APPROACH TO INDIAN POLITY -

SYLLABUS, SCHEMES & SOURCES

Syllabus
The Highlighted parts of the given syllabus will be covered in the Lectures.
• Preliminary Examination 0 00:02:06
o Paper l
► Current events of national and international importance.
► History of India and Indian National Movement.
► Indian and World Geography-Physical, Social, Economic Geography of India and the World.
► Indian Polity and Governance-Constitution, Political System, Panchayati Raj, Public Policy,
Rights Issues, etc.
► Economic and Social Development - Sustainable Development, Poverty, Inclusion,
Demographics, Social Sector Initiatives, etc.
► General issues on Environmental ecology, Bio-diversity and Climate Change - that do not require
subject specialization.
► General Science.

• Mains Examination 0 00:04:53

o General Studies-I:
► Indian culture will cover the salient aspects of Art Forms, literature and Architecture from ancient
to modern times.
► Modern Indian history from about the middle of the eighteenth century until the present­
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w significant events, personalities, issues.
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► History of the world will include events from 18th century such as industrial revolution, world
:I: wars, redrawal of national boundaries, colonization, decolonization, political philosophies like
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vi communism, capitalism, socialism etc.-their forms and effect on the society.
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ID ► Salient features of Indian Society, Diversity of India.
► Role of women and women's organization, population and associated issues, poverty and
developmental issues, urbanization, their problems and their remedies.
► Effects of globalization on Indian society.
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0 ► Social empowerment, communalism, regionalism & secularism.
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z ► Salient features of world's physical geography.
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► Distribution of key natural resources across the world (including South Asia and the Indian
subcontinent); factors responsible for the location of primary, secondary, and tertiary sector
g industries in various parts of the world (including India).
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► Important Geophysical phenomena such as earthquakes, Tsunami, Volcanic activity, cyclone
0:: etc., geographical features and their location-changes in critical geographical features (including
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a.. water-bodies and ice-caps) and in flora and fauna and the effects of such changes.
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o General Studies- II:
► Indian Constitution-historical underpinnings, evolution, features, amendments, significant
provisions and basic structure.
► Functions and responsibilities of the Union and the States, issues and challenges pertaining to
the federal structure, devolution of powers and finances up to local levels and challenges therein.
► Separation of powers between various organs dispute redressal mechanisms and institutions.
► Comparison of the Indian constitutional scheme with that of other countries.
► Parliament and State legislatures-structure, functioning, conduct of business, powers &
privileges and issues arising out of these.
► Structure, organization and functioning of the Executive and the Judiciary-Ministries and
Departments of the Government; pressure groups and formal/informal associations and their
role in the Polity.
► Salient features of the Representation of People's Act.
► Appointment to various Constitutional posts, powers, functions and responsibilities of various
Constitutional Bodies.
► Statutory, regulatory and various quasi-judicial bodies.
► Government policies and interventions for development in various sectors and issues arising out
of their design and implementation.
► Development processes and the development industry -the role of NGOs, SHGs, various
groups and associations, donors, charities, institutional and other stakeholders.
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► Welfare schemes for vulnerable sections of the population by the Centre and States and the w
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performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the 0::
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protection and betterment of these vulnerable sections. l/)
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► Issues relating to development and management of Social Sector/Services relating to Health, l/)
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Education, Human Resources. w
► Issues relating to poverty and hunger. :::r:
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► Important aspects of governance, transparency and accountability, e-governance applications, ui'
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models, successes, limitations, and potential; citizens charters, transparency & accountability ID
and institutional and other measures.
► Role of civil services in a democracy. I
► India and its neighborhood- relations.
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► Bilateral, regional and global groupings and agreements involving India and/or affecting India's 0
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► Effect of policies and politics of developed and developing countries on India's interests, Indian 2S
diaspora. �
► Important International institutions, agencies and fora- their structure, mandate. �
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 o General Studies-Ill:
► Indian Economy and issues relating to planning, mobilization, of resources, growth,
development and employment.
► Inclusive growth and issues arising from it.
► Government Budgeting.
► Major crops-cropping patterns in various parts of the country, - different types of irrigation and
irrigation systems storage, transport and marketing of agricultural produce and issues and
related constraints; e-technology in the aid of farmers.
► Issues related to direct and indirect farm subsidies and minimum support prices; Public
Distribution System- objectives, functioning, limitations, revamping; issues of buffer stocks and
food security; Technology missions; economics of animal-rearing.
► Food processing and related industries in India- scope' and significance, location, upstream and
downstream requirements, supply chain management.
► Land reforms in India.
► Effects of liberalization on the economy, changes in industrial policy and their effects on
industrial growth.
► Infrastructure: Energy, Ports, Roads, Airports, Railways etc.
► Investment models.
► Science and Technology- developments and their applications and effects in everyday life.
► Achievements of Indians in science & technology; indigenization of technology and developing
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w new technology.
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(/) issues relating to intellectual property rights.
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(/) ► Conservation, environmental pollution and degradation, environmental impact assessment.
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► Disaster and disaster management.
:I: ► Linkages between development and spread of extremism.
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vi ► Role of external state and non-state actors in creating challenges to internal security.
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ID ► Challenges to internal security through communication networks, role of media and social
networking sites in internal security challenges, basics of cyber security; money-laundering and
its prevention.
► Security challenges and their management in border areas - linkages of organized crime with
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o General Studies- IV:

g ► Ethics and Human Interface: Essence, determinants and consequences of Ethics in human
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actions; dimensions of ethics; ethics - in private and public relationships. Human Values -lessons
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 ► Attitude: content, structure, function; its influence and relation with thought and behaviour;
moral and political attitudes; social influence and persuasion.
► Aptitude and foundational values for Civil Service, integrity, impartiality and non-partisanship,
objectivity, dedication to public service, empathy, tolerance and compassion towards the
weaker-sections.
► Emotional intelligence-concepts, and their utilities and application in administration and
governance.
► Contributions of moral thinkers and philosophers from India and world.
► Public/Civil service values and Ethics in Public administration: Status and problems; ethical
concerns and dilemmas in government and private institutions; laws, rules, regulations and
conscience as sources of ethical guidance; accountability and ethical governance; strengthening
of ethical and moral values in governance; ethical issues in international relations and funding;
corporate governance.
► Probity in Governance: Concept of public service; Philosophical basis of governance and
probity; Information sharing and transparency in government, Right to Information, Codes of
Ethics, Codes of Conduct, Citizen's Charters, Work culture, Quality of service delivery,
Utilization of public funds, challenges of corruption.
► Case Studies on above issues.

The GS - 2 Paper Syllabus can be divided into 3 parts

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• Governance and Polity w
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• International Relations 0::
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• Social Justice l/)
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Reason for scoring less mark by the students in GS- 2 Paper
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• The type of questions has changed from factual to analytical in the last 7-8 years, but still the students :::r:
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devote more energy in preparing the factual part. uf
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• Flawed reading of the syllabus: Along with general understanding of the whole constitution ID
specialized focus should be given to the topics explicitly mentioned in the Syllabus.
• Most students are not able to interpret the questions correctly. Understanding the demand of the I
question means half the battle has been won.
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• Lack of sufficient answer writing practice is another major issue. There is a need for writing practice to 0
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Reference Books and Newspapers 0 01:00:21 �
• NCERT Books of Political Science-Class XI and XII. �
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• The Constitution of India by P. M. Bakshi.
• One Newspaper-Indian Express/The Hindu. 0::
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• Debates on Youtube-The Wire, The Print, Sansad TV (Important for International Relations). <(
 • Yojana Magazine.
• For lR
o Pax lndica by Shashi Tharoor,
o Rajiv Sikri Book on India's Foreign Policy.

Coverage of Topics in Polity/Constitution � 01:10:39

• Basics of Constitution - Meaning, Significance, Framing of Constitution and Interpretation of the
Constitution.
• Constitutionalism- Includes Separation of Power, Rule of Law etc.
• Basic Features of the Constitution.
• Schedules of the Constitution- Important schedules are Schedule Ill, V, V I and V II.
• Territory of India (Article 1 to 4) - Part I of Constitution.
• Citizenship- Part II of Constitution and Citizenship Act, 1955.
• Fundamental Rights-Part Ill of the Constitution.
• Directive Principle of State Policy- Part IV of the Constitution.
• Union Executive:
o President
o Prime Minister
o Council of Ministers
o Cabinet Committees
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w o Cabinet Secretariat, PMO and Central Secretariat.
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o Governor
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vi o Council of Ministers
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ID • State Legislature.
• Local Self Government.
• Judiciary.
• Quasi-Judicial Bodies.
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0 • Election:
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z o RPA, 1950 and RPA, 1951.
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o Electoral Reforms.
• Civil Services:
g o UPSC
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o Citizens Charter
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o Challenge of Corruption
a.. o Civil Service reforms
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• Centre-State Relations.
• Inter-State Relations.
• Comparison of Indian Constitution with the Constitution of other Countries.
• Miscellaneous Topics:
o Jammu and Kashmir and Article 370
o Language Provisions
o Emergency Provisions
o Administration of Union Territories
o Cooperative Societies-Part IX B
o Rights and Liability of the State etc.

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 El NTRODUCTION TO CONSTITUTION
ITS MEANING AND SIGNIFICANCE
What is a Constitution: 0 00:00:21
• A simplistic answer would seem like that it is a body of laws. But not all laws are found in the
constitution. Right to Information Act, Consumer Disputes Act, National Human Rights Act, etc. are
laws that are found outside the constitution.
• So how is the law that is framed by the State Legislature and the Parliament different from the laws found
in the Constitution, if the constitution is a body of laws? Such laws outside the constitution are termed as
Statutory Laws, while the ones contained in the constitution are termed as Constitutional Laws.
• The constitutional laws while being part of the constitution are a part of the fundamental laws and
hence it is more difficult to change/amend/remove them as compared to Statutory Laws.
• The Union Parliament is a creation of the constitution and hence cannot legislate laws that violate the
principal laws of the constitution itself. Hence we can deduce that the law mentioned in the
constitution is something like a Supreme Law.
• Thus the legislative powers of the Parliament to make laws cannot violate the Supreme Law that deals with
the fundamentals of the existence of the society and this Supreme Law is termed as the Constitution.
• So constitution can be termed as a fundamental law or a fundamental set of principles according to
which a politically organized society (usually a nation-state) is to be governed.
w • Hence the constitution can also be succinctly described as 'The Law of the Laws'.
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first task that they got involved in was to frame a constitution according to which the nation will be run.
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Constitutional Law vs. Statutory Law:
C • The constitution is a set of fundamental laws. Due to its fundamental character/nature, it enjoys a
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z • This can be seen in the procedure required to change the provisions of these laws. The more the
z importance of the law or provision, the more it is difficult to amend it.
• The constitutional law while being part of the constitution is a part of the fundamental laws and hence
it is more difficult to change/amend/remove them as compared to Statutory Laws.
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Constitutional Law:
• It is usually termed as the entire body of laws.
• Although there is nothing wrong with the definition, it is slightly a wider term because Constitutional
Law goes beyond what is mentioned in the constitution.
• It includes whatever is there in the constitution, the subsequent amendments, the interpretations
of the SC in the various cases before the court, and the conventions that have evolved over time,
even though convention hasn't been codified, it still has the force of law.
• For e.g. The fact that a leader of a majority party is invited for the formation of the government is not
codified in the constitution but it is still followed due to it being a convention. In case of the Governor,
The Sarkaria Commission suggested appointing a person from another state than the state he is being
appointed to. This is a convention that is usually followed now.

Significance of the Constitution: 0 00:22:05

• The first act after the birth of a nation is framing a constitution as it sets up a common set of norms or a
common normative home through which diverse elements of society interact harmoniously with each other.
• What a birth certificate is to a child, the constitution is to the nation.
• It gives a basic structure of our polity or system of governance. w
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• It also details the patterns of relationship between legislature, executive, and judiciary. z
• The constitution also details the relationship between the State (Legislature, Executive, and
Judiciary) and its constituent citizens. E.g. State cannot deny a citizen certain fundamental rights z
• It also details the ideals and aspirations of the people as visible throughout the constitution, C,
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• The Constitution also acts as a mirror to the society and it highlights the faults within our society <(
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and tries to address them, for if these faults were not addressed, they would be tantamount to the z
perpetuation of injustice. For e.g. language, caste discrimination, injustice against women and z
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• The Constitution gives legitimacy to the State and its actions, for e.g. taxation.
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• In a democratic nation, the government cannot be absolutist and hence there are legally enforceable
limitations on the government to prevent absolutism. Hence constitution is the only place where
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Constitutionalism: 0 01:01:40 z
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• It is a complex set of ideas that is based on the principle that the powers of the government are not u
absolute and are limited by a body of laws or a supreme law called the constitution. Thus, the �
government has to subscribe to the body of laws for its legitimacy depends on it.
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• Components: i=
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o Rule of Law: Although many people have contributed to the principle of Rule of Law, principally 0
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Dicey's contribution has been more seminal. Rule of Law has many components, but basically, it a::
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 ► Supremacy of law: The country will be ruled not according to the whims and fancies of the ruler
but in terms of the principles of law and the ruler is also subjected to the law. The Supreme
Court has also said 'You may ever be so high, but the law is above you, the law is the king of
kings'. Even the Upanishads express similar sentiments namely mentioning the Dharma of the
king. (Lex is Rex). The natural corollary of this postulate will be that the rule of the country has to
be in accordance with law and hence cannot be arbitrary. Thus the arbitrary exercise of power is
prohibited too.
► Equality before Law: Dicey said that all sections of society are equally subject to law of the land
as administered through ordinary courts. Though in modern practice, steps related to affirmative
action or positive discrimination violate the strict application of this principle but are in tune with
modern times. (substantive equality vs procedural equality).
o Equality of Law administered through ordinary courts: But today we have many forums that have
adjudicatory functions other than the ordinary courts as said by Dicey. An example is quasi-judicial
forums like CAT, ITAT, tribunals, etc.
► There are certain exceptions to legal equality in the Indian Constitution-while president and
governor are in office, no criminal proceedings can be started against them as per Article 361
w and no civil dispute can be undertaken unless two months' notice. (Violation of formal equality).
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z ► A.G Noorani termed this criminal exemption to be a mindless borrowing from the West based
on the British practice, where the courts cannot prosecute the ruler.
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both the president and the courts are the creation of the constitution, and hence similar
C provisions are vague.
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z prosecution can be appointed as governors. Noorani also says that hypothetically if the
z provision is not there, and no consequent criminal immunity was present and such a provision
was enabled through a constitutional amendment, such a move would not get the approval of
the public or the courts today.
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z0 ► A similar exception is the concept of diplomatic immunity, which violates formal equality. In the
provision of Section 499 of IPC, contempt of courts is present, but any legislator while
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 II SEPARATION OF POWERS

• Constitutionalism stands for a complex of ideas that is based on the principle that the power of the
government should be limited and there should not be any absolutist government. Hence
constitutionalism abhors absolutism.
• To make the government limited in its powers, various tools can be used, one of the tools being Dicey's
concept of Rule of Law, and one being the separation of powers. It refers that whatever institutions
constitute the state; the power of the government shouldn't be concentrated in one institution but
should be divided between them. These powers of the government have been traditionally classified
as legislative, executive, and judicial/adjudicatory powers.
• In medieval times, kings and rulers used to have these powers vested in them which led to absolutism.
While many have been associated with postulating this concept, Montesquieu's name has been
indelibly associated with the concept.

Functions of State or Functional Separation:

• LawMaking
• Law Execution
• Law Adjudication
Governance of the country will be carried out through consensus between the three and hence a natural
corollary from this functional separation, arises the concept of checks and balances.

Benefits of Separation of Powers: 0 00:09:45

• It preserves democracy and the rights of the people.
• It promotes healthy division of labor, specialization, and the efficiency of functions.
• It facilitates healthy debate and constructive friction between the three organs which leads to better
decisions, and hence the result of deliberation leads to better outcomes.

Exceptions to Separation of Powers: 0 00:15:20

Even in the US, which is considered the traditional home of the rigid separation of powers, there is dilution. It
is now known that perfect separation of powers is not possible in a modern state and is not followed
anywhere in the world.

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• Westminster System:
0:: o In a parliamentary system of government the separation between the legislature and executive is
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never complete. In the executive, there is a large body of civil servants termed as permanent
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c.. bureaucracy. Above this bureaucracy at the apex in the executive is the Council of Ministers
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o Thus as aMember of Parliament, he is part of both the legislature and executive as a minister in the
Council ofMinisters.
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 o This arrangement is derived from the British Westminster form of government. While in the US, a
person can either be part of the presidential cabinet or be a member of Congress. The biggest
qualification to become a minister in India is a disqualification in the US. Thus there is more rigid
separation in the USA compared to India.
• Delegated Legislation:
o In most parts of the world, the law is passed in a broad skeletal form and the detailed law is framed
by the bureaucracy that belongs to the executive.
o The responsibility to frame the rules, regulations, and bye-laws which become part of the detailed
law are delegated to the executive, and thus such legislation is termed delegated legislation.
o This is a violation of the separation of powers wherein the task of law-making is delegated to the
executive which acts as a subordinate legislature.
• Administrative Adjudication:
o The responsibility of adjudication in a government is traditionally a function of the judiciary.
o Administrative adjudication refers to when the executive carries out such functions.
o An example is an adjudication being carried out by the district administration belonging to the
executive-revenue courts, other being the tribunals like CAT, ITAT who also undertake adjudication.
The technical matters related to adjudication are better handled this way.
• Judge made Laws:
o On occasions where the law is silent or ambiguous, the court clarifies it and it serves the
interpretation. This is the judge performing his law-making function.
o Similarly, when laws are absent or there is a legal vacuum pertaining to issues, the court gives
guidelines that function as laws, for e.g. Vishakha guidelines.
• Ordinance:
o When there is an emergency in making a law, and if the parliament is not in session, the executive
passes laws termed as ordinances, which function as regular laws passed by the parliament.
• Regulatory Bodies:
o The emergence of regulatory bodies around the world has happened due to the complex nature of
the economy today. These bodies have all three functions namely law making, law implementation,
and adjudication vested in them.
o They make rules, regulate the sector, and penalize players who do not follow regulations. Examples
of Regulatory Bodies are SEBI, IRDAI, etc. (/)
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identify local needs of the community, decide the money where to be spent and implement ll..
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thus a legislator is exercising the functions of the executive while administering MP LAD.
• Article 372:
o Under Article 372, the laws that were present before the enactment of the constitution can be w
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 aligned with the present constitution and such power was vested in the President for the first three
years.
o The President being part of the executive performed legislative functions while exercising such
powers.
• Vacancy in Office:
o The Chief Justice of India becomes acting president if there is a vacancy in the office of President
and Vice President, but no such scope in the US, even in the UK till recently, the judiciary was part of
the House of Lords.

Rigidity of Separation of Powers: 0 01:04:53

Following strict separation of powers is not maintainable because:
• Specialization in Administration:
o Due to specialization in governance, the traditional organs of government to deal with governance
are not capable enough of handling these functions.
• Speed and Efficiency:
o Lack of strict separation of powers brings speed and efficiency to the government.
o For example, if all the cases pending before the tribunals are handled by the judiciary, the judiciary
will be overwhelmed and cannot perform its primary functions.
• Public Interest:
o Power is not a property and is a means to end. The legislative, executive, and adjudicatory powers
are not the property of the institutions that principally exercise them.
o Power is a means to an end to performing public interest, and if on occasion, if that end can be
better served by vesting power in an institution that is not supposed to principally exercise it, so
be it. The ultimate aim is to serve the people and carry out their welfare.
o Hence such a departure is required and rigid separation of powers is not maintainable.

Checks and Balances: 0 01:07:36

• The system of separation of power's natural corollary is the system of checks and balances. Indian
system does not follow the strict and rigid separation of powers as in the USA, but a system of
checks and balances, even though the term is borrowed from the USA itself.
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• In the system of checks and balances, the functions of the government are divided between the
0:: branches of the government and each acts as a check on the other from abusing the powers.
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• Check on Judiciary:
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0 keep a check on the judiciary, because while on paper the executive needs to appoint the judges to
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0 keep a check on the judiciary but the appointment in the Indian context has been completely
monopolized by the judiciary through its system of the collegium, even though the constitution
mentions that it is the duty of the executive in the appointment of the members of the judiciary.
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 o Whereas in the USA the executive appoints the Judges of the Supreme Court. Thus one way to
ensure that men of integrity and competent judges are appointed is the executive makes the
appointments.
o In India, in order to protect the tenure of the judges, the power to remove the judges is with the
Parliament, with a special majority needed to remove them.
o The process is so difficult that till date, not a single judge of both the high court and the Supreme
Court has been removed through the impeachment process.
o Thus the check on Judiciary by the executive is through the appointment and by the legislature is
through the impeachment process.
• Check on executive and legislature by judiciary:
o If the legislature makes a law, which is unconstitutional, the judiciary can strike it down. If the
executive takes an action that is illegal and unconstitutional, the judiciary can take it down, thus the
judiciary serves as a check on both.
o Hence, the power of the judiciary to determine the legality, constitutionality, etc. is termed Judicial
Review.
• Check on executive by legislature:
o The executive often wants laws to be in place but the laws cannot be passed until enacted by the
legislature, thus the legislature serves as a check on the executive.
o The legislature also questions the executive through the question hour, resolutions and in extreme
cases, even a no-confidence motion against the executive can be passed by the legislature thus
removing the executive out of power.
• Check on judiciary by the executive:
o The executive also has the power to revise the nature of punishment that has been given by the
judiciary. If the three-tier judicial system has given a sentence, then there is a power with the
executive to revise the decisions of the judiciary.
o It has been given to revise any decision prone to human error, undue harsh punishments, etc.
o Thus president's clemency power ensures a system of checks and balance here.
• Thus this system of checks and balances ensures that each branch of the government checks the other
and whenever there is something done by the government, there is as much consensus as possible.

Separation of Powers in India vs. USA vs. UK: (/)

• In India, if there is a vacancy in the office of the president and the vice president is also not available,
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• Such a provision is not available in the USA, thus the USA has a more rigid separation of power than
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India.
• In comparison to the USA, the UK has a loose separation of powers. India follows a middle path
between the two. w
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 • An example displaying the UK's Separation of Powers is the example where the Highest Court of Land
was a part of the Parliament before, namely the House of Lords, though it has been rectified now.

