after a nationwide demonstration spearheaded by activist Anna Hazare’s India Against Corruption civil society movement. The 2013 Lokpal and Lokayukta Act proposes to create the Lokpal institution at the Central level.

Lokpal is the legal representative of India. It is originated from the Sanskrit word “Lok” which means people and “Pala” which means protector or caretaker. Together it means “protector of people”, so basically it is a forum where the citizens can send a complaint about unfair administrative actions. The objective of passing such a law is to annihilate corruption of all forms at all levels of Indian polity.

Power of Lokpal

  • Prime Minister, or a Minister in the Union government, or a Member of Parliament, or all categories of public servants as well as Group A, B, C, and D officers, come under the ambit of Lokpal’s jurisdiction.
  • Lokpal has the power to seize the assets, proceeds, receipts, and benefits of any official which are acquired by corrupt means.
  • Lokpal is conferred with power to recommend the transfer or suspension of civil servants connected with charges of corruption.
  • Lokpal has the power to give directions to avert the destruction of records during the preliminary investigation.
  • It has the powers of superintendence over, and to give direction to CBI (Central Bureau of Investigation) and it also contains several provisions which are aimed at making the CBI stronger.
  • The inquiry Wing of the Lokpal has been authorized with the powers of a civil court in certain cases.
  • Lokpal has the authority to grant sanction for prosecution of public servants in place of the Government or competent authority.

Functions of Lokpal

  • The Lokpal keeps a watch over all public officials and can take suitable action against them if they do not function in accordance with the law.
  • It can act either on the basis of any complaint made by a private person or suo moto (i.e. on his own initiative). The Lokpal can summon or question any public official if there exists a prima facie case against the person, even before an investigation agency (such as CVC i.e. Central Vigilance Commission or CBI) has begun an inquiry.
  • It can also recommend his findings to be enforced into action.
  • Lokpal to function as the appellate authority for appeals arising out of any other law for the time being in force.
  • It has to protect any action taken in good faith by any public servant or other officials. It has to provide adequate protection to those who are being exploited for raising their voice against corruption.

Lokayukta performs similar functions at the state level. Many states had already set up the institution of Lokayuktas much before the enactment of the Lokpal and Lokayukta Act, 2013. Lokayukta was first established in Maharashtra in 1971. Until 2013, 21 states and 1 Union Territory (Delhi) have established this institution. It is to be mentioned that there is no uniformity regarding the jurisdiction of Lokayukta in all the states. Even the structure of the Lokayukta is not the same in all the states. Some states like Karnataka, Rajasthan, Maharashtra and Andhra Pradesh have only created the Lokayukta while states such as Uttar Pradesh, Himachal Pradesh and Bihar have also created Uplokayukta with Lokayuktas. 

Power of Lokayukta

  • In states like Himachal Pradesh, Andhra Pradesh, Madhya Pradesh and Gujarat the chief minister is included within the jurisdiction of Lokayukta while he is exempted from the purview of Lokayukta in the states of Orissa, Bihar, Rajasthan, Uttar Pradesh and Maharashtra.
  • Ministers and higher public servants are also included under the ambit of Lokayukta in almost all the states.
  • It has the power to raid on the houses and offices of corrupt officials at state level.
  • It can call for relevant files and documents from the state government departments.
  • It also enjoys the power to inspect and visit government organisations, which are being investigated.
  • Lokayukta may investigate any action taken by the public servant if it is referred by the state government.
  • It has the authority to suggest punishment against the culprit to the administration, but it is up to the state to either accept the suggestions or modify them.

Functions of Lokayukta

  • Lokayukta is tasked with speedy redressal of public grievances against politicians and officers in the government service.
  • It investigates allegations of corruption, abuse of power, maladministration or lack of integrity against public functionaries at state level, and once proved recommends action.
  • A consolidated report will be presented by the Lokayukta and Uplokayukta about their functions to the Governor of the state. Hence, they are responsible to the state legislature.
  • Its another crucial function is to keep a check on the investigation of anti-corruption agencies and authorities.
  • It carries out fair and impartial investigations, based on facts against the accused person by taking the assistance of a special investigating officer.

The establishment of Lokpal has been a significant development in the history of the Indian Republic, however there are still some flaws that need to be closed. To combat the enduring war against corruption, the Lokpal and Lokayukta institutions must be enhanced in terms of operational autonomy and personnel accessibility. Transparency in the Lokpal and Lokayukta nomination process is necessary because it will increase the likelihood that the best candidate will be appointed.

Challenges in Indian Education System

Education is a tool that gives people more control over all facets of their lives. His knowledge, abilities, and perspective on the world are expanded as a result. Additionally, it aids in fostering moral and ethical principles. In addition to all of this, the increased employment opportunities and improved income prospects are both significant. Without a doubt, a nation’s ability to develop rests on the caliber of its educational system. The effectiveness and productivity of the workforce will increase with enough investment in the educational sector. In the end, educated individuals aid in speeding the rate of economic development, culminating in the expansion of the nation.

