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1. Parliamentary control over executive in India exists more in theory than in practice. Discuss. Approach:
• Introduce with a brief discussion about parliamentary system.
• Then discuss how parliament exercises control over executive in theory.
• Thereafter discuss various factors which weaken this control in practice.
• Conclude by suggesting ways to strengthening parliamentary control.
Answer:
In a parliamentary democracy like India, although the three branches of the State i.e. Legislative, Judiciary and Executive are theoretically separate, in practice the executive is a part of legislature. And since the executive is always in a majority, the control exercised over it by the legislature seems only weak.
Parliamentary Control
• The Constitution of India established a parliamentary form of government in which the Executive is held responsible to the Parliament for its acts.
• Parliament exercises control over Executive through debates and discussions on the floor. It has instruments like short duration discussions during question and zero-hours, calling attention motion, adjournment motion, no-confidence motion, censure motion, etc.
• It also supervises the activities of the Executive with the help of its committees like committee on government assurance, committee on subordinate legislation, committee on petitions, etc.
• The ministers are collectively responsible to the Parliament in general and to the Lok Sabha in particular. As a part of collective responsibility, there is individual responsibility, that is, each minister
is individually responsible for the efficient administration of the ministry under his charge. They continue in office so long as they enjoy the confidence of the majority members in the Lok Sabha.
Ineffectiveness of Parliamentary control
But in reality, the control is not as effective as it ought to be. The following factors are responsible for this:
• The Parliament has neither time nor expertise to control the administration which has grown in volume as well as complexity.
• Parliament’s financial control is hindered by the technical nature of the demands for grants, which require economic expertise. Also, most demands are guillotined.
• The financial committees like Public Accounts Committee do only post-facto audits, i.e. they examine the expenditure after it has already been incurred.
• The growth of ‘delegated legislation’ has reduced the role of Parliament in making detailed laws and
has increased the powers of bureaucracy.
• The frequent promulgation of ordinances by the president dilutes the Parliament’s power of
legislation.
• Lack of strong and steady opposition in the Parliament, and a setback in the parliamentary behaviour and ethics, have also contributed to the ineffectiveness of legislative control over administration in India.
Way Forward
For healthy functioning of Indian political system, it is necessary that Parliament has an effective oversight over the executive. Steps like building a better image of parliament, improving the quality of members, strengthening the committee system etc will help in increasing effectiveness of parliamentary control over executive.
2. Compare and contrast pressure groups with political parties. Describe the different techniques through which pressure groups influence policies in India.
Approach:
• Firstly, define pressure groups.
• Then elaborate upon their differences from political parties.
• Lastly discuss various techniques that they use like electioneering, lobbying etc.
• Conclude by commenting on their role in a democracy.
Answer:
A pressure group is a group of people who are organised actively for promoting and defending their common interest. They try to influence public opinion as well as government policies. It is not necessary that they will exert any ‘pressure’ (such as through protests) to influence the decision. They may resort to mass communications, advocating, lobbying, etc. to achieve their aims.
Pressure Groups and Political Parties
Pressure groups
Political Parties
Pressure groups do not seek direct power; they only influence those who are in power for moulding decisions in their favour. Political parties operate and seek political power to translate its policies into practice.
Pressure groups do not contest elections; they may support political parties of their choice. Political parties nominate candidates, contest elections, and participate in election campaigns.
Pressure groups do not necessarily have political ideologies. They may seek to influence economic or cultural policy based on their needs. Ideology for political parties is very important as they organize people around them based on ideology.
Pressure groups are not based on personality of an individual. Apart from ideology, personality cult of individual leaders is important.
The interests of the pressure groups are usually specific and particular. Their activities are confined to the protection and promotion of those interests only. The political parties have policies and programmes with national and international ramifications.
Their membership is limited The membership is very broad based.
Pressure groups resort to agitation a politics like marches, demonstrations, strikes, fasts etc. Political parties use Constitutional means to achieve their aims.