Need for more checks on the executive:

• Among the three institutions, due to historical interplay of factors, more power gets vested into the
executive.
• If the independence of the judiciary is compromised and if the opposition is fragmented, then we have
a situation where executive rule goes unchecked.
• Since the executive has come to exercise greater power in the government, there is a need for a greater
check on the government through a proactive legislature through discussions and independent
judiciary, so that the executive doesn't trample on the rights of the citizens.
• But in contemporary times both the legislature and judiciary have been less effective in exercising their
checks.
• There has been less discussion on bills on the parliament. Even though the separation of powers is
existent on paper, it has been eroded in substantive sense and may be destroyed.
• There is also a unique separation of powers internally within the executive too; institutions like eAG,
Eel, UPSe, eve, while being independent are still formally considered a part of the executive. Thus
there is not an unbridled exercise of power by the executive and such independent institutions restrict
the political executive but are formally a part of the executive.

Features of eonstitutionalism: 0 01:34:41

• Rule of Law
• Separation of Powers
• Grant of basic civil liberties
• The temporariness of the government through periodic free and fair elections
• lndependentJudiciary
• A free media

(/)
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 CONSTITUTIONALISM AND FRAMING
OF THE CONSTITUTION
Features of Constitutionalism
• Rule of law
• Separation of Power
• Rights of People
• Democracy
• Free media
• lndependentJudiciary

Negative and Positive Constitutionalism 0 00:00:37

• Negative Constitutionalism (preventing tyranny):
o The idea that the state can be a danger or a source of oppression to the citizens had gained ground
in the late medieval and early modern age.
o Consequently, the idea of negative constitutionalism developed largely among Western thinkers in
an effort to prevent tyranny by limiting the powers of the government in the wake of oppression by
the ruling class.
• Positive Constitutionalism:
o An obsession /zeal for limiting the powers of the government may lead to a situation where the state
is hindered from performing its basic or fundamental functions e.g. public order, resulting in
anarchy and thus it needs to be empowered.
z o Positive constitutionalism says that government must have certain powers to perform its functions
0
j:: properly, thus trying to balance the government's powers to prevent tyranny (due to excessive
....
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power and its abuse) and anarchy. (due to inadequate power)

z Factors Affecting Constitutionalism 0 00: 1 2:03

0
u • These principles have been assimilated in Indian Constitution to varying degrees.
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• It is important to know that the mere codification of these principles in the constitution is not a
0 sufficient condition for the presence of constitutionalism in the country.
C, • These principles have to be implemented and be observable to the citizens in daily life to conclude the
z
� presence of constitutionalism. In fact in the case of United Kingdom, the presence of an unwritten
u. constitution doesn't prevent the country to not have constitutionalism.
C • Thus we can conclude that the mere presence or absence of the codification of these principles does
z
< not guarantee the presence or absence of constitutionalism in a society.
� • The realization of the principles of constitution depends on the following factors:
(/)
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<z o Political Culture:
0 ► The institutions most responsible for nurturing and strengthening the tradition of democracy are
j:: Political Parties. But in India, political parties are dens of undemocratic culture with many parties
....
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even functioning as family fiefdoms, presence of high command culture, less scope for dissent,
j::
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z nomination of criminals ,vindictive politics after coming to power etc.
0
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 ► Thus the political culture is poisoned and the key institution which is supposed to preserve
constitutionalism, actually mars it.
o Administrative culture:
► The administrative machinery can ensure that constitutionalism is preserved in the country if
they view themselves as the servants of the people/citizens. Under British colonial rule, the role
of civil services was to preserve the British Empire and therefore oppression was carried out by
the civil servants.
► This resulted in a colonial mindset where the natives where seen as savages, who had to be
reformed by the British, also termed as White Man's burden.
► Post-Independence, the same administrative machinery had to transform its mentality from the
mindset of being masters to being servants of the people. But this elitist/colonial mindset still
persists among the administrative machinery, albeit to a lesser degree.
► Such a bureaucracy cannot preserve constitutionalism in India due to persistent corruption,
nepotism, non-transparency etc.
o Social value system:
► In India there is a high degree of tolerance regarding acceptance of unethical issues.
► Thus not only the political and administrative culture in India hampers constitutionalism, but also
the prevalent social value system. A recent example of this being the lack of outrage in the public
for police encounters killings.
z
0
Interpreting the Constitution: 0 00:29:00 j::
:::)
Our constitution has to be applied correctly and hence even though it is a voluminous document; it has to be f­
interpreted in a right manner. The tools that have aided in the interpretation of the constitution are: j::
(/)

• Article 366, 367 and 12:

z
0
u
o There are tools in the constitution itself to interpret the constitution. Article 366 of the constitution w
J:
contains definitions for many terms that are used in the constitution. An example being the f­
LL
provisions where scheduled castes, tribes, Anglo-Indians etc. are defined. 0
o Similarly, the Article 12 defines State as used under many provisions in the constitution. In 1897, (!)
z
Britishers enacted a law namely the General Clauses Act which consisted of a list of legal terms �
defined under the Act. LL
o This act has been mentioned under Article 367 to aid in the interpretation of the constitution C
•
z
English words: <(
o The Supreme Court has given us a number of tools for the interpretation of the constitution. �
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Actually, the court has ruled that the meaning of the English words used in the constitution would :::i
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refer to commonly used meanings unless the context demands otherwise z
0
• Preamble: j::
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o The provisions of the constitution are an amplification of the philosophy of the constitution, which f­
j::
has been succinctly summarized in the Preamble. (/)
z
0
u
 o In cases regarding multiple interpretation of the constitutional provisions, that particular
interpretation is deemed correct that fits best the philosophy contained in the Preamble.
• Progressive Interpretation:
o Since the norms in a society do not remain static over time and are prone to change, the courts have
deemed it wise to interpret provisions as the norms of the society.
o The constitution must be so interpreted that it allows it to adapt and adjust to the emergent socio­
economic, political conditions. For example, Article 2 1 (Right to Life) provides that the State cannot
take away a person's life except for procedure prescribed by law. The initial interpretation of the
term 'life' denoted raw /physical existence and did not mean the qualitative aspects associated with
life. Hence a life filled with hunger, poverty, illiteracy, poor sanitation etc. didn't come under the
protection provided under Article 2 1.
o But as the socio-economic conditions improved, a mere animal existence as a definition for life
wasn't satisfactory and hence the apex court adopted an expansive definition for 'life' as
interpreted in Article 2 1. This has led to many rights having found shelter under Article 2 1 which
had led to their growth and nourishment.
• Purposive Interpretation:
o This method of interpretation relies on the purpose or intent with which the provision was included
in the constitution. This intent is usually readily available in the compilations of the voluminous
Constituent Assembly debates.
z o The apex court has ruled that the interpretation of a provision should not be done purely in isolation,
0
j:: but interpretation should be in light of the entire constitution which is an ecosystem itself. The apex
....
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court ruled that all parts of Constitution must be read together.
• Harmonious Construction:
z o If there is a situation where one provision is actually in conflict with the other, the apex court has
0
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w ruled that such an interpretation should be made so as to reconcile the articles and give them
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maximum effect as possible. This is termed as harmonious construction.
0 • Liberal Interpretation:
C, o The interpretation of provisions of articles particularly those concerning liberty and security of
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� citizens in favor of them is termed liberal interpretation. Under such interpretation rights like
u.
privacy, media, information etc. have been grouped under the Right to Freedom of Speech and
C Expression under Article 19( 1)(a).
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< • Conventions:
� o They are a tool used by the judiciary to interpret the constitution. So some conventions if not all,
(/)
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<z followed under the parliamentary system in England is used by the courts as a tool to interpret the
0 constitution.
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Framing the Constitution: 0 01:07:30
j::
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z • How must we be governed?
0 • Who shall decide or settle this?
u
• Constitutional Autochthony:
o It means a desire among the people to have a homegrown constitution rooted in the native culture,
political, socio-economic environment of the country.
o The British decided upon the framework through which India was to be governed as evidenced
through Indian Councils Act (186 1, 1892, 1909), Gol Act 1919, 1935. It was not until 1929, when
the Purna Swaraj resolution was passed in the Lahore Session, the view changed regarding who
would frame the constitution for Indians. The view until then was a constitution framed by the
British in consultation with Indians.
o Post 1929, INC started demanding constitutional autochthony and hence an indigenously elected
constituent assembly. This demand was accepted in Cabinet Mission Plan of 1946.
• Out of the 389 members of the constituent assembly, 296 were from British provinces who were indirectly
elected and 93 from the princely states through nomination who had accepted British paramountcy.
• The representation was done so that each assembly member represented around one million people.
After partition this assembly of 389 members got fractured into 299 members with 229 from British
provinces and 70 from the princely states. The assembly met for the first time on December 9, 1946
with leaders like Nehru, Patel, Rajendra Prasad, Maulana Azad dominating the proceedings.
• The provisional President was Dr. Sachchidananda Sinha owing to his seniority until Dr. Rajendra
Prasad was formally elected. The vice presidency was bagged by H.C. Mukerjee and V.T.
Krishnamachari, while Sir B. N. Rau was appointed advisor to Constituent Assembly. S. N. Mukerjee
was the chief draftsman of the constitution who put into words all the contradictions and reconciled z
0
them into a text. j::
• Five stages: 0 01:29:09
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f­
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o 1 Stage - Committee Stage: (/)

► Various committees were formed under the chairmanship of prominent individuals to form views
z
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and prepare reports regarding the constitution that was to be framed. w
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o 2" Stage:
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► The various reports prepared by the committee were compiled by Sir BN Rau into the first draft of 0
the constitution. (!)
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o 3 Stage: �
► To prepare a detailed draft of the constitution a drafting committee, chaired by Dr. BR Ambedkar. LL
The members included N Gopalaswamy Ayyangar, AK Aiyar, KM Munshi, Syed Mohammed C
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Saadullah, Madhav Rao joined later replacing BL Mitter due to his ill health, T.T. Krishnamachari <(
replaced DP Khaitan due to his death. �
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► The draft was published on Feb, 1948 to invite opinions from members of civil society and z
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individuals. This was the stage when the draft was put to rigorous debate, multiple j::
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2473 amendments. u
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o 5 5tage:
► This stage concerns the enactment of constitution. The date mentioned in the Preamble for the
th th
enactment of constitution is 26 November, 1949. But the constitution came into force on 26
January, 1950.
th
► The date of 26 Jan carried sentimental value due to its association with Purna swaraj
resolution.
► Hence those provisions of constitution which needed to be enacted immediately were enacted
th
on 26 November as mentioned in the Preamble, while the bulk of the constitution was enacted
on 26 h January, 1950 as mentioned in Article 394 concerning the commencement of the
t

constitution.

Note: The constitution was calligraphed beautifully by Prem Bihari Narain Raizada, while the artists who
decorated the constitution with beautiful motifs were from Santiniketan headed by Nandlal Bose.

Functions of the Constituent Assembly: 0 01:45:51

• Framing the Constitution.
• The Constituent Assembly doubled up as a legislature functioning as a provisional parliament to
frame laws. When the same Constituent Assembly functioned as a legislature, it was presided by GV
Mavlankar and not Dr. Rajendra Prasad. The CA used to sit as a legislature in the morning session
z presided over by GV Mavlankar and came back as a Constituent Assembly to frame the constitution in
0
j:: the afternoon presided over by Rajendra Prasad.
....
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• It adopted the National Anthem, flag and national song.
• The constituent assembly also elected Rajendra Prasad as President of India from 1950-52 until the
z general elections were held for the union and states.
0
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After 26 h Nov, 1946 when the constitution was enacted and the constituent assembly's task ended, it
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still continued as a provisional parliament till general elections in 1952 .
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C, Note: The constitutional assembly was not a sovereign body from the date of its formation viz. Dec 9, 1946
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 Ir.II CRITI Q U E O F CO N STITU E NT ASS E M B LY
11:.1 AN D TH E CO N STITUTI O N
The Constituent Assembly was criticized on for the following:
• It was unrepresentative:
o It was not elected by the people and hence didn't represent their views; it was indirectly elected
while there were nominations from the princely states.
o This criticism can be debunked as follows:
► The congress party and Nehru had the opinion that the constituent assembly while being
created, wanted it to be elected by the people of India. But in those days, the preparation for
elections would take a long time and eventually the consequent transfer of power from British
to Indian would be delayed. Hence they decided to undertake indirect elections for the same.
► Even though the constitution was framed by the Constituent Assembly, it was open for
th
introspection to the public after the 4 Stage of the framing process from all stakeholders to
make the framing process as broad based as possible.
► The Constituent Assembly was composed of many prominent members who would have been
elected nevertheless even if they were directly elected. Moreover, in the 1952 elections, the
legislature had a similar makeup and hence acted as a referendum, since congress which was
the major party in Constituent Assembly, also won the later election.
► Each section's voice and opinion was represented in the constitution, and hence even if there
was no physical representation in Constituent Assembly, their opinions were discussed and
z represented.
0
i== ► The constitution represented the will of many and not the needs of the few.
::,
1- • Congress dominated the CA:
5;z o Congress consisted of communists, socialists, secularists, Hindu nationalists, Gandhians,
0 capitalists etc. and hence did not have a coherent ideology and hence was a broad organization.
u
w Thus accusation of congress ideology in the Constituent Assembly seems unwarranted.
::r:
l- • Congress was Hindu Dominated:
o
z o Since the majority of the population was Hindu, it was natural to expect them in the majority, but
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� this majoritarianism is not reflected in the constitution.
Ill o Even the Hindu nationalists of that era, criticized the constitution.
�
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(/) The constitution was unindian and borrowed constitution:
<
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o Some alleged that it was a slavish imitation of the West, carbon copy of Gol Act, 1935.
1-
z
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o The britishers gave governance frameworks in 186 1, 1892, 1909, 1919 and finally 1935. Large
::, parts of our constitution are borrowed from the 1935 act.
1-
5;z o But all these articles were debated and discussed in the Constituent assembly before being
adopted, thus only the structure was adopted, while the soul was debated in the assembly.
0
u o This can be debunked:
LL
0 ► Our constitution is based on the idea of secular democracy. Since we were framing our
w
::, constitution around the idea of secular democracy, it is unimaginable that the basic precepts of
C­
i== the constitution would be different than what are found in similar constitutions around the
ii: world.
u
 ► Since our constitution was also prepared late after many similar constitutions were already
framed, it would be foolish to not look into other constitutions and not have the same
fundamentals, even though the details may be varied.
► Additionally, ideas like these are not a copyright of any country,
► Moreover, there was intelligent adaptation and not blind copying, example being Bill of Rights
in the USA vs. Part Ill in our constitution.
► Granville Austin said that calling the constitution unindian was absurd, because what
constitutes lndianness is not defined. While the constitution in its structure may seem to be a
culmination of British legislations, but the soul is different.
• Too complicated and verbose language:
o The Constituent Assembly was teeming with legal experts and hence reflects similar language.
o But in the end the constitution is a legal document, hence some legal jargon can be expected. Ivor
Jennings termed the constitution as lawyer's paradise.
• It is a highly voluminous document:
o It is a bulky constitution as compared to other constitutions.
o It can be justified as:
► When the constitution building exercise tries to bring under one fold the entire accumulated
experience of the working of so many constitutions from whom we have intelligently
adapted, it is natural that it would turn up to be bulky. z
0
► Our constitution also deals with details of the administration apart from the fundamentals, for j::
:::,
e.g. accounts, audit, public service, election, languages etc. 1-
j::
► India has a single constitution for the whole country; the US constitution is small because the z
(/)

states have their own constitution too. 0

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► The diversity of the country is large and hence incorporating and handling that diversity in the w
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constitution will also contribute to the bulkiness, e.g. special provisions for states, minorities,
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backward classes, etc. z
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► Additionally, Centre-states relations are dealt in detail. �
► In addition all the articles are dealt in detail so that minimal ambiguity regarding the provision III
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is left, in order to avoid litigation too w
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► Moreover, the 1935 Gal Act was bulky, hence the consequent incorporation from the act also <
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1-
contributed to the bulkiness. z
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• Ungandhian constitution: :::,
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o There is allegation that, not much reflection of his ideology is seen in the constitution. j::
z
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o When it came to national struggle, the congress strategy was totally Gandhian, but when it came to
0
post independence economy and polity, the congress was ungandhian.eg Mahatma Gandhi's u
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cottage industry vs. Nehru's industrialization. 0
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o His concept of oceanic circles of power meant that power should radiate from village to the centre :::,
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and not the reverse, but these were not added in constitution and added in DPSP in article 40 and j::
hence non-justiciable. ii:
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 o Ambedkar considered villages as dens of darkness, reeking of casteism, patriarchy, feudalism etc.
and hence any democratic representation at the local level will represent only local elites.
o But they were added later in 73rd and 74th Constitution Amendment Acts.
• Lacks theoretical consistency:
o Since India has many contradictions, it is natural for the constitution to accommodate and reflect
these contradictions.
o It has provisions for modernity (liberty, equality, fraternity) and tradition (UCC, divorce, adoption
etc.)
o India is a blend of modernity and tradition and our constitution is just a mirror to that facet of society.
o It is the incoherence in society that gets reflected in the constitution.
• Hanna Lerner said that while dealing with explosive issues, the constituent assembly employed three
methods-deferral, ambiguity, non-justiciability.
o Deferral: case of national language status of Hindi, which is left for future generations to decide
o Ambiguity: states role in interference in the religion.
o Non-justiciability: cow slaughter, prohibition of liquor, Uniform Civil Code, etc.

Ambedkar's warnings:
• Ambedkar said that mass protests had a salience when we were being exploited by British rule, but did
z not hold such salience after independence.
0
i== • He exhorted to use constitutional methods to redress grievances and prevent grammar of anarchy.
::,
1- • He suggested that there should be no hero worship in politics and never to elevate leaders to the
5;z status of divine.
0 • Ambedkar upon the inauguration of constitution said that "We are entering an era of contradictions,
u
w in the political sphere we will be recognizing one man one vote and one value while sadly in socio­
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l- economic sphere, there is inequality. Hence this political democracy should be used to alleviate
o
z socioeconomic inequalities."
< • Constitutionalism and constitutional morality should be nurtured in generations to come.
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 m BAS I C FEATU RES O F TH E CO N STITUTI O N

• Bulky Constitution:
o The constitution earlier had 395 articles which have increased to 450. In the beginning we had 8
schedules which are now 12; initially parts were 22, now are 25, new parts dealing with IV-A
concerning Fundamental Duties, were added through 42 nd Amendment Act.
th th
o Part IX-A-Urban Local Bodies 7 4 Amendment Act and (IX-B added by 97 amendment dealing
with cooperatives), XIV-A dealing with Administrative Tribunals through 42 nd Amendment Act,
removed parts include part V II and part IX through 7th Amendment Act, 1956 and part IX was re­
added again through 73rd Amendment Act.
• Borrowed Constitution:
• Borrowed from various sources, maximum from the UK.
o UK
► Westminster form of government
► Parliamentary privilege
► Single citizenship
► Writs
► Rule of Law
► First past the post system
0 us
► FR inspired by Bill of rights and not completely borrowed
► Judicial Review
► Vice President
► Removal of SC and HC judges
► Impeachment of President
► lndependent judiciary
► Concept of due process of law
o Japan
z
0 ► Procedure established by Law
i==
::, o Canada
► Federal setup tilted towards Centre
z ► Residuary powers with Centre
0
u ► Appointment of governor by union
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V) ► DPSP
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0:: ► method of election of president
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► Nomination of members to Rajya Sabha eminent individuals
LL o South Africa
u ► Amendment procedure from the previous South African constitution
vi
<( ► Procedure for RS election from previous constitution
III
 o USSR
► Fundamental Duties
► Notion of political, social and economic justice
o France
► Liberty, equality, fraternity
► Republic
o Australia
► Concurrent list
► Joint sitting of two houses
► Freedom of trade and commerce throughout the country
o Germany
► Emergency provisions from Weimar Germany
• Written Constitution:
o We have a written constitution like the USA.
o The UK does not have a written constitution, but the unwritten constitution part of UK is
misinterpreted, as they depend more on conventions but the written part is scattered across
various sources and legal documents, it has not been consolidated in a one grand volume.
o Thus the unwritten part refers to non-consolidation rather the absence of any written norms. While
the presence of conventions provides flexibility in interpreting laws, but this can become an issue if
the interpretations start becoming loggerheads with each other.
o Unwritten constitutions do not have a single point of time where people came together to frame the
constitution and it has evolved with time.
o The difference between written and unwritten is not in kind but rather of degree. Since no
constitution can be completely exhaustive, there is scope for conventions in written constitutions
too. Thus unwritten constitutions acquire written nature over time, while written constitutions
acquire conventions over time. Thus this is difference in degree.
z
• Role of Conventions: 0
o US constitution only has 7 articles; conventions are not codified but carry the force of the law.
t=
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o Even though the convention is not codified, it carries the legitimacy backed by public opinion. t=
o Role of conventions in working of the constitution: z
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► It allows to constitution to adapt without going through the process of amendment; u
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► Courts use conventions to interpret and understand the constitution. I
f­
► Conventions provide flesh and blood to the dry bones of law. u..
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• Less rigid, more flexible: (/)
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o Our constitution is more flexible because many parts of the constitution can be altered with a simple 0::
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majority, examples being state reorganizations, abolition or creation of legislative councils in a
state, Schedule I, II, V, VI, Article 168 concerning LC, Article 100 concerning quorum, Article 124 u..
concerning number of judges, etc. u
vi
 o Provisions related to elections in the constitution need to be amended and cannot be modified by
simple majority as believed; the changes can be brought in RPA and not in the constitution though,
through a simple majority.
o Some articles of the constitution are incomplete and need a law to actualize it, examples being
citizenship act, Article 17 that outlaws untouchability. This is another evidence of flexibility, another
example being the total 105 amendments made to the constitution till date in a span of over 70
years. (The US constitution has had only 27 amendments till date in its history of over 250 years)
--------
Previous Year's Questions