According to the Emerging Directions in Global Education (EDGE) report 2011, around 26,478 institutions provide higher education in India and account for the largest number in the world, whereas there were 6,706 higher education schools in the U.S. and 4,000 in China.

India’s modern education system was introduced by the British colonial Government. During the colonial period, the foundation of the Indian education system was built up by the Macaulay minute, Wood’s Dispatch, Curzon’s education policy, Sadler commission, and so on.

Provisions in the Indian Constitution on education:

  • Article 21A: 86th Constitutional Amendment Act of 2002 introduced Article 21A which made elementary education a Fundamental Right rather than a Directive Principle.
  • Article 45: It was amended to provide early childhood care and education to children below the age of 6 years.
  • Right to Free and Compulsory Education Act, 2009: This Act was passed to implement Article 21A. It also provided essential legal backing for the implementation of the Sarva Shiksha Abhiyan. Sarva Shiksha Abhiyan has been in operation since 2000-2001.

Major Issues and Challenges of the Education Sector:

India is renowned for having excellent schools. However, the Indian educational system is accused for failing to give students the necessary employability in connection to the demands of the industrial sector. As a result, the Indian education sector is currently dealing with a number of issues that demand rapid attention.

1) Teacher-Student Ratio: 11.16 lakh teaching posts remain unfilled in schools, according to the UNESCO’s State of the Education report for India 2021. It demonstrates unequivocally that there is a teacher shortage in public schools. In addition, teachers have heavy non-academic workloads, which causes them to lose focus on what they are actually teaching the kids. A research by the National Institute of Education Planning and Administration (NIEPA) found that instructors spend only about 19% of their time on teaching and the rest on administrative tasks that are unrelated to instruction.

Apart from it, when it comes to the Government sector, the Government teachers enjoy a lifetime guarantee of job security irrespective of their performance which results in no accountability from their side.

2) Allotment of Funds: Funds are provided to the schools by the Central Government to the State Government. Every National Education Policy since 1968 has said that India needs to spend 6% of its gross domestic product (GDP) on education. The 2019-20 Economic Survey showed that in 2019-20, 52 years since that recommendation, India spent only 3.1% of its GDP on education. This is the data collected from a website. In addition, many corrupt mediators are there in between who keep the money aside for themselves and only a small portion of the entire fund is provided to the schools. This hampers the functioning of the schools in a great way. The requirements of the schools like libraries, labs, and other infrastructural facilities cannot be managed appropriately by the schools due to the lack of availability of money. 

3) Expensive Higher Education: According to a survey by Assocham, there has been a 169% rise in inflation in primary and secondary education from 2005 to 2011. Specialized institutions and colleges are expensive in India. Higher education for some courses is beyond the reach of the common man. For example, IIM charges Rs. 2 lakh per semester for MBA classes. Privatization of advanced education into the hands of greedy entrepreneurs resulted in high drop rates in the field of unaffordable higher education.

4) Lack of Infrastructure: Lack of infrastructural facilities like poor hygiene, lack of toilets, drinking water facilities, electricity, playground, etc. is one of the major loopholes of the education sector. A survey was conducted in 2010 whereby approximately 95.2% of schools are not still under the complete set of RTE infrastructure indicators. According to the 2016 Annual Survey of Education Report, only 68.7%schools had useable toilet facilities and around 3.5% of schools in India had no toilet facilities. 

5) High-Dropout Rates: In the primary and secondary levels, dropout rates are very high. Students between the age group of 6- 14 years leave the school before completion of their education. According to the ASER report 2012, enrollment in the 6-14 years of age is over 96% in rural India but dropout rates are very high. Various factors responsible for dropout rates are as follows- poverty, lack of toilets, long distance to school, child marriages, patriarchal mindset, and cultural factors.

6) Neglect of Regional Languages: In 2017-18, 14% of students who were enrolled in private schools in India’s rural areas and 19.3% in urban areas selected a private school with the English language as the medium of instruction. English is the main medium of language in education. Standardized publications in Indian languages are also not available. As a result, students who are from rural backgrounds, Government schools, and those who are not well versed in the English language face a lot of problems in gaining knowledge and understanding the concepts.  

7) Old Curriculum of Study and Lack of Practical Knowledge: The old Indian educational system was mostly focused on bookish learning, but with the usage of the internet and experiential learning techniques, much has changed. The usage of the abacus and Vedic mathematics has given mathematics new dimensions. There were now more opportunities for learning and intriguing study techniques.

Similar to this, the traditional educational curricula mostly concentrated on cramming up the theories and notions. The kids are not being exposed to any practical work. Instead of emphasizing practical application and applicability of the principles, parents and educators also concentrate on assisting the pupils in achieving excellent grades in the subjects. Education has consequently turned into a contest. However, since the National Policy on Education 2020 was announced, things have altered. India now has three educational policies. The first one happened in 1968, the second one in 1986, and the third one is in 2020. The fundamental goal of the National Policy on Education from 1986 was to give underprivileged people equitable chances in the educational system. The National Policy on Education 2020, however, is more comprehensive in scope. It attempts to give students employability through skill-based learning. The New Educational Policy 2020 addresses every flaw in the earlier educational policies.