Techniques used by Pressure Groups
• The pressure groups influence the policy-making and policy- implementation in the government through legal and legitimate methods like lobbying, correspondence, publicity, propagandising, petitioning, public debating, maintaining contacts with their legislators and so forth.
• However, sometimes they resort to illegitimate and illegal methods like strikes, violent activities and corruption/bribing which damages
Electioneering: Try to place in public office persons who are favourably disposed towards the interests they seek to promote.
Lobbying: Try to persuade public officers, whether they are initially favourably disposed toward them or not, to adopt and enforce the policies that they think will prove most beneficial to their interests.
Propagandizing: To influence public opinion and
thereby gain an indirect influence over government, since the government in a democracy is substantially affected by public opinion.
public interest and administrative integrity.
Pressure Groups can enhance as well as distort the political system. Because of the complexities of modern government, and the pluralistic nature of Indian society, pressure groups provide a means by which ordinary citizens can participate in the decision making process, as well as maintaining a check on government activity. Similarly, governments can be better informed of the electorate’s sensitivities to policies, because of the pressures articulated by these groups.
3. What are the constitutional provisions that ensure and safeguard the independence and impartiality of the Election Commission? In this context also identify the flaws that need to be addressed to further strengthen the institution.
Approach:
• Introduce by highlighting the importance of independence and impartiality of the Election
Commission.
• Then, describe the constitutional provisions for independence and impartiality of the Election
Commission.
• Detail the flaws that need to be addressed.
• Conclude by suggesting some improvements.
Answer:
For democracy to be meaningful and just, it is important that the election system is impartial and transparent. Several efforts have been made in India to ensure the free and fair election system and process. The most important among these is the creation of an independent Election Commission to
‘supervise and conduct’ elections.
Constitutional Provisions
Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the Election Commission:
• The chief election commissioner is provided with the security of tenure. He cannot be removed from his office except in same manner and on the same grounds as a judge of the Supreme Court. Thus, he does not hold his office till the pleasure of the President, though he is appointed by him.
• The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.
• Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the CEC. This provision is meant as a shield to protect other ECs.
Flaws
Though the constitution has sought to safeguard and ensure the independence and impartiality of the
Election Commission, some flaws can be noted, viz,
• Constitutional protection to only 1 member. The ECs can be removed by the government on recommendation of the CEC.
• ECs budget is not charged on the Consolidated Fund of India.
• The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial)
of the members of the Election Commission.
• The Constitution has not specified the term of the members of the Election Commission.
• No bar on retiring election commissioners from any further appointment by the government.
• They are appointed by the President of India on the advice of the Council of Ministers. It is therefore possible for a ruling party to appoint a partisan person to the Commission who might favour them in the elections.
Broad based consultation in appointment of ECs through transparent mechanism should be instituted. Election Commission should be given financial independence from the law ministry. Also, its residual powers to take action in case there is no legislation should be made explicit.
4. CAG is instrumental in securing accountability of the executive to the Parliament in the sphere of financial administration. Elaborate. Enumerate the provisions made in the Constitution to ensure the independence of the CAG.
Approach:
• Introduce by highlighting how executive is accountable to the Parliament in a parliamentary democracy.
• Then discuss how parliament enforces financial accountability upon executive with the help of PAC
and the role of CAG in it.
• Conclude by enumerating the constitutional provisions for ensuring independence of the CAG.
Answer:
In a parliamentary democracy, executive is a part of legislature and responsible to it for its actions. Financial accountability is an important aspect of this responsibility. For ensuring this, the Constitution of India (Article 148) provides for an independent office of the Comptroller and Auditor General of India (CAG).
CAG is the guardian of the public purse and audits the entire financial system of the Central as well as State governments. Its duty is to uphold the Constitution of India and laws of Parliament in the field of financial administration.