Q. Did the Government of India Act. 1�'35 la!J down a federal Constitution ? Discuss. (20")

Previous Year's Questions

Q. 5. Discuss each adjective attached to the word 'Republic' in the 'Preamble'. Are the!J de+endable
in the present circumstances ? (2016)

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III
 AM EN D M ENT, SALI ENT FEATU RES AN D SCH E D U LES
OF TH E CO NSTITUTI O N (FI RST TO E I G HTH)

Amendment of Constitution 0 00:00:00

• There have been 105 amendments over 70 years in India and just 27 amendments over 200 years in
USA. Parliament amends constitution as the procedure listed in Article 368.
• In US, 2/3rd of the states can author a proposal to the US Congress to propose an amendment. Such
powers are not available to Indian states.
• Every amendment to the US constitution has to be ratified by ¾ of all the states

Basics of the amending process 0 00:03 : 2 5

• Power only with Union.
I­ • States have limited role.
I
C,
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• MP can introduce amendments.
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o The bills introduced by ministers are through the government and any bill from the private members
t;;
is termed private members bill. Private members include even the members of the ruling party who
c:: are not part of ruling executive.
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z • Some bills need sanction from the President before introduction e.g. state reorganization, money bill.
0 But no permission is required for a constitutional amendment bill under Article 368.
i==
::, • Bills for Constitution Amendment can be introduced in both houses.
I­
i== o There is no provision of joint sitting for Constitution Amendment and hence the Constitution
V)
z Amendment bill needs to be passed separately in each house.
0
u • The bill has to firstly passed by a majority of the total membership of the house, secondly 2/3 of
w
I members present and voting. Both these norms must be followed simultaneously irrespective of any
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LL vacancy.
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w By whom:
_,I Initiation: How to pass:
::, Either minister or p rivate
C O n ly by introduction in mem ber, no prior ➔ Each house by spec i a l
w e ither house perm ission of President majority, no j o i n t sitting
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c:: -----➔ M ust give his assent, Constitutional
::, To President for assent can not withhold or Amend ment Act
return

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• Rigidity of constitution is reflected if there is an amendment needed in a provision dealing with Centre­
z
w state relations; it has to be additionally approved by a resolution with a simple majority of the states.
This can be contrasted with the three-fourth requirement in US.
• The provisions that require approval by states include-election of the president, extent of the
�
z
w executive powers between union and states, provisions relating to SC/HC, distribution of legislative
� powers between union and states, any alteration in schedule VII, altering representation of states in
C
z
w parliament, and any provision in Article 279 A added in 20 16 concerning GST, and article 368 itself.
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< • There is no scope of presidential revision (24th Constitutional Amendment Act, 1971)
Basic Features of Constitution (continued from previous lecture) 0 00:27:38
• Bulky constitution
• Borrowed Constitution
• Less rigid and more flexible
• Balance in distribution of powers among three organs of executive, legislature and judiciary:
o UK is the home of parliamentary sovereignty where until 2009, the apex court was still part of the
House of the Lords. In theory, the apex court cannot strike down a law passed in the British
parliament.
o In addition to these factors, the fact that UK doesn't have a written constitution thus depriving the
apex court to have reference point to evaluate the suitability of laws is an additional factor. f­
I
o But in reality, any bill passed needs to be favored by public opinion, since in a democracy with �
w
popularly elected governments, unpopular legislations are rarely passed for fear of consequences. g
o In US, bills passed by congress can be struck down by SC for being ultra vires. Therefore US is the
home of judicial supremacy, while India can be termed as 'Via media' i.e. following a middle path. a::
iI
• Constitution provides for Political Justice: z
o It provides for equality before law, universal adult franchise, and right to contest. Our constitution 0
j::
also provides for substantive equality in terms of social justice and economic justice. ::,
f-
• Federal setup with a unitary bias.
• Westminster System followed with an elected Head of State. z
0
• Justiciable and non-justiciable rights: u
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o Part Ill contains justiciable rights and part IV concerning non justiciable rights are provided by our I
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Schedules to the constitution: 0 00:51:44 LL

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o It contains salaries and emoluments of important constitutional dignitaries. For example it mentions
the salary of the President as Rs. 10000/mensem where mensem refers to a month in Latin. But the
power to decide salaries, emoluments etc. of all these dignitaries mentioned is with the Parliament
which legislates laws regarding these. Till the parliament passes law regarding the emoluments,
the emoluments mentioned in Schedule II will be applicable. Thus this schedule has somewhat
become redundant due to the various laws that have been passed in this regard.
► Article 59(3)
► The President shall be entitled without payment of rent to the use of his official residences and
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of transparency owing to changed demands and relationship of the citizen with the government
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w caste, religion etc. should be avoided as it affects the integrity of the nation.
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that I will uphold the sovereignty and integrity of India."
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1- ► Even in the oath pertaining to oath of MPs where it directs the MPs to discharge their duty
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w properly, our parliamentarians have fallen short in upholding accountability of the government.
► The oath of the Chief Justice, CAG are the same:
• Form of oath or affirmation to be made by the Judges of the Supreme
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w • Court and the Comptroller and Auditor-General of India:-
� • " I, A. B., having been appointed Chief Justice (or a Judge) of the Supreme
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w • Court of India (or Comptroller and Auditor-General of India) do
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< • swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the
 • Constitution of India as by law established, that I will uphold the sovereignty and integrity of
India, that I will duly and faithfully and to the best of my ability, knowledge and judgment
perform the duties of my office without fear or favour, affection or ill-will and that I will uphold
the Constitution and the laws."
► The oath of minister for a state is separate from the minister of union. There is separate oaths for
the same for union and state positions
► The oaths of the President, Vice President, Governor is not present in Schedule Ill but mentioned
in specific articles of the constitution (Article 60 for president, Article 69 for Vice President and
Article 159 for governor)
f­
• Article 60: Oath or affirmation by the President I
• Every President and every person acting as President or discharging the functions of the �
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President shall, before entering upon his office, make and subscribe in the presence of the g
Chief Justice of India or, in his absence, the senior most Judge of the Supreme Court available,
an oath or affirmation in the following form, that is to say "swear in the name of God I, A B, do a::
iI
that I solemnly affirm will faithfully execute the office of President (or discharge the functions z
of the President) of India and will do the best of my ability preserve, protect and defend the 0
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Constitution and the law and that I will devote myself to the service and wellbeing of the ::,
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people of India"
• The oath of the president puts on him the duty to preserve, protect and defend the constitution z
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and the law and I will devote myself to the service and well-being of people of India. u
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► The position of Vice President as seen in table (warrant) of precedence is second to the I
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to be carried out as compared to the President. This is due to the fact that functions of a VP is l/l
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• Article 69: Oath or affirmation by the Vice President w
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• Every Vice President shall, before entering upon his office, make and subscribe before the u
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President, or some person appointed in that behalf by him, an oath or affirmation in the C
following form, that is to say "swear in the name of God I, A B, do that solemnly affirm will bear
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• Schedule IV:
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o It deals with the allocation of Rajya Sabha seats in States and Union territories. f­
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• Schedule V: �
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o The fifth schedule is attached to the Article 244(1) of the constitution. It deals with the provisions z
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pertaining to the administration and control of Scheduled Areas and Scheduled Tribes. �
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 • Schedule VI:
o Attached with Article 244 (2) and 275 ( 1). It contains provisions pertaining to the administration of
tribal areas in Assam, Meghalaya, Tripura and Mizoram.
o It deals with the sensitive areas of the North East.
• Schedule Vil:
o It is attached to Article 246 and it contains the legislative distribution between union and states.
o It has three lists namely union, state and concurrent list. The union list had initially 97 subjects
which has been enlarged to 100, the state list had 66 which has been reduced to 6 1 now, the
concurrent list contained 47 subjects that has increased to 52 now.
I­ o Five subjects have been subtracted from the state list and have been added to the concurrent list,
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placed in the Union List, while the concurrent list in which both the union and states can make
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organization of subordinate courts. The Punchhi commission had recommended that these
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namely- Bodo, Dogri, Konkani, Maithili, Nepali, Sanskrit, Sindhi, Urdu, Santhali.
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1- o Detractors of these schedule have mentioned that this schedule has been used as pacifying tool for
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w various linguistic demands to allay demands of linguistic based state demand- bodo, konkani etc.
o The criterion for inclusion in this schedule has been investigated by the Pahwa committee (1996)
and Mohapatra committee (2003) and associated issues like whether a language is a dialect of
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� o There have been nearly 38 instances of demands of languages to be included in this schedule like
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 and representation to the commission is based on the speakers of the language mentioned in the 8th
schedule) and Article 351 (casts a duty on the government to develop Hindi language). In an effort
to develop Hindi language, government can borrow from languages mentioned in 8th schedule and
primarily Sanskrit.
► Article 351: Directive for development of the Hindi language
► It shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that
it may serve as a medium of expression for all the elements of the composite culture of India and
to secure its enrichment by assimilating without interfering with its genius, the forms, style and
expressions used in Hindustani and in the other languages of India specified in the Eighth -
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Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on I
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Sanskrit and secondarily on other languages. w
o The classical language status has been conferred on some languages namely, Tamil (2004), g
Sanskrit (2005), Telugu and Kannada (2008), Malayalam (2013), Odia (2014). The criterion used tna::
by government has been:
► Language should be of high antiquity (1500-2000 years)
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► Original literary tradition which has not been borrowed from any other speech community 0
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► Two international awards concerning language, u
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► a center of excellence, I
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 m S C H E D U LES O F TH E CO N STITUTI O N (N I NTH ­
TENTH) AN D ANTI - D EFECTI O N LAW (PART- 1)

The original constitution only carried 8 schedules, while we have 12 schedules after subsequent additions as
seen below:
• Schedule IX- 1st Constitution Amendment Act, 1951
• Schedule X- 52 nd Constitution Amendment Act, 1985
• Schedule XI- 73rd Constitution Amendment Act, 1992
• Schedule XII- 74th Constitution Amendment Act, 1992

Schedule IX:
• Added by PM Nehru through first amendment act and will be dealt in detail in the Fundamental Rights
section.

� Schedule X:
[ • Schedule X was added before in a different form and removed before being replaced by provisions
relating to the Anti-defection.
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z • In the earlier version it contained provisions detailing the relationship of Sikkim as an associate state
0 with the Indian Union.
w • Sikkim was added as an associate state through the 35th CAA, 197 4 through insertion of Article 2A
LL and Schedule 10 which were subsequently repealed after it became a full-fledged state in 36th CAA,
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1975.
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z • The present schedule deals with anti-defection and is attached to Article 102 (2) and 191(2).lt was
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z • Anti-defection doesn't apply to general party workers but to those members who have been elected to
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the legislature based on the party's ticket. The schedule X in the constitution only deals with defection
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arising at two levels- Union and states; the panchayats and urban local bodies are excluded from it, and
'7 it is upon the state legislature to include the provision in the state local body legislation.
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1- • Why such a legislation was needed:
z
o Breach of trust: Resigning the party with which the candidate has been elected leads to breach of
z trust of the public, who may have voted for the candidate based on the party affiliation or the leader
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j::: of the party.
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I- o Instability: Mass defection from a party leads to instability of the government as it reduces the
party's majority in the legislature and in extreme cases, even the government can fall.
z o Political Corruption: Prevalence of money power in politics has led to the swinging of loyalties and
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w hence it amounts to political corruption.
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I­ o Political Parties: Parties deploy a lot of resources in terms of canvassing, money, manpower to get
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0 the candidate elected. Hence defection tantamounts to treating the party in a casual entity.
Vl o In the late 1960s, defection was becoming rampant and thus a committee under Y B Chavan was
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w party, he should be disqualified and fresh elections must be held but stopped short of
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u recommending disqualification as a result of defection.
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 o The first attempt at curbing the practice was in 1973 through the 32 nd Constitution Amendment Bill,
which did not pass.
o The second attempt was in 1979 through 48th Constitution Amendment Bill, which also didn't pass.
Eventually Anti-defection law came into being in Rajiv Gandhi's premiership through 52 nd
Constitution Amendment Act, 1985.
• Provisions of Tenth Schedule:
• Resignation from political party leads to seat being vacant.
o This provision was present in the original law that along with the defectors, if one third split, it would
be deemed a legal split. This has been done away with now.
• Defying a party whip if not condoned within 15 days.
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• Independent members:
o If they join a party (but they can support government from outside and even become ministers if the �
political executive decides as such) �
• Nominated member:
o If the person who is being nominated is already a member of the party, then if he defects, the Anti­ !
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Defection Law will apply to him too. 0
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o If a nominated member is not a member of a party, he has two options namely- u
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► (1) He can join a party within 6 months from the date of his nomination u.
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► (2) Post the six month limit if he joins a political party, Anti-Defection Law will come into play.
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• Exceptions: z
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o Speaker, deputy speaker of LS and legislative assembly, chairman and deputy chairman of Q
legislative assembly and deputy chairman of RS are exempted There is no such provision for Vice z
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President(Chairperson of Rajya Sabha) since he is not a member of the house, so his defection does I
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not arise. z
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o A speaker or deputy speaker is allowed to resign from the party but is not allowed to rejoin the I-;"
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political party during his tenure as speaker and once his/her tenure ends, he can rejoin only his 1-
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parent political party from which he resigned �
• After the 91 Constitution Amendment Act in 2003, some changes were made in the Anti-Defection
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Law and some changes in the constitution too were added to further cement the effectiveness of the it: �
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o The one-third split legal rule was repealed. I-
o A party with two-third majority resolution passed can merge with the other party, the members �
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who do not support the resolution will not be treated as defectors and can continue as a separate
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group. w
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o Changes in constitution: 1-
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► Any allurement concern arising from the prospect of becoming a minister was curbed by limiting 0
a cap on ministers in LS and assemblies - Article 75(1A}, Article 164(1A). Vl
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► Article 75(1B) states that any member who has defected cannot be appointed minister again by :::>
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the executive for the remaining term of his office unless he gets elected to the house again. w
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► Article 361-B: Any disqualified member shall also be disqualified to hold any remunerative u
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 political post commencing from the date of his disqualification till the date of elections of the house.
• Issues with Anti- Defection Law:
o Power to decide on the defection:
► If a case of defection happens, any member of the house can file a petition to the speaker to take
action under Anti-Defection Law (ADL) and if the speaker himself undergoes defection, the
petition is supposed to be filed with the secretary general of the house.
► And decision regarding ADL petition against speaker would be taken by such a person of the
house specifically elected for the purpose.
► Since usually the speaker holds the membership of a political party, any decision made by him
can be seen with doubtful lens regarding the fairness of the process. Since justice must not only
be done, but also needs to be seen to be done.
� ► Thus the apex court in Kihoto Hollohan case in 1992, said that there is no wrong in the case
[ being decided by the speaker, but there will be a provision for judicial review since the speaker
acts in a quasi-judicial capacity exercising judicial functions, and the highest judicial court is
� Supreme Court, hence judicial review can be done.
z
0 • The adjudication process may also lead to errors due to deficient legal acumen, skill, etc. In one
w recent observation the SC remarked that the role of speaker as adjudicator in defection cases
LL could be divested from him and handed over to body/tribunal consisting of retired judges.
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► Article 102 mentions the grounds of disqualification including the defection provision. These
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z disqualification provisions excluding the defection ones are decided over by the President of
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z legislature in Article 192.
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► Article 103: Decision on questions as to disqualifications of members
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► (1) If any question arises as to whether a member of either House of Parliament has become
'7 subject to any of the disqualifications mentioned in clause ( 1 ) of Article 102, the question shall
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► (2) Before giving any decision on any such question, the President shall obtain the opinion of
z the Election Commission and shall act according to such opinion
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j::: o Whip gagging:
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I- ► The provision of whip suppresses genuine dissent.
► It does not allow to faithfully represent constituents
z ► It does not allow following one's own conscience.
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w ► It also reverses the paradigm of accountability: The anti-defection law reverses the paradigm of
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I­ the accountability between the executive and legislature. While the executive is supposed to
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0 draft legislation and convince legislators to vote for it and hence the accountability lies on the
Vl executive, with Anti-Defection Law the reverse happens, where due to an issuance of whip, a
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:::> legislator has to vote for the legislation. Even with the opposition, the ruling dispensation need
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w not convince everybody, but has to convince the opposition party leader to issue a whip and thus
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u make them toe the line. Thus it reduces debate culture in parliament and even genuine dissent
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Why is parliamentarians' contribution less to parliamentary debate?
• Lack of policy awareness, governance issues, nature of technical issues.
• Criminalization of politics
• Size of the houses too large while the number of sitting days has come down.
• Increasing disruptions of the house during functioning.
• Plus a large number of discussions have been delegated to parliamentary committees.
• Due to Anti- Defection Law, members cannot oppose the party's stand in the Parliament due to party
whip.
The courts have given some leeway with regard to ADL: Whip should be applicable on vote of confidence, no
confidence or major policy issue on which the party went to polls.
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o New trends in instability of Government:
► Should ADL also include coalition formations or in the absence of pre-poll coalition, should post !
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poll coalitions be allowed? 0
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► Thus instability can be caused in these situations too. Experts have suggested that pre poll u
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coalitions should be covered by Anti-Defection Law and if there is any defection, the party u.
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defection in bulk shall be disqualified.
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 m ANTI-DEFECTION LAW (PART 2)

Issues Regarding Anti-Defection Law (Contd.) 0 00:00:00

Anti-Party activities outside the house:
Suppose there is a legislator who is engaging in antiparty activities outside the house but is not resigning
and not defying whip and thus escaping action under Anti Defection Law.
• The ADL is silent on anti-party activities of this nature.
• Halim Committee (1998) said that a legislator is subjected to ADL when he resigns, but for anti-party
activities outside the house the term voluntary resignation in the A DL has to be defined in a more
refined way so as to cover the anti-party activities outside the house.
• In Ravi Naik Case (1994), even the apex court said that the legislator's conduct from outside the house
like when he is no longer interested in the betterment of the party, he is working against the interest of
the party, if not formally, he has taken himself informally outside the party, such a conduct of the
legislator can be inferred as an act of voluntary resignation, even though he hasn't submitted any
formal resignation.
• But the problem concerning how an anti-party activity is defined still remains a matter of debate.
0 00:06:33
Status of Expelled Members:
• In some cases there may be an expulsion of the legislator from the party.
• The reasons of expulsion could be genuine due to anti-party activities or a way of vendetta politics by
the senior leadership of the party.
• The Supreme Court in Viswanathan Case (1996) held that this expelled member hasn't voluntarily
resigned and hence such an expelled member would be treated as "unattached member" but he will
be subjected to the discipline of his parent political party i.e. accepting whip etc.
• Formally for the purpose Anti-defection law, he will be still treated as a member of the parent political
party
0 00: 1 2:00
Role of Speaker:
• Since the petition concerning Anti-defection law can be filed by any legislator of the house, the
problem arises that what will happen if the speaker refuses to accept the Anti-defection law petition.
• It is the speaker's constitutional duty to accept the petition. There may also be situation where the
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speaker immediately adjudicates upon the petition without hearing out all the parties and thus violates
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the principal of natural justice while carrying out his quasi-judicial function.
[ • The speaker has to carry out a thorough investigation and do proper fact finding and should give an
opportunity to render an explanation against the legislator against whom the petition has been
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z filed.
0 • If the speaker feels that the issue needs a greater investigation, he can also refer to a committee,
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w • Rajendra Singh Rana case, 2007 laid out these guidelines namely-whenever the petition is received
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� by the speaker he has to accept the petition regarding Anti-defection law, secondly he has to go
z through a proper investigative process like an opportunity to the defendant to explain himself, to the
 opponent to file proofs regarding defection and henceforth take a decision.
• There is another issue with respect to a speaker's role, whenever there are genuine cases of defection
where the speaker should have taken immediate decision and disqualified them, the speaker has
made inordinate delay in arriving at the conclusion and has done floor management to preserve the
interests of the political party in power.
• This is because Anti-defection law does not talk about any time frame within which the decision
should be taken.
• Occasionally the courts have directed the speaker to decide the matter within a fixed timeframe. Ideally
a norm should be codified in the ADL where very case should be decided within a span of 3 months.
• Another problem is that if a matter for defection goes to the courts, even the courts don't have a fixed
time frame to decide upon the issue. The SC has laid down the norm that if an Anti-defection law
petition is laid before the courts, it has to be decided within 6 months.

Note: Australia, Canada, France, UK, Germany do not have any penal provisions concerning defection while
South Africa, Bangladesh, Kenya and Singapore have some sort of penal provisions for defection.

Views of the NCRWC: 0 00:27:08

• The National Commission for the Review of the Working of the Constitution was set up under Justice
MN Venkatachalaiah in 2000 to examine the functioning of the constitution, which gave its report in
2002. It recommended:
o The cap on the number of legislators in the council of ministers ( 1 5%) was placed after the
NCRWC recommended a cap of 1 0%.
o The defectors should be barred from holding public office or any remunerative political post for
the duration of the remaining term.
o A case may arise in certain situations where the defeated legislators are not disqualified from the
house and subsequently participate in the no-confidence motion against the government, then
there may arise instability in the government which anti-defection law tried to prevent.
o NC RWC tried to prevent this by recommending that such votes should be declared invalid as such a
provision is not there in the Anti-Defection Law. Though the courts have come to the rescue in such
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cases of floor management, such norms should be placed in the anti-defection law itself. The vote
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cast by a defector to topple the government has to be treated as invalid as recommended by the
NCRWC. l
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Views of Law Commission: z
• The Law Commission recommended that the provision that exempts merger and split must be
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• It also suggested that Anti defection law should also cover pre-poll alliances. w
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Issues with the Anti-Defection Law: z
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 • Even though many steps have taken place to prevent defections, they happen anyway.
• Defection is principally a result of ethical deficit in our political culture.
• If a legislator is ready to leave his/her political party on the basis of some allurement, then the problem
is political culture and the ethics that has dipped in the political culture. Any legal addition to the anti­
defection law tries to solve an ethical dilemma with a legal intervention.
• The ultimate solution will be the maturing of political culture that frowns over such things and does
not support such actions of their leaders.
• Another issue is that defection proceedings happen only when a person gives up the membership of
the party and not when he resigns from the seat or the membership of the house itself. Such
candidates later switch parties, contest by-elections, and do not invite anti-defection proceedings
onto them. 0 00:49:22

Some Parliamentary Terms Associated with Anti-Defection Law:

• Crossing the floor: Inspired by the British House of Commons, where two parties sit on either side
opposite each other, namely the ruling party and opposition parties, and thus the term means
changing party loyalty.
• Holding the Floor: The act of speaking on the floor of the house with the due permission of the
Speaker.
• Yielding the Floor: The act of the Speaker of the house to make a person stop speaking and allow
someone else to speak in the house.