8) The Problem of Brain Drain: Students who don’t receive opportunities or merited positions in their home country often go to seek jobs elsewhere. It is referred to as brain drain. We lose talented individuals as a result who may have aided in the growth of the education industry or must have contributed to the advancement of our nation. Over half of the class 10th and 12th top scorers were said to have relocated and were either studying or working abroad, primarily in the US, between 1996 and 2015. The National Skill Development Mission, one of the government’s initiatives in this area, seeks to teach some 400 million people in India by 2022, but it won’t be enough to reverse the trend.

Solutions to Challenges: A way forward

  1. More importance should be given to the primary and secondary education of a child.
  2. Our marking system needs to be changed by the creativity of the students. It should not be based on cramming.
  3. Indian Government should spend more on building the infrastructure of schools and teachers’ training.
  4. Appropriate measures need to be taken up by the Government for providing quality education that is affordable for all. Like under National Education Policy 2022, the students are free to choose the language according to their own interests. In the education expenditure, from the year 1952 to 2014, the total GDP percentage increased from 0.64 to 4.13.

Note:

The educational system needs to be improved immediately. One out of every three rural children is not even capable of learning, according the ASER 2020 research. The government must take strong measures to ensure that teachers are properly trained and that the issues affecting primary and secondary education in India are resolved. The emphasis should be on learning rather than cramming. Education should be learner-centric rather than mark-centric because it is a nation’s lifeline.

UNILATERAL OPTION CLAUSES

A unilateral option clause (UOC) is a dispute resolution provision that allows only one party to choose between a certain dispute resolution procedure, typically between litigation and arbitration. Some UOCs also restrict the opposite party to a specific jurisdiction while permitting one party to pursue litigation across numerous jurisdictions. The following is an illustration of a UOC in a sales agreement:

Section 10 Dispute Resolution

a) The courts in XYZ country shall have exclusive jurisdiction over any dispute arising out of this contract, subject to BUYER’s right to elect arbitration in clause (b).

b) The BUYER has the right to refer any dispute arising out of this contract to arbitration under the BIMACC Institutional Arbitration Rules, which rules are deemed to be incorporated by reference into this clause.
…

Any party may sue under such a multi-tiered clause, but only the buyer (one of the parties) has the right to request arbitration. Starting off, there appears to be a fundamental imbalance between the two parties’ positions on UOCs. It appears to be patently unfair to limit one party’s ability to choose from a variety of dispute resolution forums while allowing only one party to do so. However, these UOCs are becoming more and more common in different commercial settings.

These UOCs are typically seen in financing and lending agreements, where the lender frequently has the choice to file a lawsuit in several jurisdictions but the borrower may only have a limited number of options. This is due to the fact that the lender assumes a sizable risk in these transactions and needs to be able to seek legal action in a country where it may recover its debt. However, UOCs are now often used in agreements between different commercial companies. The side with greater bargaining power may seek the adaptability of a UOC because the suitability of a certain conflict resolution process relies on the specifics of a given case.

Due to the widespread acceptance of the New York Convention, arbitration may be advantageous because an arbitral award is enforceable in a lot more nations than a court judgment would be. In circumstances where the matter cannot be arbitrated or if the party prefers a public hearing, it may be referred to litigation in public courts. In cases where the party would prefer confidential proceedings to protect their goods, they may choose arbitration.

Potential issues with UOCs
The inherent unbalancedness of UOCs has prompted many people to challenge the legality of such clauses for a number of different reasons. There appear to be several answers to this issue in different parts of the world. Such clauses have been upheld as legitimate in nations including the UK, Singapore, Hong Kong, and Spain, but have been invalidated in France, Russia, and Bulgaria. Decisions on the validity of UOCs frequently involve striking a balance between party sovereignty and the requirements of the arbitral process. The following discussion addresses several prevalent objections to the legitimacy of UOCs.
Equality: The need that all parties be treated equally and given an equal chance to submit their case to the Tribunal is the most important concept of arbitration. The success of a challenge alleging that a UOC violated the equality standard hinges on how broadly the arbitration agreement’s law applies to the equality principle.A UOC appears to be unbalanced because it primarily serves the interests of one party and requires the other party to follow the first party’s preference for the dispute resolution forum.

Such sections are said to be in violation of the fundamental principles of equality and the right to an effective defence, according to a common argument. The UNCITRAL Model Law and the Arbitration and Conciliation Act both include the equality principle, although it only applies to the procedures in a procedural sense. Checking if one side has a stronger potential to influence the case’s result is one of the criteria for identifying a breach of equality.


A typical UOC would permit one party to decide the venue but would grant equal rights to the parties once the arbitral process had started, including the ability for them to select an equal number of arbitrators, present their arguments in writing and orally, and present evidence. In other words, the start of the proceedings effectively corrects any imbalance, and neither party gains an unfair procedural advantage over the other. The venue chosen cannot by itself affect the outcome of the case. As a result, a UOC would not go against the UNCITRAL Model Law or the Indian Arbitration Act’s definition of equality.