Financial Accountability and CAG
• Public Accounts Committee is one of the most important standing committee of the parliament. The function of the committee is to examine the annual audit reports of the Comptroller and Auditor General of India (CAG), which are laid before the Parliament by the President.
• The CAG submits three audit reports to the President, namely, audit report on appropriation accounts, audit report on finance accounts and audit report on public undertakings.
• The Public Accounts Committee examines public expenditure not only from legal and formal point of view to discover technical irregularities but also from the point of view of economy, prudence,
wisdom and propriety to bring out the cases of waste, loss, corruption, extravagance, inefficiency and nugatory expenses.
• In the fulfillment of its functions, the committee is assisted by the CAG. In fact, the CAG acts as a guide, friend and philosopher of the committee.
• The role of CAG is to uphold the Constitution of India and the laws of Parliament in the field of financial administration.
• The accountability of the executive (i.e., council of ministers) to the Parliament in the sphere of financial administration is secured through audit reports of the CAG.
Independence
The Constitution has made the following provisions to safeguard and ensure the independence of CAG:
• Security of tenure: can be removed by the President only in accordance with the procedure mentioned in the Constitution. Thus, he does not hold his office till the pleasure of the President, though he is appointed by him.
• He is not eligible for further office, either under the Government of India or of any state, after he ceases to hold his office.
• His salary and other service conditions are determined by the Parliament. His salary is equal to that of a judge of the Supreme Court.
• Neither his salary nor his rights in respect of leave of absence, pension or age of retirement can be altered to his disadvantage after his appointment.
• The conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the CAG are prescribed by the president after consultation with the CAG.
• The administrative expenses of the office of the CAG, including all salaries, allowances and pensions of persons serving in that office are charged upon the Consolidated Fund of India. Thus, they are not subject to the vote of Parliament.
5. Though judicial activism has made the judiciary more people friendly, there is also a negative side to the idea of a pro-active judiciary in the form of judicial overreach. Discuss with examples.
Approach:
• Explain judicial activism in brief.
• Discuss how a pro-active judiciary can also lead to judicial overreach.
Answer:
Judicial activism is an approach to the exercise of judicial review in which judiciary is generally more willing to decide on constitutional issues and to invalidate or subordinate the legislative or executive actions.
Judicial review has evolved through article 32 of Indian constitution which ensures the fundamental rights of people. Since fundamental rights have been evolved to include almost all aspect of life of people, judiciary has also taken keen interest to safeguard same. It has been very helpful for judiciary to increase its overreach and positive influence on people.
But there are some instances when it has been found that the same judicial review process of judiciary is overlapping with the areas of governance of legislatures and executives. It is where negative side of judicial review comes in the form of judicial overreach. Some examples could be discussed as below:
• The issue of judicial appointments: The NJAC provided a say of executive in the appointments of judges, but has been declared void by judiciary. It impacts the accountability and also the overall functioning of the judiciary.
• Decisions of governance and administration, which no doubt beneficial for the public, are entirely in the domain of executive, such as: control over automobile emissions, air and noise and traffic pollution, orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, compulsory wearing of seat belts, banning of fire crackers, etc.
• The Supreme Court has directed the most complex engineering of interlinking rivers in India.
• The Court has ordered the exclusion of tourists in the core area of tiger reserves.
• The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. For e.g. investigation in cases such as Hawala, fodder scam, Taj corridor case, 2G spectrum case, etc.
• Even though protection of FRs u/a 32 is the premise for such activism, in reality, the Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
These examples indicate that judiciary is overreaching the domains of legislatures and especially to the domain of executives. The negative side of this overreach is that it endangers democratic establishment of the country as well as may destabilize the governing machinery of the country.
But it has to be also seen that judiciary is extending its limits only when it sees or people approach it to interfere with the process since the other two organs of legislatives and executives may not working effectively, due to political reasons.