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 mJ
TERRITORY OF I N DIA AN D
REO RGAN IZATION OF STATES
Territory of India and Part 1 (Article 1 to 4) : 0 00:00: 10
• There are 4 articles of the constitution that deal with this.
• In the year 1956 the State Reorganization Act was passed. States which were classified earlier into 4
parts was done away with this act.
• This classification was Part A (9 states that were governor provinces), Part 8 (9 States that were
formerly Princely States), Part C (10 states that were chief commissioner provinces) and some princely
states that were the predecessors of Union Territories.

Article 1: 0 00:03:53

• The first article itself starts with a conflict concerning the naming of India. It says that India, that is
Bharat is a union of states. Even though we have a two tier government set up, we have not used the
word federal or termed India as a federation of states.
The term union of states was preferred because:
• No state has the right to secede, i.e. no right to become an independent entity outside India.
• Our federal setup was also not similar to the USA, because US federation was a result of contract
between formerly independent colonies which came together to form USA. Our federation is not the
resu It of contract.
The states and UTs are mentioned in First Schedule. The term territory of India includes the states and
union territories but also such territories that may be acquired later.
• The apex court wondered that the usage of the term 'acquired' gives the right to State to use an
l/)
expansionist foreign policy. The court termed that acquisition of foreign territories is done under the
w
aegis of international law and just the mere usage of the term 'acquired' doesn't confer the
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Article 2
• This article deals with the admission and establishment of new states that are not a part of India. This
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w can be done through a law enacted through Parliament.
Article 3 0 00:13:24
• This article deals with domestic reorganization. The following can be done by the Parliament through
the enactment of a law:
o Increase the area of the state
o Diminish the area of any state
o Alter the boundaries of any state
o Alter the name of any state
• There are two conditions mentioned as proviso in the article. These include:
o Any bill seeking to do any of the things mentioned above can be done by introducing the bill in
either house of the Parliament after taking President's recommendation.
o Before any bill is enacted, it has to be referred to the legislatures of the states being affected by
the proposed change to extract its opinion.
• But that opinion is not binding on the Parliament. This matter of Center having such power over
states was debated in the constituent assembly too.
• The Assembly remarked that use of this power should not be arbitrary such that it reduces the states
to glorified municipalities.
• Regarding the consent of the states, the assembly remarked that the process has to be effective and
should not be reduced to a formality. Shouldn't the consent be essential was also a question that
came to the minds of the constitution makers. But it was observed that if consent was made essential,
then reorganization would become an increasingly impossible venture.
• Most reorganization in India has been carried out through a consensus like the linguistic

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reorganization, preservation of tribal identities, addressing development deficit etc. w
Since everywhere in the article, the term 'State' is mentioned, then are union territories not covered in the
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exercise? LL
0
• The answer is that the term State includes Union Territories, but in the proviso the term State doesn't z
0
include Union territory and thus the opinion of the union territory's legislature if existent is not
necessary.
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Berubari Union Case: a::
• 0
In 1 9 58, an agreement was signed between Pakistan and India to transfer some land to Pakistan in w
a::
exchange for some territory. Q
z
• This was the Berubari Union Case where the question revolved around whether the Union <
Government needs the approval of Parliament to conduct exchange of territory between countries. <
Q
• Thus, under Article 143 that deals with the power of advisory jurisdiction of the Supreme Court, the z
court opined that legislative action is required in such actions taken by the government.
0
• Additionally, the courts also said that to give effect to such treaties, they cannot be covered under the
�
procedure laid down under Article 3, and a separate constitutional amendment has to be brought to
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bring into such effect. Hence the 9 Constitutional Amendment Act was passed. �
a::
• Thus in the recent times, with respect to the issues of enclaves in Bangladesh, the 100th w
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 Constitutional Amendment Act, 2015 was passed by the Parliament.

Article 4: 0 00:41:29

• It states that no such law made for dealing with matters related to Article 2 and 3 shall be deemed to be
a constitutional amendment under Article 368.

Language as a Basis for State Reorganization

0 00:42:43

• In independent India, the principal basis for reorganization of states was language which was thus a
break from colonial organization of states which was based on administrative convenience.
• But before coming to this basis, there was much debate among national leaders regarding the basis for
reorganization.
• In the 1920s, there was more or less of a consensus in the congress that language should be the basis
for reorganization and later, even Gandhiji organized congress into Pradesh Congress Committees on
linguistic lines disregarding the colonial organized boundaries.
• But post-independence, Nehru witnessed the horrors of partition and became opposed to the idea of
linguistic reorganization. He stated that there were numerous languages in the country and thus
reorganization on those lines would give rise to Lilliputian states. (trivial or very small states)
• Thus he was focused more on creating a national identity rather than a linguistic identity.
• Since language was a strong binder and created a greater sense of identity, a state reorganization
based on languages would lead to a slippery slope where even demands for secession may be
justified as seen in Europe.
(/)
w • Another concern was that language can also be a basis for raising secular demands like employment,
�
� subsidies etc. that could create xenophobic demands against people from other states.
LL • But another contrarian take is that on what basis apart from language could the state reorganization
0
z be carried out- basis of religion, caste, etc.?
0
• A language is a more secular basis for reorganization than any other identity and hence was
preferred. Another benefit could be that it would make the task of educating children in their mother
z tongue easier.
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(.!) • A similar benefit is that masses can take part better in administration if the language used is the
0::
0 native language. Similarly, it also ensures regional languages are preserved, promoted, and enriched.
w
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z Nehru's Opposition to Linguistic Reorganization:
0 00:56:40
<(
<( • It would spur further such demands due to the large number of languages in country making
Q
z governance very difficult.
LL • It would stall the process of building national identity and focus on linguistic identity may stall it.
0
• It could threaten national identity since language is a very strong bond and hence may lead to fears
�
� of secession as seen in Europe
� • Languages becomes a channel for expressing secular demands in case of unemployment, subsidies
0::
....
w etc.
Case in Favor of Linguistic Reorganization 0 00:59:38
• If the states were multilingual, it would become difficult to administer them.
• Education in mother tongue helps in personal development; it further helps in development of regional
culture and language.
• Masses can participate in democratic culture.
• Secular basis of reorganization that transcends identities like caste and religion.

Commissions Investigating State Reorganization:

0 01:04:28

• Towards the end of 1940s many demands came forward demanding states to be organized on
linguistic basis. But the most prominent was the Telugu speaking areas in Madras State by stalwarts
like Swami Sitaram and Potti Sreeramulu who went on a hunger strike and finally sacrificed himself.
• Thus in 1953, the state of Andhra Pradesh was created as the first linguistically organized state in
Independent India. In 1936, Odisha had been organized on linguistic basis.
• Thus SN Dhar Commission was appointed in 1948 to examine the issue and thus suggested
administrative convenience as a basis and rejected linguistic reorganization.
• Later, in 1948, the JVP Committee was created under the leadership of Jawaharlal Nehru, Vallabhai
Patel and Pattabhi Sitaramaiah and it also rejected the demand of linguistic reorganization.
• But till then a critical mass had developed that was demanding linguistic reorganization. Ramchandra
Guha in his book 'India After Gandhi' states that if Nehru was the maker of Modern India, then Potti
Sriramulu was the Mercator of Modern India.
• Thus in 1953, the First State Reorganization Commission was established with Fazl Ali as the
(/)
Chairperson and KN Pannikar and H N Kunzru as other members. w
• It accepted the linguistic basis with some caveats. These caveat included: �
�
o Not using the linguistic basis that would threaten the unity of the country. LL
0
o It further rejected the principle of one state-one language as seen in the case of Hindi. z
0
o Economic and financial viability should be a viable unit for planned economic development.
• It recommended 16 States and 3 Union Territories. The Union finally modified that into 14 state and 6
Union Territories and it gave away with the earlier four fold classification as seen in the British Era. z
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• No l i nguistic reorga n isation w
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Dhar, 1948 • Reorga n isation based on a d min istrative convenience 0
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• No li ngu istic reorga n isation <(
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JVP, 1948
z
LL
• Linguistic reorga nisation with some caveats 0
• No one state-one la nguage
SRC, 1953
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 Government's Response to Reorganization Demand 0 01: 19:25
• Provision of development packages if the demand for a new state stems from development deficit.
• Provision of autonomous councils if the demand is regarding more democratic rights as seen in
Darjeeling through the Gorkhaland Territorial Administration.
• Awarding 8th Schedule status to the language if the demand for new state is due to a linguistic basis.
• Provision of Development Boards if there are claims of uneven development as seen in the provision of
Vidarbha Development Board.
• Provision of autonomus state status within a state as seen in Meghalaya within Assam through
Article 244A, which was later converted to a full-fledged state in 1972.

Note: If all states were nations, then 10 Indian states would occupy the top 2 1 countries on the basis
of population. Thus arguments for small states keep coming up.

Question of Small States and Arguments in Favour: 0 01:29:32

• Administrative convenience is cited as a benefit.
• A large state has various terrains, development priorities and thus needs multiple perspectives in a
single state to bring about equitable development. This is an onerous task and thus a small state is
more homogenous in nature and thus the planning and development exercise is relatively easier too.
• The smaller states have historically had higher growth rates in retrospect in case of Punjab and
Haryana; successor states like Uttarakhand, Jharkhand and Chhattisgarh, etc.
(/)
• The capital in smaller states is much nearer to the population and hence more democratic
w participation can be expected but this has not beared out in reality.
�
�
LL Issues with Small States: 0 01:38:26
0
z • The first issue is defining what constitutes as a small or large state. Should the population of the
0
state, land area, or both or any other criterion should be used to define the threshold.
• The center-state issues, border issues, water sharing issues would erupt and managing interstate
z relations would get difficult.
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(.!) • It might amount to undoing of Sardar Patel's good work and going back to pre-independence days of
0::
0 making smaller territories.
w
0::
Q • Smaller states do not guarantee human development and other pre-requisites like existing resources,
z sound planning, proper implementation, incorruptible bureaucracy, proper training to officials
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<( imparting the missionary zeal, grand vision of the leader etc. Thus the size of a state or it being small is
Q
z not the only indicator for a state's destiny. Thus even small states are found at the lower end of
LL human development rankings.
0
• Additionally, smaller states have issues of lower resource mobilization; problems of creating new
�
infrastructure like new capital, and in retrospect require much more central assistance in handling
�
� exigencies like left wing insurgency as compared to larger states.
0::
....
w • The argument that smaller jurisdiction leads to better growth cannot be maintained if we consider that
 such small jurisdictions already exist as districts, panchayats, urban local bodies etc. and thus any
such reorganization should be prioritized there first before going for state level reorganization.
• Thus democratic decentralization should be first line of action followed by provision of adequate
funds, and empowerment with functions and functionaries.

Case of Uttar Pradesh 0 0 1 : 56:49

• Dr. Ambedkar was apprehensive of making Uttar Pradesh as a single entity as it was a large state both
in terms of population size and territorial size.
• He proposed dividing UP into three states.
• His argument was administrative convenience, disproportionate influence in national politics, and
better representation of minority interests.
• The state has been proposed in recent times to be split into four states namely: Harit Pradesh, Awadh,
Purvanchal and Bundelkhand for administrative convenience, though questions of economic viability
still remain.
• Apart from this, if smaller jurisdictions are a solution, then more districts should be made because the
population increased from 13 crores in 1990 to 23 crores in 2020 while the districts increased from
63 to 75 only, thus increasing the grassroots participation of people would require more districts.
• Empowering the local bodies too can be done before jumping to the conclusion of dividing the state
and terming that as a panacea to the problem of governance deficit.
• If the large population of India is an asset, then the same can be said of Uttar Pradesh. Moreover, since
the state has a large population share, thus its population enjoying greater representation cannot be

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termed disproportionate rather it is the democratic right of the people. w

Case for a 2nd State Reorganization Commission:

0 02:05:03 �
LL
0
• There have been demands for new states such as Koshal (Odisha), Kodagu(Karnataka), Vidarbha z
and Kon kan ( Maharashtra), Bodoland (Assam), Ma ru Pradesh ( Rajastha n), Mith i lanchal ( Biha r), 0
Gorkhaland(West Bengal).
• Thus when such demands arise, the government at the Union level sees these demands through the z
political lens rather than the rationality and modern scientific criteria that is expected.
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• Thus a 2nd SRC would help us evolve a rational, scientific and objective criterion towrads such 0
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demands. a::
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• The process of state reorganization is an evolving exercise and not a one stop exercise and as the z
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demands for statehood arise, they have to be examined properly. <
• 30 years of LPG reforms has brought about many demographic, economic, social and regional Q
z
imbalances and allegations of regional neglect. LL
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• Population in certain states has grown very large leading to concerns about governance.
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• Thus these reasons provide enough rationale for the government to consider constituting a 2 nd SRC.
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Delhi's Demand for Statehood: 0 0 2 : 1 2:43 w
�
 There have been demands from the leadership in Delhi to get it statehood. There are similar demands with
respect to Pondicherry too. Though the demand is not very popular among the masses, it nevertheless
needs examination.

Arguments in favour:
• Delay in decision making:
o The central government in Delhi is responsible for Police, Public order and Land, while the state
government also has powers, and even Lt Governor has some responsibility. Since the
responsibility is fragmented, the accountability is fragmented too, leading to delay in decision
making.
• Population:
o A large number of states have a population less than that of Delhi and are still full-fledged states
and hence give credibility to the demands.
o But if we take the population arguments to the extreme, then many metropolitan cities have
population more than some small states and hence should they too be made a state.

Arguments against:
• National Capital:
o Delhi is the national capital of the country and hence holds a sentimental value for all Indians. Thus
the capital cannot be made the property or entity of a certain section of the population only.

(/)
• Financial Viability:
w o Delhi is an urban agglomeration and whatever industries were present have been slowly shifting
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out due to the pollution norms.
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LL o Thus the state would increasingly depend on Central transfers. Since it would remain a capital,
0
z lack of financial resources would affect the provision of civic amenities and to maintain the same
0
level of services, taxes on the citizens would have to be increased.
• Resource Dependency:
z o The state would have to depend on other state for water, power etc. that are assisted by the Union
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(.!) Government now.
0::
0 Thus, instead of making Delhi a state, steps like empowering the elected government and returning the
w
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Q Lt. Governor back to nominal status, devolving extra powers to the Delhi Government that are now
z existent with the Union Government can be considered.
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z Reorganization of Andhra Pradesh and Telangana's Creation:
0 02:26:03

LL • Telangana was carved out of Andhra Pradesh through the Andhra Pradesh Reorganization Act, 20 1 4.
0
• The demand for the state of Telangana was even there in the 1950s when the state of Andhra
�
Pradesh was created. People in Telangana felt that time that their interests might be overlooked in the
�
� Joint Andhra Pradesh.
0::
....
w • During those times an informal agreement was signed namely a Gentleman's Agreement between
 the political leaders, providing assurance to Telangana's leaders that their concerns regarding jobs,
education etc. would be taken care in the new state.
• Moreover, the demand for Urdu to be recognized as an official language also emerged. It was also
committed that when the Council of Ministers is constituted, a certain number of members would be
from Telangana in the ratio of 60:40, where 60 % of the members were to be from Andhra Pradesh
and 40% from Telangana.
• But issues arose due to the halfhearted implementation of the agreement.
• Thus many agitations arose to demand separate statehood for Telangana and the BN Srikrishna
Committee was formed in 2010 to look into this matter of statehood due to development deficit.
• The committee suggested that as much as possible, the state shall be kept united, and regarding
development concerns an Empowered Development Council for Telangana can be formed within
the same state.
• It also suggested division of the state in case of unavoidable circumstances.
• Thus the state was divided and Telangana was formed through the Andhra Pradesh Reorganization
Act, 2014. Its features were:
o Telangana state would be created with 10 districts.
o Hyderabad would be the joint capital for a period not exceeding 10 years during which period
Andhra Pradesh would setup its own capital and Hyderabad would become the capital of
Telangana.
o They would have a common governor for some time to come, and the common governor was given
unique responsibilities for law and order, security, allocation of government buildings, etc.

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o It also postulated a joint High Court that has been divided now just like as the governor was w
separated. �
• Some constitutional issues arose on account of the governor having extensive powers that would have LL
0
been conferred to the state government's domain. z
0
• While such powers have been vested in the governors of certain states, but these governers derive
their power from the constitution and not an ordinary law.
z
• There is also Article 371D which contain special provisions for Andhra Pradesh that got split between <
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the two states which got amended through the act itself. a::
• This raised eyebrows as an amendment had been done through an ordinary law. Article 4 talks about 0
w
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implications arising out of state reorganization and how amendments to deal with those changes are Q
z
not to be considered an amendment under Article 368. <
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Note: The apex court has also ruled that a bill after being returned by the state legislature to the z
Parliament needn't be put again for a vote at the state legislature for a resolution even if there were far LL
0
reaching changes.
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w
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 rri NATURE OF FUNDAMENTAL RIGHTS,
l:iz.:I ARTICLE 12 & 13
Fundamental Rights are the rights that are found in Part Ill and Part Ill of the Indian Constitution alone. Other
rights like Right to Vote are found outside Part Ill and hence are not termed as fundamental rights. Similarly
rights outside the constitution like right to information too are not fundamental rights.

Nature of Fundamental Rights 0 00:05:25

• Most rights are negatively worded or are in the nature of negative injunctions against the state. Most
rights start with what the state is not allowed to do like the state cannot deny freedoms, equality. While
this negative nature of the rights may seem to be the norm, there are some positive injunctions
towards the state too where the state is instructed to perform its duties, an example being Article
2 1A concerning with right to education.
• Most of these rights function vertically against the state. There are also rights that function
horizontally like Article 17 concerning untouchability that prohibits practice of untouchability against
fellow citizens. The vertical nature of most rights does not mean that those rights can be violated by
citizens. While violation of these rights by the state can be addressed with constitutional remedies
under Article 32 and 226, any similar violation by citizens cannot be addressed by constitutional
remedies and hence have to be addressed through the usual means like civil remedies of FIR,
subordinate courts etc.
• They are all justiciable and citizens can address their violations directly to the apex court or the
concerned high courts.
• They are available to all citizens of India. In any article across Part Ill which contains the term "person",
it denotes that the right is available to both citizens and non-citizens, for e.g. Artcile 14, Article 19, etc.
o Article 14: Equality before law
....
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o The State shall not deny to any person equality before the law or the equal protection of the laws
�
....
N within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or
w place of birth.
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u • No right can be enjoyed in absolute terms and hence have reasonable restrictions imposed on them.
<( o Can be suspended during national emergency (Article 352)
o Only parliament can modify by law (restricted or abrogated) the extent of application of
J: fundamental rights with regard to police forces, paramilitary etc. under Article 33 is an example of
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parliament exercising this power is the Police Force Restriction of Rights Act, 1966.
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► Article 33:
z
w
► Power of Parliament to modify the rights conferred by this Part in their application etc.
� Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in
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C their application to,
z
::::, ► (a) the members of the Armed Forces; or
LL
LL ► (b) the members of the Forces charged with the maintenance of public order; or
0
w ► (c) persons employed in any bureau or other organisation established by the State for purposes
0:::
::::, of intelligence or counter intelligence; or
z ► (d) persons employed in, or in connection with, the telecommunication systems set up for the
 purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or
abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline
among them
• Most of the rights are self-executory:
o They are readily available and need no additional law or provision to execute this.
o An example of a fundamental right that isn't self-executory is Article 17 concerning
untouchability which prohibits untouchability and sanctions punishment in accordance with law,
hence this fundamental right needs a separate law to enact its provisions and hence isn't self­
executory compared to other fundamental rights which are self-executory.
o Even the Article 21A concerning Right to Education isn't self-executory and needs a law to
execute it namely the Right to Education Act, and even Right against Exploitation under Article 23
too isn't self-executory and needs a law to actualize it. The power to make these laws in order to
execute the fundamental rights lies solely with the parliament (Article 35).

Article 12: 0 00:34:33

• Article 12 defines states in Part 3 for the purpose of interpreting rights. Since most rights function
vertically against the state, it becomes imperative to define the state to effectively actualize these rights.
• Article 12 mentions state as including:
o The government and parliament of India
o The government and legislature of each state
o Local authorities both rural and urban
o Authorities within territory of India and under the control of Government of India.
• The most debates happen around the term authorities under the control of government and the ....
M

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debates become vague and ambiguous.
....
N
• The state's function is dynamic and there has been increasingly a pattern of government functions w
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being outsourced to authorities that function on behalf of the government, the question arise that u
whether citizens can claim fundamental rights against these entities too. The court has given a number
of tests for these: u;
1-
o If the body is set up by a statute or executive order, for e.g. U C, RBI etc. J:

o If the government exercise substantial financial and administrative control over it

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o If that entity is used as an agency of the state/instrumentality of state i.e. if the functions performed
by the agency were performed by the state before and are now being performed by the z
w
agency(more clarity)
o If it performs sovereign functions of the state like defence, taxation, law and order etc.
z
o Law commission suggested including BCCI as a public authority under RTI act. :::>
LL
• An interesting observation is that there is no explicit mention of judiciary as being a part of state. LL
0
• Basically judiciary is there to protect the citizen's rights and the usual violators of rights are executive w
0::
entities like police, civil servants and legislative entities like parliament that can legislate laws violating :::>
the rights of the people. z
 • Judiciary is a dispassionate observer, whenever the citizen's rights are violated, the judiciary restores
those rights, judiciary doesn't engage in the actual implementation of those rights and hence there
should not arise any question of violation of rights.
• But judiciary doesn't just perform its most basic judicial functions but also administrative functions like
management of its own staff, laying down procedures to perform functions which may violate
fundamental rights.
• While the judiciary in its judicial capacity is a restorer of rights and isn't a violator and hence not
under the definition of state, the judiciary under its administrative capacity can violate the
fundamental rights of citizens.
• On this question the court has admitted that the judicial functions will not attract the definition of the
state, but its administrative functions may attract the definition of state under Article 12.
• Another aspect of debate picking up recently is that the courts are increasingly engaging in judicial
activism and performing the functions of the executive or legislature and if these actions violate the
fundamental rights of the citizens, whether judiciary will attract the definition of the state under article
12 or not. There has been no response come from the courts regarding the issue and it is still a burning
issue.

