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MODULE -2

INDIAN CONSTITUTIONAL LAW THE NEW CHALLENGES.

Introduction in brief

Covenant of the people Supreme law of the land Governs current legislation and activities of the government Thought was conceived by M. N. Roy Resolved to constitute a Constituent Assembly under Cabinet Mission Plan on Dt. 8-12-1936 Constituent Assembly selected Dr. Sachindranath Sinha, an eldest member, as President on Dt. 9-12-46 On Dt. 11-12-46, Dr. Rajendra Prasad was elected as President till the Constitution came into force. There were 389members Muslim boycott remained 300 (approx) it was not a sovereign body limited powers After Independent Act, 1947 became a sovereign body Important Committees of the Constituent Assembly were:

1. Union Power Committee 7 members Jawaharlal Nehru - a chair man 2. Committee on Fundamental Rights and Minorities 54 members - Sardar Vallabhbhai Patel 3. Steering Committee 3 members Dr. K. M. Munsi (chair man), Gopal Swami Ayanger and Shree Bhagwandas were the members 4. Provincial Constitution Committee 25 members S. V. Patel chair man 5. Committee on Union Constitution 15members Nehru chair man Five session were held during 9-12-46 to 14-8-1947 Drafting Committee was set-up on 29-8-47 to prepare a draft of the Constitution, Dr. Ambedkar (chair man), Sir Alladi Krishna Ayyer , N. Gopal Swami Ayenger Syed Mohamad Saddulah, T.T. Krshnamachari, Dr. K. M. Munsi, N. Madhav Rao and D.P. Khaitan were the members 2 years, 11 months and 17 days Expenses Rs. 6.4. crore 395 Articles, 22 parts, 8 schedules Partly came in to force on Dt 26-11-1949, fully on 26-01-1950

Sources and
Sources: 1. Debates of Constituent Assembly 2. Previous enactments like Government of India Act, 1919, 1935, and Indian Independent Act, 1947 3. Opinions of the Constitutional jurists 4. Decisions of the judiciary including foreign courts 5. Conventions and usages 6. Enactment of Indian Parliament Features borrowed from Foreign Constitutions: 1. U.K. Office of the President, Cabinet form of the Government, Prime Minister, Council of Ministers, Speaker, Lower House, Upper House, Parliamentary Privileges, etc. 2. U.S.A. Written Constitution, Federal System, Fundamental Rights, Head of the State President, States, Supreme Court, Rajya Sabha represents the States, etc. 3. Ireland - Directive Principles of State policy (originally of Spain) 4. U.S.S.R Planning, Fundamental Duties 5. Australia Concurrent list 6. South Africa Procedure for Amendment 7. Japan Due process of law 8. France Republic 9. Germany - Emergency

Salient Features

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

Written Constitution and largest one Sovereign, Secular, Socialist, Democratic, Republic Parliamentary type of Government (i.e. directly responsible to the Parliament) Unitary as well as Federal Partly rigid partly flexible Fundamental rights and Remedy Directive Principles of State Policy Independent Judiciary Single Citizenship Universal Adult Franchise Provisions of Emergency All India Integral services Official Languages Minority Protection Fundamental Duties

Basic Structure

1. 2. 3. 4.

5.
6. 7. 8. 9.

10. 11.

A novel doctrine was propounded in Keshavanand Bharatis case [AIR 1973SC1467] Written Constitution and its supremacy Objectives specified in the Preamble Federalism, sovereign, Secular, Democratic, Republic, Unity and Integrity Socio-economic justice and welfare State Parliamentary system Principles of separation of power Balance between the Fundamental Rights and Directive Principles Rule of law, free and fair election [Indira v. Raj Narayan, 1975 SC 2299] Judicial Review and limitation on Amending power conferred u/a 368 of the Constitution of India[Minerva Mills case, AIR 1980 SC 1780] Effective Access to justice [Jaisval Coal Co. case AIR 1990SC2125] Independence of Judiciary [ Supreme Court Adv. v. UOI(1993)4SCC441]

Preamble
We the people of India having solemnly resolved to constitute India into a Sovereign, Secular, Socialist, Democratic, Republic and to secure to all its citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity; and to promote among them all Fraternity, assuring the dignity of an individual and the Unity and integrity of the Nation In our Constituent Assembly on this 26th day of November, 1949, do hereby Adopt, Enact and to give ourselves this Constitution It lays down the aims and objectives Contains ideals and aspirations It is a key to open the mind of the legislatures Ambiguity/imaginations cannot be created Never to be regarded as a source of substantive power nor limiyations It is a part of the Constitution [Keshavanand Bharatis case [AIR 1973SC1467] Not justiciable

Westminster Model

The Houses of Parliament are situated within the Palace of Westminster, in London. The Westminster system is a democratic system of government modeled after the politics of the United Kingdom. This term comes from Westminster, the seat of the Parliament of the United Kingdom. the Palace of Westminster The system is a series of procedures for operating a legislature. It is used, or was once used, in the national legislatures and sub national legislatures of most Commonwealth and ex-Commonwealth nations upon being granted responsible government, beginning with the first of the Canadian provinces in 1848 and the six Australian colonies between 1855 and 1890. There are other parliamentary systems whose procedures differ considerably from the Westminster system.

Parliamentary form of GovernmentA Cabinet System of Government


1. 2. 3. 4.

Westminster model choice of parliamentary government at the Centre and States. Cabinet System of Government Entirely a British concept and we have adopted almost in its entirety The cabinet is the central shaft to which all other agencies of the govt are geared This system facilitates on the one hand the intimate co-operation between the executive and the legislature and on the other ensures the responsibilities of the executive to the legislature i.e. Representative of the people The most distinctive characteristic of this system of govt. The complete and continuous responsibility of the executive to the legislature. It is always being watched by the legislatures Cabinet has four major functions: To approve all proposals for legislative enactment of Government Policy; To recommend all major appointments; To settle inter-departmental disputes; To co-ordinate the various activities of the Government and to oversee the execution of its policies.

A Cabinet System of Government


The Prime Minister: Real head of the executive; Presides over Cabinet head of the Cabinet; He is a connective link between the President and Council of Ministers; Controls and co-ordinates Government Departments and determines policies for Parliamentary action; Summons, prorogues cabinet meetings; Shapes general policies of administration; Exercise general supervision over his colleagues; No dissent to policy no alternative to resign; In case of resistance achieve his objects by threatening to resign Councils of Ministers: Consist of Cabinet, Deputy(who acts as a ministerial lieutenant and substitute to his superior), Ordinary(Minister of State) and Parliamentary Secretaries; Each ministry responsible for execution of the govt. policies; Ministry has its permanent head, a senior civil servant, secretary, who act as principal advisor to the minister in matters of policy; He is responsible to efficient and economic administration; Thus functions as nurve centre of the government

President of India-Election, qualifications, salary and impeachment.


There shall be a President of India[Art. 52] Election of President [Art.54] - The President shall be elected by the members of an electoral college consisting of(a) The elected members of both Houses of Parliament; and (b) The elected members of the Legislative Assemblies of the States. [Explanation. -In this article and in article 55, State includes the National Capital Territory of Delhi and the Union territory of Pondicherry.] Term of office of President. five years from the date on which he enters upon his office Qualifications (1) No person shall be eligible for election as President unless he(a) Is a citizen of India? (b) Has completed the age of thirty-five years, and (c) Is qualified for election as a member of the House of the People. (2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments. Explanation. -For the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State. [Art.58]

salary and impeachment.


The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule, And the same [salary] shall not be diminished during his term of office.[Art. 59] Procedure for impeachment of the President. [Art. 61] (1) for violation of the Constitution, the charge shall be preferred by either House of Parliament. (2) No such charge shall be preferred unless(a) is contained in a resolution, intending to move- after at least fourteen days notice in writing signed by not less than one-fourth of the total number of members of the House, and (b) Such resolution has been passed by a majority of not less than two-thirds of the total membership of the House. (3) When a charge has been so preferred by either House of Parliament, the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented at such investigation. (4) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total membership of the House by which the charge was investigated or caused to be investigated, declaring that the charge preferred against the President has been sustained, such resolution shall have the effect of removing the President from his office as from the date on which the resolution is so passed.

Powers of the President


The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution[Art. 53] The supreme commander of the Defense Forces[Army, Navy, Air] Art 53 Custodian of the Consolidated Fund of India [Art.283] Power to Summon, Prorogue and Dissolution of the House of the People[Art.85] Power to appoint : The Prime Minister and the other Ministers [Art.75]; Attorney-General for India[Art.76]; Judge of the Supreme Court[Art.124] and the High Court[Art.217]; Controller and Auditor-General of India [Art. 148]; Governor of the State [Art. 155]; Administrator, Lt. Governor for Union territories [Art.239]; Chief Election Commissioner and such other Election Commissioners[Art.324] The Chairman and other members of a Public Service Commission [Art. 316] Transfer of a Judge from one High Court to another[Art.222];

Judicial Power[Art.72]- Power of President to grant pardons, etc., and to suspend, remit or commute sentences of any person punished or convicted of any offence (a) by a Court Martial; (b) relating to the matters where the executive power of the Union extends; (c) sentence of death. Legislative Power : Power of President to promulgate Ordinances during recess of Parliament [Art.123]

Without assent of the President law passed by the Parliament can not come into force[Art.111 Power of President to make regulations for certain Union territories. for the peace, progress and good government of the Union territory of- The Andaman and Nicobar ,Islands; Lakshadweep; Dadra and Nagar Haveli; Daman and Diu; Pondicherry[Art. 240] Decision on questions as to disqualifications of members of the Parliament[Art.103] Power of President to consult Supreme Court [Art.143] Administration of Union territories [Art.239]; Proclamation of Emergency[Art.352]; Presidents Rule in a State[Art.356]; Power of the President to adapt laws in force before independence [Art.372A]

Qualification, Powers, privileges, etc., of the Houses of Parliament, State Assembly and of the members and committees thereof. Disqualifications for membership [Art.122 & (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) If he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) If he is of unsound mind and stands so declared by a competent court; (c) If he is an undischarged insolvent; (d) If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) If he is so disqualified by or under any law made by Parliament*. Explanation. -For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.[52nd Amendment,1985

Additional Disqualifications: No person can be a member of two houses, although, no bar to contest; If he absents himself for a period of 60 days without permission of the House; * According to the Representation of the People Act, 1951He should not have been found guilty by a court or an Election Tribunal of certain election offences or corrupt practices in election; He should not have been convicted by a court in India of any offence and sentenced to imprisonment for a period of not less than two years; Failed to lodge account of his election expenses within time and manner prescribed He should not have any interest in the govt. contracts or execution of govt. work; He should not be less than25 years of age

Anti-defection Law Disqualification on ground of defection.


If he has voluntarily given up his membership of political party; or If he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. An independent elected member of a House, if he joins any political party after such election. A nominated member of a House, if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. Disqualification on ground of defection not to apply in case of split split in his original political party and such group consists of not less than one-third of the members of such legislature party

Disqualification on ground of defection not to apply in case of merger-and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule, Decision on questions as to disqualification on ground of defection. Speaker/Chairman as the case may be of the house shall be final Bar of jurisdiction of courts

Powers, privileges, etc., of the Houses of Parliament, State Assembly and of the members and committees thereof

To enact, alter, amend or repeal the law with retrospective/prospective effect Amendment in the Constitution Impeachment of the President Termination of the Supreme Court, High Court Judges, Election Commissioner, Comptroller General Approval of money Bills No confidence Motion No MP/MLA shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament State Assembly /or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings

Legislative Process
Provisions as to introduction and passing of Bills. - [Art. 107] (1) Subject to the provisions of articles 109 and 117 with respect to Money Bills and other financial Bills, a Bill may originate in either House of Parliament. (2) Subject to the provisions of articles 108 and 109, a Bill shall not be deemed to have been passed by the Houses of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses. (3) A Bill pending in Parliament shall not lapse by reason of the prorogation of the Houses. (4) A Bill pending in the Council of States which has not been passed by the House of the People shall not lapse on a dissolution of the House of the People. (5) A Bill which is pending in the House of the People, or which having been passed by the House of the People is pending in the Council of States, shall, subject to the provisions of article 108, lapse on a dissolution of the House of the People.

