Policies, Governance & Administration - Higher Education System Notes

Introduction

• The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens.
• The Constitution of India is the longest written constitution of any sovereign country in the world, containing 448 articles in 25 parts, 12 schedules and 104 amendments.
• But the Indian Constitution has 395 articles in 22 parts and 8 schedules at the time of commencement. Besides the English version, there is an official Hindi translation.
• Various Subject Committees like the Committee on Fundamental Rights and Union Constitution Committee had submitted their respective proposals and after a general discussion on all the proposals, a Drafting Committee chaired by Dr. BR Ambedkar was appointed. The Drafting Committee had the full authority to add, modify or delete any of the proposals submitted by the committees. The finalized draft of the Indian Constitution got the signature of the President of the Constituent Assembly, Dr. Rajender Prasad on Nov 26, 1949, which is referred to as the Date of Passing. Since the Constituent Assembly, which finalized the Constitution was duly elected by means of indirect election by the people of India, The Constitution of India derives its authority from the people of India. The Constitution was thus enacted by the Constituent Assembly on 26 November 1949 and came into effect on 26 January 1950. The date 26 January was chosen to commemorate the Purna Swaraj declaration of independence of 1930. With its adoption, the Union of India officially became the modern and contemporary Republic of India and it replaced the Government of India Act 1935 as the country’s fundamental governing document.
• The Indian Constitution has borrowed heavily from other constitutions of the world and can be called a “beautiful patchwork”.

Some of the prominent features which have been borrowed are as under:

• Structure: The Constitution, in its current form, consists of a preamble, 25 parts containing 448 articles, 12 schedules, 2 appendices and 104 amendments.
• The Preamble: The draft of the Preamble was prepared by Jawaharlal Nehru and is based on the American model. The 42nd Amendment added the words “Secular and Socialist” and now the preamble reads as follows:

“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, November 26, 1949, do hereby adopt, enact and give to ourselves this constitution”.

The Preamble is, technically, not a part of the Constitution (and this has been confirmed by the SC also), but it contains the basic philosophy of the whole Constitution and the ideals of the constitution-makers. It can be used by the Courts to help them in the interpretation of the Constitution in certain matters where the Constitution itself is silent.

Parts of Constitution

The individual Articles of the Constitution are grouped together into the following Parts:

Preamble

• Part I – Union and its Territory
• Part II– Citizenship.
• Part III – Fundamental Rights.
• Part IV – Directive Principles of State Policy
• Part IVA – Fundamental Duties.
• Part V – The Union.
• Part VI – The States.
• Part VII – States in the B part of the First schedule (Repealed).
• Part VIII– The Union Territories
• Part IX – The Panchayats.
• Part IXA – The Municipalities.
• Part IXB – The Cooperative Societies
• Part X – The scheduled and Tribal Areas
• Part XI – Relations between the Union and the States.
• Part XII – Finance, Property, Contracts and Suits
• Part XIII – Trade and Commerce within the territory of India
• Part XIV – Services Under the Union, the States.
• Part XIVA – Tribunals.
• Part XV – Elections
• Part XVI – Special Provisions Relating to certain Classes.
• Part XVII – Languages
• Part XVIII – Emergency Provisions
• Part XIX – Miscellaneous
• Part XX – Amendment of the Constitution
• Part XXI – Temporary, Transitional and Special Provisions
• Part XXII – Short title, date of commencement, Authoritative text in Hindi and Repeals

The Federal System

Article 1 of the Indian Constitution describes India as a “Union of States”. The term “Union” implies that:

• The Indian federation is not the result of a voluntary agreement by the states themselves. As is well known, after India’s independence, more than 550 states were integrated into the Union of India by the then Home Minister, Sardar Vallabh Bhai Patel, leading to his being branded as the “Iron Man of India”. So, their inclusion in India is purely involuntary.
• The components of the Indian Union have no freedom to secede from it. (unlike the erstwhile USSR or the present-day USA where such freedom was/is vested in the states).