Article 13 and amendability of Fundamental Rights: � 01:08:30

• Judicial Review is the power of the courts to review the actions of the executive and legislature while
performing their functions if they are unconstitutional. The power of judicial review of the judiciary is
not mentioned directly in the constitution but can be derived from the understanding that we are a
liberal democracy and have separation of powers in the government.
....
M
• Since there is separation of powers in the government, it is implicit that judiciary will have the powers
�
....
N of judicial review to strike down any unconstitutional law. But Article 13 explicitly deals with the power
w of the judiciary to strike down laws violative of fundamental rights i.e. Part Ill of the constitution (not the
..J
u whole constitution)(Art 1 3(2)).
• While the provision provides to declare any law violative of part Ill as void, it does not categorically
<(
mention that it is the duty of the judiciary to perform that function.
J: • The government usually doesn't take away or abrogate a right but reduces the availability of the right
l!)
by amending the right itself in the constitution.
..J
o Article 1 3(2): The State shall not make any law which takes away or abridges the rights conferred
z
w
by this Part and any law made in contravention of this clause shall, to the extent of the
� contravention, be void.
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C • Article 1 3 (2) states that the 'state shall not make any law', Law is usually understood as ordinary
z
::::, /statutory law passed by legislature, but can the constitutional amendment laws passed by the
LL
LL legislature too be considered law as mentioned in Art 1 3(2)?
0
w • The question whether fundamental rights are amendable or not lies in the answer to the question
0:::
::::, whether constitutional amendment law qualifies as law under Art 13 (2) or basically how we define law

z under Article 1 3.
 • A narrow interpretation of the term law includes ordinary law only and constitutional amendment is
out of it and hence consequently it leads to possibility of states violating fundamental rights through
constitutional amendment laws.
• A wider interpretation of the term law in the article 13 would include even the constitutional
amendment laws and hence include them under judicial review provided under article 13 to protect
fundamental rights, leading to fundamental rights being unamendable.

N a rrow l Wider l
interp retation j interp retation

- -
Also include
Only ord inary
Constitutiona l
law under Amendment
Article 13 under Article 13

- -
Constitutional
amendment not S u bject to
as law under j u d icia l review
Article 13

- F u n d a menta l
Rights - Funda menta l
Rights
u namendable
amendable

The apex courts position:

• Shankari Prasad case, 1951 to Sajjan Singh case, 1965, the apex court held on to a narrow
interpretation of the term law in article 13 and considered constitutional amendment laws out of the ....
M

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scope of its definition. This proposal that the court made was that parliament has the right and ....
N
authority to amend the constitution and it is unfettered. w
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• In Golaknath Case, a 11 judge bench with a narrow margin of 6-5 reversed its earlier interpretation u
and moved towards the wider interpretation of the term law and hence including even the
constitutional amendment laws under the purview of judicial review. The court observed that the u;
1-
fundamental rights are termed fundamental for a reason; they have been given a uniquely elevated J:

position and status in the constitution and hence are transcendental in nature and rise above the other
..J
provisions. The court hence deemed the fundamental rights unamendable.
z
w
Reaction from the executive and legislature:
• In the 24th Constitution Amendment Act, 1971, both Articles 13 and 368 were amended by adding
z
Article 13(4) and 368(3). :::>
LL
• Art 13(4) stated that nothing in Article 13 would apply to any amendment of the constitution done LL
0
under Article 368. This was an attempt to narrow down the interpretation of the term law used in w
0::
article 13. :::>
• Art 368(3) stated that nothing in article 13 shall apply to provisions made under this article to double z
 secure the narrow interpretation. This was challenged in the future in the Keshavananda Bharti vs.
State of Kerala (1973), popularly known as Keshavananda Bharti case.
o Keshavanada Bharti Case (1973) was a case concerning freedom of religion that ultimately
decided the question regarding the amendability of fundamental rights.
o The courts took a middle path between the narrow interpretation espoused from Shankari Prasad
case till Sajjan Singh and the wider interpretation in Golaknath case. The courts observed that all
parts of the constitution are amendable but no change or amendment should have the effect of
changing or altering the basic structure or core identity of the constitution.
o The courts generally defined the basic structure as those elements without which or if there is an
infringement of them, the constitution will lose its very soul and essence.
o The apex court in various judgements over the last five decades has listed out the various features
that constitute the basic structure.

Some features constituting the basic structure:

• Supremacy of the constitution
• Rule of law
• Separation of Powers
• Judicial Review
• Federalism
• Secularism
• Unity and integrity of the country
• Sovereign, Democratic, Republican structure
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• Dignity of the individual
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• Principle of welfare state
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• Limitations on amending powers under Article 368
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Critique of Basic Structure: 0 0 1 :39:36
• No constitutional basis:
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o The constitution as a whole is a basic law and the basic structure provision is an attempt to locate
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something even more basic than that.
� o This line of thought was not there in the constituent assembly. The constituent assembly never
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::::, • Re-writing the constitution:
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 o The Supreme Court has practically become the third and decisive legislative chamber of the
parliament, apart from the LS and RS in framing laws.
• Against the principle of majority:
o Democracy can be described as rule by majority.
o Constitutional amendments require overwhelming majority to pass in the legislature. Thus
assumption of the role of SC as a super arbiter of the validity of constitutional amendments
amounts to the illegitimate negation of democratic rule i.e. majority rule.
o But judiciary in liberal democracies with separation of powers do play a counter majoritarian role,
thus preventing arbitrary laws and laws violative of rights from coming into fruition.
o A law making process based solely on majority rule, where neither the opposition, media nor public
opinion can halt the passage of arbitrary legislation, then it becomes imperative for the court to
come into the picture and play a counter-majoritarian role, so this criticism has a significant caveat
attached to it.
• Decision by narrow margin:
o This 13 judge bench had a very narrow majority of 7-6 and thus such a fundamental revision of the
constitution with such a slim margin inspires less confidence.
• Decision to include or exclude features based on subjective assessment:
o The power to decide the inclusion of subjects in the basic structure lies with the apex court bench
and the judges on it. Hence any subject's inclusion or non-inclusion is based on subjective
assessment of the judges which can vary from person to person and even time.

Points in support of basic structure: 0 01:49:55

• In a democracy based on constitutionalism, the concept of constitutionalism abhors absolutism, there ....
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constitution cannot be absolute and hence have to be subjected to some limitations. w
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• Basic structure doctrine helps in preserving our core value and constitutional identity. Popular opinion u
is always fleeting and always fluid. If there is some provision that the country wants today, it may not
want tomorrow. u;
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today cannot be made to override the permanent vision in the constitution of our framers. The
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parliament thus has a power to amend and not re-draft the constitution.
• Basic structure privileges uncertain democracy over certain tyranny. z
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• The overarching framework of our constitution is secular, liberal democracy, thus the elements in the
constitution work towards enacting this framework. Any provision being classified as a part of basic
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• But which provisions of the constitution constitute basic structure is uncertain and may vary from LL
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judge to judge or bench, thus leading to an uncertain democracy. w
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• But the courts have been very responsible about applying basic structure doctrine and have not :::>
abused their powers. z
 • This has led to basic structure doctrine being adopted in international jurisprudence, an example being
Bangladesh Supreme Court in 1989 quoting Keshavananda Bharati judgement, applied the basic
structure doctrine to Bangladesh constitution as well.
• Uganda too referred the Keshavananda Bharati Judgement in 20 19 to adjudicate the amendments
made in the constitution.
• Apart from this, in the Basic Law of Germany under Article 79 talking about the amendment
procedure, has a provision saying that there are certain provisions in the constitution that are not
amendable, thus codifying a basic structure in the constitution itself and not through the courts.

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FUNDAMENTAL RIGHTS
- ARTICLES 14 & 15
Categories of Rights:
• Right to Equality (14-18)
• Freedom (19-22)
• Exploitation (23-24)
• Freedom of Religion (25-28)
• Cultural and Educational Rights (29,30)
• Right to Constitutional Remedies (32,226)

Article 14 0 00:04:00
• Equality before law:
• The State shall not deny to any person equality before the law or the equal protection of the laws within
the territory of India.
• The article is available to "any person" hence available to citizens as well as foreigners i.e. equality
before law and equal protection of law
• Equality before Law (EBL) :
o Theorized by Dicey, basically all people have to be subject to equal application of the law of land. In
the eyes of law, all are treated equal, hence formally equal.
o It is seen as negative right in nature because nobody is given special privileges.
• Some exceptions:
o Article 36 1,diplomatic immunity, parliamentary privileges, defamation, contempt of court
• Equal Protection of Laws (EPL) :
o Just because everybody is equal before law, doesn't necessarily mean everybody is actually equal.
o It is considered a positive concept, in contrast to EBL that is seen as a negative concept. While EBL
is derived from England, EPL is borrowed from US.
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o It simply means that like must be treated alike, or law must be equally applied among equals, thus it
clS gives in effect the substantive notion of equality.
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treatment can be meted out to the different groups, but courts have added the classification of
u society should be reasonable and not arbitrary.
• It has given two tests of reasonableness:
I o Firstly, categories so formed should be a homogenous unit,
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1- o Secondly, the classification exercise should have a reasonable nexus with the objective to be
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secured.
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w Article 15: 0 00:45:46
• Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
z o (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
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place of birth or any of them
 o (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to
► (a) access to shops, public restaurants, hotels and places of public entertainment; or
► (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public
o (3) Nothing in this article shall prevent the State from making any special provision for women and
children.
o (4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes.
• State cannot discriminate citizens only on the mentioned grounds.
• NCRWC recommended the grounds to be expanded based on political opinion, property and social
and ethnic origin.
• The state can discriminate based on grounds that aren't mentioned here.eg-residence.
• But the state can positively discriminate for women and children, while the first clause provides vertical
protections from discrimination, the second clause provides for protection from horizontal
discrimination (e.g. of Tamil Nadu (Restriction on entry to Public Places based on Dress Codes) Act,
20 14).

Is there provision in the constitution to reserve government jobs for backward castes/classes?
• While art 16(4) gives govt sanction for reservation for backward classes in government jobs, the
Article 29(2) denies such discrimination in educational institutes:
o Article 29 (2): No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any
of them. Ill
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• Thus quotas based on this article are prohibited. But since, caste based quotas were available in pre­ �
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independence times, they continued after independence as well. .-i
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• But in Champakam Dorairajan Case of 1951, courts struck down the quotas based on Article 29(2). w
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• To get around the judgement, the first constitutional amendment act added a clause 4 to Article 15: u
o Article 15(4): Nothing in this article or in clause (2) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes of I
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citizens or for the Scheduled Castes and the Scheduled Tribes. 1-
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Present status of reservations in India: ...I

• Scheduled Castes: 15%

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• Scheduled Tribes: 7.5%
• OBCs: 27%
• Persons with Disability (PwD): 4% z
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• Economically Weaker Sections (EWS): 10%
 • Total reservation: 63.5%

Percentage reserved
■ Sched u led Castes ■ Sched u led Tribes ■ OBCs ■ PwD ■ EWS ■ Un rese rved

4%

Various state governments have been pressurizing private institutions for reservation; can the
government impose such reservation?
• Apex court in P.A. lnamdar judgement in 2005, private unaided education institutions cannot be
forced to have quotas due to Article 14 and Article 19 (1) (g).
• While private enterprises are commercial entities and hence singling out one private sector entity,
while leaving out others is violation of Art 14 and they also can carry out their occupation due to
LO freedom of profession as seen in Art 19(1) (g).
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� • To get around this judgement, 93rd Constitution Amendment Act was passed wherein; Article 15(5)
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o Article 15(5): Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the
u State from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so
I far as such special provisions relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30.
...J • While minority institutions were omitted, special provisions for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes relating
z
w to their admission in educational institutions can be done only through law.
• But reservation in government jobs doesn't need a law; they can be brought through an executive
z order, because a requirement of law was not present in Article 16(4).
::::)
u. • Similarly, while law is required to make provision for backward classes in educational institutions, no
 such law is required for EWS quota as per article 15 (6) after the 103...i Constitution Amendment Act.
• Article 1 5 (6) : Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29
shall prevent the State from making,-
o (a) any special provision for the advancement of any economically weaker sections of citizens other
than the classes mentioned in clauses (4) and (5); and
o (b) any special provision for the advancement of any economically weaker sections of citizens other
than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their
admission to educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in clause ( 1) of
article 30, which in the case of reservation would be in addition to the existing reservations and
subject to a maximum of ten per cent of the total seats in each category.

In 1997 Vishakha vs. State of Rajasthan case, the apex court laid down the guidelines for protection of
women from sexual harassment at workplace.
The court said that such harassment of women at workplace leads to violation of Articles 14, 15, and 23.

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FUNDAMENTAL RIGHTS - ARTICLE 16
AND AFFIRMATIVE ACTION
Article 16: 0 00:00: 10
• Equality of opportunity in matters of public employment:
o (1) There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State
o (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or
any of them, be ineligible for, or discriminated against in respect or, any employment or office under
the State
o (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a
class or classes of employment or appointment to an office under the Government of, or any local or
other authority within, a State or Union territory, any requirement as to residence within that State
or Union territory prior to such employment or appointment
o (4) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is
not adequately represented in the services under the State
o (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of
an office in connection with the affairs of any religious or denominational institution or any member
of the governing body thereof shall be a person professing a particular religion or belonging to a
particular denomination
z • The article states that there shall be equality of opportunity for all citizens relating to public
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employment.
• Does the term employment refer to the process of initial recruitment only or also the whole tenure of
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> employment? The Apex Court has remarked that the term employment not only refers to the initial
employment but also whatever happens post-employment concerning the job.
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a:: • The second clause mentions certain categories under which discrimination is not allowed. But if there
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is a requirement of local residence, the state government cannot impose that, despite many chief
C ministers claiming the state government would impose such a thing. Such a thing can only be carried
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<( out by the parliament and only through law for that matter. An interesting fact is that the USA was the
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...J • There was a Public Employment Act enacted in 1957 which authorized domicile quota for certain
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categories of posts in the state of Andhra Pradesh and the erstwhile union territories of Himachal
<( Pradesh, Manipur, and Tripura, but this act expired in 197 4. Before the expiry of this act, through the
nd
32 Constitutional Amendment Act, Article 371D was added authorizing domicile qualification for
J: Andhra Pradesh and now Telangana. For other states, Parliament still has to enact a law to provide for
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domicile quota like the previously enacted 1957 act.
• The fourth clause talks about the provision of reservation to backward classes who have not been
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w adequately represented in the services.
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Reservation/Quota Debate: 0 00:07:42
z
::, • The term Affirmative action is a more refined term for reservation initially used in public by former US
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 President John F. Kennedy in 1961 in relation to equal opportunities between people of color and the
Whites. Affirmative action is thus followed even in the USA.
• Educational institutes like IITs, II Ms, and other governmental institutes have a preferred position in our
society. Similarly, this is the case in jobs like IAS, IPS, and similar nature of jobs.
• Thus, affirmative action is a set of anti-discriminatory measures that are provided to provide access
to preferred positions in society to those groups who would otherwise be excluded or may go
unrepresented. These preferred or elite positions were monopolized by the upper sections of the
society based on their gender, caste, class, etc. By providing affirmative action, the state is trying to
alter the social composition of elite positions. Without these affirmative action measures, the
representation of backward classes in these preferred positions would go unrepresented or excluded.
• To uplift the status of backward classes, two approaches were proposed. One was the Gandhian
Approach or the Spiritual Approach. Ashwini Deshpande in her book on affirmative action in India
uses the term Evangelical Approach. This approach basically revolved around the moral regeneration
of upper castes of Hindu society through philanthropic uplift of the backward sections.
• The second approach was advocated by Ambedkar namely the Objective Approach that was secular
in nature and not spiritual as invoked by Mahatma Gandhi. Ambedkar rejected the notion that there is
going to be a change of heart of the upper sections regarding the Dalits. He said we cannot wait for
many years for this moral regeneration to take place and thus we need objective measures like certain
provisions in the Constitution itself for the upliftment like the prevalent provisions for SCs and STs in z
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the Constitution itself.
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Note: The first person in India to provide such quotas was King Shahu IV, the ruler of the princely state of >
Kolhapur in 1902 who carried out the first organized step in the upliftment of Dalits.
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• The 193 1 Census carried out by the Census Commissioner J.H. Hutton was the first caste census u.
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ever done in India. There was a similar exercise done regarding the SECC, but it was an exercise 0
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carried out separate from the Census and its results have not been revealed yet. On the <(
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recommendations of J.H. Hutton, the first list of Scheduled Castes was published. He used many .-i
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criteria to classify these castes, but the primary criteria were namely the temple entry restrictions and ..J
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pollution by touch or proximity.
• The debate also revolved around that under which religion should the SCs be categorized. Since the <(
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discrimination was based on the Hindu system, a natural inclination would be to classify all as Hindus. V,
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But many of the SCs had converted to other religions too. So, the categorization that was initially :::c
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limited to Hinduism was soon extended to Buddhism and Sikhism too. But the categorization of STs
and OBCs is religion-neutral and can be categorized from any religion.
• But many of the SCs also converted to Islam and Christianity and did not get the benefit of the z
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affirmative action policies due to their non-inclusion in the SCs list. Thus, many commentators have �
claimed that such a policy is biased towards lndic religions. Thus, a petition challenging this anomaly is
z
pending in the Supreme Court. ::::)
u.
 • In 20 15, an interesting judgment was delivered by the Apex Court in the KP Manu judgment. The
court said that the benefits arising out of affirmative action for SCs would not be applicable for
members professing Islam and Christianity, but if the members converted back to either Hinduism,
Buddhism, or Sikhism, they can avail themselves of, the affirmative action benefits. Pratap Bhanu
Mehta, a commentator remarked the court is extending affirmative action benefits not on the basis of
deprivation status of a community but their conversion status.
• Secondly, the court also had said that the community needs to accept back the conversion. Mehta
remarked that the constitution provides freedom of religion to each individual citizen, then how can the
acceptance of a community be deemed a valid criterion for the acceptance or non-acceptance of faith
by a citizen, thus creating an entity similar to Khap Panchayat and was also promoting agendas like
Ghar-wapsi.
The problem also arose with regard to communities like OBC and their status with respect to affirmative
action.
• In the original constitution, the affirmative action benefits were availed only by the SCs and STs. But
later the OBCs were added to it. In 1979, the government-appointed Mandal Commission basically
tasked with the responsibility to come up with a formula or prescription as to what kind of affirmative
action benefits can be OBCs.
• The commission came with the figure that 52% of the population of India belonged to O BC, a figure
z that they derived by extrapolating the 193 1 Census. The commission recommended a reservation of
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27% quota for the OBC community in jobs and educational seats pertaining to Central Government.
• This recommendation was partially implemented by the V P Singh government in 1990, i.e. they
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> implemented the quota only in Central Government jobs and not in educational institutes. In 2006,
the same quota was extended to educational institutions
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Identification of SCs:
0 00:35:52
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<( Governments of every state and compiles them to create a single central list of SCs.
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u consultation with State Governments via the Governor notifies the list of SCs through a public
notification. Any subsequent modification to the list can be carried out only through the Parliament
<( through a law.
• Thus post the SC Constitutional Order of 1950 that specified the list of SCs, any further modification to
J: the list is carried out by the Parliament. This power of the Parliament is mentioned in the second clause
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of Article 34 1. It also further states that this modification of the list cannot be carried out through any
subsequent notification thus disallowing the executive from carrying out the action and vesting the
z
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Identification of STs: 0 00:40:06
z
::, • The procedure followed here is similar to the provision followed for the inclusion and further
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 modification that is carried out for the SCs as discussed previously.

Identification of OBCs and Role of NCBC: 0 00:4 1 : 1 5

• Until the 1 02 Amendment Act, for a very long time both the Centre and states identified OBCs in
their respective Central and State OBC lists. Similarly, the states also had a State Backward Classes
Commission to aid the States in this matter.
• In 1993, the Central Government set up National Commission for Backward Classes to aid the centre
in matters related to the Union list under the NCBC Act 1993.
• The composition of NCBC included the following members namely
o Chairperson who is or has been an SC/HC Judge
o A Social Scientist
o Two Persons with Special Knowledge concerning OBCs
o A member cum secretary who would be a government nominee
• It would entertain and dispose off requests concerning inclusion into the Central list and hence the
NCBC would advise the Central Government regarding this.
• This law also provided that every10 years the Central Government would conduct a review of the
Central OBC list with a view to exclude those castes that have ceased to be backward now and
include those that have been freshly identified as backward, for which the Central Government has
to consult NCBC. z
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• The law also says that the advice tendered by NCBC would be ordinarily binding on the government.
Any deviations from the advice tendered would invite an explanation. <(
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Article 3388 and NCBC 0 0 1:00: 13
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• A change came about through the 102nd Constitutional Amendment Act, 2018 through which NCBC 0::
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was given constitutional status under Article 3388. u.
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• Earlier NCBC could not entertain complaints regarding the deprivation of rights of already identified 0
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OBCs like NCSC and NCST, this anomaly was sought to be removed through this Amendment Act. <(
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• The Act has been framed on similar lines as that of NCSC (Article 338) and NCST (Article 338A). .-i
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Additionally, NCSC has also been given powers to look after the interests of the Anglo-Indian ...J
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community.
• The Act also added Article 342A giving the Commission similar powers concerning the identification <(
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of OBCs that the NCSC and NCST enjoy through Article 34 1 and Article 342 respectively. V,
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105th Constitutional Amendment Act, 2021 0 o 1:07:04
nd ...J
• In the Maratha Quota Judgement, the apex court remarked that by virtue of the 1 02 amendment that
the power to identify OBCs has been vested in the Union government only as in the case of SCs and z
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STs. �
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• Thus, the 105 Amendment Act was passed in 2021 to correct this anomaly that had crept in which
z
was not the intent of the Act. Article 342A and Article 338 8 were amended in this Act. ::::)
u.
 • In Article 342A a third clause was added saying that every state can prepare their own O BC list, as
the situation was before. Further, a clarification that the 102 nd Act meant only powers concerning the
Central OBC list was added too.
• A further amendment was made in Article 3388 where the existent provision was that each State
Government had to consult with NCBC before any modification to the State List, this was sought to be
amended in the 105th Amendment Act. Thus, a proviso was added that this provision shall not restrict
the State Government's power to identify their own state O BC list under Article 342A (3) .