Joint sitting of both Houses in certain cases. - [Art. 108] (1) If after a Bill has been passed by one House and transmitted to the other House(a) The Bill is rejected by the other House; or (b) The Houses have finally disagreed as to the amendments to be made in the Bill; or (c) More than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it, the President may, unless the Bill has elapsed by reason of a dissolution of the House of the People, notify to the Houses by message if they are sitting or by public notification if they are not sitting, his intention to summon them to meet in a joint sitting for the purpose of deliberating and voting on the Bill: Provided that nothing in this clause shall apply to a Money Bill. Since the commencement of the Constitution this Article has been invoked three times. First time between May 6-9,1961 on Prohibition of Dowry Bll,1961; Second time on May 16, 1978, on Banking Service Commission (Repeal), Bill and third time on March 26, 2002, on POTA.

Special procedure in respect of Money Bills. - [Art.109] (1) A Money Bill shall not be introduced in the Council of States. (2) After a Money Bill has been passed by the House of the People it shall be transmitted to the Council of States for its recommendations and the Council of States shall within a period of fourteen days from the date of its receipt of the Bill return the Bill to the House of the People with its recommendations and the House of the People may thereupon either accept or reject all or any of the recommendations of the Council of States. If not returned to the House of the People within the said period of fourteen days, it shall be deemed to have been passed by both Houses at the expiration of the said period in the form in which it was passed by the House of the People. (3) If the House of the People accepts any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses with the amendments recommended by the Council of States and accepted by the House of the People. (4) If the House of the People does not accept any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by the House of the People without any of the amendments recommended by the Council of States.

Definition of Money Bills. - [Art. 110] (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely: (a) The imposition, abolition, remission, alteration or regulation of any tax; (b) The regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India; (c) The custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund; (d) The appropriation of moneys out of the Consolidated Fund of India; (e) The declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure; (f) The receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or (g) Any matter incidental to any of the matters specified in sub-clauses (a) to (f). Assent to Bills by the President[Art. 111]

Special provisions as to financial Bills. -[Art. 117 ] A Bill or amendment making provision for any of the matters specified in sub-clauses (a) to (f) of clause (1) of article 110 shall not be introduced or moved except on the recommendation of the President The Finance Bill is the mixture of an Ordinary Bill and a Money Bill It is that Money Bill to which have been added provisions relating to general legislation A Bill is therefore similar to a Money Bill in two aspects, i.e., it can be introduced in the Lok Sabha and secondly, prior recommendation of the President is required. In respect to other matters, a Financial Bill is as good as an Ordinary Bill Legislative Procedure in Financial Matters It is initiated with the presentation of the Annual Budget in the two houses of the Parliament. Various estimates, the demands for grant, and the Appropriation Bills are discussed and passed by the Houses. Annual Financial Statement is commonly known as Annual Budget Article 112 provides for Annual Financial Statement (1) The President shall in respect of every financial year cause to be laid before both the Houses of Parliament a statement of the estimated receipts and expenditure of the Government of India for that year, in this Part referred to as the annual financial statement.

Legislative Procedure in Financial Matters


(2) The estimates of expenditure embodied in the annual financial statement shall show separately (a) The sums required to meet expenditure described by this Constitution as expenditure charged upon the Consolidated Fund of India; and (b) The sums required to meet other expenditure proposed to be made from the Consolidated Fund of India, and shall distinguish expenditure on revenue account from other expenditure. (3) The following expenditure shall be expenditure charged on the Consolidated Fund of India(a) The emoluments and allowances of the President and other expenditure relating to his office; (b) The salaries and allowances of the Chairman and the Deputy Chairman of the Council of States and the Speaker and the Deputy Speaker of the House of the People; (c) Debt charges for which the Government of India is liable including interest, sinking fund charges and redemption charges, and other expenditure relating to the raising of loans and the service and redemption of debt; (d) (i) The salaries, allowances and pensions payable to or in respect of Judges of the Supreme Court; (ii) Judges of the Federal Court; (iii) Judges of any High Court which exercises jurisdiction in relation to any area included in the territory of India or which at any time before the commencement of this Constitution exercised jurisdiction in relation to any area included in a Governors Province of the Dominion of India; (f) Any sums required to satisfy any judgment, decree or award of any court or arbitral tribunal; (g) Any other expenditure declared by this Constitution or by Parliament by law to be so charged.

Demands for Grant [Article 113] The said estimates as relates to expenditure shall be submitted in the form of demands for grants to the House of the People, and the House of the People shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein. No demand for a grant shall be made except on the recommendation of the President. 114. Appropriation Bills. (1) As soon as may be after the grants under article 113 have been made by the House of the People, there shall be introduced a Bill to provide for the appropriation out of the Consolidated Fund of India of all moneys required to meet(a) The grants so made by the House of the People; and (b) The expenditure charged on the Consolidated Fund of India but not exceeding in any case the amount shown in the statement previously laid before Parliament The Appropriation Bill when passed by the Lok Sabha, shall be endorsed by the Speaker, that it is a Money Bill, the Rajya Sabha would have no power to reject it. After the Appropriation Bill is passed by both the Houses and is assented to by the President, it becomes Appropriation Act It is only under this Act any money can be withdrawn by the Government from the Consolidated Fund of India

Supplementary, additional or excess grants[Art. 115] If the amount authorised by any law made under article 114 is found to be insufficient and a need has arisen during the current financial year for supplementary or additional expenditure upon some new service not contemplated in the annual financial statement for that year, or (b) If any money has been spent on any service during a financial year in excess of the amount granted for that service and for that year, another statement showing the estimated amount of that expenditure or cause to be presented to the House of the People a demand for such excess, as the case any be, by the President Votes on account, votes of credit and exceptional grants[Art. 116] Notwithstanding anything in the foregoing provisions of this Chapter, the House of the People shall have powerVotes on account: To make any grant in advance in respect of the estimated expenditure for a part of the financial year, pending the completion of the procedure prescribed for passing of Annual Appropriation Bill u/a 113 &114

votes of credit : To make a grant for meeting an unexpected demand upon the resources of India when on account of the magnitude or the indefinite character of the service the demand cannot be stated with the details ordinarily given in an annual financial statement votes of credit : To make a grant for meeting an unexpected demand upon the resources of India when on account of the magnitude or the indefinite character of the service the demand cannot be stated with the details ordinarily given in an annual financial statement Exceptional grant: To make an exceptional grant which forms no part of the current service of any financial year; and Parliament shall have power to authorise by law the withdrawal of moneys from the Consolidated Fund of India for the purposes for which the said grants are made.

Courts not to inquire into proceedings of Parliament. (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. [Art. 122]

RELATIONS BETWEEN THE UNION AND THE STATES LEGISLATIVE RELATIONS Distribution of Legislative Powers

Extent of laws made by Parliament and by the Legislatures of States [Art.245] Subject-matter of laws made by Parliament and by the Legislatures of States Schedule-7, List I(Items-97), II(Item-47) and III(Items -66) [Art.246] Power of Parliament to provide for the establishment of certain additional courts. - Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List. [Art.247] Residuary powers of legislation [Art. 248]

Power of Parliament to legislate with respect to a matter in the State List in the national interest if the Council of States has passed such resolution, by not less than two-thirds majority, that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, - A resolution passed mentioned above shall remain in force for such period not exceeding one year as may be specified therein -The law passed in such manner shall cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force[Art.249], except as respects things done before the expiration of the said period The Supply and Prices of Goods Act, 1952 and The Evacuee Interest (Separation) Act, 1951 are the instances of laws passed under this Article

1. Federalism.

1. 2. 3. 4. 5. 6.

No agreed definition of Federal State Generally, U.S.A. is accepted as a model of all federal system Despite difference of opinion the consensus among the scholars is that Federal System has the following features: Dual Government; Distribution of Power; Supremacy of the Constitution; Authority of the Courts; Dual Citizenship; Written Constitution Indian Federal System is prescribed for normal times Indian Constitution enables the Federal Government to acquire the strength of Unitary System during the Emergency Dominant view of the Indian Constituent Assembly was that Constitution should be Federal with strong centre

THE UNION AND ITS TERRITORY


(1) (2)

India, that is Bharat, shall be a Union of States. The States and the territories thereof shall be as specified in the First Schedule. (3) The territory of India shall comprise(a) The territories of the States; (b) The Union territories specified in the First Schedule; and] (c) Such other territories as may be acquired. [Art.1.] At the time of independence the Indian territory was divided into (1) British India and (2) Indigenous States There were 9 provinces in British India and 600 small Indigenous States, out of which 58 joined with Pakistan and 539 voluntarily accepted merger with India; Junagadh included by plebiscite( because the Ruler absconded to Pakistan); Hyderabad was acquired by the help of army; J&K signed the document for accession under the Pakistani intrusion Chandranagar, Mahe, Yanam, and Karkil were acquired by Transfer Agreement with France in 1956 and new Union Teritory Pondicherry was created In 1961, Goa, Daman and Div were included by army intervention The States were reorganized on the basis of language in 1956

Indian States and their Administration

On 26th January, 1950, India became a Union of States, consisting of four categories of States: A Bombay, Madras, Orissa, Bihar, M.P., Punjab, Assam- headed by Governor; B - Rajasthan, Saurashtra, Hyderabad, J&K, Mysore, Travancore & Cochin headed by Raj Pramukh; C the States, later came to be known as Union Territories e.g. Delhi, Himachal Pradesh, Manipur, Tripura, Ajmer, Bhopal, Bilaspur headed by Chief Commissioner or Lieutenant Governor; D Andaman & Nicobar All these classification was abolished by 7th Amendment, 1956. It reduced to only two categories - State and Union Territories and placed on equal footing except the State of J&K At present there are 28 States and 7 Union Territories as specified in First Schedule All the provisions of the Constitution relating to the State are enumerated in Part-VI [Aa. 152-237]

Administration of the Tribal and Scheduled areas, though, they are territorially included within the States, are administered through separate and self-contained provisions, incorporated u/a/244, read with Schedule 5th and 6th There fore, the provisions contained in Part-VI [Aa. 152-237] relating to the States are not applicable to this areas. The Union Territories (U.T.) are governed according to the provisions contained in Part VIII of the Constitution [Aa. 239-241] These U.T. are centrally administered areas, governed by the President through an administrator appointed by him However, the Parliament is vested with the power to regulate by law the matters relating to governance of these territories. Though it is centrally administered, that dose not mean that, it is merged with Central Government. J & K is a constituent State of Union of India, it enjoys a special status under the Constitution Central Government has limited jurisdiction with this State than what it has with other States.

Indian States and their Administration


Union of States Aa. 1-4 & Schedule-I

Union and its Territory Aa. 1-4

States[28] Sch.-I

Union Territory[[7] Aa. 239-241 Part-VIII

Scheduled and Tribal Areas A. 244 and Sch. V &VI Part -X

J&k Special Status Part - XXI

Executive Aa.52-78 Part - V

Executive Aa.152-167 Part-VI

Other than the State of A. T. M. M. Art.244(1), Sch. V

Asam, Trpura, Mizoram,Manipur Art.244(2), Sch. VI

Legislature Aa.79-123 & Sch-7 Part - V

Legislature Aa. 168-213 Part-VI

Autonomous States in Assam Art. 244A

Judiciary Aa. 124-147 Part - V

Judiciary Aa. 214-237 Part-VI

District/Regional Council Village Panchayat

Tribal Areas & Scheduled Areas

The term `Scheduled Areas' has been defined in the Indian Constitution as "such areas as the President may by order declare to be Scheduled Areas". Paragraph 6 of the Fifth Schedule of the Constitution prescribes procedure for scheduling, rescheduling and alteration of Scheduled Areas. The Fifth Schedule of the Constitution of India deals with administration and control of scheduled areas and scheduled tribes in these areas. The Fifth Schedule covers Tribal areas in 9 states of India namely Andhra Pradesh, Jharkhand, Gujarat, Himachal Pradesh, Maharashtra, Madhya Pradesh, Chattisgarh, Orissa and Rajasthan. Administration of Scheduled Areas and Tribal Areas[Art.244] (1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura and Mizoram. (2) The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram.