The Indian federal system is unique in the sense that in spite of its being a federal set-up, it still does not have many features characteristic of a typical federal set-up (like the USA). In general, the Indian set-up has been mostly described as quasi–federal or semi–federal due to the fact that the balance of power tilts heavily in favour of the Centre i.e. the states enjoy comparatively lesser powers in most spheres as compared with the Centre.

Territory of the Union

• The territory of India comprises the entire geographical territory over which the sovereignty of India, for the time being, prevails. On the other hand, the Union of India includes only those component units, i.e., the states, which share power with the Centre. The UTs are centrally administered areas governed by the President acting through an Administrator appointed by him. As on date, the territory of India consists of 28 states, 7 UTs and 1 National Capital Territory of Delhi (NCT- Delhi is neither a full state nor a UT).
• India is a federal constitutional republic governed under a parliamentary system consisting of 28 states and 7 union territories. All states, as well as the union territories of Puducherry and the National Capital Territory of Delhi, have elected legislatures and governments, both patterned on the Westminster model. A newly created UT, Jammu & Kashmir will also have legislatures and governments. The remaining five union territories are directly ruled by the Centre through appointed administrators. In 1956, under the States Reorganisation Act, states were reorganised on a linguistic basis.

Making use of this provision, several landmark changes have been brought about in the political composition of the Indian territory, some of which are found in the table below:

Fundamental Rights

Fundamental rights are the basic human rights enshrined in the Constitution of India which are guaranteed to all citizens. They are applicable without discrimination on the basis of race, religion, caste, gender, etc. Significantly, fundamental rights are enforceable by the courts, subject to certain conditions.

These rights are called fundamental rights because of two reasons:

• They are enshrined in the Constitution which guarantees them.
• They are justiciable (enforceable by courts). In case of a violation, a person can approach a court of law.

The Fundamental Rights were Seven when the constitution of India was enacted, but one right was removed later.

• Right to equality (Article 14-18)
• Right to freedom (Article 19-22)
• Right against exploitation (Article 23-24)
• Right to freedom of religion (Articles 25-28)
• Cultural & educational rights (Articles 29-30)
• Right to Property (Article 31) (It was removed later)
• Right to constitutional remedies (Article 32).

Six Fundamental Rights

There are six fundamental rights mentioned in the Indian Constitution. They are listed below:

1. Right to equality (Articles 14-18)

• Article 14: Equality before the law and equal protection of the law
• Article 15: Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth.
• Article 16: Equality of opportunity in matters of public employment
• Article 17: End of untouchability
• Article 18: Abolition

2. Right to freedom (Articles 19-22)

• Article 19: It guarantees the citizens of India the following six fundamentals freedoms:
  • Freedom of Speech and Expression
  • Freedom of Assembly
  • Freedom of form Associations
  • Freedom of Movement
  • Freedom of Residence and Settlement
  • Freedom of Profession, Occupation, Trade and Business
• Article 20: Protection in respect of conviction for offences
• Article 21: Protection of life and personal liberty
• Article 21 A: Right to education
• Article 22: Protection against arrest and detention in certain cases

3. Right against exploitation (Articles 23-24)

• Article 23: Prohibition of traffic in human beings and forced labour
• Article 24: Prohibition of employment of children in factories, etc.

4. Right to freedom of religion (Articles 25-28)

• Article 25: Freedom of conscience and free profession, practice and propagation of religion
• Article 26: Freedom to manage religious affairs
• Article 27: Prohibits taxes on religious grounds
• Article 28: Freedom as to attendance at religious ceremonies in certain educational institutions

5. Cultural and educational rights (Articles 29-30)

• Article 29: Protection of interests of minorities
• Article 30: Right of minorities to establish and administer educational institutions
• Article 31: Omitted by the 44th Amendment Act

6. Right to constitutional remedies (Articles 32-35)

• Article 32:  Right to move to Supreme Court (and high courts also) for getting his fundamental rights protected
• Article 33: Power of Parliament to modify the rights.
• Article 34: Restriction on rights while martial law is in force in any area.
• Article 35: Legislation to give effect to the provisions.