Why d o we need a Reservation Policy? 0 01:11:21

This debate has generated more heat, less light. Thus, a debate is necessary.

Points in favor of Affirmative Action:

• Historical Injustice:
o The affirmative action policy benefits that accrue to the backward classes is a compensation for
millenniums of historical injustice like untouchability, economic deprivations.
o It is followed in the USA too due to the history of racial injustice. It is also followed in Australia for the
injustice meted out to Aboriginal Tribes.
• Division of Labourers, not Labour:
z o The work is assigned is based on the accident of birth and not merit. In the modern economy, the
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link between a person's caste and employment is considerably broken.
w o But this link is considerably broken is true for upper castes, the lower castes still face the historical
> linkage of occupation based on their caste with the Dalits, in particular, facing the brunt in manual
scavenging.
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a:: • Coinciding of Class and Caste distinction:
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o A person of lower class usually means a person is poverty-stricken. Similarly, a person from a lower
C caste faces social isolation.
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<( o These two identities coincide considerably in the weaker sections with the lower castes facing both
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.-4 poverty and social isolation. This is more likely to happen with Dalits where landlessness is more.
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...J • Untouchability:
u
o Untouchability in its original form as practiced in colonial India may not exist, but it doesn't imply
<( that untouchability has been eradicated. Its form has changed.
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o Examples include keeping separate utensils for domestic help, asking them to remove their
J: footwear outside the kitchen, difficulties in renting faced by Dalits, honor killings for pratiloma
(,!)
marriage, caste demands in newspaper matrimonial from urban areas too.
o Thus, the manifestation of untouchability in its earlier physical form may not exist, but its form has
z
w changed and still exists in its new form in society.
� • Labour- Market Dualism:

z o Ashwini Deshpande in her book 'Affirmative Action in India' talks about labour market dualism.
::, o It says that with all things being equal, labour market outcomes should be equal too. But this is not
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 prevalent according to her.
o An interesting study conducted by Thorat and Atwell in 2007, where they conducted a social
experiment where three applications with the identities of Hindu (Non-Dalit), Hindu (Dalit), and a
Muslim with same qualifications except the identity markers. Even when all things were equal, the
market outcomes were different.
• Bridging inequality:
o Thus, it is through these gentle pushes and nudges that the unequals become somewhat more
equal.
o The normal process of development doesn't bridge the gap between the dominant and weaker
groups as desired.
o Thus, the gap between equality in law and equality in fact is bridged by Affirmative Action
• Benefits Society:
o The policy of Affirmative Action should not be seen as catering to the interest of the individual
availing the benefit alone.
o It also has to be seen benefitting the interest of the entire society by promoting the interest of the
weakest in the society. It thus allows the full utilization of the talent pool in society.
0 01:39:45

Arguments against Reservation Policy & Debunking Associated Myths:

• Perpetuates injustice to tackle injustice: z
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o It is argued that affirmative action was promised to rectify the historical injustice against the weaker
sections. But this is akin to rectifying injustice by doing injustice. <(
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o But on deeper examination, this argument is specious because the notion that a person from a >
weaker section can compete equally with a person from the dominant section is not valid.
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• Generates Caste distinctions and generates hostility: 0::
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o The argument is that such a policy increases caste consciousness and distinctions and further u.
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increases the hostility among the various castes. 0
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such caste distinctions and hostility and affirmative policy has been created to counter and rectify .-i
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such distinctions. This is corrective justice, ...J
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• Compromises Merit:
o Merit is not something that an individual is born with. <(
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o Merit is inculcated in a person due to his own efforts and also due to his/her surroundings. The V,
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education he gets, the familial support, the lack or presence of discrimination, the quality of :::c
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schooling and post-schooling support, etc.
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o Thus, merit is not inherent but assisted. This inculcation of merit is deficient or absent in weaker
sections due to environmental factors and discrimination. z
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• Compromises Merit and hence productivity: �
o A study done by Deshpande and Weskopff in 2012, in Railways concerning the period from 1980-
z
2002. They measured the productivity of officials from the reserved category vs. the officials from ::::)
u.
 the open category.
o They found out that there was an inverse relationship between the presence of reserved officials
and the presence of accidents in the Railway zones. They found that Dalit officers were far more
efficient in managing Group D employees who had an overrepresentation of Dalits in their Group.
o In the US Army too, it was found out that the Black Officers are efficient in dealing with black
soldiers than the White Officers.
o The better performance of SC and ST Officers in the Railways was attributed to the greater drive
in officers to prove their persistent critics wrong regarding their work productivity and
competence. There are multiple studies demonstrating the same point.
• Cornering of benefits by Creamy Sections:
o It is also alleged that the creamy sections of the weaker sections corner all the benefits of affirmative
action.
o What is required is better targeting rather than abolition of the affirmative action itself. Moreover,
this issue of poor targeting is a symptom of all government schemes rather than affirmative action
policy only.
• Mismatch Hypothesis:
o This hypothesis states that a significant number of reserved candidates are unable to cope with
the rigors of the intensity of effort required to succeed and hence drop out or poorly perform.
z o This doesn't call for revocation of affirmative action, but for policies like extra classes, remedial
0
classes, psychological counseling by the government.
• Why Caste and not Class?
w
> o lt is based on the notion that a poor Brahmin and a poor Dalit face the same handicaps in the pursuit
of merit. This argument cannot be further away from the truth.
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addition to social isolation.Moreover, affirmative action is not a poverty alleviation remedy rather a
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 QU OTA PO LICY - CO NSTITUTI O NAL
- PROVISIO NS, I M PLI CATI ONS ETC.
Move Beyond Quota Policy: 0 00:00:58
Intellectuals like Satish Deshpande use the term Quota Plus policy to refer to going beyond the quota policy.

• Quota policy benefits urban backward and not the rural backwards:
o A vast majority of backward classes including the Dalits are in rural India who are not even
matriculate.
o Quota policy has primarily benefited the urban backward. Hence, providing quota in professional
engineering and medical colleges is meaningless as the majority of the backward classes are in rural
India who are not even matriculate. Hence the following can be done to assist the rural backward,
SC/ST, OBC etc.
► Land Reforms: As majority of the Dalits are landless laborers, it is a very important aspect of
socio economic advancement.
► Generation of non-farm employment
► Setting up of MSM Es (micro small and medium enterprises)
• Limits of quota policy are about to be reached:
o Court has set a 50% cap on quotas. In Tamil Nadu, quota has been given for 69%. Increasing the
quota percentage isn't useful anymore.
� • Government needs to handhold the beneficiary of quota policy:
(/)
z o Hand Holding and nurture the students who have received seats in colleges (Engineering. Medical,
0
MBA etc.) to ensure they reap maximum advantage of the seat awarded.
u • Involvement of private sectors/ Impose quotas in private sector:
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a.. o Diversity Index - diversity in terms of gender, community and caste.
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o Score companies on the basis of their diversity index. (For instance, 0 to 1)
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z ► 0-0.33 - low diversity
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in ► 0.33-0.66 - medium diversity
► 0.66 - 1 - High diversity
c::: o State and central governments could outsource their contract to companies, with diversity index
a..
as eligibility for bidding .
z o UPA government proposed a diversity index and then assigned scores to the companies and linked
0 the contract giving (outsourcing) on the basis of this.
j:::
::> • Move beyond quota policy:
1-
o The Constitution mandated quota policy (only for SC/ST) initially only for 10 years but this
z reservation was only for seats in the Lok Sabha. However, this has been amended with time and
0
u now stands at 80 years.
o The objective of providing quota policy and its implementation should be to uplift the backwards
:::i classes to a point that there is a level and fair ground.
0
a.. o Proposed solution to eventually dismantle quota policy - follow a top down approach, a phased
0 manner. The three levels of quotas can be abolished in a phased manner ensuring proper
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 ► Promotion quota (only SC/ST)
► Job quota
► Educational institutions

OBC Quota
0 00:19:35

• Article 340 provided for the setting up of a body to deal with the socially educationally backward
classes of citizens & to make reports to the Government of India from time to time.
• National Commission for Backward Classes which was set up in 1993 became a permanent body.
• Article 340:
o (1) The President may by order appoint a Commission consisting of such persons as he thinks fit to
investigate the conditions of socially and educationally backward classes within the territory of
India and the difficulties under which they labour and to make recommendations as to the steps
that should be taken by the Union or any State to remove such difficulties and to improve their
condition and as to the grants that should be made for the purpose by the Union or any State the
conditions subject to which such grants should be made, and the order appointing such
Commission shall define the procedure to be followed by the Commission
o (2) A Commission so appointed shall investigate the matters referred to them and present to the
President a report setting out the facts as found by them and making such recommendations as
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they think proper z
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o (3) The President shall cause a copy of the report so presented together with a memorandum
explaining the action taken thereon to be laid before each House of Parliament u
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• It directed that a commission to be appointed from time to time for monitoring backward classes. a.
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• First such commission was set up in 1953 - Kakasaheb Kelkar commission
v;­
• Second such commission set up 1979 - Mandal commission which recommended: z
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o 52% of population is OBC. in
o 27% quota to be given to OBC in government jobs (1990) and central education institutions (2006).
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Indra Sawhney Case, 1992 0 00:24: 10
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It was regarding the 27% quota given to OBC for government jobs. z
• Requirement of availing quota (Refer to Article 16, clause 4): 0
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o Backwardness: Community should be backward-socially and economically ::)

o Inadequate representation: Community should not be adequately represented in services under

state. z
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• Court mandated a 50% cap on the quota and could be breached in exceptional circumstances if u
need be. It has been breached by the court itself though:
o 15% - SC, 7.5% - ST, 27% - OBC, 4% - PDA, 10% - EWS, which adds to more than 50% :J
0
o The reason for giving the 50% cap was upholding the principle of equality of treatment. Articles 16 a.
(1), (2), (3), (4) have the norm as equality. It can deviate under clause 3 with respect to domicile 0
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qualification and clause 4 with respect to reservation of appointments or post for backward classes,
 which are exceptions.
o Norm - Exception framework Vs. Norm - clarification framework
► Norm - Exception framework is adopted by the court.
► Hence, a cap on 50% to be mandated, otherwise it won't be an exception anymore and it
becomes a norm. (If exception is more than norm then exception becomes norm and norm
becomes exception)
► However, intellectuals say that it should be based on a norm-clarification framework which
allows the quotas to go above 50% if it is for equality.
• Identification of backward classes would be subjected to judicial review.
o To avoid political parties from giving OBC status to certain communities for the sake of electoral
gains.
o Jat and Maratha quotas were nullified by the apex court.
• Identify creamy layers and exclude them from the benefits of quota to ensure the needy people are
targeted.
o In 1993, Ram Nandan committee was set up to identify creamy layer in OBCs. For government
positions, creamy layer includes:
► If one of the parents holds a constitutional post
► lf one of the parents is Group A - Direct recruit
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z ► Group B - father and mother both
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► Parents in armed forces - Colonel or equivalent.
u o For parents in non-government jobs, creamy layer is:
::::i
Q. ► Income limit of Rs. 8 lakhs (not including salary income + agricultural income)
► In 20 17, annual income limit was increased from 6 lakhs to more than 8 lakhs
vi
z ► There is further demand for increasing from SL to 12L or lSL
0
vi ► In 20 19, BP Sharma committee was set up, which said:
• Only 2% of Indian household have an income of more than 12L
Q. • Increasing the cap to 12L would cover 99% of OBCs

z • A certain proposal for identifying creamy layer for non-governmentjobs recommended that:
0 o As per study, income of a household increases by 60%, if the head of the family is a graduate and not
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1-
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► Only one member per family can avail benefit of quota
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Q. Note: Court states that annual income or economic background should not be the only parameter to
0 identify backward classes.
::::>
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• Recently the Haryana government declared that O BCs with annual income less than GL would be
considered for quota benefits. This population would be further categorized to 0-3L and 3L-6L with
preference being given to 0-3L households. The Supreme Court ordered against it, stating
classification cannot be made purely on the basis of income.

Targeting the quota policy 0 00:59: 17

• List revision - Identify new groups and remove the one's which have risen. This has not been done yet.
• Identification of creamy layer (As discussed above)
• Sub- classification like above mentioned Haryana government.
o According to central government, there are 2600 OBC castes out of which 50% of the castes avail
only 3% of quota benefits. This is highly asymmetric. Hence, sub classification needs to be done.
o Justice Rohini commission in 20 17 under article 340, defined sub classification of 27% OBC quota
under 4 groups of castes. (final report awaited)
► Group 1 - 2%, Group 2 - 6%, Group 3- 9%, Group 4 - 10% (Total 27%)

OBC quota sub-categorisation

■ Group 1 ■ Group 2 Group 3 ■ Group 4 ■ Outside OBC quota
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0 0 1 :04:56 z
• Article 16 (4) must always be read with article 335. 0
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o The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into �
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consideration, consistently with the maintenance of efficiency of administration, in the making of z
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appointments to services and posts in connection with the affairs of the Union or of a State. u
o Provided that nothing in this article shall prevent in making of any provision in favour of the t:J
members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in 0
any examination or lowering the standards of evaluation, for reservation in matters of promotion to a.
any class or classes of services or posts in connection with the affairs of the Union or of a State. 0
(Added by the 82 nd Constitution Amendment Act) ::::,
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 • In the Indra Sawhney judgment, the court stated that, there would be no quotas in promotion.
o The court argued that the Constitution says by giving quotas we equalize opportunity. But by
extending to promotions we are trying to equalize outcomes as opposed to opportunities.
• In 20 12, total number of secretary positions in government of India was 1 02. Out of 1 02, SCs were 0,
STs were 2 and OBCs were 0. For additional secretary positions out of 1 1 3, SCs were 5, STs were 1 and
OBCs were 0.
• Thus it can be seen that despite giving quotas initially, many don't reach higher ranks due to a concept
called glass ceiling.
• Glass ceiling: Generally observed in corporations (pvt sector) with respect to women due to patriarchy,
where they are restricted from reaching the top positions.
• Thus, there was need for quota in promotions and article 16 was amended, by adding clause 4A,
th
giving provisions for promotion of SC, ST but not any backward classes. (77 Constitution
Amendment Act, 1995)
o Article 16(4A): Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion to any class or classes of posts in the services under the State in
favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.".
• Later the 85th Constitution Amendment Act added the word 'consequential seniority' to Article
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from general category, the SC/ST person he would gain seniority. But when the person from general
u category gets promoted, he would regain his seniority over the earlier promoted person from SC/ST
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Q. community. This regaining of seniority by person from general category is called the 'Catch-up Rule'.
• The Indra Sawhney judgment also said that unfilled vacancies cannot be carry forward beyond 3
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By the 81 Constitution Amendment Act, Clause 48 was added to Article 1 6 to get around this.
o Article 16 (48) : Nothing in this article shall prevent the State from considering any unfilled
Q. vacancies of a year which are reserved for being filled up in that year in accordance with any
provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to
z be filled up in any succeeding year or years and such class of vacancies shall not be considered
0 together with the vacancies of the year in which they are being filled up for determining the
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� 0 1:24:40
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down following requirements for availing quotas in promotion:
::::i o Backwardness has to be demonstrated by quantifiable data to ensure they are still backward for
0
Q. availing benefits. (similar to creamy layer filter in OBC)

0 o Article 1 6 (4A) should be read with Article 335.

::::> o Community should not be adequately represented at or in higher echelons.
0-
Note: UP Power Corporation Ltd, 2012-Supreme Court struck down the quota in promotions given by
UP government since they were violating the criteria laid down in the Nagraj judgment.

• The 117th Constitution Amendment Bill, 2012 was introduced to get around this judgment but could
not be passed.

Jarnail Singh case, 2018

• The apex court decided that there is no need for quantifiable data but norms are required to identify
creamy layer amongst SC/ST.
• On the whole, it upheld the Nagraj judgment.

OBC:
0 0 1:39: 10
• Jati-Varna link is more clearly established at the extremes, that is for Brahmins and SC but it is loosely
established in the middle for Kshatriyas, Vaishyas and Shudras.
• Jati-Varna link being fluid in the middle, the government gives quota to certain sections of the
community demanding for it. For e.g. Jaats and Marathas were given status of OBC but the apex court
rejected it. However, OBC are said to be the lower strata of Shudras but Marathas come under
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Kshatriyas. Despite this Marathas were given the status of OBC. z
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• Jats in Haryana, Patidars in Gujarat and Marathas in Maharashtra are socially forward but
economically backward. These are also called as dominant castes. u
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• Dominant castes are those which are demographically significant and own land. a..
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• Land has become fragmented and agriculture is becoming non-remunerative. Despite being socially
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forward due to lack of skills they are economically backward. z
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• There are dalit middle class which are socially backward but economically forward due to en
government provisions. �
• Hence, there is rise in demand for quotas from dominant castes like Jats, Patidars, Marathas, etc. �
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 RESERVATION DEBATE AN D
ARTI CLE 17
• There is much discretion available to the centre and states in labeling specific communities as OBC and
extending quota benefits to them. The jati-varna link is clearly established at the top and bottom but
less so for the middle castes.
• In 2 0 1 4, on the eve of Lok Sabha elections, UPA governement decided to confer OBC quota on the Jats
with an eye on the elections to create a momentum in order to create a vote bank.
• It was rejected by the Supreme Court in 20 1 5 in Ram Singh judgement.

Ram Singh Judgement:

SC observed the following concerns:

• Historic injustice cannot be the only basis for claiming reservation. There were two disturbing things
observed. The fundamental nature of affirmative action extended to SC and ST is based on historic
injustice only. The narrative of historic victimhood based on injustice shouldn't be applicable to OBC as
it has been a narrative that belongs to SC and ST.
• Social groups who are deserving of quota benefits or affirmative action benefits should be a matter of
continuous evolution, as seen in the Transgenders case where they were placed under OBCs for
affirmative action.
o Vertical Discrimination: Discrimination of the lower rung of society by members of the upper
castes. SC, ST and OBCs occupy the last layer of stratification of social hierarchy. Many jurists say
that the framework to tackle vertical discrimination in the constitution is seen in Article 1 5 (4) and
Article 1 6 (4). Basically it relates to the quotas in education and jobs.
o Horizontal Discrimination: Discrimination against communities those are present in all larger
communities.eg women, poor people, transgenders. They are found everywhere and subjected to
discrimination everywhere. Article 1 5 ( 1) and 1 6 ( 1) provide framework for horizontal reservation.
Ending discrimination is not similar to providing quotas and hence such discrimination has to be
tackled like all other discrimination is tackled, namely by attitude change, infrastructure change etc.
• Self-perception cannot be the basis of quota, and that quantifiable data would be needed to

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determine backwardness.
• Whenever a community is categorized as backward, the data collected regarding the backwardness
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u needs to be contemporary. The court hasn't defined what means contemporary data.
• The courts while reversing the conferment of backwardness status has termed the government's
<( decision as not objective and being influenced with the elections in mind.
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z Thus a need for caste census arises to avoid these situations.
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Maratha Quota Judgement:
0 00:28:58

aJ • Quota was announced by Maharashtra government in 20 1 4, namely 16% for Marathas and 5% for
w
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z religion)
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• Quota in jobs can be done based on executive order but for educational institutions, a law is required.
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� Hence theMaharashtra government extending the quota via executive action was unconstitutional.
w • Thus SEBC Act was passed in 2 0 1 8 to give this to effect, this was challenged, and hence Bombay HC
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 in 20 19, broadly upheld and accepted but reduced the percentage i.e. 13% in jobs and 12% in
education. But Supreme Court has struck down the quota as unconstitutional.

EWS Case: 0 00:3 5:40

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• Since 103 Constitution Amendment Act, 20 19, clauses 15(6) and 16 (6) were added and EWS
reservation has been given.
• Issues in extending quotas to EWS category:
o It goes beyond 50% limit.
o Court has said that if represented in quota two tests have to be fulfilled, namely:
► Backwardness and;
► Inadequate representation.
► It has been estimated that the general category does not exceed even 20% of the total
population and they are over represented in the higher echelons of administration. Thus the logic
of inadequate representation is not fulfilled.
o They are horizontally discriminated but benefits pertaining to vertical discrimination are provided to
them under EWS quota.
o Extending quotas purely on the basis of economic criterion. However, the Supreme Court in its
various j udgments has opined that creamy layer cannot be solely on the basis of economic criteria.

Rules for EWS Case: 0 00:41:52

Following would be excluded from the EWS category as per Central Rules:
• Annual income exceeding 8 lakhs (includes income from all sources like salary and agriculture),
• Owning agriculture land of 5 acre or more,
• Residential flat of 1000 sq. yards or above,
• Residential plot of 100 sq. yard in a notified municipality, 200 sq. yards and above in non-notified
municipality area.
These are criterion given by union, and states are free to give their own criterion.