Fifth Schedule

State Areas Andhra Pradesh - Visakhapatnam, East Godavari, West Godavari, Adilabad,Srikakulam, Vizianagaram, Mahboobnagar, Prakasam (only some mandals are scheduled mandals) Jharkhand - Dumka, Godda, Devgarh, Sahabgunj, Pakur, Ranchi, Singhbhum (East&West), Gumla, Simdega, Lohardaga, Palamu, Garwa, (some districts are only partly tribal blocks) Chattisgarh - Sarbhuja, Bastar, Raigad, Raipur, Rajnandgaon, Durg, Bilaspur, Sehdol, Chindwada, Kanker Himachal Pradesh - Lahaul and Spiti districts, Kinnaur, Pangi tehsil and Bharmour sub-tehsil in Chamba district Madhya Pradesh - Jhabua, Mandla, Dhar, Khargone, East Nimar (khandwa), Sailana tehsil in Ratlam district, Betul, Seoni, Balaghat, Morena Gujarat - Surat, Bharauch, Dangs, Valsad, Panchmahl,Vadodara, Sabarkanta (parts of these districts only) Maharashtra - Thane, Nasik, Dhule, Ahmednagar, Pune, Nanded, Amravati, Yavatmal, Gadchiroli, Chandrapur (parts of these districts only) Orissa - Mayurbhanj, Sundargarh, Koraput (fully scheduled area in these threedistricts), Raigada, Keonjhar, Sambalpur, Boudhkondmals, Ganjam, Kalahandi, Bolangir, Balasor (parts of these districts only) Rajasthan - Banswara, Dungarpur (fully tribal districts), Udaipur, Chittaurgarh, Siroi (partly tribal areas)Essentially The Fifth Schedule is a Historic Guarantee to Indigenous people on the right over the land they live in . You may read the full text of the Fifth Schedule of the Constitution of India by clicking here.

Scheduled Areas

244A. Formation of an autonomous State comprising certain tribal areas in Assam and creation of local Legislature or Council of Ministers or both (1) Notwithstanding anything in this Constitution, Parliament may, by law, form within the State of Assam an autonomous State comprising (whether wholly or in part) all or any of the tribal areas specified in Part I of the table appended to paragraph 20 of the Sixth Schedule and create therefor(a) A body, whether elected or partly nominated and partly elected, to function as a Legislature for the autonomous State, or (b) A Council of Ministers, Or both with such constitution, powers and functions, in each case, as may be specified in the law.

(2) Any such law as is referred to in clause (1) may, in particular, (a) Specify the matters enumerated in the State List or the Concurrent List with respect to which the Legislature of the autonomous State shall have power to make laws for the whole or any part thereof, whether to the exclusion of the Legislature of the State of Assam or otherwise; (b) Define the matters with respect to which the executive power of the autonomous State shall extend; (c) Provide that any tax levied by the State of Assam shall be assigned to the autonomous State in so far as the proceeds thereof are attributable to the autonomous State; (d) Provide that any reference to a State in any article of this Constitution shall be construed as including a reference to the autonomous State; and (e) Make such supplemental, incidental and consequential provisions as may be deemed necessary.

(3) An amendment of any such law as aforesaid relates to any of the matters specified in clause 2(a) or (b) shall have no effect unless the amendment is passed in each House of Parliament by not less than two-thirds of the members present and voting. (4) Any such law as is referred to in this article shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.

Special status to Jammu & Kashmir


J&K has its own Constitution, which came into force from 1957 The Parliament can not alter the territory of the State without prior permission of J &K Assembly Directive Principles of State Policy does not apply to J & K Financial emergency can not be imposed u/a/ 360 National emergency can not be imposed without prior permission of the Governor of the State U/A 356 first Governors Rule and after six months Presidents Rule can be promulgated Right to residence, sale and purchase of the property are given to the citizens of that State only

1.1 Creation of new States.

Parliament may by law admit into the Union, or establish new States on such terms and conditions as it thinks fit. [Art.2] Sikkim was admitted in to the Union Formation of new States and alteration of areas, boundaries or names of existing States. - Parliament may by law- [Art.3] (a) Form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; [A.P. from Hyderabad by Andhra State Act, 1953;Jarkhand by uniting part of several States; Haryana from Punjab] (b) Increase the area of any State; [H.P. by H.P. and Bilaspur (New State) Act,1954; Ajmer was included in Rajasthan; Area of Maharashtra was increased to include Saurashtra and Kutchh] (c) Diminish the area of any State; [ Diminished certain territory of Madras while establishing Andhra Pradesh] (d) Alter the boundaries of any State; [ This was done by Assam (Alteration of Boundaries Act, 1951; Bihar and W.B. (Transfer of Territories) Act, 1956] (e) Alter the name of any State: [Gujarat from Saurashtra]

Prior recommendation of the President is necessary and before that The President shall refer the proposed Bill to the Legislature of that State for expressing its views thereon, if it affects its area, boundaries or name For alteration of areas, boundaries or names of Union Territory, prior reference, by the President, not necessary 1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. (2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.[Art.4]

Demands for the creation of new states

Demands for the creation of new states have been a feature of the Indian polity since the inception of the republic. Such agitations typically base themselves on claims of neglect or discrimination meted out to them by the central or relevant state governments.

Aspirant states of India


1.

2.
3. 4. 5.

6.
7. 8. 9. 10. 11.

Bodoland (Assam) Bundelkhand (Uttar Pradesh and Madhya Pradesh) Delhi Gondwana (northern Deccan Plateau) Gorkhaland (West Bengal) Harit Pradesh (Uttar Pradesh) Kamtapur / Greater Cooch Behar (West Bengal) Karbi Anglong (Assam) Kodagu (Karnataka) Kongu Nadu (Tamil Nadu) Kosal/Koshal (Orissa)

1.

2.
3. 4. 5.

6.
7. 8. 9. 10. 11.

Ladakh (Jammu and Kashmir) Mahakoshal (Madhya Pradesh) Mithila (Bihar) Panun Kashmir (Jammu and Kashmir) Purvanchal (Uttar Pradesh) Rayalaseema (Andhra Pradesh) Telangana (Andhra Pradesh) Tulu Nadu (Karnataka and Kerala) Vidarbha (Maharashtra) Maru Pradesh (Rajasthan) Vindhya Pradesh (Madhya Pradesh)

Aspirant states of India

Case for making the cosmopolitan metros separate states Hyderabad There is a case for making Hyderabad a separate state. There is considerable disagreement between the aspirant Telangana state and the rest of Andhra Pradesh about Hyderabad. Both want it to be a part of their state. One proposed solution is to make it a separate state separate from both of them. Andaman & Nicobar Islands Anga Pradesh Angika speaking state in Bihar. Angika has more than 30 Million speakers in India. Angika has its own traditional script- Anga Lipi. Awadh state consisting of Awadhi speaking districts of central Uttar Pradesh. The population of proposed state would be approximately 5crores (50 million people) with an area of approximately 75,000 km and capital at Lucknow. Braj Pradesh consisting of Agra division and Aligarh division from Uttar Pradesh and districts of Bharatpur and Gwalior from Rajasthan and Madhya Pradesh. The proposed capital would be in Agra. So far, Braj has remained as a historical and cultural region, rather than a political entity. Language of Braj is Braj Bhasha. Garoland, Meghalaya: People from Garo regions of Meghalaya are demanding for a new state Garoland.

Gondwana, which would include portions of Andhra Pradesh, Chhattisgarh, Madhya Pradesh, and Maharashtra. Kamtapur in northern parts of West Bengal. The proposed state consists of the districts of Koch Behar, Jalpaiguri, and southern plains of Darjeeling including Siliguri city. Karaikal, which includes the Karaikal district of Pondicherry, lies physically 150 km to the south of Pondicherry, and has been demanding UT Statehood. Ladakh, comprising a sizeable chunk of eastern Jammu and Kashmir, has asked for Union Territory status as part of a desire to protect it's Buddhist culture from the influence of the mainly Muslim Kashmir Valley. Mithila or Mithilanchal a Maithili speaking state. Maithili is an Indo-Aryan language with 45 million speakers. It has its own traditional script. Mathili speaking persons in Mithila are becoming in minority; due to under-numeration,Mathili is on the second position in no of speaking persons in Mithila. Interestingly, due to overnumeration Hindi is the first and Santhali is the third most speaking language in proposed Mithila as per census of 2001. Saurashtra, Gujarat: Demands for statehood have died down for a few years and the situation is peaceful as of now. SeemaAndhra. Coastal region of Andhra Pradesh and Rayalseema region.

1.2 Allocation and sharing of resources distribution of grants in aidFinance Commission

A Finance Commission which shall consist of a Chairman and four other members to be appointed by the President at the end of every fifth year or earlier. [Art.280] So far 13 Finance Commissions have been appointed First was in 1951 - K.C Neogy [Chairman], for 1952-57 period and Thirteenth was appointed in 2007 Vijay kelkar [Chairman] for 2010-2015 Functions of the Finance Commission can be explicitly stated as: 1. Distribution of net proceeds of taxes between Centre and the States, to be divided as per their respective contributions to the taxes. 2. Determine factors governing Grants-in Aid to the states and the magnitude [scale/extent] of the same. 3. Work with the State Finance Commissions and suggest measures to augment the Consolidated Fund of the States so as to provide additional resources to Panchayats and Municipalities in the state. It is alleged that Planning Commission (India) (PC) which is neither a constitutional nor a statutory body has usurped the role of Finance Commission (FC). PC has restricted FC's role to mere recommend grants to states on revenue account only under article 275 of Indian constitution.

Planning Commission of India

To make an assessment of the material, capital and human resources of the country, including technical personnel, and investigate the possibilities of augmenting those resources which are found to be deficient in relation to the nation's requirement. To formulate a plan for the most effective and balanced utilisation of country's resources. To define the stages, on the basis of priority, in which the plan should be carried out and propose the allocation of resources for the due completion of each stage. To indicate the factors that tend to retard (slow) economic development. To determine the conditions which need to be established for the successful execution of the plan within the current socio-political situation of the country. To determine the nature of the machinery required for securing the successful implementation of each stage of the plan in all its aspects. To appraise from time to time the progress achieved in the execution of each stage of the plan and also recommend the adjustments of policy and measures which are deemed important vis-a-vis a successful implementation of the plan. To make necessary recommendations from time to time regarding those things which are deemed necessary for facilitating the execution of these functions.

Resources of the State: 1. Such stamp duties and such duties of excise on medicinal and toilet preparations as are mentioned in the Union List [Art. 268]; 2. Taxes on the sale or purchase of goods and taxes on the consignment [shipment/loading] of goods shall be levied and collected by the Central Government but shall be assigned and shall be deemed to have been assigned to the States[Art.269] Taxes collected mentioned above shall not form part of the Consolidated Fund of India, but shall be assigned to the State within which that tax is leviable in that year Taxes on professions, trades, callings and employments Entertain Tax, Land Revenue Grants from the Union to certain States: such capital and recurring sums as may be necessary to enable that State to meet the costs of such schemes of development as may be undertaken by the State with the approval of the Government of India for the purpose of promoting the welfare of the Scheduled Tribes in that State or raising the level of administration of the Scheduled Areas therein to that of the administration of the rest of the areas of that State[A.275

1.2 Allocation and sharing of resources distribution of grants in aid. [Financial Relations]

Distribution of Resources between the Union and the States: Taxes levied and collected by the Central Government but distributed between the Union and the States 1. All taxes and duties referred to in the Union List, except the duties and taxes referred to in articles 268 and 269, respectively, surcharge on taxes and duties referred to in article 271 and any cess levied for specific purposes under any law made by Parliament shall be levied and collected by the Government of India and [Art.270] 2. any sum equivalent to the whole or any part of the net proceeds of the Union duties of excise including additional duties of excise -as grants-in-aid to the States [Art. 272, this Article is repealed by the 80th Amendment Act, 2000 ] shall be distributed between the Union and the States - Such percentage, as may be prescribed by the Finance Commission Grants in lieu of export duty on jute and jute products to the States of Assam, Bihar, Orissa and West Bengal, in lieu of assignment of any share of the net proceeds in each year it shall be a charge on the Consolidated Fund of India in each year

Resources of the Union: Income Tax, Custom, Excise, News Papers, Surcharge, Inter State trade and commerce, Corporate - whole proceeds of any such surcharge shall form part of the Consolidated Fund of India Notwithstanding anything in articles 269 and 270, Parliament may at any time increase any of the duties or taxes referred to in those articles by a surcharge for purposes of the Union and the whole proceeds of any such surcharge shall form part of the Consolidated Fund of India[Art.271]. No tax shall be levied or collected except by authority of law. [Art. 265] It shall be the duty of the Commission to make recommendations to the President as to- distribution of resources, grants-in-aid, etc The President shall lay the recommendations before the Parliament to accept Custody, etc., of Consolidated Funds, Contingency Funds and moneys credited to the public accounts with the President in the Center and the Governor in the State.