What is a Writ?

Writs are written order issued by the Supreme Court of India to provide constitutional remedies in order to protect the fundamental rights of citizens from a violation.

Type of Writs

The Constitution empowers the Supreme Court and High Courts to issue orders or writs. The types of writs are followings:

• Habeas Corpus
• Certiorari
• Prohibition
• Mandamus
• Quo Warranto

Fundamental Duties

The fundamental duties which were added by the 42nd Amendment of the Constitution in 1976, in addition to creating and promoting culture, also strengthen the hands of the legislature in enforcing these duties vis-a-vis the fundamental rights.

The list of 11 Fundamental Duties under article 51-A to be obeyed by every Indian citizen is given below:

• Abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
• Cherish and follow the noble ideals that inspired the national struggle for freedom.
• Uphold and protect the sovereignty, unity and integrity of India.
• Defend the country and render national service when called upon to do so.
• Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women.
• Value and preserve the rich heritage of the country’s composite culture.
• Protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.
• Develop scientific temper, humanism and the spirit of inquiry and reform.
• Safeguard public property and to abjure violence.
• Strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
• Provide opportunities for education to his child or ward between the age of six and fourteen years. This duty was added by the 86th Constitutional Amendment.

The President

At the head of the Union Executive stands the President of India, who is elected by indirect election i.e. by an electoral college, in accordance with the system of proportional representation by a single transferable vote.
This electoral college comprises:

• Elected members of both Houses of Parliament
• Elected members of State Legislative Assemblies

Eligibility Conditions

In order to contest for Indian Presidency, a person must

• be a citizen of India
• have completed 35 years of age
• be eligible for election to the Lok Sabha
• not hold any office of profit under the Government of India or any State Government or under any local or other authority subject to the control of Central/State Governments.

The office tenure of the President is 5 years from the date of assuming office, but he will be eligible for re-election. There is no bar on the number of times for which a person can become the President of India.
However, his office may terminate before 5 years in case of:

• his resignation in writing which is addressed to the Vice-President of India
• his removal by impeachment.

Emoluments and Allowances

• The President gets a monthly salary of Rs. 5,00,000/- only apart from an official residence for use (free of cost) with other allowances. He is also eligible for an annual pension if he is not re-elected as President.