6. What are the provisions under the Tenth Schedule of the Indian Constitution? Does it unduly curb the right of legislators to dissent?
Approach:
• Introduce with brief description of the Tenth Schedule of the constitution followed by list of its provisions.
• Explain why it has been argued that it curbs the right of legislators to dissent and what are the limits of such argument. The observation of Supreme Court in this regard would be appropriate.
• Conclude by balancing suggesting how the provisions can be used to enable smooth functioning of legislatures in the democratic setup.
Answer:
Tenth Schedule of the Constitution was introduced by the 52nd Amendment which laid down the process by which legislators may be disqualified on grounds of defection. By the 91st Amendment Act, 2003 it was again amended. The main provisions under tenth schedule are:
• A member of a house, belonging to a political party, becomes disqualified if he voluntarily gives up the membership of his party or does not obey the party directions.
• An independent candidate of the house becomes disqualified if he joins a political party after the election.
• A nominated member becomes disqualified if he joins a party after six months
• A person shall not be disqualified if he joins new political party or function as a separate group as a result of merging of 2/3rd members of his original political party with another.
• Deciding authority regarding disqualification of a member is the Chairman or the Speaker of the
House.
• If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the
House elected by that House shall take the decision.
As soon as the law was passed, there were allegations that it impinges on the right to free speech of legislatures as
• It does not differentiate between dissent and defection
• It controls the views and votes of the member in every issue
However, Supreme Court in famous Kihoto Hollohon vs Zachillhu and Others (1992), decided that the law does not violate any rights of free speech or basic structure of the parliamentary democracy. But it also highlighted that parties should issue directions only in those
• votes which are crucial to the existence of the government
• matters which are integral to the electoral program of the party,
Thus, the need of the hour is to evolve parliamentary conventions where Political parties should limit issuance of whips to certain instances only so as not to “unduly impinge” on the freedom of speech of the members.
1. Parliamentary control over executive in India exists more in theory than in practice. Discuss. Approach:
• Introduce with a brief discussion about parliamentary system.
• Then discuss how parliament exercises control over executive in theory.
• Thereafter discuss various factors which weaken this control in practice.
• Conclude by suggesting ways to strengthening parliamentary control.
Answer:
In a parliamentary democracy like India, although the three branches of the State i.e. Legislative, Judiciary and Executive are theoretically separate, in practice the executive is a part of legislature. And since the executive is always in a majority, the control exercised over it by the legislature seems only weak.
Parliamentary Control
• The Constitution of India established a parliamentary form of government in which the Executive is held responsible to the Parliament for its acts.
• Parliament exercises control over Executive through debates and discussions on the floor. It has instruments like short duration discussions during question and zero-hours, calling attention motion, adjournment motion, no-confidence motion, censure motion, etc.
• It also supervises the activities of the Executive with the help of its committees like committee on government assurance, committee on subordinate legislation, committee on petitions, etc.
• The ministers are collectively responsible to the Parliament in general and to the Lok Sabha in particular. As a part of collective responsibility, there is individual responsibility, that is, each minister
is individually responsible for the efficient administration of the ministry under his charge. They continue in office so long as they enjoy the confidence of the majority members in the Lok Sabha.
Ineffectiveness of Parliamentary control
But in reality, the control is not as effective as it ought to be. The following factors are responsible for this:
• The Parliament has neither time nor expertise to control the administration which has grown in volume as well as complexity.
• Parliament’s financial control is hindered by the technical nature of the demands for grants, which require economic expertise. Also, most demands are guillotined.
• The financial committees like Public Accounts Committee do only post-facto audits, i.e. they examine the expenditure after it has already been incurred.
• The growth of ‘delegated legislation’ has reduced the role of Parliament in making detailed laws and
has increased the powers of bureaucracy.
• The frequent promulgation of ordinances by the president dilutes the Parliament’s power of
legislation.