Relation between Union and States Part XI & XII Legislative Aa. 245-255& Sch. VII U.L.-97; S.L.-66; C.L.-47 Executive Aa. 256-263
Full faith and credit to the Public acts and Records (A. 261)

Financial Aa. 264-290A Part - XII

Tribunal for Inter-State Water/River Disputes A. 262 Councils for Co-ordination between States (A. 263)

Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation-and ceases to have effect on the expiration of a period of six months after the Proclamation of emergency has ceased to operate [Art. 250] Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the Legislatures of States[Art.251] Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State [Art.252] - The Estate Duty Act, 1952; The Prize Competition Act, 1955; The Urban Land (Ceiling and Regulation) Act, 1976 and the Transplantation of Human Organs Act, 1994 are the instances of laws passed under this Article

Legislative Relations [Part XI; Aa. 245-255]

Legislation for giving effect to international agreements- The Environment Protection Act is the instance of law passed under this Article [Art.253] Inconsistency between laws made by Parliament and laws made by the Legislatures of States [Art. 254] Laws made by the Parliament shall prevail Where a law made by the Legislature of the State with respect to the matter enumerated in Concurrent List was reserved for consideration of the President and received his assent, shall prevail in that State. Requirements as to recommendations and previous sanctions to be regarded as matters of procedure only [Art. 255] Proclamation by the President that the power of the Legislature of the State shall be exercisable by the Parliament law made in such case shall be operative in that State only and shall remain in force up to such proclamation in force it can be repealed by the State after such proclamation ceases [Art.356]

Limitation on Legislative Powers


Federal Scheme of the distribution of legislative power [Art.246]; Fundamental Rights [Aa. 12 32]; Freedom of Trade , Commerce and Intercourse within the territory of India [Aa. 301-307]; Subject to prior approval and assent of the President/Governor; No extra-territorial operation of State Laws[Art.245]; Doctrine that the Legislature can not delegate matters of policy[Art.245]; Doctrine that legislation must not be fraud on the Constitution [D. C. Wadhawa v. UOI, AIR 1967 SC 579]; Doctrine that the Legislature must make a law. Its function is not adjudicatory nor executive, but only legislative. [Indira v. Raj Narayan, AIR 1975 SC 2299]; Legislation which seeks to do away with judgments, decrees and order of any court is impressible and is unconstitutional and void. [S. R. Bhagvat v. State of Mysore, AIR 1996 SC 188]

ADMINISTRATIVE RELATIONS [ Part XI; Aa. 256-263]

Obligation of States and the Union- compliance with the Laws passed by the Parliament and directions given by the Union [Art. 25 ] Control of the Union over States in certain cases. - The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union[Art. 257] The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance: power of Parliament to declare highways or waterways to be national highways or national waterways or the power of the Union with respect to the highways or waterways so declared or the power of the Union to construct and maintain means of communication as part of its functions with respect to naval, military and air force works. Power of the Union to confer powers, etc., on States in certain cases. [Art. 258 ] Power of the States to entrust functions to the Union[Art. 258A ] Jurisdiction of the Union in relation to territories outside India[Art. 260 ]

1.6 Federal Comity : Relationship of trust and faith between Centre and State.

Full faith, credit and Co-operation Public acts, records and judicial proceedings. (1) Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. (2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament. (3) Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law. [Art.261] Adjudication of disputes relating to waters of inter-State rivers or river valleys. [Art.262]

1.2.1. The inter state disputes on resources.


Adjudication of disputes relating to waters of inter-State rivers or river valleys. - [Art.262] (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).

Co-ordination between States [Art.263] Provisions with respect to an inter-State Council. If at any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of(a) Inquiring into and advising upon disputes which may have arisen between States; (b) Investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or (c) Making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject, Under the State Reorganization Act, 1956 Zonal Councils are established for each North, East, West and South [NEWS] North Zone Haryana, Himachal, Punjab, Rajasthan, J&K, Chandigadh Central Zone M.P. & U.P; East Zone Bihar, Orissa, W.B.

West Zone - Gujarat, Maharashtra, Daman, Div, Goa, Dadra Nagar haveli South Zone A. p., Karnataka, Kerala, Pondicherry North-East Assam, Arunachal, Nagaland, Manipur, Tripura, Meghalaya, Mizoram Committees established for Union and States Relationship: 1. Setalwad Committee, 1961: [M.C. Shetalwad as Chair Person]Recommended more autonomy o the States without amending the Constitution 2. Raja Mannar Committee, 1969: [Dr. P.C.Raja Maanar as C.P.] recommended Ifor establishment of nter-State council, Abolition of All Indian Services, Allocation of Subjects enumerated in Concurrent List of Schedule -7 to the States 3. Sarkaria Commission, 1983: [Justice R.S. Sarkaria as C.P.] Recommended strong Center, more devolution of money and autonomy to the States for their development

1.3. Rehabilitation of internally displaced persons [IDPs]


An internally displaced person (IDP) is someone who is forced to flee his or her home but who remains within his or her country's borders. In particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or humanmade disasters, and who have not crossed an internationally recognized State border It has been estimated that between 70 and 80% of all IDPs are women and children They are often referred to as refugees, although they do not fall within the current legal definition of a refugee. At the end of 2006 it was estimated there were 24.5 million IDPs in some 52 countries. The region with the largest IDP population is Africa with some 11.8 million in 21 countries. IDP population in India is estimated at 507,000 according to World Refugee Survey and 21.3 million according to Global IDP Project

India-About 250,000, Kashmiri Pandits from the entire state of Jammu and Kashmir have been internally displaced due to the aggressive and violent separatist movement. Many adivasis(tribals) in the states(especially in Central India that fall in the Red Corridor) where the violence between the Naxals and the Indian State has been rising are forced by circumstances to move to the neighboring relatively peaceful states both for saving their lives and for employment. Causes for IDPs in India: 1. Political including Secessionist Movement Naga Movement led by National Socialist Council of Nagaland; Assam Movement led by All Assam Students Union; Kashmir led by Fundamentalist Secessionist Group; 2. Identity- based Autonomy Movement Punjab and Bodo Movement; 3. Localized Movement Caste dispute[Bihar and U.P.]; Religious Fundamentalism[Coimbatore, Bhagalpur, Aligarh]; Aggressive denial of residence and employment[Maharashtra]; Son-of the Soil-Meghalaya by Khasi student and Arunachal Pradesh against Chakma;

4. Environment and Development- Sardar Sarovar Project; 5. Natural Disaster Kutch earth quake Rehabilitation of the IDPs The problem of protecting and assisting IDPs is not a new issue. In international law it is the responsibility of the government concerned to provide assistance and protection for the IDPs in their country. It has been estimated that some 5 million IDPs in 11 countries are without any significant humanitarian assistance from their governments. Unlike the case of refugees, there is no international humanitarian institution which has the overall responsibility of protecting and assisting the refugees as well as the internally displaced All displaced persons have the right to an adequate standard of living.

At the minimum, regardless of the circumstances, and without discrimination, competent authorities shall provide displaced persons with and ensure access to: a. Essential food and potable water; b. Basic shelter and housing; c. Appropriate clothing; and d. Essential medical services and sanitation. Key features of the National Rehabilitation and Resettlement Policy[NRRP] 2007: Policy covers all cases of involuntary displacement. Social Impact assessment (SIA) introduced for displacement of 400/200 or more families in plain/tribal, hilly, Scheduled areas, etc; Consultations with Gram Sabhas or public hearing made compulsory; Principle of rehabilitation before displacement;

If possible, land for land as compensation; Skill development support and preference in project jobs (one person per nuclear family); Rehabilitation Grant in lieu of land/job; Option for shares in companies implementing projects to affected families; Housing benefits to all affected families including the landless; Monthly pension to the vulnerable, such as disabled, destitute, orphans, widows, unmarried girls, etc; Monetary benefits linked to the Consumer Price Index; also to be revised suitably at periodic intervals; Necessary infrastructural facilities and amenities at resettlement areas; Periphery development by project authorities; Committees for each project, to be headed by Administrator for relief and rehabilitation. Ombudsman for grievance redressal; National Rehabilitation Commission for external oversight.

1.4.Centres responsibility and internal disturbance within States.


If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion* that there is imminent danger thereof he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation [i.e. Proclamation of Emergency- Art. 352] [*Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 36, for internal disturbance(w.e.f. 20-6-1979)]

1.5 Directions of the Union to the State under Article 356 and 365.

President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by ProclamationAssume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; A Proclamation so approved by the both the Houses of Parliament shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation It can be extended by following the same procedure but no such Proclamation shall in any case remain in force for more than three years: 365. Effect of failure to comply with, or to give effect to, directions given by the Union. - Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.

2. State : Need for widening the definition in the wake of liberalization.

the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Role of the State in Market Economy: Providing the legal foundation and an environment conducive to the effective operation of the price system; Maintaining competition; Redistribution of income and wealth; Adjusting the allocation of resources so as to alter the composition of the national output; Stabilizing the economy, that is controlling unemployment and inflation caused by business fluctuation and promote growth.

Industrial Policy Main features Objectives of the Industrial Policy of the Government are to maintain a sustained growth in productivity; to enhance gainful employment; to achieve optimal utilization of human resources; to attain international competitiveness and to transform India into a major partner and player in the global arena. Policy focus is on Deregulating Indian industry; Allowing the industry freedom and flexibility in responding to market forces and Providing a policy regime that facilitates and fosters growth of Indian industry.

Policy measures
Some of the important policy measures announced and procedural simplifications undertaken to pursue the above objectives are as under: i) Liberalization of Industrial Licensing Policy all industries except 18 were exempted from licenses and registration. Provisions for compulsory registration removed. License and Quota Raj abolished.; At present there are only following 3 industries reserved for public sector: 1. Atomic energy; 2. The substances specified in the schedule to the notification of the Government of India in the Department of Atomic Energy number S.O. 212(E), dated the 15th March,1995; 3. Railway transport. Licensing mainly on account of environmental, safety and strategic considerations ii) Industrial Entrepreneurs Mmorandum (IEM)- Industries not covered under compulsory licensing are to file an Industrial Entrepreneurs' Memorandum (IEM) with the Secretariat for Industrial Assistance (SIA). No industrial approval is required for such exempted industries.

iii) Liberalization of the Locational Policy-to do away with the locational stipulation in setting up of industries in cities with population of one million and above iv) Policy for Small Scale Industries - During the last 5 years itself more than 600 items have been de-reserved. At present 21 items are reserved for manufacture in the small scale sector V) Non-Resident Indians Scheme - NRI/OCB investment in the real estate and housing sectors upto 100% and (ii) NRI/OCB investment in domestic airlines sector up to 100%, and other concessional facilities are provided. vi) Electronic Hardware Technology Park (EHTP)/Software Technology Park (STP) scheme -The inputs are allowed to be procured free of duties. vii) Foreign Investment encouraged - The role of foreign direct investment in accelerating economic growth is by way of infusion of capital, technology and modern management practices. The Department has put in place a liberal and transparent foreign investment regime where most activities are opened to foreign investment on automatic route without any limit on the extent of foreign ownership.

3. State and its affirmative actions.


The State shall, in particular, strive : to establish a social order in which justice, social, economic and political, shall inform all the institutions of the national life; to minimize the inequalities in income, and endeavour to eliminate inequalities in status; to provide facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations; for free and compulsory education for all children until they complete the age of fourteen years; For promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections; for raising of the level of nutrition and the standard of living of its people and the improvement of public health and it shall be among others its primary duties; to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health; to organise agriculture and animal husbandry on modern and scientific lines; to take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle; to protect and improve the environment and to safeguard the forests and wild life of the country.