Different Powers

• Administrative Powers: The Indian President remains the formal Head of the Union Administration and as such, all executive functions of the Union are expressed to be taken in his name. Further, all officers of the Union shall be subordinate to him and “He will have a right to be informed of the affairs of the Union”. (Art 78)
• But simply, it means that he can ask for any file/document or information relating to the affairs of the Union.
• The administrative power includes the power to appoint and remove certain high dignitaries of the State. The President enjoys the power to appoint
  • The Prime Minister
  • Other Central Ministers on PM’s advice
  • The Attorney-General of India
  • The Comptroller and Auditor-General of India
  • Supreme Court Judges including the CJI
  • High Court Judges including the Chief Justice
  • The Governor of a State
  • The Finance Commission
  • The Union Public Service Commission and Joint Commission for a group of States
  • A special officer for SC/STs
  • A Commission on Scheduled Areas
  • A Commission on Official Languages
  • A special officer for Linguistic Minorities
  • The Chief Election Commissioner and other Election Commissioners
  • A Commission for Backward Classes
• He is competent to remove:
  • the Union Ministers (on the advice of the PM)
  • the Attorney-General of India
  • the Chairman or a member of the Union Public Service Commission on the report of the Supreme Court.
  • a Supreme Court/High Court Judge/Election Commissioner, on an address of Parliament.
• Military Powers: The President is the Supreme Commander of the Armed Forces in India and as such, has the right to declare war or peace with any country. However, such powers are subject to parliamentary control.
  Diplomatic Powers: The task of negotiating international treaties and agreements belongs to the President, who acts according to ministerial advice in such matters. This again is subject to ratification by the Parliament.
  Legislative Powers: The President is component part of the Union Parliament (though not a member of either House) and enjoys the following legislative powers:
  • Summoning, Prorogation, Dissolution: The President has the power to summon (call) or prorogue (end the session) the Houses of Parliament and to dissolve the Loksabha.
  • He also enjoys the right to call a Joint Sitting of both the Houses to resolve a deadlock over any bill (Art 108)
  • He addresses the first session after each general election and at the first session of each year.
  • He can nominate 12 members to the Rajya Sabha from persons with special achievements/experience in literature, science, art and social service. Similarly, he has the right to nominate 2 Anglo-Indians to the Loksabha, if he feels their representation is not sufficient.
• It is obligatory to obtain Presidential sanction beforehand in case of certain bills like :
  • a bill for forming a new state/change of state boundaries
  • a money bill
  • a bill affecting taxation in which states are also interested
• A Bill becomes an Act only after getting Presidential assent. The President is competent to take any of the following steps if a Bill is presented to him for his assent:
  • He may give assent to the Bill enabling it to become a law
  • He may withhold his assent
  • He may return the Bill for reconsideration (except Money Bills) to the Parliament. If the Bill is re-presented to him in this case after reconsideration, it is obligatory for him to give his assent to it.

The above is true of ordinary bills (bills except for Money and Amendment Bills).

• The President of India cannot refuse to sign a bill. At the most, he can withhold his assent from the bill, which is the equivalent of not approving a Bill. Also, there is no time-limit prescribed for him to give his assent to a Bill. Theoretically speaking, he may keep the Bill in his pocket for an indefinite time.
• An example in this regard is Mr. Zail Singh’s, who kept the Postal Amendment Bill with him, and it lapsed without his approval once he retired from office. This type of veto power is known as “Pocket Veto”. In case of sending back the Bill for reconsideration, if the Bill again comes back to him, the only effect of sending back the bill is suspending the process of assent for some days. This is referred to as “Suspensive Veto”.

Ordinance-Making Power

• The President enjoys the power to issue an ordinance at a time when the Parliament is not in session. An ordinance, for all practical purposes, has the effect of a normal law passed by the Parliament. This power is exercised by him on Cabinet advice. The ordinance issued by the President must be passed by the Parliament within 6 weeks of reassembly otherwise it will cease to be in operation. (Art 123)

The Pardoning Powers

• He can grant pardon, reprieve, respite, suspension, remission or commutation in punishment in cases where a death sentence is awarded by the Courts (even by a Court-Martial). He is the only authority for pardoning a death sentence.

Miscellaneous Powers

•  Power to draw up and notify the lists of Scheduled Castes and Scheduled Tribes for each state separately and UTs.
• To refer any matter to the Supreme Court for its advice (Art. 143)

Emergency Powers

Three types of emergency have been prescribed under the Constitution to deal with exigencies.
The President can:

• Proclamation of Emergency: The president can declare an emergency due to threat to the security of India or any part of it. It can last for six months by passing each such resolution by the requisite majority.
• Proclaim a state emergency (Art 356) due to breakdown of governmental machinery in any state if he is satisfied that the government there cannot be carried out according to Constitutional provisions. Normally, it is imposed for two months initially and is to be approved by the Parliament. This duration can be extended, however, by six months each up to a maximum of three years by passing resolutions in the Parliament.
• Declare a Financial Emergency under (Art. 360), if he feels that the creditworthiness of India or any part of it is in danger. The objective of such an emergency is to maintain the financial stability of India by controlling the expenditures and by reducing the salaries of all government servants. Such an emergency has never been imposed so far.