• Lack of strong and steady opposition in the Parliament, and a setback in the parliamentary behaviour and ethics, have also contributed to the ineffectiveness of legislative control over administration in India.
Way Forward
For healthy functioning of Indian political system, it is necessary that Parliament has an effective oversight over the executive. Steps like building a better image of parliament, improving the quality of members, strengthening the committee system etc will help in increasing effectiveness of parliamentary control over executive.
2. Compare and contrast pressure groups with political parties. Describe the different techniques through which pressure groups influence policies in India.
Approach:
• Firstly, define pressure groups.
• Then elaborate upon their differences from political parties.
• Lastly discuss various techniques that they use like electioneering, lobbying etc.
• Conclude by commenting on their role in a democracy.
Answer:
A pressure group is a group of people who are organised actively for promoting and defending their common interest. They try to influence public opinion as well as government policies. It is not necessary that they will exert any ‘pressure’ (such as through protests) to influence the decision. They may resort to mass communications, advocating, lobbying, etc. to achieve their aims.
Pressure Groups and Political Parties
Pressure groups
Political Parties
Pressure groups do not seek direct power; they only influence those who are in power for moulding decisions in their favour. Political parties operate and seek political power to translate its policies into practice.
Pressure groups do not contest elections; they may support political parties of their choice. Political parties nominate candidates, contest elections, and participate in election campaigns.
Pressure groups do not necessarily have political ideologies. They may seek to influence economic or cultural policy based on their needs. Ideology for political parties is very important as they organize people around them based on ideology.
Pressure groups are not based on personality of an individual. Apart from ideology, personality cult of individual leaders is important.
The interests of the pressure groups are usually specific and particular. Their activities are confined to the protection and promotion of those interests only. The political parties have policies and programmes with national and international ramifications.
Their membership is limited The membership is very broad based.
Pressure groups resort to agitation a politics like marches, demonstrations, strikes, fasts etc. Political parties use Constitutional means to achieve their aims.
Techniques used by Pressure Groups
• The pressure groups influence the policy-making and policy- implementation in the government through legal and legitimate methods like lobbying, correspondence, publicity, propagandising, petitioning, public debating, maintaining contacts with their legislators and so forth.
• However, sometimes they resort to illegitimate and illegal methods like strikes, violent activities and corruption/bribing which damages
Electioneering: Try to place in public office persons who are favourably disposed towards the interests they seek to promote.
Lobbying: Try to persuade public officers, whether they are initially favourably disposed toward them or not, to adopt and enforce the policies that they think will prove most beneficial to their interests.
Propagandizing: To influence public opinion and
thereby gain an indirect influence over government, since the government in a democracy is substantially affected by public opinion.
public interest and administrative integrity.
Pressure Groups can enhance as well as distort the political system. Because of the complexities of modern government, and the pluralistic nature of Indian society, pressure groups provide a means by which ordinary citizens can participate in the decision making process, as well as maintaining a check on government activity. Similarly, governments can be better informed of the electorate’s sensitivities to policies, because of the pressures articulated by these groups.
3. What are the constitutional provisions that ensure and safeguard the independence and impartiality of the Election Commission? In this context also identify the flaws that need to be addressed to further strengthen the institution.
Approach:
• Introduce by highlighting the importance of independence and impartiality of the Election
Commission.
• Then, describe the constitutional provisions for independence and impartiality of the Election
Commission.
• Detail the flaws that need to be addressed.
• Conclude by suggesting some improvements.
Answer:
For democracy to be meaningful and just, it is important that the election system is impartial and transparent. Several efforts have been made in India to ensure the free and fair election system and process. The most important among these is the creation of an independent Election Commission to
‘supervise and conduct’ elections.
Constitutional Provisions
Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the Election Commission:
• The chief election commissioner is provided with the security of tenure. He cannot be removed from his office except in same manner and on the same grounds as a judge of the Supreme Court. Thus, he does not hold his office till the pleasure of the President, though he is appointed by him.
