Judicial activism

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• Judicial activism refers to the interference of the judiciary in the legislative and executive fields. It mainly occurs due to the non-activity of the other organs of the government.
• In short, judicial activism means that instead of judicial restraint, the Supreme Court and other lower courts become activists and compel the authority to act and sometimes also direct the government regarding policies and administration.

Some situations that lead to judicial activism are:

          ·    When the legislature and executive fails to discharge its responsibilities.

          ·    In case where the government is very weak and instable.

          ·    When the governments fail to protect the basic rights of the citizens or provide an honest, efficient and just system of law and administration.

          ·    When the party in power misuses its power for ulterior motives as was done during the Emergency period.

          ·    Finally, the court may on its own try to expand its jurisdiction and confer on themselves more functions and powers.

Areas of Judicial Activism

 Judiciary through judicial activism has played significant role in:

          ·    Protection of ecology and environment pollution. 

          ·    Protection against inhuman treatment in jail.

          ·    Protection against Sexual harassment of working women.

          ·    Ban on smoking in public places.

          ·    Recent Examples: common wealth scam, 2G scam, Noida land acquisition case and 2002 Gujarat riot case.

Instruments of Judicial Activism

         1.  Public interest litigation (PIL) - means a suit filed in a court of law for the protection of public interest such as pollution, terrorism, road safety etc. It is not defined in any statute or act.

         2.  Judicial review - Article 13 conferred wide power of judicial review to the Apex court. In the exercise of the judicial review it can examine the constitutionality of executive or legislative act.

         3.  Constitutional Remedies - Article 32 makes the Supreme Court as the protector and guarantor of the fundamental rights. 

Criticism of Judicial Activism

1.  The judiciary is interfering in the field of executive and legislative. Due to which separation of power is at stake.

2.  Executive and legislative have popular mandate as they are elected while judiciary is an appointed body. So it should not interfere in policy matters.

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Central Vigilance Commission

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• Central Vigilance Commission (CVC) created in 1964 to address governmental corruption.
• It was set up on the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam.
•  It has the status of an autonomous body, free of control from any executive authority.
• It has the responsibility of monitoring all vigilance activity under the Central Government of India, and advising various authorities in central Government organizations in planning, executing, reviewing and reforming their vigilance work.
• The CVC is headed by a Central Vigilance Commissioner who is assisted by two Vigilance Commissioners.
•  Nittoor Srinivasa Rau, was selected as the first Chief Vigilance Commissioner of India.

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Role

     ·   The CVC is not an investigating agency.

     ·   It works through either the CBI or through the Departmental Chief Vigilance Officers.

     ·   It can proceed Corruption investigations against government officials only after the government permission.

     ·   The CVC publishes a list of cases where permissions are pending.

     ·   The CVC has also been publishing a list of corrupt government officials against which it has recommended punitive action.

Appointment

The Central Vigilance Commissioner and the Vigilance Commissioners are appointed by the President after obtaining the recommendation of a Committee consisting of:

                The Prime Minister — Chairperson

                The Home Minister — Member

                The Leader of the Opposition in the Lok Sabha — Member

Limitations of CVC

          ·   CVC is only an advisory body. Central Government Departments are free to either accept or reject CVC's advice in corruption cases.

          ·   CVC does not have adequate resources compared with number of complaints that it receives.

          ·   CVC cannot direct CBI to initiate inquiries against any officer of the level of Joint Secretary and above on its own. Such permission has to be obtained from the concerned department.

          ·   CVC does not have powers to register criminal case. It deals only with corruption or disciplinary cases.

          ·   CVC has supervisory powers over CBI. However, CVC does not have the power to call for any file from CBI or to direct CBI to investigate any case in a particular manner. CBI is under administrative control of Department of Personnel and Training (DoPT). It means that, the powers to appoint, transfer, suspend CBI officers lie with DoPT.

As a result, although CVC is relatively independent in its functioning, it has neither resources nor powers to inquire and take action on complaints of corruption.

Project Vigeye

• Project Vigeye (Vigilance Eye) is a citizen-centric initiative of the CVC, wherein citizens join hands with the Central Vigilance Commission in fighting corruption in India.
• Project Vigeye is the platform through which vigilance information flows freely through common public, the government agencies and the vigilance commission.

The important features of Project Vigeye are:

          ·   Citizens have multiple channels to air their grievances and complaints to CVC

o    Through their mobile phones: by downloading the mobile application from the CVC website.

o    Through the internet: by filling up the complaint form online they can attach audio/video/photo evidence.

o    Through telephone: help line have been setup.