Unconscionability: Arbitration clauses are ultimately contractual clauses and therefore, must satisfy all the conditions for a valid contractual term. Some courts have considered UOCs to be unconscionable if the party with the restricted choice is compelled to agree to manifestly unfair terms, due to its weaker bargaining position. For such a claim to succeed, the UOC needs to satisfy two elements – Procedural unconscionability, wherein the process of reaching the agreement was riddled with oppression due to unequal bargaining power; and substantive unconscionability, wherein the contractual terms agreed upon are manifestly unfair and one-sided.

Unlike equality, a claim of unconscionability depends on the facts of the individual case. Courts across the world have generally rejected claims of unconscionability between commercial entities. This is because these entities engage in extensive contractual negotiations, which reduces the chances of establishing procedural unconscionability. Further, their agreements may include a number of imbalanced clauses, favouring either party. Invaliding contractual clauses merely because of their one-sided nature would result in invalidating a large number of clauses, which may favour one party over the other. However, in cases of consumer and employment contracts, UOCs may be found to be unconscionable if they are included as standard terms in a contract or if they prevent the other party from seeking any legal recourse altogether. Thus, claims of unconscionability of a UOC depend on the nature of the contract and the parties.

Lack of mutuality: Invalidating UOCs for lack of mutuality stems from the common law doctrine of mutuality, which states that ‘either both must be bound, or neither is bound’. In these cases, the challenge is based on the fact that the weaker party does not receive any consideration for agreeing to a UOC. Such a narrow view arises if the UOC is viewed standalone from the rest of the contract. However, Courts have looked at the contract as a whole to come to the conclusion that contractual provisions need not give parties the exact same positions. It would seem illogical to require this because the basis of a contract is that value is given to both parties. If the law required that every contractual term be exactly symmetrical, no exchanges between parties would take place. This ground has been rejected in a majority of the jurisdictions for invalidating UOCs.

Public Policy: The public policy concerns with respect to UOCs are twofold – that of the law of the arbitration agreement and that of the jurisdiction of enforcement. Public policy grounds are intrinsic to the country and can be wide-ranging. While some countries might have domestic laws that do not permit UOCs, some countries might refuse to enforce awards arising out of such clauses. In India, an arbitral award may be set aside if it is in conflict with the public policy of India. At the stage of enforcement of an award, the court shall not review the merits of the dispute and shall only set aside an award if it shocks the conscience of the court.

Indian position on Unilateral Option Clauses
The discussion of UOCs in India is polarizing and rife with legal misconceptions. The Delhi and Madras High Courts have issued the only important judgments. However, a review of the relevant cases and legal framework reveals that Indian law should support the legality of UOCs.
The Delhi High Court, in Bhatia Cutler Hammer v AVN Tubes, 1995 (33) DRJ 672 invalidated a UOC stating that a party could have an exclusive right to initiate arbitration as the Arbitration and Conciliation Act, 1996 envisaged a mutual arbitration agreement with opportunity for bilateral invocation. However, the Madras High Court relied on section 7 of the Act to state that the law did not require arbitration clauses to necessarily have mutuality and upheld the UOC in Castrol India Ltd. v. Apex Tooling Solutions. (2015) 1 LW 961 (DB). Section 7 of the Arbitration Act lists out the requirements for a valid arbitration clause. It requires an ‘agreement by the parties’, meaning that the parties should have consented to it, and not mutuality of invocation or consideration. This is in line with the Madras High Court’s reasoning. However, it is observed that the insistence of the Delhi High Court on mutuality of consideration stems from Section 25 of the Indian Contract Act, which invalidates contracts lacking consideration.  However, this issue is resolved when an arbitration agreement is viewed in the context of the whole contract, where substantive concessions and benefits may be given to the other party in exchange for the UOC. However, in the absence of a clear authority on this point, uncertainty continues to exist in this regard.

In another case, Emmsons International Ltd. v. Metal Distributors2005 (80) DRJ 256. the Delhi High Court invalidated a UOC as it restrained one party’s recourse to legal proceedings and contravened section 28 of the Contract Act. It also stated that the UOC was against public policy in India.  However, post the 2015 Amendment of the Arbitration Act, the scope of public policy has been drastically narrowed. Thus, it is doubtful if UOCs would be invalidated on such grounds anymore. Concerning the argument on Section 28 of the Contract Act, it states that agreements restraining legal proceedings are invalid. However, this provision is attracted only when there is an absolute restraint on legal proceedings and not a partial one. In cases of UOCs, the option of a party to approach arbitration does not undermine the other party’s right to approach the default forum for dispute settlement. Thus, in light of these provisions and legislative changes, Indian law seems to favour the validity of UOCs. However, caution must be exercised in the absence of an authoritative word in this regard.