Has the quota policy been really beneficial? "

.-1
• According to experts, the quota policy is benefitting over 80% of the total population in India. w
• How can a policy that benefits 80% of the country's population be a wrong policy? ...I
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• It is because of quotas that we find the education gaps between the SC/STs and the general population
have been significantly narrowing. <(
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• It is also because of this quota policy that in the recent past, we have seen the rise of a unique Dalit z
Middle class. <(
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Is there a Right to Reservation? 0 00:48: 13 al

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• In the Mukesh Kumar Judgement, Supreme Court said that there is no right to reservation. Q

• Article 16(4) and 16(4A) are enabling provisions, but there is no fundamental right to quotas.
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• But Art 14 which is a fundamental right implies equality before laws and equal protection of laws. �
Equal protection of laws implies that unequals too cannot be treated as equals. �
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• If the whole quota system was to be scrapped tomorrow, all SC, ST and other communities would be l/)
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 treated equally, but their conditions would still not be equal, and hence here the unequals would be
treated equally.
• In this sense, fundamental right to quotas exists, as equal protection of laws is also a fundamental right
under Article 14. Article 46 also says that state shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes
and the Scheduled Tribes
0 00:55:12
Case for Caste Census:
• Till 193 1 caste census was being done, 1951 census onwards till 20 11, caste census is not being
done.
• While SCs and STs are being enumerated, there was no enumeration of OBCs.
• It is being said that OBCs constitute nearly 51 % of population while being awarded only 27% quota
and hence their representation is less and hence courts should revise the 50% cap.
• The government conducted a Socio- Economic Caste Census (SECC) in 20 11, but the data has not
been released on claims of inadequacies and imperfections.
• Unless a precise knowledge of the level on deprivation is known, any effort for targeted benefits is not
feasible. Hence, there is need for another SECC.
• Benefits of SECC:
o Targeted interventions
o Help in revision of lists
o Take decisions based on accurate information
o Justice Rohini commission also talked about sub-categorization, where information of SECC would
form the basis.

National Eligibility cum Entrance Test (N EET):

• It is a common test for all central and state medical institutions for undergraduate as well as post
graduate courses.
• State governments are entitled to reserve seats for their own domiciled candidates.
,-... • In 1986, Supreme Court directed that a state cannot reserve all the seats in a local college based on
.... domicile only, and allow some seats for all India quota.
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u • For those seats which the states surrender for all India quota, there was reservation for SC/ST quotas
but there was no provision for OBC quota.
<( • Since January 2022, it has been extended now both to SC/ST and OBCs, as well to EWS.
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• In Andhra Pradesh since the year 2000, there has been a government order which stated that in the
aJ scheduled areas that have been inhabited by scheduled tribes, all seats for teachers in primary schools
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C in these areas would be reserved for teachers from ST communities.
z • The apex court struck down the order citing it is as violation of the 50% cap and as it was restricted to
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� STs only, it deprived other communities like SCs, OBCs, etc.
�
w Clause 5 of Article 16:
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• N oth i n g i n this a rticle s h a l l affect the operation of a ny law which p rovides that the incum bent of a n
office i n con nection with t h e affa i rs o f a ny rel i g ious or denominatio n a l institution or a ny mem ber o f the
govern i n g body thereof s h a l l be a person p rofessing a pa rticu l a r religion or belon g i n g to a pa rticu l a r
denomination
• That means, the person a ppoi nted to a statutory board concern i n g tem p l e a d m i n i stration ca n be
based on religious d iscri m i n ation i.e. persons belonging to a rel igious boa rd set u p to manage the
property of a pa rticu l a r religious institution belong to the specific religion on ly. For e.g. M u s l i m s
m a n a g i n g t h e affa i rs o f a M us l i m religious institution, H i ndus m a n a g i n g t h e affa i rs o f a H i n d u religious
institution, etc.

Article 17: 0 0 1:20:00

• It a bol ishes the p ractice of u ntouch a b i l ity.
• It is made p u n ishable by law, hence it is non-self- executory,
• Untouchability Offences Act, 1955 was replaced by Protection of Civil Rights Act.
• H owever problem with both Article 1 7 a n d Protection of Civi l Rig hts Act is that they don't defi ne
u ntouch a b i l ity,
• I n laym a n terms, untouchability is a practice in which certain depressed classes are looked down
upon based solely on their birth.
• U nder the Protection of Civi l Rig hts Act, a n offence of u ntouch a b i l ity is:
o Preach ing u ntouch a b i l ity.
o I ns u lti ng a member of SC com m u n ity on g rou nds of u ntouch a b i l ity.
o J ustifyi ng u ntouch a b i l ity based on historica l , religious a n d p h i losophical g rounds.
o Denyi ng a d m ission to a ny place of public resort e.g. wors h i p, hospita l , cremation g rounds, water
resources, resta u ra nts, enterta i n ment, etc.
• If convicted of offence u nder this law, then:
o Jail term plus fi ne.
o Disq u a l ification u nder Representation of Peoples' Act, 1 9 5 1 contesti ng for elections at u n ion and
state level for the d u ration of sentence and fu rther for 6 yea rs after release.
• Offence com m itted under this act is a cognizable offence (a rrest without warra nt) and non­
compoundable (not resorted to com p rom ise) .
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• The cou rt has the l i berty to operate on p resum ption of g u i lt i.e. the case is u nderta ken on p resu m ption u
of g u i lt a n d not p resum ption of i n n ocence. The cou rt will ass u m e that the person is g u i lty a n d the
accused has to prove that he/she is not g u i lty. <(
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Note: I n 20 1 1 - 1 2 , National Council for Applied Economics Research (NCAER) conducted I H DS-2. <(
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(Indian Human Development Survey) The resu lts of su rvey were p u b l ished i n 20 14,
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• 27% respondent agreed to practicing some form of u ntouch a b i l ity across a l l relig ions. Q
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o J a i ns - 3 5% 0
o H i nd us-30% �
o S i khs-23% �
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 o Christians-5%
o Brahmins- 52%
• State wise, in Madhya Pradesh 53% and in West Bengal 1 %, admitted to practicing some forms of
untouchability.

Performance of Prevention of Atrocities against SC/ST Act, 1989:

• Parliament committee reported that in last two years, there has been 1 5% rise in crimes against SC/ST
women and SC/ST children.
rd
• However issues with this law exist, like only around 1/3 cases are registered, conviction rate is 25-
26%, lack of awareness of rights, time and financial constraints to fight in the court of law, recent
instances of false cases.
• With respect to the false cases, in 20 18, Subhash Mahajan case, the apex court ruled that whenever
there is a complaint, the police would do a preliminary inquiry before an FIR is registered and arrest
will only take place with the permission of a senior SP level officer.
• In response to uproar, parliament added section 18A to the Prevention of Atrocities against SC/ST
Act, 1989.
• The court did not strike down the added section and recalled its earlier order in the Subhash Mahajan
case as well.

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 � FUNDAMENTAL RIGHTS - ARTICLE
c.1:.J 18 AND ARTICLE 19 (PART- 1)
Article 18:
• Abolition of titles:
o No title, not being a military or academic distinction, shall be conferred by the State
o No citizen of India shall accept any title from any foreign State
o No person who is not a citizen of India shall, while he holds any office of profit or trust under the
State, accept without the consent of the President any title from any foreign State
o No person holding any office of profit or trust under the State shall, without the consent of the
President, accept any present, emolument, or office of any kind from or under any foreign State
Right to Freedom
• The eagerness of the Constituent Assembly in adding this article can be traced to British practice of
conferring titles. E.g. Knighthood, Rai Bahadur etc.
• Since the government represents society in concrete form, it was as if like the society was conferring
these titles, hence this tended to create feelings of inequality, inferiority, leading to further stratification
in a highly stratified society.
• So there was eagerness to abolish such a practice.
• This British practice of conferring titles was also given with an expectation of a quid pro quo where the
holders were expected to be loyal.
• Titles of military or academic distinction are exempt from this, example being Professor, PVC etc. This
barring of conferment is limited to state and hence any private entity is free to confer the title. No Indian
citizen can receive title from any foreign state and if accepted, the Indian citizenship has to be
li: surrendered.
g_ • Any foreign national in service of the government, he is not allowed to accept a title except with the
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permission of President.
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� or office of any kind from a foreign state.
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In 1954, government created four categories of decorations:
• Bharat Ratna, public service of highest order (PM recommends this to the President, not more than 3
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names per year)
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• Padma Bhushan, for distinguished service of higher order
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(!) • Padma Shri, for distinguished service in any field

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For the Padma awards, the Prime Minister constitutes the Padma awards committee headed by the Cabinet
secretary, including the Home secretary, Secretary of President and 4-6 eminent persons.
z There is absolute discretion of government to award these titles.
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Issues associated with Article 18: 0 00:17:02
• Titles: The opponents of this said that they are like titles only, example of Bharat Ratna being placed at
th
9 place (7A) in table of precedence and hence the logic of abolition of titles to abolish stratification
stands negated.
• It has been seen that they have been used as titles. In any such violation that these decorations can be
forfeited.
o In the Balaji case 1996, Supreme Court held that these are not titles and merely decorations, the
1 977 Janta government stopped these awards, but the later congress government restored it.
• There is abuse of decorations especially of the Bharat Ratna. It has been conferred by the ruling party
to some past personality whose ideology or perspective and vision are very much aligned with the
present day ideology of the ruling government. It is further used as a tool to enhance the party's
political appeal.
• There is also the issue of self-conferment and awarding for political issues. Eg. Pandit Nehru and
Indira Gandhi awarded themselves with the Bharat Ratna in 1 9 5 5 and 1971, respectively.
• It has also seen perversion of seniorities. For e.g. While leaders like GB Pant and Indira Gandhi were
awarded in 1 9 57 and 1971, respectively, other senior leaders like Maulana Azad, Dr. Ambedkar,
Sardar Patel were awarded the Bharat much later in the 1990s.
• In case of Padma awards, sometimes the conferment depends on the alignment of overall ideology of
the person eligible for the award and the ideology of the ruling party. Hence it has also been politicized.
• Ideally, there should be a Padma awards committee consisting of eminent persons from outside the
government, which should make recommendations to the government. When the government rejects
the recommendations of the committee, it should give cogent reasons for refusal.
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conferring it on past personalities and constituting a broad based committee of persons from outside the ....w
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Article 19 - (Right to Freedom) 0 00:38:20 <(
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o (a) to freedom of speech and expression; ....I

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o (b) to assemble peaceably and without arms;
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o (d) to move freely throughout the territory of India;

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(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the
State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the
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 security of the State, friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence
• (3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and
integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the
said sub clause
• (4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and
integrity of India or public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub clause
• (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the
exercise of any of the rights conferred by the said sub clauses either in the interests of the general
public or for the protection of the interests of any Scheduled Tribe
• (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular,
nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to,
o (i) the professional or technical qualifications necessary for practising any profession or carrying on
any occupation, trade or business, or
li: o (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade,
g_ business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise
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• All liberties are provided in clause 1-a, b, c, d, e, f (removed), and g.
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Restrictions on 19(1) (a) are mentioned in 19(2), similarly restrictions on 19(1) (b) are mentioned in 19(3), and
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• Article 19(1) (a)
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straightforward, the term expression can be construed in various ways due to our human nature­
z art, cartoon, body language, poetry, films, social media, TV, written work, other ways in which
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humans relate to the world basically.
• Inferred rights-some rights can be inferred because some rights are codified in the constitution-e.g.
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right to silence from right to express.
 o Freedom to express other person's views is based on freedom of expression and thus freedom of
press.
o Right to expression implies that right to information because unless a person has correct
information, he can't express properly.
o Right to privacy from freedom of expression to avoid chilling effect that would prevent expression­
liberal interpretation of rights
• There are exhaustive instructions listed in the second part concerning freedom of speech and
expression concerning restrictions.
• The restrictions have to be reasonable and through law.

Article 19(2)-restrictions for 19(1) (a) :

• Restrictions like friendly relations with foreign states, public order and incitement of offence added
through first amendment, sovereignty and integrity of India by sixteenth amendment, decency or
morality or in relation to contempt of court, defamation.
• Defamation: � 01:01:40
o Saying or writing something that harms the reputation of others. It is termed slander when done
verbally and libel when done in a written form.
o Should defamation be civil or criminal offense?
o In India it is both civil and criminal offence, but world over the trend is to reduce it to a civil offense.
Offenses like murder which are prosecuted by the state are not just an offense against the family
affected but the whole society itself. Thus the state which represents society has to get involved.
o Sec 499 of IPC talks about defamation and sec 500 talks about the punishment.
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wrong in mature western democracies. Thus treating it as a criminal offense is providing a public ....I
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remedy for a private wrong.
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social media non geography leads to cases being filed in multiple parts across the country. ....I
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o It is used as harassment of social activists and opposition political leaders.
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o Sec 499 also lists acts that would not amount to defamation. For e.g. imputations made on good <(

faith would not lead to defamation, comment made on public performance of public servant,
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imputation of truth that serve public purpose. l!)

o It has been found that magistrates are mechanically applying the sec 499 without looking at the ....I
exceptions. z
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o It is the exclusive preserve of elites with the common man unable to go through the hassles to
either defend or go to court to frame charges.
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• Subramanian Swamy case, 2016: criminal defamation was challenged ::::)
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 o Government of India defended criminal defamation by saying that poor people don't have the
financial capacity to pay damages, hence cannot pay damages. Hence it needs to remain a criminal
offence. But the same is not applied to other offence like traffic fines, not getting tickets, which are
civil offences.
o Second argument was it was the government's duty to protect the reputation of citizens.
o Eventually, the court missed the opportunity and criminal defamation was upheld citing right to
reputation as part of right to life.
o The court also opined that the dignity and fraternity commitment in preamble would be harmed if
baseless allegations are made and a person may be alienated from the community.

• Contempt of Court: 0 01:33:27

o Contempt of Court Act, 1971 defined contempt, but the contempt powers of the court are
mentioned in the constitution itself (Article 129).
o The act describes two types of contempt-civil and criminal.
► Civil: Breach of order of court or breach of undertaking given to court.
► Criminal: Anything that has the effect of scandalizing the court or has the tendency to do so,
anything that interferes in the proceeding of the courts, or actions that obstructs the
administration of justice.
o Why these powers given?
► There might be instances where the ruling is unpopular, thus harming the independence of
judiciary, and thus shields from malicious campaigns.
li: ► If there is no independence of judiciary, public interest would be hurt
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► Nemo Judex in causa sua i.e. No person can be a judge in his own case.
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► While the Supreme Court has said that the shoulders of the Supreme Court are broad and can
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► So when fair criticism trespasses into the territory of scandalizing the court, there is no
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(!) yardstick for evaluation. It depends on subjective assessment of application of justice and
hence variability of justice which is violation of right to equality.
z ► Equality of treatment in court forums is also a part of equality before law and it may even stifle
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genuine criticism and prevent the growth of the institution.
o Actual intent is ignored:
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► In such cases, the courts also do not consider Mens Rea (actual intent) even if there was no
 intention to scandalize the judiciary; the court operates on what was the effect of the criticism.
o It leads to judiciary being considered infallible:
► It assumes that judiciary it can never be wrong
► Judiciary is also composed of humans who are susceptible to human failings and hence any
just criticism of the judge shouldn't be misconstrued as criticism of the judiciary and contempt of
court is not equal to contempt of judge.
► When the attack on a judge becomes an attack on the court, the line distinguishing between the
two is blurred.
► In UK, scandalizing the court has been removed as a ground for contempt, and in US, after many
judgements, a diluted version of contempt powers is used.

Note:
In the UK in 1987, Lord Templeton did not initiate contempt proceedings against a newspaper which
called the Lords as 'Old fools'. Lord Templeton said, " I cannot deny that I am old; it's the truth. Whether I
am a fool or not is a matter of perception of someone else ... there is no need to invoke the powers of
contempt."

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 � FUNDAMENTAL RIGHTS
� ARTICLE 19 (PART-2)
Mulgaonkar Guidelines:
• In Mulgaonkar guideline(1978) , guidelines were laid for judges to exercise contempt powers:
o Economic Use of contempt powers is desirable
o Harmonization between free criticism and judicial independence.
o Press should be given free play within reasonable limits
o Judges shouldn't be hypersensitive
o Distinction between contempt of court and that of judges.
• The Supreme Court has expressed in various judgements that the path of justice is not strewn or
littered with roses and hence justice should be allowed to suffer the scrutiny and even the
outspoken comments of the common man.
• In 2006, there was an amendment to Contempt of Courts Act, 1971, (CoCA) which provided for truth
as a valid defense in contempt of court. If there are allegations of corruption against the judge applied
and if those turn out to be true, the contempt should not be proceeded with.
• The courts have suomoto powers to undertake contempt proceedings.
• If a private citizen takes a petition to the SC regarding Contempt of Court, he has to take the permission
of the Attorney General at the central level and Advocate General at state level. This provision is there
to protect the time of the courts and prevent it from undertaking frivolous litigations.
• Even if there is refusal of consent, the citizen can still go to the court, since the permission of the
Attorney General is mentioned in the CoCA, 1971 but the contempt powers are derived from the
constitution itself by the courts.

Banning of books: 0 00:12:50

• Under section 95 of CrPC (1973) , the government can declare certain publications to be forfeited and
hence they cannot be published, distributed or sold. This can only be done if the book contains material
violative of certain sections in the IPC:
o Sec 153A-promoting enmity between groups)
o Sec 1538-having adverse effect on national unity and integrity
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o Sec 292-if it contains obscene material
o Sec 295A-religious sentiments hurt
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Sec 124 A: Sedition

• It was not present in original IPC, but added 10 years later.
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(!) • Whosoever by written word or through any other ways of expression brings or attempts to bring into
hatred or contempt or excites disaffection against the government amounts to sedition.
• The punishment is 3 years or lifetime imprisonment.
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them.
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• Problems:
 o Politically motivated: Very vague law and used to silence dissent, hence the application of this
section has become increasingly politically motivated.
o Relics of monarchies: It is based on medieval ideals where the kings assumed entitlement to love
and affection of his subjects.
o Infantile nativism: A.G. Noorani said that this section was introduced with racist undertones, while
the same speech wasn't considered seditious in England, but for the natives such speech was
unsafe thus showcased infantile nativism, a trait of white man's burden.
• Kedarnath Case 1962:
o The apex court did not strike the section down, but read it down.
o Discussion and advocacy of any kind is fine but using this to create incitement to incite people to
resort to violence, there you go beyond the right to freedom and expression.
o Hence court said in the case that this section should not be applied until there is an incitement to rise
against the state violently.
• Last few years, only 3 percent cases are convicted.
• There are other laws like NSA, UAPA and previous acts like TADA, POTA which deal with these acts.
The government directly under section 95 bans the books which they feel hurt their vote banks; they do
not go to the court with evidence and allow the courts to do this.
• Hence, the author or publishers have to go to the courts to prove otherwise and hence it is a discomfort
for freedom of expression.
• A book is the author's feelings and may not coincide with the society's viewpoints. If any view
contrarian to the society is banned, how will further social progress based on challenging norms be
achieved.

Restrictions based on Decency and Morality: 0 00:47:48

Freedom of expression can also be restricted based on decency and morality. For e.g. MF Hussain's paintings
have been subjected to challenge due to vulgar expressions.
• Pornography:
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• Sections against pornography:
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o IPC sec 293-selling such books to individuals under the age of 20 years. ....I
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o IPC sec 294-obscene acts or singing obscene songs in public or public place
o Indecent representation of Women(Prohibition) Act, 1986 <(

o IT Act, section 67 - illegal to publish, transmit obscene material in electronic form

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o Child Pornography- Protection of Children from Sexual Offences Act, 2012 - illegal in every form, (.!)

even possession is illegal.

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 open to such influences regardless of artistic worth.
• Miller test: society's view of obscenity evolve with time i.e. an average person using contemporary
community standards finds the content obscene. The standards are of present day. Secondly, if an
average person feels that it depicts sexual content in a patently offensive manner. Thirdly, if an average
person feels that the work has no artistic, literary, scientific or political value
• The Miller test is more contemporary, while the Hicklin test is older test.

Films: 0 01:02:58
• When it comes to films, there is a law called The Cinematograph Act, 1952.
• Any film to be publicly screened in India needs to get a certificate from Central Board for Film
Certification (CBFC) and also the suitability of the age group the film is screened for i.e. U,U/A,A,S.
o U-unrestricted
o U/A - children upto 12 years can watch it but with a parent or accompanying adult.
o A - Adult i.e. 18+ years of age
o S - Footage or documentary meant for specialized professional groups like medical footage, etc.
• Since the CBFC stresses on cuts in the film before it is screened to get a particular rating, it has also
been called by some as the censor board.
• The section SB in the 1952 Act, says that the CBFC will deny a certificate to a film if it goes against
the restrictions listed in Article 19(2) .
• If the producer is unhappy with the decision, there was a provision for Film Certification Appellate
Tribunal (FCAT) where appeals could be made, but it has been stopped now due to an ordinance.

Issues with functioning of CBFC:

• Poor Finances
• Corruption to receive certificates
• Poor quality of adjudication regarding certification, concerns about personnel to preserve artistic
freedom
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• Political interference under sec 6 ( 1): where revisory powers are given to government over CBFC
certification and the government can overrule the decision of CBFC.
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...J o KM Shankarappa case , 2000 struck it down later because that practically amounts to government
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taking over the function of CBFC.

Disbanding of FCAT:
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while the high courts are already burdened with cases and don't have the expertise as contrasted with
z FCAT.
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be huge and cripple film making.
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Committees concerning CBFC: 0 01:19:40
• Justice Mudgal Committee, 2013:
o The ambit of the committee was the whole functioning of CBFC.
o It said that the Cinematograph Act was archaic law which has to be replaced and hence it drafted a
Model Cinematograph Bill.
o It also gave proper norms for selecting the right people for membership on the board.
o It recommended that CBFC should move from a censoring body to a certifying body as it also goes
against the contemporary notions of morality, where some people become arbiters of morality of
the society and others are treated as infantile.
• Shyam Senegal Committee,2016:
o It also recommended to move it from a censor body to a certifying body
o Not every movie certified for adult could be suitable for all adults and hence has to be classified
further as - U, UA12+, UA15+, A, and adult with caution-A(C).