The Union Council of Ministers

• While the Prime Minister is selected by the President, all other ministers are appointed by him on the advice of the Prime Minister. While selecting a Prime Minister, the President is restricted to the leader of the majority party at the Centre or the person who is in a position to form a government and prove is majority later on. The allocation of portfolios to the Ministers is also done by the President as per the Prime Ministerial advice.
• The PM is at the head of the Council of Ministers and the Council cannot continue to exist in the event of resignation or death of the Prime Minister.
• Eligibility to be the Prime Minister of India: The person should be an elected member of either Lok Sabha or Rajya Sabha.
• Powers and functions of Prime Minister:
  • recommends persons who can be appointed as ministers by the President.
  • can recommend dissolution of the Lok Sabha to the President at any time.
• The PM is the chairman of the Niti Ayog, National Development Council, National Integration Council, Inter-State Council and National Water Resources Council.

The term Council of Minister refers to all the Ministers, whether Cabinet, State or Deputy Ministers.

The Union Legislature

The union legislature comprises the President, the Lok Sabha and the Rajya Sabha.

The Lok Sabha

• The maximum strength of the House envisaged by the Constitution is 552, which is made up by the election of up to 530 members to represent the States, up to 20 members to represent the Union Territories and not more than 2 members of the Anglo-Indian Community to be nominated by the Hon’ble President, if, in his/her opinion, that community is not adequately represented in the House.
• Members of the Lok Sabha are elected by an electoral college of all adult citizens (of not less 18 years and who is not disqualified for non-residence, unsoundness of mind, crime or corrupt or illegal practices-Universal Adult Franchise –Art. 326). The normal duration of a Lok Sabha is 5 years unless dissolved earlier by the President. The duration can be increased by a maximum of 1 year at a time only during an Emergency.

The Speaker

The Speaker is the person who presides over the Lok Sabha sittings. Soon after its formation, the new Lok Sabha chooses its Speaker and the Deputy Speaker.

The Speaker may cease to be so

• if he loses the Lok Sabha membership for some reason
• if he submits his resignation in writing to the Deputy Speaker and vice-versa.
• If he is removed from the post by a Lok Sabha resolution supported by a majority all the members of the House.

Normally, the Speaker exercises the casting vote in case of a tie over a bill in the House.
Besides, the LS Speaker presides over a Joint Sitting of both the Houses. The Speaker also ratifies a bill as Money Bill and his decision in this matter is final. During a vacancy in the office of the LS Speaker, the Deputy Speaker performs his duties.

After the first General Elections in 1951, GV Mavlankar became the first Speaker of the Lok Sabha.

• The Rajya Sabha: It is a permanent House (cannot be dissolved) with a member having a term of 6 years. One-third of its members retire after every two years. Consequently, there will be an election of one-third of the Rajya Sabha at the beginning of every 3rd year.
• It is the duty of the President to summon both Houses of Parliament at such intervals that not more than 6 months elapse between two successive sessions.
• The Vice-President of India is the ex-office chairman of the Rajya Sabha. During his absence, the Deputy Chairman discharges his duties in the House.

The State Executive

• Our Constitution provides for a federal set-up and contains provisions for the administration of the Union and the State governments. The procedure laid down for the governance of the States is equally applicable to all.
• The Governor: The State Governor is largely parallel to the Union President in matters of his role in the legislative and executive process. The Governor, appointed by the President, holds office at the President’s pleasure and enjoys the formal executive authority in a state. Any Indian Citizen above 35 years of age is eligible for Governorship, but he must not hold any office of profit, nor he is a member of the Union or a State Legislature. The powers of appointment to the State Council of Ministers, the Advocate-General, recommending Money- Bills etc. enjoyed by the Governor are largely analogous to those held by the President at the Centre.
• The normal office term of a Governor is 5 years, terminable earlier by resignation to the President or dismissal by the President.
• The State Legislature: Some of the states are unicameral i.e. have got only the State Legislative Assembly. In some others, apart from it, there is a State Legislative Council e.g. Bihar. The SLC is largely analogous to the Rajya Sabha while the State Legislative Assembly is the equivalent of the Rajya Sabha.