Practical Steps while Dealing with Unilateral Option Clauses


Although UOCs are finding widespread acceptance internationally, there are potential legal pitfalls associated with them. Therefore, careful consideration should be paid to their inclusion and drafting. Some practical considerations to be mindful of are:

  • Always seek specialist advice about unilateral dispute resolution options, including their validity in various jurisdictions such as the law governing the arbitration agreement, the law of the seat of the arbitration and the law of the jurisdiction of enforcement of award;
  • Assess the benefits of the UOC and whether that outweighs the costs and risks associated with the option;
  • Draft the UOC precisely and clearly, and draft the arbitration and litigation aspect of the UOC as separate clauses to ensure that each of them can operate on their own, in case they are severed;
  • In case the UOC fails, make sure that the default position is acceptable and adequate;
  • The beneficiary of an option to arbitrate should avoid taking any substantive step in court proceedings before exercising the option to limit the risk of the clause becoming unenforceable. Similarly, the beneficiary of an option to litigate should avoid taking any substantive step in arbitration before exercising its option;
  • The UOC should only restrict the initiation of proceedings to one party, but should not confer any procedural advantages on one party over the other;
  • The UOC should not absolutely restrict any party from legal recourse.

National Commission For Women

Gender equality is supported by the Indian Constitution. The Fundamental Rights, the Directive Principles of State Policy, and the Preamble all work toward the same objective. Gender equality has also been encouraged by Articles 15(3), 21, and 14 of the Indian Constitution, but women continue to confront many problems linked to their rights in our society, and the government has understood that these provisions are insufficient to improve their position.

However, despite numerous attempts to better the status of women, decisions in cases like Bodhisattwa Gautam versus Subhra Chakraborty and Vishakha versus the State of Rajasthan failed to elevate their place in society. As a result, it was suggested that an apex organization be established to enhance the general conditions of women. Finally, in January 1992, the National Commission for Women Act, 1990 (Act no. 20 of 1990 of the Government of India) set up the National Commission for Women in order to evaluate the legal and Constitutional provisions for women; endorse remedial legislative provisions; aid redressal of grievances and recommend the Government on all policy matters related to women. The commission took into account all the needs of the women including steps against their exploitation and protection of their rights thereby upgrading their position in society. The first Commission was chaired by Jayanti Patnaik.

Composition of the National Commission for Women

  1. A Chairperson to be appointed by the Union Government.
  2. Five members are to be appointed by the Union Government from among those persons who have experience in the field of administration, health, economic development, education, legislation, etc. Given that minimum of one member, each shall be from the Scheduled Castes and Scheduled Tribes respectively.
  3. A member Secretary to be appointed by the Union Government who shall be:
    • A specialist in the areas of sociological movement, institutional structure, administration or
    • An officer who holds a civil post under the Union with relevant experience or who is a member of a Union Civil service or an All India service.

Each appointed member holds the office for a time period of 5 years or till he attains the age of 70 years. The Commission also has the power to set up committees with members from outside the Commission.

Role of National Commission for Women

The National Commission for Women has been constantly organizing programs to break gender stereotypes in society.

1. Complaints and Counselling: The complaints received can be in the form of oral, written, or Suo-Moto and are related to cruelty by husband, sexual harassment at workplace, gender discrimination, rape, domestic violence, dowry, etc. During 1999, the Commission received 4329 complaints regarding crimes against women. The following strategies are used in order to deal with the above-mentioned problems.

  • a) Investigations are taken up by the police personnel which is monitored.
  • b) Counselling is used to resolve or compromise family disputes.
  • c) In case of serious crimes, an inquiry committee is set up which makes inquiries, examines various witnesses, gathers evidence, and submit the report with recommendations.

2) Crime against women: The Commission in coordination with State Commissions is increasingly working towards dealing with crime against women.

3) Gender sensitization of police officials: In order to bring behavior and attitudinal changes, the Commission signed an MoU with the Bureau of Police Research and Development. It aims at bringing gender sensitization of police personnel.  
 

4) WhatsApp Helpline Number: Ms. Rekha Sharma was nominated as the chairperson of the National Commission for Women by the Central Government on August 7, 2018. The Commission under Ms. Rekha Sharma launched a WhatsApp helpline number to assist pregnant women with medical emergencies. The helpline gathered huge support from the doctor and the general public as well. It is due to her efforts that women’s issues are being addressed round the clock.

5) Economic empowerment of women: To make women independent and self-reliant, the National Commission for Women launched a management course to support the digital learning of women entrepreneurs. For the online training programme, the National Commission for Women has joined hands with the Indian Institute of Management, Bangalore, and India SME forum.

6) Global Digital Literacy Programme: In order to provide digital literacy which aims to provide training to 1.50 lakh women across States including Gujarat, UP, Assam, Bihar, Kerala, etc., the third phase of “We Think Digital” was launched by National Commission for Women. In its 2nd phase, over 1,05,000 women have been sensitized.