         ·    The entire complaint processing is done online, enabling fast and accurate processing of complaints.

         ·     The concerned CVO will interact with the complainant directly over phone/email or in person, as the case may be, to take it forward.

         ·     Status of the complaint is communicated back to the complainant.

Council of Ministers

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Article 74 provides that there would be a Council of Ministers with the Prime Minister as its head to aid and advise the President.

 Article 75 provides Prime Minister is appointed by the President. President also, appoints other ministers on the advice of the Prime Minister.

On Prime Minister recommendation the President can dismiss any minister from the Council of Minister.

Prime Minister:

1. Appointment-The leader of the majority party in the Lok Sabha is appointed as the Prime Minister by the President.

2. Functions-

          ·   He is the real executive.

          ·   He advices the President to appoint other Ministers.

          ·   He can advice the President to appoint an outsider, not a Member of Parliament, a minister. However such a person has to be elected to either House of Parliament within six months from the date of his appointment.

          ·   He can recommend the President to dismiss any minister from the Council of Minister.

          ·   He advises the President to appoint important officials like the Attorney-General of India, the Comptroller and Auditor General of India, the Chairman and the members of the UPSC, the Election Commissioner, the Chairman and the Members of the Finance Commission.

         ·    He presides over cabinet meetings.

         ·    He is the link between the President and the Cabinet.

         ·    Prime Minister keeps the President informed about the decisions of the Council of Ministers.

         ·     He guides the ministers and coordinates the policies of various departments and ministries.

         ·     He is the leader of the Lok Sabha in Parliament.

         ·     He is the ex-officio Chairman of the Planning Commission, National Development Council, National Integration Council and Inter-state Council.

3. Term of the office- The term does not exceed five years.

4. Resignation- If the government is defeated in the Lok Sabha, the Cabinet and the Prime Minister both have to resign as they are responsible to the Lok Sabha.

Council of Ministers :

• Council of Ministers is a constitutional body but, its size and classification is not mentioned in the constitution.
• The number of the Ministers in the Council has been fixed to 15% of the number of the MPs in the Lower House.
• No qualification or age limit is laid down for these different categories of ministers.

 The Council of Ministers comprises of :

1.       Cabinet Ministers-

• Each member of the cabinet handles an independent charge of a department.
• It  is the highest policy making body.
• Only the cabinet ministers attend the cabinet meetings
• The word Cabinet Ministers was inserted into the Constitution through the 44th Amendment Act in Article 352.

2.      Ministers of State-

• These are also the ministers of the cabinet rank and help in discharging the duties of cabinet ministers.
•  Sometimes the Ministers of state are given independent charge of the ministries also.
• Attend the cabinet meetings only on invitation.

3.       Deputy Ministers-

• They are the ministers of the lower rank.
• They cannot hold independent charge and always assist the Cabinet or State Minister or both.
• They never attend the Cabinet meetings.
• All members of the cabinet are members of the council of minister while all members of the council of ministers are not members of the cabinet.

Principle of Collectively Responsibility - The Prime Minister along with his council of ministers is directly responsible to the Lok Sabha for all acts of commission and omission. A note of no confidence against even one member can bring down the whole government. The Prime Minister and his council of minister thus sink and swim together.

Parliament:  It consists of the President and two houses known as the Rajya Sabha (Council of States) and the Lok Sabha (House of the people).

Comptroller and Auditor General

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• Provisions regarding Comptroller and Auditor General (CAG) are mentioned under Part V and Articles 148-151.
• The C&AG's Act, 1971 regulates the duties, powers and conditions of service of the Comptroller and Auditor General.

Appointment:

•   The Comptroller and Auditor-General of India is appointed by the President of India on the recommendation of Prime Minister.

•   He is appointed for 6 yrs or 65yrs of age whichever is earlier.

Functions:

•   He is the custodian of the Public Purse, controlling the entire financial system of the Country-the Union and the States.

•   He audits all receipts and expenditure of the Government of India and the state governments, including those of bodies and authorities substantially financed by the government.

•   He is also the external auditor of government-owned companies.

•   He prescribes the form and manner in which the accounts of the Union and the States shall be kept, subject to the approval of the President.( Article 150)

•   The reports of the Comptroller and Auditor General relating to Accounts of Union are submitted to the President who causes them to be laid before the Parliament.

•   The reports of the Comptroller and Auditor General relating to Accounts of States are submitted to the Governor of the state, who causes them to be laid before the state Legislature.

•   These reports of the CAG are then referred to the Public Accounts Committees, which are special committees in the Parliament and the State legislatures.