To direct its policy towards securing: (a) Right to an adequate means of livelihood for both men and women equally; (b) That the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good; (c) That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) That there is equal pay for equal work for both men and women; (e) That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength (f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Equal justice and free legal aid Right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. just and humane conditions of work and for maternity relief; Living wage, etc., for all workers; Participation of workers in the management of undertakings, establishments or other industry

3. Right to equality : privatization and its impact on affirmative action.

In the era of Privatization, liberalization and globalization, the fate of affirmative programmes including reservation policy, devised by the Indian Constitution have become uncertain On the privatization of a company it goes out of the ambit of Article 12 of the Constitution, hence, not to implement certain directives for the State including reservation policy. Therefore, the report of the National Commission to review the working of the Constitution suggested in its recommendations that, it should be mandatorily stipulated in the MoU of privatization or disinvestment of PSU, that the policy of the government including reservation shall be continued even after the privatization or disinvestment in the same form as in the government and this should be interpreted in the respective statutes, rules, regulations etc. However, nothing has been done concretely by the govt. of India In November, 2004, the Planning Commissions sub-group in Scheduled Tribes, headed by the Secretary, Tribal Ministry, strongly recommended reservation in the private sector as well as the need to award a share in outsourcing jobs to Dalits and Tribals.

The UPA govt. which came to power in 2004 and again in 2009 at the centre had promised job quota for SC/ST in private sector and even in common minimum programme re assured but after assuming the power it failed to pursue the issue. Keeping the pace with broad approach to the concept of equality under Article 14 & 16, courts have whenever possible, sought to curb an arbitrary exercise of power against individuals, correspondingly expanded the definition of State in Article 12. In the context of Privatization and liberalization as well as Constitutional mandates there is an urgent need to give further wide application to Article 12. There can be no any hard and fast formula and in different facts and situations different factors may be found to be overwhelming and indicating that the body is an authority u/a 12 of the Constitution.[ G.M. Kishan Sahakari Chini MillsLtd. V. Satrugan Nishad(2003)8SCC639 In M. C. Mehta v. UOI1086 1987 S(Olium Gas Leakage Case) the Appex Court extended the scope of Art.12 and applied to the corporation which was absolutely a private body [Shri Ram Fertilizer Corp. Pvt. Ltd.]. It was held accountable u/a 21.

5. Freedom of press and challenges of new scientific development.

5.1 Freedom of speech and right to broadcast and telecast.

5.2 Right to strike, hartal and bandh.

The right to go on strike has not been held to be included within the scope and ambit of the freedom of speech and expression No right to call or enforce bandh, hartal, blockades which interfered with the exercise of fundamental freedoms of other citizens, in addition , to causing national loss in many ways. A bandh, the Court said, was, infact, a curfew declared against the State. C.P.I. v. Bharat Kumar, AIR 1998 SC 134 Hartal is of Indian origin (See Kerala V.V.E. Samithi v. State of Kerala, AIR 2000 Ker. 389 ) It means a temporary cessation of commercial activity especially as a type of organised passive resistance It has been held that a hartal unaccompanied by violence or coercion can be understood to be a legitimate form of protest A boycott simply is refusal to work, if accompnied by violence illegal

Blockade is similar one, no one has right to call for a blockade of the office of the local authority so as to prevent people from approaching the authority in exercise of their right of free movement.( ibid.) In Harish Uppal v. UOI, AIR 2003 SC 739 the Appex Court categorically pronounced that the lawyers had no right to go on strike or give acall for boycott, not even a token strike. A lawyer who has accepted abrief cannot rafuse to attend Court as it is unprofessional. It is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strikes.( See also Mahabir Prasad Singh v. Jocks Aviation Pvt. Ltd., AIR 1999 SC 287. ) Advocates would be answerable for the consequences suffered by their clients.

6. Emerging regime of new rights and remedies A new Constitutional Jurisprudence

.. Fundamental Rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the Court should be to expand the reach and ambit of the Fundamental Rights by process of judicial interpretation. The Constitution is required to be kept young, energetic and alive [People Union for Civil Liberties v. UOI, AIR 2003SC 2363] The question arises in each case, of adjusting the conflicting interests of an individual and of the society. Restrictions have to be placed upon free exercise of individuals rights to safeguard the interest of the society, on the other hand social control, which exists for public good. What is required is to strike a balance between individual liberties and social control It is what our Constitution wants to do

6. Emerging regime of new rights and remedies A new Constitutional Jurisprudence


The right to life: The right to life does not merely mean the continuance of a person's animal existence. It means the fullest opportunity to develop ones personality and potentiality to the highest level possible in the existing stage of our civilization. The right to life and personal liberty has received the widest possible interpretation. So many rights have found shelter, growth and nourishment under its canopy, viz. Right to live with human dignity Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR1981SC476 Right to Socio-economic justice C. E. S. C. Ltd. V. S.C. Bose, AIR 1992 SC573[Minority opinion] Right to healthy environment M. C. Mehta v. UOI,AIR 1987SC1086. It includes pollution free water and air( B. L. Wadhera v. UOI, AIR 1996SC2969; and Protection against hazardous industries( Vellore Citizens v.UOI, AIR1996SC 2715) Right to Sustainable Development N. D. Jayal UOI,AIR2004SC867 Right to education Mohini Jain v. State of Karnataka, AIR 1992 SC 1858 Free education up to 14 years Unni Krishnan v. State of AP,AIR 1993 SC 2178 No right to die Gian Kaur v. State of Panjab, AIR 1996 SC 946

ContiEmerging regime of new rights and remedies.


Right to reputation State of Bihar v. L. k. Adavani, AIR2003SC3357 Right to shelter U.P. Avas Avam Vikash Parishad v. Friends Co-op. Housing Society Ltd., AIR 1996SC114, para 7 Right to livelihood which includes Right of succession Madhu Kishvar v. State of Bihar(1996)5SCC125 Timely Medical treatment in Govt. Hospital Paschim Bengal Khet Mazdoor Soc. V. State of W.B., AIR 1996 SC2426 para 9,15,16 Emergency medical aid Parmanand Katara v. UOI, AIR 1989 SC 2039 Right to health State of Panjab v. Mahendrasingh Chavala, AIR 1997 SC 1225 Right not to be driven out of State NHRC . State of Arunachal Pradesh, AIR 1996 SC 1234 Voters Right to know the antecedent of the candidate is fundamental UOI V. Association for Democratic Reforms, AIR 2002 SC2112 Right to work is not fundamental right. But it can be claimed after employment Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645

Personal Liberty

Right to Privacy People Union for Civil Liberties v. UOI, AIR 1997SC 568 Right to Privacy and Telephone Tapping - AIR 1997SC 568 Right to Privacy and Disclosure of Dreadful Diseases Mr X v. Hpspital Z, AIR 1997 SC 568 Right to Privacy and subjecting a person to Medical Taste Sharda v. Dharampal, AIR20033450 Right to Privacy and Sec. 9 of Hindu Marriage Act, 1955 T. Saritha v. Venkata Subbaiah, AIR1983AP356 [declared void]; Smt Harvinder Kaur v. Harmandar Singh, AIR1984 Delhi 66[ dissented i.e. declared valid]; Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562 [accepting the view of Delhi H. C.- declared valid] Right to Privacy and Disclosure of Information State of Gujarat v. Anirudhsingh, AIR1997 SC 2780 Right of a Major to live with any body Jyoti v. State of U.P., AIR 192004All45 Right to go Abroad Maneka Gandhi v. UOI, AIR 1978 SC597 Arrest of an honest Judgment Debtor Jolly George v. Bank of Cochin, AIR 1980 SC 470 No right to have as many as children - Javed v. State of Haryana, AIR 2003 SC 3057

Article 21and Prisoners Rights:

Right to fair trial Police Comm. Delhi v. Registrar Delhi High Court v. AIR 1997 SC 95 para 15,16 Right to free legal aid where conviction for an offence may involve loss of life or personal liberty Suk Das v. Union Territory of Arunachal Pradesh AIR 1986 SC 991; M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548; State of Maharashtra v. M. P. Washi, AIR 1996 SC 1 para 16. Right to speedy trial Common Cause Laws v. UOI, AIR 1996 SC 1619 Right to Bail Babu Singh v. State of U.P., AIR1978 SC 527 No right to anticipatory bail State of M.P. v. Ram Kishna, AIR 1995 SC 1198 Right against hand-cuffing Prem Shankar v. Delhi Adm. AIR 1980 SC1535 Right against Bar Fetters - Sunil Batra v. Delhi Adm., AIR 1978 SC 1675 No right to escape from custody D.B.M. Patnaik v. State of A.P., AIR1974SC2092 Right against Solitary Confinement right to Socialize - Sunil Batra's Case

Article 21and Prisoners Rights:

Right against Custodial Violence Sheela Barse v. State of Maharashtra, AIR1983SC378 Right against Public Hanging Attorny General of India v. Lachma Devi, AIR1986SC467 Death by Hanging not violative of Art. 21 Deena v. UOI,AIR 1983SC1155 Right against Delayed Execution- Shivaji Jaysing Babar v. State of Maharashtra, AIR1991SC2147 Right against Inhuman Treatment Third degree Method Kishor singh v. State of Rajasthan, AIR 1981 SC 625 Right to write a Book - State of Maharashtra v. Prabhakar Pandurang, AIR1966SC424 Under trials not to be kept with convicts - Sunil Batra's Case Common law duty to take reasonable care P.A.Narayan v. UOI, AIR1998 SC1659 Right to Damages for violation of Art. 21- Rudal Shah v. State of Bihar, AIR1983SC1086

141. Law declared by Supreme Court to be binding on all courts. -The law declared by the Supreme Court shall be binding on all courts within the territory of India. 142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order 1prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. [1. See the Supreme Court (Decrees and Orders) Enforcement Order, 1954]

6.1. Reading Directive Principles and Fundamental Duties into Fundamental Rights.

It has been emphasized that Fundamental Rights are not to be read in isolation They have to be read along with the Chapter on Directive Principles of State Policy and Fundamental Duties enshrined in Article 51A.[See Javed v. State of Haryana, AIR 2003 SC 3057; Air India v. Nargesh Meerza, AIR 1981 SC1829] Therefore, restrictions imposed on fundamental Rights would be permissible in the national interest, for the purpose of purity of public life or for providing social and economic justice to the people of India. Fundamental Rights have not been declared immutable/undeniable, but these are to be kept in conformity with the changing socio-economic conditions. For that purpose, the Constitution confers powers on the State to amend the Constitution along with the Fundamental Rights. The Constitution 1st Amendment, 1951, 42nd in 1976, 44th in 1978 amended the provisions relating to Fundamental Rights The Court, thus, held that the provisions of the Constitution were being interpreted either with light of the Directive Principles of State Policy or Fundamental Duties [People Union for Civil Liberties v. UOI, AIR 2003SC 2363]

1.

6.1. Reading Directive Principles and Fundamental Duties into Fundamental Rights. Directive Principles: Aa 36-51[not justiciable but fundamental in governance(37)] Just Social-Economic Order The State shall strive to minimize inequalities of income, elimination of inequalities in status, create opportunities not only amongst the individuals but amongst different groups, areas and engaged in different vocations, etc.(38); Adequate means of livelihood, No concentration of wealth and material resources in few hands - Equitable Distribution ; Equal Pay for Equal Work; Childhood and youth are to be protected from exploitation(39); Living wage(43); Right to work, Education and public assistance in Old age, sickness(41); Development of modern and scientific agricultural instrument (48)

2. Public Interest- Promotion of educational and economic interest of SCs and STs and other weaker sections and protection from all forms of exploitation(46); Raising of the level of nutrition; Improvement of public health; Prohibition of consumption of intoxicated drinks(47); Preserving and improving breeds; Prohibition of cows and calves slaughter(48); 3. Justice and Good Governance separation of judiciary from Executive(50) Organization of village panchayat as a unit of self-Government(40); Uniform Civil Code(44); Free Legal Aid(39A) 4. Protection of Monuments and places and objects of national importance(49)5. Protection of Environment, safeguarding of forest and wild life(48A) 6. Promotion of International Peace and security(51)

Fundamental Duties: [Art. 51A - Introduced by 42nd Amendment Act,1976] a. To abide by the Constitution and respect the National Flag and National anthem b. To cherish and follow novel ideals which inspired our national struggle for freedom c. To protect the sovereignty, unity and integrity of India d. To defend the country e. To promote the spirit of common brotherhood amongst all the people of Indiato renounce practices derogatory to the dignity of women f. To preserve the rich heritage of our composite culture g. To protect and improve the national environment h. To develop the scientific temper and spirit of inquiry i. To safeguard the public property j. To strive towards excellence in all sphere of individual and collective activity k. To provide opportunity to children for education [inserted by 86th Amendment, 2002

While enforcing ones fundamental rights, one has to observe certain fundamental duties towards his nation as well as other human beings, animals, environment, etc. All the above are part and parcel of ones life Rights and duties are co-relative and co-extensive, one can not exists without the other It is fallacy to think that in our Constitution there are only rights and no duties. These duties would help to strengthen our democracy and prevention of anti-national activities The performance of duties is quite personal to every citizen of India a writ of mandamus can not be issued [ Surya Narayan v. UOI,AIR 1982 Ra. 1.; W.B. Head Masters Association v. AIR 1983 Cal. 448] Since the duties are imposed upon the citizens and not upon the State Legislation is required for their implementation, e.g. The Prevention of Insult to National Honours Act, 1971; Bejoe Emmanual v. State of Kerala, AIR 1987 SC 478; S. W. Choksey v. UOI, AIR 2003 M.P. 283. It was observed in this case that National Anthem is the symbol of history, unity, pride and glory of the country could not be sung in movies in a dramatic way.]