7) Legal amendments: Till now the Commission has proposed around 16 amendments including the Indian Penal Code, 1860, the Hindu Marriage Act, 1955, the Dowry Prohibition Act, 1961, and the National Commission for Women Act, 1990.

8) Abusive NRI marriages: The Commission had conducted a National seminar with support from Punjab School of Law and National Women’s Centre, Punjabi University, Patiala to create awareness regarding the legal remedies which are available for Indian women trapped in abusive NRI marriages.

9) North-East cell: North East cell is constituted in the Commission to deal with the issues related to the North-Eastern women all over the country. The North-Eastern region includes the following states- Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, and Tripura.

10) Legal intervention: Parivarik Mahila Lok Adalat (PMLA) is created by National Commission for Women for the speedy disposal of cases. PMLA has its roots in the traditional Nyaya Panchayats.

11) Intervention in court cases: The Commission has also intervened in numerous cases in order to protect the rights of women. The Bhateri gang rape Maimon Baskari Nuh  case, the Maimon Baskari Nuh case, Fakhruddin Mubarak Shaikh vs Jaitunbi Mubarak Shaikh case, the Imrana and Marine drive rape cases are a few examples of such intervention.

12) New bills proposed: Around 7 bills have been proposed by the Commission related to the trafficking of women and children. Examples of other bills proposed include The Protection of Women from Domestic Violence Bill in 2005, The Marriage Bill, 1994, and the Criminal Laws (Amendment) Ordinance, 1996.

National Commission on Women issues

In spite of all the successes and efforts of the Commission, it still has a lot of drawbacks that act as a hindrance in the working of the Commission.  

  1. Jurisdiction: There is political unrest and violation of human rights in the region of Jammu and Kashmir. Therefore,  Commission’s presence is vital in the State of Jammu and Kashmir. But its jurisdiction is not operative there which is one of the major drawbacks of the Commission.
  2. Dependent on grants: The independence of the Commission is under compromise as it is dependent on the grants provided by the Union Government.
  3. Selection of the members: The members of the Commission are appointed by the Union Government and the Commission does not possess the powers to select its own members. This makes the Commission prone to politicization.
  4. Legislative powers: The powers to suggest amendments and submit reports are not binding on the Union Government or the State.

Conclusion:

Most of the obligations listed in the National Commission for Women’s mandate might be fulfilled. It has made significant improvements to the position and situation of women in India through its many public hearing programs, law amendments, complaint, counseling cell, investigations, reports, and women-centered programmes. The National Commission for Women’s growing involvement in problems pertaining to women demonstrates its active participation and expanded position in this area.

Philosophy of the Indian Constitution

The Indian Constitution is a rigid and written document. It was approved by the constituent assembly on November 26, 1949, and it became law on January 26, 1950. There were 22 parts, 8 schedules, and 395 Articles in it at that time. Later, 4 schedules were amended, bringing the total to 12 schedules at this time.

Philosophy of the Constitution:

The Constitution provides a framework of governance. It lays down the basic governing set of principles or essential rules of governance to establish the basic organs and structure, functions, composition, and powers of government.

The philosophical thought behind it was that for being a strong and independent country there must be a constitution that helps to frame the interrelationship between various organs and regulate their relations with people. In the form of certain rights, the relationship between the government and the people was generally given on the basis of fundamental political, economic, and religious views of the nation.

Philosophy of Constitution through Preamble:

The preamble is a brief introduction to the Constitution and it gives summarised knowledge of the legislative intent and policy. A preamble is a brief form of ideas and beliefs which the constitution wants to achieve. It states the marginal contents of the constitution that are in our constitution. 

The preamble of the constitution is the core of the constitution which contains words that the constitution-makers want to achieve like ‘we the people of India‘ means ‘by the people, for the people, and to the people.

1. Sovereign:

Sovereignty is one of the essential requirements of statehood. It is indicative of the fact that India is not subject to any foreign power from an internal or external perspective and the state is free to legislate on any subject in conformity with the constitution.

The Preamble uses the words ‘we the people of India’; the idea behind this is that a constitution is a creation of all the people and not a group of individuals or some older law. The Preamble emanated from the constituent assembly which represented the Indian people though it was not an elected mass. So we can say that sovereignty lies with the people of India and not the Parliament. Nor even is the constitution sovereign; it is the main expression of the people’s Sovereignty.

2. Socialist:

Socialist word was not there when the constitution was made but later by the 42nd amendment, it was added to our constitution and the basic meaning of socialist is socialism which the constitution provides to safe and secure the Indian citizens from social endangerment.

The supreme court in the Delhi science forum vs Union of India held that the Constitution does not lay down any economic policies and Indian socialism is different from Marxist socialism. Socialism will continue to have a different meaning until a necessity arises to delete it. Most significantly the validity of socialism in the Preamble has not been challenged yet.

3. Secularism:

Being secular means the state is neutral in any matters related to religion and it means the constitution does not promote or deprive any religion. It was also added in the 42nd amendment. Unlike the West, Indian secularism is not the result of a conflict between church and state; very often in our common language, the term secularism is used simply as the opposite of communitarianism.