•   The discussion in Parliament or State Legislature takes place on the basis of Public Accounts Committees reports.

•   While conducting audit, the Comptroller and Auditor-General ensure:

(a)    That the financial rules and orders are obeyed while expenditure; and

(b)    That those who sanction expenditure have the power to do so.

Comptroller is one who has control over the treasury. The term CAG was taken from British system where the CAG has to countersign to make withdrawals from treasury. In India, the CAG has no control over the issue of money from consolidated fund of India or States. He came into action only when expenditure has taken place. So, in effect the Indian CAG is only AG. CAG is misnomer in Indian context.

The CAG is also the head of the Indian Audit and Accounts Department.

The CAG is ranked 9th and enjoys the same status as a judge of Supreme Court of India in Indian order of precedence.

Oath of affirmation

 On appointment, he has to make an oath of affirmation before the President of India that, he will bear true faith and allegiance to the Constitution of India, uphold the sovereignty and integrity of India and perform the duties of his office without fear or favour.

 Safeguards for impartiality:

•    He shall be removed in the same manner and grounds as a Judge of the Supreme Court.

•    The salary and other benefits cannot be varied to his disadvantage after his appointment except in Financial Emergency.

•    The CAG of India shall be ineligible for further appointment under the Government of India or Government of any State after he has ceased to hold his office.

•    The CAG can be removed only on an address from both the Houses of the Parliament on the ground of proved misbehavior or incapacity.

•    His salary and allowances are charged upon the Consolidated Fund of India and are non-votable in the Parliament.

                 

List of Comptrollers and Auditors General of India

No.          C AG of India                tenure began        tenure ended

1              V. Narahari Rao                    1948                        1954

2              A. K. Chanda                         1954                        1960

3              A. K. Roy                               1960                        1966

4              S. Ranganathan                    1966                        1972

5              A. Bakshi                               1972                        1978

6              Gian Prakash                        1978                        1984

7              T. N. Chaturvedi                  1984                        1990

8              C. G. Somiah                         1990                        1996

9              V. K. Shunglu                        1996                        2002

10            V. N. Kaul                              2002                       2008

11             Vinod Rai                              2008                       2014

Attorney General of India

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Attorney General of India
 He is appointed by the President of India  and holds office during the pleasure of the President. (Article 76(1))
 He must be a person qualified to be appointed as a Judge of the Supreme Court.

Powers and duties
 Article 76
The Attorney General is responsible for giving advice to the Government of India in legal matters referred to him.
He also performs other legal duties assigned to him by the President.
The Attorney General has the right of audience in all Courts in India.
Also, he has right to participate in the proceedings of the Parliament, though not to vote.
 The Attorney General appears on behalf of Government of India in all cases in the Supreme Court in which Government of India is concerned.
The Attorney General cannot appear against the Government.
 He cannot defend an accused in the criminal proceedings and accept the directorship of a company without the permission of the Government.
The Attorney General is assisted by a Solicitor General and four Additional Solicitors General.
 The Attorney General is to be consulted only in legal matters and only after the Ministry of Law has been consulted.
 All references to the Attorney General are made by the Law Ministry.
The Attorney-General is a member of the Cabinet in Britain. But in India, there is a Minister of law in the Cabinet to deal with legal affairs at Government level.

THE UNION AND ITS TERRITORY

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• According to Article 1 - India, that is Bharat, shall be a Union of States.
•  India is indestructible union of destructible states.

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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.