Draft Bill, 2021: 0 01:29:00

• In 202 1 a draft bill was proposed to bring about changes in the cinematograph act. It contained
provisions to tackle film piracy, etc.
• Earlier the certificate was issued for a period of 10 years according to law, but several executive
orders kept the certificate valid for perpetuity, but now the draft proposed to introduce the same in the
law itself thus replacing the 10 year period with perpetuity.
• It also had further categorization of certifications-U, U/A7+, UA13+, UA16+, A, S.
• The proposed draft tried to bring revisionary power through the backdoor that was struck down in
Shankarappa case. If the government receives complaint with respect to section 58, it can direct the
chairperson to reexamine the certificate.
• The film producers and directors can hence be held hostage by Heckler's veto where a small group of
hecklers offended by the film go to the government and government tries to appease these sections by
putting restrictions on the film.
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o Moreover, if the government feels that with the screening of the film, there would be disturbance of ten
law and order, then the government at the centre or the state level can put a ban on the film. ....
• In this context, the courts have been supportive of the film fraternity. w
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• For e.g. in the case concerning Ore Oru Gramathile, 1989, the film was certified and the court said that
a small group of people threatening to do violence cannot be a justification for suspension of freedom <(

and expression, because the certification already takes into account restrictions in article 19(2).
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• It said that it was the duty of the government to prevent that from happening and preserve law and (.!)

order, as it is the duty of the state to preserve freedom of speech and expression. ....I

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 Section 66(A) of IT act: 0 01:42:05
• Sec 66 (A) of IT act was struck down in Shreya Singhal case and still people are being arrested under
the section. It dealt with online speech.
• The audio-visual medium has more impact than the print or audio medium. Plus the audio video
content can be taken out of context more easily; it has outreach that is greater, immediate and
visceral effect.
• Sec 66 (A) termed information that is grossly offensive, tendency to create public menace, false
information causing inconvenience/annoyance, information causing insult injury and hatred or ill will,
will be treated as an offence.
• Hence the court struck it down saying it is unconstitutionally vague, it has a chilling effect on Freedom
of Speech and Expression, plus these are grounds not mentioned in 19(2).
• The court said that discussion, advocacy and incitement are different things, discussion and
advocacy howsoever annoying, passes muster i.e. is allowed, so long as it is not used to incite people.
The Sec 66 (A) failed to appreciate this distinction.
• Court said that hate speech is not included under Freedom of speech and expression but what
constitutes hate speech is a question to ponder and hate speech should necessarily lead to
incitement to be termed as hate speech. It should become an incitement to violence and lead to clear
and present danger.

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 � FUNDAMENTAL RIGHTS
� - ARTICLE 19 (PART-3)
Significance of Freedom of Speech and Expression (FoSE) : 0 00:01:00
• It has inherent value:
o FoSE is significant because it has an inherent value; it is a critical faculty/trait unique to human
bei ngs, i magi native com mun ication, visual com mun ication etc. and sets humankind apart from all
living beings. Thus, it is an expression of human nature.
• It is the cornerstone of a democracy:
o It helps in achieving democratic accountability through free media, criticism. Yet, it is not absolute
but society must learn to tolerate unpopular views, e.g. Galileo, Socrates, etc.
• Enables community life:
o No notion of community or collective life is possible without FOS E. Minority community will not feel
a sense of belonging and feel alienated if their views are not listened to and hence a collective life is
only possible if everyone feels that their view holds the same value as the other.
• Enables progressive change:
o There can be no progressive change without FoS E. Any critical commentary about prevalent norms
is not possible if FoSE is restricted, e.g. voting rights for women, improvement in condition of
workers, voting rights for African-Americans, etc. nothing would have been possible without free
expression.
o It also helps i n aid i ng i m p rovement of governance through free flow of ideas and criticism.
• Promotes innovation:
o It also promotes innovation through free contestation of ideas/free trade of ideas. Variety of ideas
gets confronted in the marketplace of ideas and the best idea takes its place in society and leads to
innovation. Ultimately greater good is served better through a free trade of ideas. Further
contestation also leads to refinement of ideas.

Note:
• When it comes to FoSE, it is better to err on the side of freedom. While FOS E is not absolute and
some reasonable restrictions need to be imposed so that this right doesn't become a tool in the hand
of mischievous people to create mischief and thus violate other person's rights and harm the
interests collectively of the society.
� • But any such restrictions must be imposed proportionately i.e. restrictions must only be as much
g_ as the restriction is required to achieve the desired objective and not beyond it.
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then it is better to err on the under-restricted side and provide more freedoms. For e.g. Banning of
riding on two wheelers due to increasing accidents on roads is over-restriction.

I Threats to Free Speech in India: 0 00:26:08

(!)
• Obsolete and old colonial laws, laws based on antiquated morality, no revision of such laws to suit
contemporary times.
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w • Weakness of the political class to amend, repeal the laws and misusing it to silence dissent.
::E • Weakness of judiciary to do the same, an example being judiciary upholding sedition law in spite of 3
z percent conviction rate and where relief comes after a long time.
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 • Weakness of media and publishing houses, when a large part of media aligns itself with the
government and abandons its traditional contrarian role; it harms the collective good of society.
Publication houses too instead of supporting their authors, have withdrawn the books subject to
heckler's veto.
• Moral corruption of the government officials who carry out orders due to political pressure in spite of
knowing the hollowness of the charges.

Role of Media: 0 00:38:10

Press freedom is not categorically mentioned in the constitution, but rather it is an inferred right, drawing
from freedom of speech and expression. NCRWC recommended press freedom to be categorically codified
in Article 19.

• Role as a civic forum:

o It acts as a parliament of citizens and acts as a conduit for citizens to participate in a democracy.
• Role as a watchdog:
o It acts as a watchdog on the functioning of government and carries out the function of truth to
power. Higher levels of press freedom, leads to higher levels of accountability.
o Modern democracy is mediated democracy, where the citizen's views of the functioning of the
government are largely aided by the media's function and helps in citizen's making a more
informed choice when exercising his/her functions.
o A good sign of a healthy media in a country is a slight adversarial relation between the government
and the media and not an alignment, thus leading to healthy debate.
• Protective Role:
o A fair media provides voice to the voiceless, and hence assists government in promoting welfare of
weaker sections.
• Information Role:
o Any notion of censorship in media leads to citizens being less informed and later even the
government becomes less informed, thus breaking the feedback mechanism between
government and the citizens.
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estimated 23-30 million people died, due to media's censorship, the information was suppressed
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 o Hence media plays a crucial role in determining values that are important to the community and
hence these values become important for the government.

Issues in Media: 0 01:08:30

• Press Freedom:
o We have close to nearly 1,40,000 registered publications (newspapers and periodicals), 400+
news channels, thus leading to a conclusion of a vibrant media space and media freedom.
o Yet when the ranking of Press Freedom Index (by the Reporters Sans Frontiers) came out, India
ranked 142 falling from 133 and listed India as one of the most dangerous places for journalists to
work properly.
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o Note: Nepal is ranked 1 0 6 h and Sri Lanka 127 in the Press Freedom Index.
• Concentration of media ownership:
o In spite of the large circulation of publications and presence of many channels, the readership and
viewership is concentrated among very few entities. For e.g. Just 4 Hindi newspapers account for
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more than 3/4 of the total sales.
o When there is such concentration, it becomes easier for the government to suppress media
freedom. Media owners also have other business interests (and hence possible relation with
government in getting contracts) as well as close association with political parties and thus their
media entity exhibits bias in that direction.
o The same media entity having dominance in all three platforms- Print, TV and Radio- is also called
as 'Murdochisation of Media'. Ideally any media house should not have dominance in more than 2
mediums.
• Media Corruption:
o Paid news: Collusion between electoral candidates to carry positive news to influence citizens. It is
not an electoral offence under Representation of Peoples' Act, 1951.
o Small newspapers are very susceptible to it. A recent disqualification of anMP was not because of
paid news but exceeding expenditure limit.
o Another instance of media outlets gaining equity in business units leads to conflict of interest for
the media house as it tends to become bias towards the business unit.
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• Trial by Media:
o Media acting as judge, jury and executioner and thus acting as kangaroo courts.
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o The rights issues arising out of media trial:
o Right to reputation is part of right to life and such media trials violate this right.
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o It also creates pressure on judiciary and thus leads to obstruction of justice and contempt of court.
o Back in 20 12, the apex court evolved 'Doctrine of Postponement', if the judge feels that the daily
reporting of the case might poison the atmosphere surrounding the case and lead to unfair trial, the
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::E o But the fault in this approach is that it denies the citizen the right of knowing the facts of the case
z and doesn't act on the media's frivolous behavior. It thus harms the right to be informed. Moreover
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 this can also be abused by judges to shield an accused from transparent proceedings by the high
and mighty.
• Poor Quality of Journalism:
o The quality ofjournalism is very poor in the country today.
o There is no standardization in the journalism courses in India as compared to other professional
courses like AICTE and thus the quality of courses varies across the country and hence a board to
regulate the education is imperative.

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 � FU N DAM ENTAL RIG HTS - ARTICLE
� 19 AN D ASSOCIATED ISSUES (PART-4)
Fundamental Rights - Article 19 and Associated Issues
• It is said that "Good news is no news" as it ca n not be m i l ked for a long ti me.
• But as media is a business, there is a chase fo r advertisement a n d thus a mad q u est for TRPs which
leads to sensationalism. The C h i nese wa l l between the editorial department a n d marketing
department has been b reached a n d com p ro m ised . A Chinese wall meant that there wou l d be no
correlation between the departments.

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o The term describes those media pl atforms who don't ca rry m uch leg iti m ate or wel l researched
z content, but depend more on sensational eye- catching hea d l i nes to get more views.
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• Journalism of Post-truth:
o Arguments and debates are framed around the emotional aspect of the issue and not on
objective reality.
o Post-truth literally means going beyond truth or facts.

Regulation of Media: 0 00:20:00

• Since media is supposed to have an adversarial relationship with the government, hence an external
government regulation would harm the media and society. Thus self-regulation is thought to be ideal
form of regulation.
• But retired Supreme Court judge, Markandey Katju called self-regulation as no regulation.
• Hence, an external regulation outside the control of the government can be the most prudent solution.
• In 20 12, Justice Leveson committee report in UK, stood for robust and external regulation in the News
of The World (NOTW) scandal.
• In India, there are bodies like Broadcasting Content Complaints Council (BCCC) , News Broadcasting
Standards Authority (NBSA) , and Advertising Standards Council of India (ASCI) for self-regulation
purposes.
• BCCC, NBSA. ASCI do regulation and according to experts, they are toothless bodies.
• The Press Council of India (PCI) is also a regulatory body under the Press Council of India Act, 1978.
o It consists of 28 members apart from the chairperson. The chairperson is usually a retired
Supreme Court judge. Of the remaining 28 members, 20 are drawn from the press. Of the remaining
8, 5 are nominated by Members of Parliament, 1 is nominated by Bar Council of India, 1 is nominated �
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FDI in news media: 0 00:37:10 !<i:
• Electronic media has 49 % FDI and print media has 26% FDI. 0
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Government suppression of media: 0 00:47:35
• Ruling parties have always been keen on somehow regulating and controlling the media, due to the :I:
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adversarial relationship between the two.
• In 20 15, during Yakub Memon hanging, ABP news, Aaj Tak and NDTV were issued notices under the
Program Code under the Cable TV Regulations Act, 1995. z
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program that offends good taste and decency, contains criticism of foreign government, any obscene, z
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 defamatory, half-truths, anything that casts doubts on the integrity of judiciary and president,
contempt of court.
• There were also reports of government denying ads in newspapers.

Digital news media rules:

• 26% FDI allowed in digital new media through government approval route. Earlier there was no such
limit to foreign entities owning digital media.
• Issues with digital news media rules:
o Shape shifting nature of internet, experimentation, amounts to forcing net based services to
become one type of organization.
o TV news platform with online platform also have digital presence and hence online presence has to
be separated with respect to activity and ownership.
o Several online media platforms have 100 percent FDI and thus unable to divest.
o Borderless internet has led to news published in US to be consumed in India and vice versa, which
makes it difficult to manage.
o Even social sites like Facebook and Google are also providing news and disseminating content.

IT Rules (2021) � 0 1 : 13:57

• They are referred to as IT (Intermediary guidelines and Digital Media Ethics Code) Rules, 202 1.
• Intermediary is any online platform that stores or transmits data on behalf of others. For e.g. Facebook,

li: Whatsapp, Twitter, Youtube, lnstagram, etc.

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• Thus digital news media, OTT platforms including social media giants, ecommerce sites and also sites
that provide curated content are said to be intermediaries.
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Features of IT Rules, 2021:
• Due diligence by all intermediaries:
o Inform users about terms and conditions, rules, privacy policy and complete information to the
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o Block access to platform on order from court or government
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 from the service, the service provider has to store the information.
o These rules should be followed by all intermediaries whether significant or not.
• Rules for significant intermediaries:
o These are intermediaries having more than 5 million numbers of subscribers.
o Appoint chief compliance officer to ensure IT act and other rules are followed;
o Appoint grievance officer to address complaints in time frame;
o Appoint nodal contact person to coordinate with police authorities for 24x7 coordination.
o Publish monthly compliance report.
o Intermediaries to enable identification of first originator but intermediaries claim to provide
complete end-to-end encryption as their unique selling proposition and hence business as well as
privacy would go away.
• Code of ethics for digital media:
o There has to be a three tier grievance mechanism with the lowest tier being self-regulation by
publisher. (to appoint a Grievance Redressal Officer who would be responsible to redress
complaints within 15 days) If not satisfied with the decision of the GRO, an appeal can be filed to a
self-regulatory body, if not satisfied yet, then can send grievance to interministerial committee
consisting of secretaries, which is basically a government committee.
o Hence this has the usual criticism of government having oversight.
o Moreover an interim order can also be passed if there is an emergency and content can be taken
down in case of emergency by the Secretary - Ministry of Information & Broadcasting.
o They are supposed to classify content in age appropriate categories.
o There also has to age verification mechanism for accessing adult content. �
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o They will also have to follow norms of journalistic conduct formulated by Press Council of India !:!!
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Issues in these rules: 0 01:37:50
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• End of end-to-end encryption and thus privacy of data.
• It covers wide spectrum but the consultation has been limited. :I:
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• Under delegated legislation, the rules and regulations should be the extension of parent law and
cannot be a new law unto themselves. Such elaborate rules have no provision in the IT Act 2000,
while the rules have been framed under section 79; there is no specific provision that enables such z
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law. Thus this is an abuse of power and may be termed unconstitutional and hence a fresh legislation is
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 • It amounts to unreasonable restrictions as seen under the constitution and may lead to
overregulation, censorship and hence have to be seen by the courts.
• It increases compliance burden and financial burden, especially for smaller digital media platforms.
• Legacy media: these rules are for digital media but legacy media hosted on digital medium also are
subject to these rules.
• Note: legacy media is the traditional media which existed before the commencement of the
information revolution
• Nowadays the big tech consisting of social media giants has great power and state has the
responsibility of security, unity, public order etc., thus the state has the right to regulate to ensure these.
But it also has to be balanced by rights of privacy, freedom of speech and expression.
• Since this space is still in its infancy, the relation between the intermediaries, society and state needs
time to evolve,

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 =r., FUNDAMENTAL RIGHTS - ARTICLE
� 19 (PART-5) AND ARTICLE 20
What amounts to Reasonable restrictions? 0 00:02:54
Court's view:
• There cannot be strait jacket formula, hence depends on case by case basis
• Prevailing condition/circumstances: something that may seem unreasonable in normal situations may
seem normal in dire situations.
• Restrictions are imposed to prevent abuse of rights and reduce public mischief; restriction hence must
be proportional to the mischief and must control that and not go beyond that. This is the
proportionality test. Thus clauses mentioning restrictions try to enlist the restrictions that are to be
imposed.

Article 19(1) (b): Right to assembly

• The right concerns right to assemble peaceably without arms, however the provision 'without arms' is
difficult to define and what all constitutes in the definition of 'arms'.
• The two rights contained in Article 19(b) and (c) can be discussed collectively and hence the
restrictions imposed on them can be discussed too.
• The restrictions on Right to Assembly under sub clause 3 are sovereignty and integrity of India and
public order, sub clause 4 mentions morality as additional restriction to association right.

Restrictions on Right to Assem b ly Restrictions on Right to Association

• Sove reignty and integrity of India • Sovereignty and integrity of India

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<( Assembly and association significance: 0 00:13:05
• These rights allow citizens to engage with each other
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Restrictions on Right to assembly: 0 00:15:53
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<( • The restrictions under this right in British era tried to curb nationalism and popular mobilization against
the British rule, in the form of:
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z ► The law also provides for prior permission if there is fear of breach of public order
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o CRPC, 1872 modified later in CRPC, 1973.

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 • Sec 144 of CrPC: a gathering of 5 or more is banned on prohibitory orders of the executive magistrate.
• There have been arguments to repeal such laws since it is a fundamental right to assemble, and have
been upheld by the apex court though the guidelines have been given, there is scope for discretion due
to lack of detailed guidelines.
• In case of a pre-planned protest, getting prior permission certificate from the police is also upheld
where the apex court has held that the freedom to assemble doesn't mean the right to assemble
anywhere.

Right to Association 0 00:32:37

• Everybody has a right to association but the association so formed shouldn't be engaged in unlawful
activities.
• If the organization becomes unlawful, its members can be prosecuted too.
• The principal law used to classify organization as unlawful is the Unlawful Activities (Prevention) Act,
1967. (UAPA, 1967)
• A notice is sent to an organisation undertaking unlawful activities before banning, a hearing is taken,
once these procedural requirements are fulfilled, both the state and the union can ban the
organizations. However, there is a respite of going to the High Court/Supreme Court to ask for relief.
• If there is a violent incident and evidence suggests the organization's involvement in that incident, and
the organization is accused of carrying out the act, will all the members who were part of the
organization but not engaged in that particular violent activity be prosecuted too?
• The apex court has said if you can establish a direct link between the member and the act that was
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• The apex court said that the right to form association doesn't include right to fulfillment of its aims. C
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recognition. The government has right to reject the demand because the right to form association
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doesn't include right to fulfillment of aims of organization, which in this case is to educate deprived �
children howsoever noble the aims may be. O')
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fundamental right of those who do not want to join.

Right to Protest: 0 00:48:36

• Right to protest can be derived from both Article 19(1) (a) and 19(1) (b) and also indirectly from Article z
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• Usually issues of protest revolve around fundamental issues concerning a person's life and thus deal
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 • Since the original rights are subject to reasonable restrictions, these derived rights are also subjected
to reasonable restrictions.
• In the Amit Sahni judgement, the apex court in context of Shaheen Bagh issue said that the right to
protest has to be balanced with state's duty to preserve public order, and there cannot be an
indefinite blocking of a public place.
• Hence a new ground has come up that is 'inconvenience to the people' and police can take action to
remove the protestors.
• But detractors say that disruption is a natural corollary to any form of protest, and hence for the
substantive exercise of this right there should be a substantial tolerance for disruption; else it will
become a hollow right.
• In the Himat Shah case, 1973, the court said that right to protest does not include right to protest
anywhere, there cannot be a blanket ban but there will be restrictions.
• It also said the government cannot place a general ban in all place and areas.
• The right to assembly is a fundamental right and has to be. In the Rangarajan case, 1989 it was
adjudged that the right to protest cannot be suppressed based on some illusory, imaginary, far
removed threat to peace or public order. There should be direct connection if suppression has to be
done.
• These rights too face reasonable restrictions but these restrictions should act at the narrowest
margins.

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Right to move freely and Right to Reside 0 01:16:13
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li: movement and residence

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• Reasons being purchase of property by outsiders, many state governments follow policy that is
discriminatory against outsiders like residence based quotas, and women marriages forming a large
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• Goonda Acts provide from externment of Goondas for a specific period from a specific place after
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(!) being declared an anti-social element. It restricts a citizen's right to movement. Hence, the
constitutionality of these acts has been challenged but it has been upheld by the apex court. It has
further insisted on minimal safeguards against the use of these Goonda Acts.
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Right to profession, occupation, trade, and business (POTB) :
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 create partial or full monopoly, minimum technical or professional qualifications for a profession; it can
also put restrictions like liquor trade, arms trade, etc.
• Before a profession is exercised as a right under Article 19(1)(9), that POTB has to be accepted as a
legitimate POTB. The courts have approached the legitimacy of this issue by viewing the POTB
through a historical lens, moral lens and its social effects and then reasonable restrictions are
imposed. For e.g. prostitution racket or a gambling den cannot be claimed under right to profession,
occupation, trade, and business as they fail the test of legitimacy.
• In 1977 the courts said that that credit lent by banks is a legitimate activity, while the same being
done by moneylender is seen as illegitimate after seeing through the historical lens.
• In 2013 Indian Hotels and Restaurant Association case (Dance Bars in Mumbai), the government's
decision to ban dance bars on grounds of bad moral effects and bad social effects, was overturned by
the apex court while saying that as many women depend on the occupation, limitations can be
proposed but blanket ban is not right.

Article 20: 0 01:46:14

• Protection in respect of conviction for offences:
o ( 1) No person shall be convicted of any offence except for violation of the law in force at the time of
the commission of the act charged as an offence, nor be subjected to a penalty greater than that
which might have been inflicted under the law in force at the time of the commission of the offence
o (2) No person shall be prosecuted and punished for the same offence more than once
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• A person can't be a witness against oneself and self-incriminatory evidence cannot be forced.
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• Nobody can be forced to give testimonial compulsion i.e. forced to say anything against a person's ct.
wishes in the court of law. O')
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polygraph test (lie detection test), brain mapping, etc. were being rampantly used.
• In Selvi vs. State of Karnataka in 2010, the court opined that these tests can be performed but not
without the consent of the accused and if don e without consent it will violate article 2 0 (3), right to life
under Article 2 1 .
• Anything said when the accused is administered these tests is not admissible in the court of law, but
whatever the police discovers as evidence based on whatever is said by the accused when under the
influence of these tests, is admissible in the court of law.
• But asking for blood samples, DNA samples, fingerprints, specimen signatures, and physical
presentation in the identification parade does not require the consent of the accused.

Previous Year's Questions

Q. Discuss Section (,(,A of IT Act. with reference to t h e alleged violation of Article 1, of the
Constitution. (200 words) (2013)

Previous Year's Questions

Q. What do you understand by the concept "freedom of speech and expression· ? Does it cover
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hate speech also ? Why do the films in India stand on a slightly different plane from other forms of
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