Secular is a vague term to be defined. The dictionary defines it as ‘not concerned with religion‘ and it implies religious freedom and tolerance and respect for ideas of nationalism, materialism, Humanism, etc. 

The definition of secularism has two aspects one is negative expect which is a state not to interfere in any religion and the other is a positive aspect which is the state to take necessary steps for ensuring equality of religions thus, helping minority religions would not be unconstitutional.

4. Democratic:

It indicates that the source of the power of the government is in its people. It is the Government of the people for the people and by the people. In Indira Nehru Gandhi VS Raj Narain, it was held that democracy is a basic feature of the Indian Constitution and free and fair elections are also impliedly a basic feature. Democracy is the People’s power and State’s power vest in the people which means democracy makes the people supreme.

5. Republic:

It means that the head of the nation is an elected representative. Republic is a government that derives its powers directly or indirectly from the great body of the people and is administered by people who hold office for pleasure, for a limited time, or for good conduct. Even India’s membership of the Commonwealth of nations does not detract it from its Republican character; that is an external arrangement and the queen has not been recognized as the head of the country.

The Constitution also includes the Rights of the People in the Preamble:

1. Justice:

Justice means the harmonization of interests between individuals and society. Justice has been given precedence over other concepts of Liberty, equality, and fraternity in the Preamble. Justice has three facets- (a)Social justice (b) Economic justice (c ) Political justice.

  • Social justice has been given precedence over economic and political justice whereas economical justice precedes political justice in the Preamble. Social justice implies equal treatment of citizens regardless of their social status. Articles 14, 15, and 38 express this aim in particular.
  • Economic justice is the binding gap between the rich and poor. Article 39 of DPSP is the charter of economic justice; in fact, all the provisions of DPSP (article 36-51) carry forward the goals of economic and Social Justice.
  • Political justice implies the equal participation of all in the political process. Articles 325 and 326 provide for equal rights to all citizens(adults) to participate in elections and to vote in elections.

2. Liberty:

In the western concept, liberty was largely a negative concept. It meant an absence of interference in individual action by the government. But in the Indian Constitution Liberty is a positive concept. These have been drafted as fundamental rights. Liberty would mean freedom to do what one likes but it also means Liberty has to be regulated in the larger interest of the society; so the constitution by giving fundamental rights also contains regulatory provisions for them.

Liberty of thought, expression, belief, worship in the preamble is given under Articles 14 to 35 as fundamental rights.

3. Equality:

The preamble talks of equality of status and opportunity. It has got legal, social, political, and economic dimensions. The concept is drafted in articles 14 to 18.

4. Fraternity:

It means a feeling of brotherhood. The goal of the constitution is to subdued the division forces in India by fostering a feeling of brotherhood among the Indian despite their diversity. For assuring the fraternity the provisions are made like equality of treatment and other fundamental rights, single citizenship, Directive Principles of State Policy, Fundamental duties (duty to Foster fraternity).

The concept of fraternity goes beyond the concept of secularism which gives unity and solidarity to social life. An ancient Indian word “Vasudeva Kutumbakam” means the whole world is one family and Article 51 of the Directive Principles of State Policy (DPSP) elaborates on this principle.

As to ‘dignity of individual‘ the prime objective of the concept of fraternity is to preserve and promote the dignity of the individual. Article 17 abolishes untouchability which is an affront to individual dignity. In case of infringement of fundamental rights, one can directly approach the supreme court and high court under article 32 or 226.

As to the unity and integrity of the nation, article 51-A makes it the duty of every citizen to hold and protect the sovereignty, unity, and integrity of the nation.

The Preamble represents the philosophy, ideals, or the soul of the entire constitution. Other parts of the constitution are the mere elaborations of the concepts envisaged in the Preamble. The constitution provides rights for the growth of the country and its citizens and it keeps the country united and secures the citizens of the country. It gives the spirit of brotherhood that everyone should understand that they are the children of the same motherland and they should stay with each other with a sense of compassion for others and cooperation. To maintain the rights and equality of citizens, the constitution provides fundamental rights and directive principles of state policy which set the regulations for the government.

Relationship Between Parliament and Judiciary

The three main organs of the Indian government are the Parliament, the Executive, and the Judiciary. The legislative branch of government is led by the Parliament, which is in charge of enacting legislation. The executive is in responsibility of enforcing legislation passed by the legislature, while the judiciary is in charge of conflict resolution and serves as the Constitution’s guardian.

The Indian Constitution envisages a delicate principle of limited separation of powers and checks and balances between the three primary organs. Each organ exercises a check on the arbitrary exercise of power by the other organ. This has often had an impact on the relationship between the organs, especially the relationship between the Legislature and the Judiciary which has been evolving over the years with their due share of conflict and compromise. The policy of checks and balances has often led to tension between the two organs with each of them insisting to prove their points while ultimately agreeing to strike a compromise. We will look into the details of the relationship between the two organs as we proceed.