• The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.
• Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the CEC. This provision is meant as a shield to protect other ECs.
Flaws
Though the constitution has sought to safeguard and ensure the independence and impartiality of the
Election Commission, some flaws can be noted, viz,
• Constitutional protection to only 1 member. The ECs can be removed by the government on recommendation of the CEC.
• ECs budget is not charged on the Consolidated Fund of India.
• The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial)
of the members of the Election Commission.
• The Constitution has not specified the term of the members of the Election Commission.
• No bar on retiring election commissioners from any further appointment by the government.
• They are appointed by the President of India on the advice of the Council of Ministers. It is therefore possible for a ruling party to appoint a partisan person to the Commission who might favour them in the elections.
Broad based consultation in appointment of ECs through transparent mechanism should be instituted. Election Commission should be given financial independence from the law ministry. Also, its residual powers to take action in case there is no legislation should be made explicit.
4. CAG is instrumental in securing accountability of the executive to the Parliament in the sphere of financial administration. Elaborate. Enumerate the provisions made in the Constitution to ensure the independence of the CAG.
Approach:
• Introduce by highlighting how executive is accountable to the Parliament in a parliamentary democracy.
• Then discuss how parliament enforces financial accountability upon executive with the help of PAC
and the role of CAG in it.
• Conclude by enumerating the constitutional provisions for ensuring independence of the CAG.
Answer:
In a parliamentary democracy, executive is a part of legislature and responsible to it for its actions. Financial accountability is an important aspect of this responsibility. For ensuring this, the Constitution of India (Article 148) provides for an independent office of the Comptroller and Auditor General of India (CAG).
CAG is the guardian of the public purse and audits the entire financial system of the Central as well as State governments. Its duty is to uphold the Constitution of India and laws of Parliament in the field of financial administration.
Financial Accountability and CAG
• Public Accounts Committee is one of the most important standing committee of the parliament. The function of the committee is to examine the annual audit reports of the Comptroller and Auditor General of India (CAG), which are laid before the Parliament by the President.
• The CAG submits three audit reports to the President, namely, audit report on appropriation accounts, audit report on finance accounts and audit report on public undertakings.
• The Public Accounts Committee examines public expenditure not only from legal and formal point of view to discover technical irregularities but also from the point of view of economy, prudence,
wisdom and propriety to bring out the cases of waste, loss, corruption, extravagance, inefficiency and nugatory expenses.
• In the fulfillment of its functions, the committee is assisted by the CAG. In fact, the CAG acts as a guide, friend and philosopher of the committee.
• The role of CAG is to uphold the Constitution of India and the laws of Parliament in the field of financial administration.
• The accountability of the executive (i.e., council of ministers) to the Parliament in the sphere of financial administration is secured through audit reports of the CAG.
Independence
The Constitution has made the following provisions to safeguard and ensure the independence of CAG:
• Security of tenure: can be removed by the President only in accordance with the procedure mentioned in the Constitution. Thus, he does not hold his office till the pleasure of the President, though he is appointed by him.
• He is not eligible for further office, either under the Government of India or of any state, after he ceases to hold his office.
• His salary and other service conditions are determined by the Parliament. His salary is equal to that of a judge of the Supreme Court.
• Neither his salary nor his rights in respect of leave of absence, pension or age of retirement can be altered to his disadvantage after his appointment.
• The conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the CAG are prescribed by the president after consultation with the CAG.
• The administrative expenses of the office of the CAG, including all salaries, allowances and pensions of persons serving in that office are charged upon the Consolidated Fund of India. Thus, they are not subject to the vote of Parliament.
5. Though judicial activism has made the judiciary more people friendly, there is also a negative side to the idea of a pro-active judiciary in the form of judicial overreach. Discuss with examples.
Approach:
• Explain judicial activism in brief.
• Discuss how a pro-active judiciary can also lead to judicial overreach.