In Shri Sachidanand Pandey v. State of W.B. AIR1987 SC 1109, it was held by the S.C. that the court is bound to bear in mind Art. 48A and Art. 51A(g). Fundamental Duties must be used as tool on State action drifting away its Constitutional Duties; M.C.Mehta v. UOI, AIR 1988 SC 1115;1997 SC734( Ecological balance) In Devendra Nath Gupta v. State of M.P. AIR1983M.P.172, the S.C. tried to balance and harmonise the fundamental rights and fundamental duties while upholding that teachers are required to perform duty with regard to the educational survey, family planning, preparation of voters list, ration cards, etc. [Art. 51A(d)] In Chandra Rajkumari v. Police Comm., Hyderabad, AIR1998AP302, it was held by the SC that holding of beauty contests in indecent and derogatory manner of women offends Arts. 14, 21 and 51A(e) The above pronouncements exhibits the concern of the judiciary in respect of the enforcement of the fundamental duties enshrined in Art. 51A

Fundamental Rights
1.

2.

3.

4.

Right to Equality Equality before the Laws and Equal protection of Laws(14); No discrimination on the grounds of sex, religion, caste, creed and place of birth(15); Equality of Opportunity in Public Employment(16); Abolition of un-touchability(17); Abolition of Titles(18) Right to Protective Discrimination Children, women, SCs, STs, OBCs(15&16) Right to certain Freedoms Speech and Expression; to assemble peaceably and without arms; To form an Association/Union; To move &settle ; to do any legal business or profession (19) Protection of personal life and liberty- no arrest, conviction, further prosecution, punishment - except provided in law, no self incrimination (20); no deprivation of life and personal liberty, except provided by law (21); protection against arrest, detention, production within 24 hours, except under preventive detention laws (22)

5.

5.

6.

7.

Right against Exploitation- no traffic in human being, no forced labour except compulsory service for public purpose(23); no employment of children below 14 years in factories, mines or hazardous employment (24) Right to religion - profession, practice and propagation(25) Establishment and management of religious institutions(26); no religious tax(27); no religious education, worship in State maintained institutions, except established under endowment or trust which requires that religious instructions but nobody shall be compelled to attend the same. (28) Right of Minorities to protect and conserve their distinct language, script or culture no citizens shall be denied admission in institutions established by such minorities but maintained by the State Right to Remedies writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certioarari

13. Laws inconsistent with or in derogation of the fundamental rights.

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires, (a) Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) Laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. 1[(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.] 1. Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, s.2. [This was done to nullify the effect of Golaknaths Case, AIR 1967 SC 1643]

AMENDMENT OF THE CONSTITUTION


368 [1[Power of Parliament to amend the Constitution and procedure therefor.]2[(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.] 3[(2)] An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, 4[it, shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill:
1. Subs. by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 3, for Procedure for amendment of the Constitution.. [This was done to nullify the effect of the case - Golaknath v. State of Pnjab, AIR 1967 SC 1643] 2. Ins. by s. 3. ibid. 3. Art. 368 renumbered as cl.(2) by s. 3, ibid. 4. Subs. by s. 3, ibid., for it shall be presented to the President for his assent and upon such assent being given to the Bill.

Provided that if such amendment seeks to make any change in(a) Article 54[Election of President], article 55[Manner of election of President], article 73[Extent of executive power of the Union], article 162[Extent of executive power of State] or article 241[High Courts for Union territories], or (b) Chapter IV of Part V[The Union Judiciary- Aa 124-147], Chapter V of Part VI[The High Court-Aa. 214-231], or Chapter I of Part XI [Legislative Relations Distribution of Legislative Powers Aa.245-255] , or (c) Any of the Lists in the Seventh Schedule, or (d) The representation of States in Parliament, or (e) The provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States 5 by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
[5. The words and letters specified in Parts A and B of the First Schedule omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch.]

6[(3)

Nothing in article 13 shall apply to any amendment made under this article.] 7[(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Fortysecond Amendment) Act, 1976] shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.]
6. Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 3. 7. Cls. (4) and (5) were ins. in article 368 by s. 55 of the Constitution (Forty-second Amendment) Act, 1976. This section has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others (1980) 2 S.C.C. 591.

6.1.1. Compensation jurisprudence.


Jurisprudence is the philosophy or science of law. Under the English Common Law the maxim was "The King can do no wrong" and therefore, the King was not liable for the wrongs of its servants. But, in England the position of old Common law maxim has been changed by the Crown Proceedings Act, 1947. Earlier, the King could not be sued in tort either for wrong actually authorized by it or committed by its servants, in the course of their employment. With the increasing functions of State, the Crown Proceedings Act had been passed, now the Crown is liable for a tort committed by its servants just like a private individual. Similarly, in America, the Federal Torts Claims Act, 1946 provides the principles, which substantially decides the question of liability of State. In India, there is no such legislation, which governs the liability of the State for the torts committed by its servants. It is article 300 of the Constitution of India, 1950, which enumerates the liability of the Union or State in tortious act of the Government.

Compensation

The Article 300 of the Constitution originated from Section 176 of the Government of India Act, 1935. This could be traced back from the Section 32 of the Government of India Act, 1915, the genesis of which can be found in section 65 of the Government of India Act, 1858. Section 65 of the Government of India Act, 1858 provided "All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company. So the liability of the Government is the same as that of the East India Company before, 1858. It enacts that a State may sue and be sued by the name of the Union of India, a State may sue and be sued by the name of the State. The first case, which seriously discussed the question of Sovereign Immunity, is the P. O. Navigation Company V. Secretary of State for India , 1868 5 Bom. H.C.R. App. P.1.

Compensation

The Supreme Court at Calcutta, speaking through Peackok, CJ held that "the Government will be liable for the actions done by its servants while doing nonsovereign functions but it won't be liable for injuries caused while pursuing sovereign functions. State of Rajasthan V. Mst. Vidyawati, AIR 1962SC933 In this case, a Government Jeep knocked down a pedestrian who died in consequence of accident. Rejecting the appeal by the State of Rajasthan on the ground of Sovereign Immunity, the Court ruled that the State is liable for the tort or wrongs committed by its officials. In this case distinction between sovereign and non-sovereign functions were disregarded. Petitioner Vidyawati was awarded a compensation of Rs. 15000/-. But, in Kasturi Lal V. State of U.P., AIR 1965 SC 1039 The Supreme Court held that the State is not liable as impugned act is a sovereign activity. Great dissatisfaction has been expressed about it in several writings and judicial decisions. Consequently, the court has found escape routes, either by restricting its ratio or by innovating new remedies.

Compensation

In Rudal Shah V. State of Bihar, AIR 1983 SC 1086 - the petitioner Rudal Shah was detained illegally in prison for more than fourteen years. The decision focused extreme concern to protect and preserve the fundamental right of a citizen than sovereign and non-sovereign dichotomy.[Rs. 30,000/-] The Saheli V. Commissioner of Police, AIR 1990 SC 513 was another milestone in the evaluation of compensation jurisprudence in writ courts. The masterpiece judgement in Vidyawati, which was freezed by Kasturi Lal was rightly quoted in this case. The State was held liable for the death of nine year old child by Police assault and beating. Delhi Administration was ordered to pay compensation of Rs. 75000/-. The significance of this case is that firstly, the revival of Vidyawati ratio and Secondly, the Delhi Administration was allowed to recover money from those officers who are held responsible for this incident. Another landmark judgement was Nilabati Behra V. State of Orissa, AIR 1993 SC 1960, awarding compensation of Rs. 1,50,000/-to the petitioner for the death of her son in police custody. [See also P. G.Gogoi v. State of Assam 1992 Cr. L. J. 154 Rs. 2 lakh; G. C. Jena v. DGP 1992Cr.L.J. 2901 Rs. 30,000]

The court observed that no civilized system could permit an executive to play with the people of a country and claim to be sovereign. To place the State above the law is unjust and unfair to the citizen. In the modern sense the distinction between sovereign and non-sovereign functions does no exist. It has no relevance in the present day. The ratio of Kasturi Lal is available to those rare and limited cases where the statutory authority acts as a delegate of such functions for which it cannot be sued in a court of law. Devaki Nandan was the real break through landmark case, through which the Supreme Court laid the cornerstone for the novel concept of the Constitutional Tort and Compensatory Jurisprudence. In this case, the petitioner was dragged for twelve years before allowing his pension. Without much discussion in the judgement, the Apex Court awarded Rs. 25000/- as an exemplary costs for harassing the petitioner. The court felt that harassment is intentional, deliberate and motivated.

Bhimsingh v. State of J&K AIR 1986 SC 494 Petitioner was MLA unlawfully arrested and detained in police custody by this way he was deliberately prevented from attending the Session of the House. The court awarded Rs. 50,000/Jagat Dhar Sharma v. State of Assam, AIR 2003 Gau. H. C. 101, the Court awarded 5 lakh as compensationto the father of Kalyan Sharma, killed by gun-shot fired by the police man in a croweded place. Arvinder Singh Bagga v. State of U.P. AIR 1995 SC 117 Nidhi a married woman was not an accused, detained in custody. She was tortured physically as well as mentally calculated to create fear in her mind. The S.C. directed the State to take immediate steps against all the involved police officials and to pay RS. 10,000/- as compensation to Nidhi, Rs. 10,000/ to her husband and Rs. 5,000/- to each other concerned. M. C. Mehta v. State of T.N.A IR 1997 SC 699 Child Labour Rehabilitation Rs. 20,000/M. C. Mehta v. UOI A IR 1987 SC 1087 Shri Ram Foods Rs. 20 lakh

Freedom Fighters wives pension Ram Pyari v. UOI AIR 1988 Raj. 124 Khatri v. State of Bihar AIR 1981 SC 928 [ Bhagalpur] Mandal Agitation covered by video magazine News track wherein adequate evidence may otherwise be lacking P.V. Kapoor v. UOI 1992Cr. L. J. 128 Handcuffing offends dignity of the human being [State of Maharashtra v. Patil (1991)2 SCC 373 Third degree method of interrogation condemned - Laxmi v. Sub Inspector, 1991 Cr. L. J. 2269 Negligent staff of the Government hospital Kalawati v. State of H.P. AIR 1989 H.P.5

6.1.2. Right to Education

The term Education has been clearly defined as ....the process of developing and training the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the instruction received at school, or college but the whole course of training moral, intellectual and physical; It is not limited to the ordinary instruction of the child in the pursuits of literature. It also comprehends a proper attention to the moral and religious sentiments of the child . Education used to be charity or philanthropy in the good old times. Gradually it became an 'occupation'. Some of the Judicial Dicta go on to hold it as an 'industry'. Whether the right to receive education is a fundamental right or not has been debated for quite some time. But it is settled that establishing and administering of an educational institution for imparting knowledge to the students is an occupation, protected by Article 19(1)(g) and additionally by Article 26(a), if there is no element of profit generation. As of now, imparting education has come to be a means of livelihood for some professionals and a mission in life for some altruists

The Prime Ministers Council on Trade and Industry, in a recent Report , has observed that education is universally recognized as an important investment in building human capital, It is a driver for technical innovation and economic growth. Providing Education to one and all has been the constant endeavour and one of the primary duties of the Government. To be fair, it is indeed impractical to expect the Government, in one of the most populous countries in the world, to solely shoulder the responsibility of providing education to its citizens. India has one of the largest systems of higher education in the world and according to Department of Secondary and Higher Education, Government of India there are about 338 Universities as on 31/3/2005. With a vast majority of the student population having access to higher education, the situation is quite satisfying in the developed countries. Yet the percentage of student population studying at Universities in India is dismal when compared to some of the other developing countries

6.1.2. Right to Education International Efforts and Constitutional Efforts

India is a signatory to three key international instruments that guarantee the right to elementary education 1. Universal Declaration of Human Rights, 1948, 2. The International Covenant on Economic, Social and Cultural Rights, 1966 and 3. The Convention on the Rights of the Child, 1989. The Indian State was also proud to join, albeit after 52 years of independence, the host of countries that provide for a constitutional guarantee to free and compulsory education (FCE) Constitutional Efforts: By 86th Amendment Act, 2002, Right to Education inserted in the Constitution of India as fundamental right by providing The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine

6.1.2. Right to education National [Legislative] Efforts

The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE), which was passed by the Indian parliament on 4 August 2009, describes the modalities of the provision of free and compulsory education for children between 6 and 14 in India under Article 21A of the Indian Constitution. India became one of 135 countries to make education a fundamental right of every child when the act came into force on 1 April 2010. It requires all private schools to reserve 25% of seats to children from poor families (to be reimbursed by the state as part of the public-private partnership plan). It also makes provisions for no donation or capitation fees and no interview of the child or parent for admission. The Act also provides that no child shall be held back, expelled, or required to pass a board examination until the completion of elementary education. There is also a provision for special training of school drop-outs to bring them up to par with students of the same age.