The Constitutional Relationship between the Legislature and Judiciary

The legislature and the Judiciary have been guaranteed rights and privileges by the Constitution to ensure their independence.

1. Parliamentary powers and Responsibilities.

  • The Parliament enacts laws, oversees the functioning of the executive, and acts as the voice of the citizens of the country.
  • The Parliament is also empowered to make laws for the judiciary, it can determine the organization, jurisdiction, terms of service of the judges. A judge can also be removed by the Parliament on grounds of proven misbehavior and incapacity.
  • The members of the Parliament also enjoy immunity from judicial proceedings for anything they say or vote on the floor of the House.
  • Parliamentary procedures are beyond the scope of scrutiny of the judiciary.
  • No Member of Parliament or the presiding officer can be questioned by the judiciary for any steps taken by them to regulate the business of the House.

2. Judiciary’s Powers and Responsibilities.

  • The prime responsibility of the Judiciary is to settle disputes and deliver justice.
  • The Supreme Court is the guardian of the Indian Constitution, it has the authority to declare any law passed by the Legislature as null and void if it contravenes the provisions of the Constitution. This is the power of judicial review of the courts.
  • Another prime responsibility of the Supreme Court and High Court is to protect the citizens against the violation of Fundamental Rights by issuing writs. A law can be declared null and void if it violates fundamental rights. For example, Section 66A of the Information Technology Act 2000 was struck down as unconstitutional as it violated Article 19 (1)(a) of the Constitution that protects the freedom of speech and expression.
  • The judiciary can also declare a law invalid if the subject matter of the law is beyond the jurisdiction of the Parliament. (Example, if any central law is formulated regarding public health and sanitation, it can be declared as invalid by the courts as this is a subject of state list.)
  • The Judiciary has also been guaranteed judicial independence by the Constitution, to render it free from any pressure exercised by the legislature and executive to enable it to try and decide cases without any bias. For example, the conduct of the Supreme Court and High Court judges cannot be discussed in Parliament unless it is for the removal of the judge. The conditions of service of the judges cannot be altered to their disadvantage during their time of service. A High Court judge can only be removed by the Parliament on grounds of proven misbehavior or incapacity. These conditions ensure that the judges can do their duties effectively without any interference.

Key aspects of the connection between Parliament and the Judiciary.

  • Limitations on Parliament’s powers to amend the Constitution: Initially the Parliament had the authority to amend every provision of the Constitution including the Fundamental Rights under Article 368 of the Constitution.

However, the Supreme Court through subsequent judgement in the Golak Nath vs State of Punjab case (1967) issued a verdict stating that the Parliament’s powers to amend the constitution are limited and Fundamental Rights cannot be taken away or abridged. This led to the development of a controversy between the Parliament and the Judiciary regarding the abolition of the Right to Property. During the periods 1967 and 1973, this controversy became very serious. This controversy between the two however was resolved by the verdict of the Kesavananda Bharati case where the Court ruled that the Parliament can amend the Constitution barring the ‘basic structure’, which stands beyond the power of amendment. The Court also ruled that the Right to property is not a part of the basic structure hence it can be amended by the Parliament. It also stated that it is the discretion of the judiciary to decide whether a particular matter falls in the category of the basic structure or not.  

This limitation on the amendment power of the legislature posed by the Judiciary defines the relationship of conflict and compromise between the two bodies.

  • Law-making power of the Judiciary: Law-making is a function of the Legislature, but even the Judiciary has time and again played a role in the framing of laws by issuing guidelines and directives under Article 32 and 142. In the Vishaka vs State of Rajasthan case, the Supreme Court gave guidelines on how sexual conduct at the workplace could be addressed. In 2016 the Supreme Court also imposed a cess on the registration of diesel vehicles in Delhi.
  • Supervision over Executive by Parliament and Judiciary: The Parliament supervises and acts as a check against the arbitrary actions undertaken by the executive through the various motions at its disposal. The policies implemented by the executive are also analyzed by the Parliament to determine their intent towards the welfare of the citizens. The Judiciary also oversees the actions of the executive while deciding on the constitutionality and legality of executive actions. The Supreme Court can also give directions to executive agencies to initiate investigation against corrupt politicians and bureaucrats, for instance, the Hawala Case, the Narasimha Rao case, etc.
  • Judicial Review over Parliamentary Privileges and Proceedings: The members of the Parliament cannot be held liable for any action undertaken by them on the floor of the House in order to maintain the principle of separation of powers. However, in several decisions, the courts have asserted their power to exercise judicial review over parliamentary proceedings and privileges. For instance, according to the Supreme Court when a speaker disqualifies a member of the Parliament for defection, that can be subject to judicial review as the Speaker is exercising a judicial function.

Conclusion:

The legislative and the courts have a delicately balanced relationship.Over the years, they have had a dynamic relationship of struggle and subsequent compromise, and both organs endeavor to advance the interests of the residents of the country. They are the protector and the voice of the nation, yet their fights have strengthened democracy and given a new interpretation to India’s constitution.