Answer:
Judicial activism is an approach to the exercise of judicial review in which judiciary is generally more willing to decide on constitutional issues and to invalidate or subordinate the legislative or executive actions.
Judicial review has evolved through article 32 of Indian constitution which ensures the fundamental rights of people. Since fundamental rights have been evolved to include almost all aspect of life of people, judiciary has also taken keen interest to safeguard same. It has been very helpful for judiciary to increase its overreach and positive influence on people.
But there are some instances when it has been found that the same judicial review process of judiciary is overlapping with the areas of governance of legislatures and executives. It is where negative side of judicial review comes in the form of judicial overreach. Some examples could be discussed as below:
• The issue of judicial appointments: The NJAC provided a say of executive in the appointments of judges, but has been declared void by judiciary. It impacts the accountability and also the overall functioning of the judiciary.
• Decisions of governance and administration, which no doubt beneficial for the public, are entirely in the domain of executive, such as: control over automobile emissions, air and noise and traffic pollution, orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, compulsory wearing of seat belts, banning of fire crackers, etc.
• The Supreme Court has directed the most complex engineering of interlinking rivers in India.
• The Court has ordered the exclusion of tourists in the core area of tiger reserves.
• The Court is made the monitor of the conduct of investigating and prosecution agencies who are perceived to have failed or neglected to investigate and prosecute ministers and officials of government. For e.g. investigation in cases such as Hawala, fodder scam, Taj corridor case, 2G spectrum case, etc.
• Even though protection of FRs u/a 32 is the premise for such activism, in reality, the Court is only moved for better governance and administration, which does not involve the exercise of any proper judicial function.
These examples indicate that judiciary is overreaching the domains of legislatures and especially to the domain of executives. The negative side of this overreach is that it endangers democratic establishment of the country as well as may destabilize the governing machinery of the country.
But it has to be also seen that judiciary is extending its limits only when it sees or people approach it to interfere with the process since the other two organs of legislatives and executives may not working effectively, due to political reasons.
6. What are the provisions under the Tenth Schedule of the Indian Constitution? Does it unduly curb the right of legislators to dissent?
Approach:
• Introduce with brief description of the Tenth Schedule of the constitution followed by list of its provisions.
• Explain why it has been argued that it curbs the right of legislators to dissent and what are the limits of such argument. The observation of Supreme Court in this regard would be appropriate.
• Conclude by balancing suggesting how the provisions can be used to enable smooth functioning of legislatures in the democratic setup.
Answer:
Tenth Schedule of the Constitution was introduced by the 52nd Amendment which laid down the process by which legislators may be disqualified on grounds of defection. By the 91st Amendment Act, 2003 it was again amended. The main provisions under tenth schedule are:
• A member of a house, belonging to a political party, becomes disqualified if he voluntarily gives up the membership of his party or does not obey the party directions.
• An independent candidate of the house becomes disqualified if he joins a political party after the election.
• A nominated member becomes disqualified if he joins a party after six months
• A person shall not be disqualified if he joins new political party or function as a separate group as a result of merging of 2/3rd members of his original political party with another.
• Deciding authority regarding disqualification of a member is the Chairman or the Speaker of the
House.
• If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the
House elected by that House shall take the decision.
As soon as the law was passed, there were allegations that it impinges on the right to free speech of legislatures as
• It does not differentiate between dissent and defection
• It controls the views and votes of the member in every issue
However, Supreme Court in famous Kihoto Hollohon vs Zachillhu and Others (1992), decided that the law does not violate any rights of free speech or basic structure of the parliamentary democracy. But it also highlighted that parties should issue directions only in those
• votes which are crucial to the existence of the government
• matters which are integral to the electoral program of the party,
Thus, the need of the hour is to evolve parliamentary conventions where Political parties should limit issuance of whips to certain instances only so as not to “unduly impinge” on the freedom of speech of the members.
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