Judicial Efforts

Mohini Jain v State of Karnataka, Supreme Court of India (1992 AIR 1858) In 1989, the Government of Karnataka issued a notification that permitted the private medical colleges in the State of Karnataka to charge exorbitant tuition fees from the students admitted other than the Government seat quota. As per the notification, the denial of admission of Miss Mohini Jain due to her failure to submit the yearly tuition fee of Rs. 60,000/- was a valid step taken by the college management. Miss Jain, a medical aspirant student filed a petition in Supreme Court challenging this notification. The apex Court raised an important question that whether right to education is guaranteed to the Indian citizen under the Constitution of India? The Supreme Court of India observed that mention of life and personal liberty in Article 21 of the Constitution automatically implies some other rights, those are necessary for the full development of the personality, though they are not enumerated in Part III of the Constitution. Education is one such factor responsible for overall development of an individual and therefore, right to education is integrated in Article 21 of the Constitution.

A two member bench consisting Justice Kuldip Singh and Justice R. M. Sahai gave the judgment of the case on 30 July 1992 (1992 AIR 1858). For the first time in the post independent India, right to education of the Indian citizens and the State obligation to secure the right came under scrutiny at the premises of the apex court. It is important to note that this was the time when neo-liberal economic policy* were knocking at the door of India. [*tending to free market policy- capitalism] Article 41 indicates that after the age of 14, the right to education is subject to the limits of economic capacity and development of the state. Indeed it was found that there is no fundamental right to education for a professional degree that flows from Article 21. Quoting Article 13 of the International Covenant on Economic, Social and Cultural Rights, the Court stated that the state's obligation to provide higher education requires it to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means.

In Unni Krishnan, J.P., v. State of A.P. and Others, AIR 1993 SC 2178, The Court held that the right to basic education is implied by the fundamental right to life (Article 21), when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14. The Court further observed that the right to education existed and would not be contingent upon the economic capacity of the state up to 14 years of age. Article 21A said that it would come into force in such manner as the State may, by law, determine. So it was made contingent on a law that the state may bring in. This (RTE)Act is that law, and it took another eight years to come since the 86th amendment was passed. So it took seventeen years for the right to be enforced since the Unnikrishnan judgment, that too for the restricted age group of 6 to 14 years.

6.1.2.1. Commercialization of education and its impact.


The usage of this term has several connotations. It refers to a situation in which education, as an undertaking. As it has proved to be so profitable that attracts entrepreneurs, who are only interested in earning, having no commitments to uphold the ideals of education. Substantial amount is being spent for obtaining permission to set up an educational institution. In the context of globalization, education has become a commodity subject to trade across the different countries, not only for national but international market. It involves attracting talented students from developing countries, both with the intention of earnings as well as making use of potential talent in students who find limited avenues in their own country. Perception of the higher education is also changed. Higher education is not acquired for its own sake but for the earnings promised by it. Greater the expected earnings higher is price and the students are prepared to pay it. This has led to a proliferation of a large number of institutions in the profit driven private sector imparting higher education primarily in the field of medicine, engineering, management, I.T., hotel management, etc. Areas which promise job opportunities and higher earnings, the buyer pays premium price for admission. The market forces demand, supply and profitability determine the fee structure. Thus commoditization and commercialization of higher education has taken place.

Unlike in the past, higher education is now being viewed as a private good, which must be financed by those who benefit from it. In India only 7 to 8% of the relevant age group(17-23)is enrolled in higher education. More than 90% are out for a variety of factors. Due to various constraints, the Government cannot take up the responsibility to provide higher education all by itself and a part of the responsibility has to be delegated to the private sector, subject to certain conditions in order to prevent commercialization. The Privatization of higher education would reduce the amount spent on higher education by the Government. During the 1990's with the gradual privatization of higher education, the budgetary allocation for higher education decreased. Thus, for those who are willing to study and have the means, too, the private institutions are the best alternative.

Many developed countries do not wish to tax the public more for funding higher education. Structural adjustment programmes in developing countries, insisted upon by the IMF, World Bank, have led to fiscal restraints and emphasized the need for private investment and initiatives in education, especially in higher education. Accordingly, the Government in India has allowed almost unrestricted entry in this field to private sector. Above all inclusion of educational services in GATS under WTO has also contributed to the treatment of education as tradable commodity.

Private Educational Institutions in India could be classified into the following categories: (a) Aided Colleges Aided Colleges are privately managed but are funded by the Government, either whole or in part from the Central Government or the State Government. It includes a minority institution. (b) Unaided Colleges Unaided Colleges are privately managed and raise their own funds. The Honble Supreme Court has held that the right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated in Article 30 of the Constitution, the State Government or the University may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof. This was observed by the Honble Supreme Court in T. M. A. Pai Foundation and others v. State of Karnataka and others, AIR 2003 SC 355

Committes that were appointed to study the impact of Privatisation of Education in India (a) The Punnayya Committee 1992-93: set up by the UGC made valuable recommendations on the need for the Universities to identify various other means of revenue generation. It should generate 15% of its annual maintenance expenditure through internally generated resources and this should go up to at least 25% at the end of ten years. The Committee also recommended that students receiving higher education should also bear a reasonable proportion of the cost of higher education. (b) Dr. Swaminathan Panel 1992: It was set up by the All India Council for Technical Education[AICTE] also made important observations on the mobilisation of additional resources for technical education in India. The Panel has put forth the idea of collecting educational cess from industries and other organisations.

(c) The Birla Ambani Report 2000: The Prime Ministers Council on Trade and Industry appointed a Committee headed by Mr. Mukesh Ambani and Mr. Kumarmangalam Birla to suggest reforms in the Educational sector, submitted its report in the year 2001. It highlighted the important role of the State in the development of Education. Some of the suggestions in the report include: (i) The Government should confine itself to Primary Education and the higher education should be provided by the Private sector. (ii) Passage of the Private University Bill. (iii) Enforcement of the user-pay principle in higher education. (iv) Loans and Grants to the economically and socially weaker sections of society. . The Birla- Ambani Report further recommended that the Government must encourage business houses to establish Educational Institutions. (d) Committee on Financing of Technical and Higher Education of the Central Advisory Board of Education recognized the limitation of non-government funding The Committee also insisted on the allocation of 1% of the National Income for higher education.

Caselaws (a) The P.A. Inamdar and others v. State of Maharashtra, AIR 2005 SC 3923 It has been held by the Honble Supreme Court that Professional colleges would now enjoy full autonomy in admitting students. It has also been stated that in the absence of a State or a Central legislation regarding admissions and fee in professional colleges, the Legislative Committee which regulates admission, procedure, fee structure, etc. shall continue to exist. (b) The Unnikrishnan v. State of Andhra Pradesh, AIR1993SC2178 The Honble Supreme Court laid down a formula to bring about a partnership between the Public Sector and the Private Sector to work together for the development of higher education. The 93rd Amendment of the Constitution With privatisation of higher education, the number of Private colleges is increasing at an unimaginable rate. The Honble Supreme Court in P.A. Inamdars case has observed that the State cannot impose its reservation policy on minority and non-minority unaided private colleges which would also include professional colleges.

This led to the amendment of Article 15 of the Constitution which prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and a new clause (5) was inserted. The Amendment sought to bring private colleges under the purview of the Government policies on the fee structure and reservation. Establishing and running an educational institution is a Fundamental Right of Occupation guaranteed under Section 19(1)(g) of the Constitution. According to Article 19(6) of the Constitution, the State can make regulations and impose reasonable restrictions in public interest. The Honble Supreme Court has observed that Education accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to the society. And even though an occupation, it cannot be equated to a trade or a business. It is the duty of the State to provide educational facilities. The shortfall in the efforts of the State may be met by private enterprise.

Pros and Cons of Commercialization


The Pros: The increasing demand for better quality higher education in India can be satisfied it is an imperative for the Government to privatize higher education. The Government, with the Constitutional obligation to provide free and compulsory Primary Education, has increased the investment in Primary Education, as a result of which, the investment in higher education has proportionately decreased. In case of Private Universities, there would be minimal or practically no political intervention. This would be beneficial for the Universities in terms of being independent. The Honble Supreme Court held that in professional institutions, as they are unaided, there will be full autonomy in their administration, but the principle of merit cannot be sacrificed, as excellence in education is in national interest. The Universities would try and implement new techniques, which would have otherwise been impossible without the permission of the State.

Too much independence would lead to monopolization of higher education, a high fee structure, capitation fee, exploitation of professors, etc. With the advent of privatization, there has been an enormous growth in the number of Private professional colleges but this has been at the cost of quality, as the Government does not exercise sufficient control over unaided colleges. Most Private colleges although adhering to standard admission procedures like conducting entrance tests, interviews, etc. tend to admit students by charging an exorbitant amount as capitation fee. Merit some times takes a backseat and those with the ability to shell out more money often tend to get admitted, without fulfilling the admission requirements. With privatization, there is the risk of commercialization of education. Although a competitive atmosphere would be created, some colleges would concentrate on profit making rather than on improving the standard of education. Exploitation of the teachers, professors, etc. by paying lesser amounts than prescribed by UGC, which may lead to a slackening in the efforts of the aggrieved and may ultimately result in a fall in the standard of education.

Foreign Institutions which have been allowed to enter into franchise with their counterparts in India have begun offering degrees, etc. These Foreign Universities may or may not be recognized in their parent countries due to which there is no control or restriction on the standard of education provided by these Universities. The exorbitant fee that is being charged by private professional institutions due to which citizens from the weaker sections of society may be deprived of access to higher education. Mr. Montek Singh Ahluwalia, Deputy Chairman of the Planning Commission, while addressing a gathering at an Education Summit organised by FICCI, has pointed out the need to increase the public expenditure on higher education. Mr. Ahluwalia has opined that an improvement in the standards of higher education could be achieved only through a balanced relationship between the Public and the Private Sectors . Although there are a couple of drawbacks with respect to privatisation of higher education, it is sure to bring in competitiveness and on the whole revamp the present educational system.

6.1.2.2. Brain drain by foreign education market.


Brain Drain refers to the emigration (out-migration) of knowledgeable, welleducated and skilled professionals from their home country to another country. This can take place because of several factors. The most obvious is the availability of better job opportunities in the new country. Other factors that can cause brain drain include: war or conflict, health risks, and political instability. Brain drain occurs most commonly when individuals leave less developed countries (LDCs) with fewer opportunities for career advancement, research, and academic employment and migrate to more developed countries (MDCs) with more opportunities. However, it also occurs in the movement of individuals from one more developed country to another more developed country. Scientists, engineers, physicians, and other professionals from developing countries work in Canada, the United States, and Western Europe. This phenomenon, often referred to as the "brain drain,"

Differences in the quality of life, educational opportunities for children, and job security may also play a role, as may the desire to interact with a broader group of similarly skilled colleagues. Another important issue is the extent to which the benefits of education acquired by citizens of developing countries are externalities that individuals cannot be expected to take into account when making their private decisions. One important implication of the brain drain is that investment in education in a developing country may not lead to faster economic growth if a large number of its highly educated people leave the country. Also, efforts to reduce specific skill shortages through improved educational opportunities may be largely futile unless measures are taken to offset existing incentives for highly educated people to emigrate.