• Article 3 Says Parliament by law passed with simple majority can form new States and alter the areas, boundaries or names of existing States.
•  No Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President.
• The Bill then referred by the President to the Legislature of that State for expressing its views within specified period of time.
• The Bill can be introduced if State does not expresses its views.
• Parliament is not bound to accept the views expressed by State Legislature.
• States Reorganisation:
•  The political units devised in 1950 after Independence, in many cases, lacked economic viability or a suitable administrative machinery because the borders of these states, inherited from British India.
• Language was made the basis of this reorganisation based on the Congress Party resolution of 1920 in Nagpur Session as it would help replace the caste and religion-based identities with less controversial linguistic identities.
• On 17 June 1948, Rajendra Prasad, the President of the Constituent Assembly, set up the Linguistic Provinces Commission (aka Dar Commission) to recommend whether the states should be reorganized on linguistic basis or not. The Commission recommended that "the formation of provinces  exclusively on linguistic considerations is not in the larger interests of the Indian nation".
• In 1948 Congress, at its Jaipur session, set up the "JVP committee" to study the recommendations of the Dar Commission. The committee comprised Jawaharlal Nehru and Vallabhbhai Patel, in addition to the Congress president Pattabhi Sitaramayya. In its report dated 1 April 1949, the Committee stated that the time was not suitable for formation of new provinces, but also stated "if public sentiment is insistent and overwhelming, we, as democrats, have to submit to it, but subject to certain limitations in regard to the good of India as a whole".
• By the 1952, the demand for creation of a Telugu-majority state in the parts of the Madras State had become powerful. Potti Sreeramulu, one of the activists demanding the formation of a Telugu-majority state, died on 16 December 1952 after undertaking a fast-unto-death. Subsequently, the Telugu-majority Andhra State was formed in 1953.
• In December 1953, States Reorganisation Commission was appointed by government of India to study creation of states on linguistic lines. This was headed by Justice Fazal Ali. The commission presented a report in 1955 recommending the reorganization of Indian states into 16 states and 3 Union Territories. Finally, The States Reorganization Act was passed in 1956.
• This abolished the British system of provinces and princely states. In its place, new states were drawn based on ethnicity and language.
• 1 May 1960 - Bombay State was split into the linguistic states of Gujarat and Maharashtra by the Bombay Reorganization Act.
•  1962 - The former French and Portuguese colonies in India were incorporated into the Republic as the union    territories of Pondicherry, Dadra and Nagar Haveli, Goa, Daman and Diu.
•  1 December 1963 - Nagaland was made a state.
• 1966 - The Punjab Reorganization Act of 1966 divided the Punjab along linguistic lines, creating a new Hindi-speaking state of Haryana on 1 November, transferring the northern districts of Punjab to Himachal Pradesh, and designating Chandigarh, the shared capital of Punjab and Haryana, a union territory.
•  25 January 1971 - Statehood was conferred upon Himachal Pradesh.
• 21 January 1972 - Statehood was conferred upon Manipur, Meghalaya and Tripura.
•  26 April 1975 - The Kingdom of Sikkim joined the Indian Union as a state.
•  1987 - Arunachal Pradesh and Mizoram became states on 20 February, followed by Goa on 30 May, while Goa's northern exclaves of Daman and Diu became a separate union territory.
•  2000 - three new states were created; Chhattisgarh (1 November 2000) was created out of eastern Madhya Pradesh, Uttaranchal (9 November 2000), since renamed Uttarakhand, was created out of the Hilly regions of northwest Uttar Pradesh, and Jharkhand (15 November 2000) was created out of the southern districts of Bihar. 

Preamble to the Constitution of India

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• The preamble to the Constitution of India is a brief introductory statement that sets out the guiding purpose and principles of the document.
• The ‘objective Resolution’ proposed by JL Nehru ultimately become the Preamble.
• The preamble is not an integral part of the Indian constitution was first decided by the Supreme Court of India in BeruBari case therefore it is not enforceable in a court of law.
• However, Supreme Court of India has, in the Kesavananda case, recognised that the preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves. Also, it can be amended by Parliament provided basic structure remains unchanged.
•  In the 1995 case of Union Government Vs LIC of India also the Supreme Court has once again held that Preamble is the integral part of the Constitution.
• As originally enacted the preamble described the state as a "sovereign democratic republic". In 1976 the 42^nd Amendment changed this to as "sovereign socialist secular democratic republic".

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Full text

“              WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR 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 of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.             ”

Reading through the Preamble, one can see the purpose that it serves, namely, the declaration of

(1)     The source of the constitution,- people of India.

(2)     A statement of its objectives and

(3)    The date of its adoption.

Meaning

The enacting words "We, the people of India ...in our constituent assembly ...do here by adopt, enact and give to ourselves this constitution", signifies the democratic principle that power is ultimately rested in the hands of the people. It also emphasises that the constitution is made by and for the Indian people and not given to them by any outside power (such as the British Parliament). The wording is close to the preamble of the Constitution of Ireland, which had been adopted in 1937; it reads "We ourselves this Constitution". All the power emanates from the people and the political system will be accountable and responsible to the people.

     1.  Sovereign

The word sovereign means supreme or independence. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people.

    2.   Socialist

• The word socialist was added to the Preamble by the 42nd Amendment. It implies social and economic equality.
• Social equality in this context means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities.
• Economic equality in this context means that the government will endeavor to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasized a commitment towards the formation of a welfare state.

   3.       Secular

Indian Government shall respect all religions. It would not uplift or degrade any particular religion.

   4.      Democratic

The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as "one man one vote". Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.

   5.       Republic

As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The post of the President of India is not hereditary. Every citizen of India is eligible to become the President of the country.