International trade in education

Australia, Canada, France, and Germany. Together with the United States, these four countries account for about 93 percent of total migratory flows to OECD[Organization for Economic Cooperation and Development] countries. Australian government accepts that revenue from the education is worth as much as become one of and more than wheat. In U.S.A. educational export is fifth largest service sector. A study by British Council has calculated that education has become one of Britain most important export industries. It is expected that Britain could earn 13 billion pounds a year from international students in higher education by 2020 in addition to 3 billion pound they currently contribute to the economy. In the contemporary world educational exports have become an important foreign exchange earner with resultant emphasis on aggressive marketing, especially in the developing countries of Asia, Africa and Latin America. Asia is an important market to export education for Australia and America and Africa for Europe France and Germany Indian market for educational export is Asia(57%), Africa(37%), North America(3.9%), Europe(1.0%), Oceania(0.46%) in the year of 2000

Export earning from foreign students as percentage of export earning from services

Country US$ million


Australia Canada 584 530

1989 % of total service export


6.6 3.0

1997 US$ million


2190 595

2000 US$ million


2155 796

% of total service export


11.8 1.9

% of total service export


11.8 2.1

Uk USA New Zealand


Italy

2214 4575 -

4.5 4.4 -

4080 8346 280


-

4.3 3.5 6.6


-

3758 10280 199


1170

3.2 3.5 4.7


2.1

Leading exporter of tertiary education

Country
USA UK

Year
1995-96 1996-97

Total No. of Students


453,785 198,839

Percentage of total Exports


29 13

Germany
France Australia Canada

1996-97
1995-96 1997 1993-94

165,977
138,191 102,284 35,451

10
09 06 02

Total

1,094,527

Status of Tertiary Education in India

Enrolment in higher education is rocketed up from about 6.65 million in 1995 to 12 million in 2005 More and more young person are striving for better life and they see higher education as a bare necessity. Universities 317 and Colleges 17625 According to UGC survey about 18000 colleges come under its purview. Of those, only 5589 colleges are recognized u/s 2(f) of the UGC Act. It means only 31% of the colleges fulfill the minimum required conditions. Out of which 8% colleges are having A grade; 37% are adjudged B grade; About 36% are classified as C grade More than 25% teachers are temporary or part-time Among universities the situations are slightly better with 31% getting A grade, 52% B and 16% C grade

Gross Enrolment Ratio Age Group 17-23


Source: Department of Higher Education, MHRD, New Delhi General Category 11% ; SC 6.7%; ST - 4.8% Faculty Year No. of Students in million Annual Growth in %

Science
Arts

1995-96
2004-05 1995-96 2004-05

1.91
2.53 3.18 3.77 1.9 2.9 61.9 3.2

Commerce
Others

1995-96
2004-05 1995-96 2004-05

1.13
1.46 0.43 3.09

7. Right of minorities to establish and administer educational institutions and State control.

8.

Secularism and religious fanaticism.

Religious fanaticism is fanaticism related to a person's, or a group's, devotion to a religion. However, religious fanaticism is a subjective evaluation defined by the culture context that is performing the evaluation. What constitutes fanaticism in another's behavior or belief is determined by the core assumptions of the one doing the evaluation. In his book, Holy War, Just War, Lloyd Steffen says, "[Religious] fanaticism . . . invokes the idea of ultimacy, and its presence in religious life is undeniable. He goes on to say, "[Religious] fanatics are persons who attach to some object an ultimate valuation and then attend to that overvalued object with what is recognizable as a kind of religious devotion. The basis of Kashmir problem is neither economic backwardness nor political suffocation. Its roots are in the froth of religious fanaticism which are being nourished both by India and Pakistan. The mistake we make is to attribute to religions the errors and fanaticism of human beings. Tahar Ben Jelloun

9. Separation of powers : stresses and strain.

9.1. Judicial activism and judicial restraint.

9.2. PIL : Implementation.

9.3. Judicial independence.

9.3.1. Appointment, transfer and removal of judges.

9.4. Accountability : executive and judiciary.

10.1. Nexus of politics with criminals

The biggest threat to democracy is corruption, money power, muscle power and criminalization of politics. T. N. Seshan observed that it was the corrupt politicians who messed up the entire system. He made the whole country, the judiciary, the media and the entire nation to sit up and gaze at the root that was fast spreading. To buy votes, to force people, to vote for certain persons or party, to ensure the victory of a certain candidate to terrorize, etc., the unscrupulous politicians engage gangsters and gundas and criminals. Gradually these criminals themselves enter our political machinery legitimately, democratically and make laws of the land. One out of every fourteen Members of Parliament in Lok Sabha has a criminal record. U.P., Bihar, Maharashtra contribute more than any other States. Vohra Committee has showed how politicians and criminals are hand in glows with one another. What agenda they would make for the new millennium?

It is an established fact that up to 47% of Parliamentary candidates are facing the criminal charges filed against them. Assemblies now consist of number of mafias, rapists, murderers, robbers, dacoits, rowdies, smugglers, terrorists and traitors, etc. It has tarnished the image of Parliament and Assemblies. Presence of criminals in the political machineries shows the abysmal standards of the Indian polity. The law breakers have become the law makers. Politics today has become the safest resort for the scoundrels, as it is one of the best ways to solve the cases pending against them and to wipe off their otherwise tainted backgrounds. Debates and discussions are bound to get violent and directionless when we have bandits, goondas and desperadoes as members of our legislature.

The underworld dons and scoundrels who contested the polls either from jail or in hiding were elected with big majority in many Lok Sabha and Assemblies seats. Some of them were even brought from the jails by police men for the swearing in ceremony at the assembly building. What a sorry state of country! A virtual impression seems to have gained ground that you could commit crime and getaway with it, if you have political patronage. It is tragedy that the police and investigating officials who are at the mercy of the politicians for their survival are prevented from applying correlatives or making use of acquired information, intelligence to curb the preparation of crime. The police has also become the part of nexus. The seeds of destructions have already been sown within the political system.

This is to be broken as early as possible. This can not be tolerated any more. Their elimination must take first priority if the democracy is to continue to remain healthy for our children and their descendants. At the eve of the independence no body would have thought that responsibility of governing this largest democratic country would be in the hands of scoundrels turned politicians. Only the awakening among the general mass can show the right place to such criminal politicians. P.A.Sangma has rightly said that we have to formulate again an agenda for second freedom struggle. Present day turmoil has made the life of the masses a hell. All these are due to unhealthy and unfair election. it has made an easy access for the criminals, selfish persons to politics and Parliament.

Electoral Reforms
Election is the back-bone of democracy. Survival of the democracy depends upon free and fair election. Our Constitution has made the provisions for an independent election commission for conducting free and fair election. Superintendence, directions and control of all elections in India are vested in an independent body - election commission. But it has proved to be a tiger without nail and teeth. Electoral affairs need drastic changes: - the existing first past the post (FPP) system needs change; - minimum educational qualification for MPs and MLAs should be fixed; - class, caste, religion, region, language etc., ism should be eliminated; - defection law has attracted mass defection, it needs reconsideration. - politicians self-introspection only can bring the necessary solution; - strong political will is indispensable We are getting too late to take immediate steps in this regard.

Percentage of charge-sheeted MLAs


Bihar 59% U. P. - 35% Uttarakhand 24% Goa -23% Gujarat -28% Maharashtra 50% Chatishgadh 12% Himachal 40% Haryana 17% Zarkhand - 59/81 74%

10. Democratic process.

10.2. Election.

10.3. Election Commission : status.

The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix. [Art. 324] When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. [Art. 324] They shall be appointed by the President according to the provisions of any law made in that behalf by Parliament. [Art. 324] Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine. [Art.324 ] The Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment [Art. 324] Any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. [Art.324 ]

Election Commission : status [Powers and Functions]


The power of superintendence, direction and control of elections The preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution is vested in a Commission [Art. 324] To advise the President regarding disqualification of the candidates. To investigate mal-practices in elections. Re-election after investigation Allocation of election symbol. The expression superintendence, direction and control and the conduct of all elections came to be interpreted on various occasions. It has been held to include such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion.[Special Reference No. 1 of 2002, AIR2003SC87; Lalji Shukla v. E.C. of India, AIR 2002 All 73]

In the interest of free and fair election, for the safety and security of electors and with a view to prevent intimidation and victimization of electors, the commission has full power to give directions. Every contingency cannot be foreseen or anticipated with precession.[UOI v. Association for Democratic Rights, AIR2002SC 2112] The powers conferred on the Election Commission u/a 324 is subject to two limitations, namely: 1. When Parliament or any State Legislature has made a valid law relating to or in connection with elections, the Commission shall act accordingly; 2. The Commission while exercising powers shall conform to the rule of law, act bona fide, and be amenable to the norms of natural justice.[ M.S. Gill v. Chief Election Commissioner, AIR1978SC851

The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission. [Art. 324] Power of Parliament and Legislature of a State to make law Power of Parliament to make provision with respect to elections to Legislatures [ Aa. 327, Union List Entry no. 72] Power of Legislature of a State to make provision with respect to elections to Legislatures[ Aa. 328, State List Entry no. 37] Enactments in this regard by the Parliament: The Representation Peoples Act, 1951; The Delimitation Act, 1952; The Presidential and Vice-Presidential Election Act, 1952

The Chief Election Commissioner and other Election Commissioners(Conditions of Services) Act, 1994.[ in T.N. Seshan v. UOI, (1995)4SCC611, the Act was held to be valid. Status, powers and authority of other Election Commissioners are at par with that of the Chief Election Commissioner] The validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court [Art. 329] No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. [Art. 329] Disputes in connection with the elections according to an amendment of the Representation of the People Act, 1966 may be heard by the Supreme Court and High Courts and thereby the Election Tribunals are abolished.

10.4. Electoral Reforms.


Election is a back-bone of democracy. Survival of the democracy depends upon free and fair elections. 65 years have been passed after independence. We have our own Constitution but every one feels discontent and unhappiness. Present day turmoil has made the life of the masses a hell due to rampant corruption, mal-administration, acute poverty and non-accountability of executive and judiciary. Money and muscle power are playing a negative role, and has made election process unfair and unhealthy. It has made an easy access for the selfish and criminals to politics and Parliament. India has opted the Westminster model in toto without considering Indian reality like deeply rooted caste system, communalism, regionalism, religious fanaticism, etc. Defection Law has attracted mass defection needs reconsideration Our Constitution has made provisions for the formation, functions and powers of the Election Commission.[Aa. 324-329] The Commission is like a tiger without nails and teeth. Before Mr. Seshan, no body was aware of the role of the Commissioner, its importance, strength in democracy

Electoral Reforms.

An agenda for second freedom struggle What has not been done in the last 50 yrs. And what neds to be done in the years to come to preserve the democratic roots and solidarity of the country The biggest threat to democracy is corruption, money and muscle power and criminalization of politics-P. A. Sangma, Former Speaker, Lok Sabha, at Golden Jubilee Celebration of India. One of the biggest threat to democracy is growing criminalization of politics and criminals politicalization. One out of every fourteen MPs in Lok-Sabha had a criminal record. U.P., Bihar, Maharashtra contribute more than any other States. Vohra Committee showed how politicians and criminals are hand in glow with one another. What agenda they would make for the new millennium? T. N Seshan observed that it was the corrupt politicians who messed up the entire system. He made the whole country, the Judiciary, the Media and the entire nation to sit up and gaze at the root that was fast spreading.

Electoral Reforms.

In 1964, K. Santhanam Committee on Prevention of Corruption suggested to have the laws requiring political parties to keep proper accounts of their receipts and expenditure and publish annually an audited statement giving details of account. Election expenses needs suitable and effective control, it is playing a major role in generation of black money. Voting system should be such that ensures: The electoral verdict is true reflection of the will of the majority; No coercion, criminal intimidation, booth capturing, bogus voting, violence, etc.; free and fair election. The existing first past the post(FPP) i.e. an electoral system in which a candidate or a party is selected by achievement of a single majority needs change. Multiplicity of candidates created instability in Indian Political System. Coalition Government has become part and parcel of Indian politics. Minimum qualification should be fixed for candidates contesting election. Class, Caste, Religion, Language, etc. elements should be prevented Election petitions need speedy disposal.

10.5. Coalition government, stability, durability, corrupt practices.

10.6. grass root democracy.

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