The Indian Judicial System

Supreme Court

The Supreme Court of India sits at the apex of the judicial system in India and the Parliament is competent to make any changes regarding its constitution, jurisdiction and the salaries payable to its judges. The Supreme Court comprises a Chief Justice of India and 33 other Judges. Besides, the CJI, with presidential consent, can request a retired SC Judge to act as a Temporary Judge in case of lack of quorum.

Qualifications and Tenures of Judges
A person, in order to be appointed an SC Judge, must

• be a citizen of India
• Be either a distinguished jurist or have at least 10 years’ High Court practice as an advocate OR
• have been a High Court Judge for at least 5 years.

No minimum age nor any fixed tenure has been prescribed. An SC Judge may cease to be so

• on attaining the age of 65 years
• by sending his resignation to the President
• being impeached

The only grounds upon which an SC Judge can be removed are:

• proven misbehaviour
• incapacity

A Guarantor of The Constitution: The Supreme Court is the final interpreter the Constitution and Other laws. It tries to ensure adherence to both and thus acts a guarantor of individual rights in India granted by the law and the Constitution.

The High Courts

A High Court stands at the head of the judiciary in each state. But the Parliament has the power to establish a common High Court for two or more states (like the common HC for the North-Eastern states). A High Court comprises a Chief Justice and a number of other Judges, as may be decided by the President.

The HC enjoys the jurisdiction over the territorial limits of the state and has the power of superintendence and control over all Courts and Tribunals in that area.

In order to be appointed an HC Judge, a person must

• be an Indian citizen
• not be above 62 years of age
• have held a judicial office in India OR
• have been an advocate of an HC or of two more such courts in succession

In appointing HC Judges, the President shall consult the CJI, the State Governor (and also the CJ of the State HC in case a judge other than the CJ is to be appointed) an HC Judge holds office till 62 years of age. However, the Judge may vacate his post-

• by resignation in writing to the President
• on appointment as an SC Judge
• by impeachment in Parliament.

The mode of removal of both SC and HC Judges is the same i.e. impeachment by Parliament and both hold office during “good behaviour”. Both categories of Judges, in addition to a monthly salary, are entitled to the use of an official residence, free of cost.

Some Important Political Terms

• Lame-duck Government: Is defined as that government which has lost the motion of no-confidence in the Lok Sabha and does not have the constitutional authority to run the government. Still, on being asked by the President, such a government has to continue until alternative arrangements are made. Such a government is referred to as a lame-duck government.
• Left Parties: Are those parties that adopt a radical political ideology. For instance, the CPI, CPI(M) and RSP etc.
• Right Parties: Are defined as those parties which adopt a politically conservative ideology e.g. the BJP, Shiv Sena etc.
• Centrist Parties: Are those which adopt a political position which is a via media between the leftist and the rightist political ideologies.
  
• Cut Motion: A motion moved to effect a cut in the Annual Budget. If an insignificant cut is proposed, such a motion is known as a token cut-motion. It has great political significance because if it is carried through in the Parliament, the government is under a moral obligation to resign as a consequence.
• Zero Hour: That time during parliamentary proceedings in the day when any matter of urgent national importance without any prior notice.
• Starred Question: Those the answers to which are given orally by the Minister.
• Unstarred Questions: The answers to which are given in writing in Parliament by the Minister.
• Vote-On–Account: Is passed without discussions pending final approval by the Parliament if money is required urgently.
• Guillotine: A motion is said to be guillotined if it is passed without any discussion on it in parliament in view of the urgency of the issue under question.
  
• Filibuster: Is a person who, in order to block the passage of a bill in Parliament, makes a long speech just before voting is going to take place. This term has British origins. Such a person and such a speech, both are referred to as filibuster.
  
• Whip: A whip is a person who regulates the presence and conduct of the members of a particular political party in Parliament. He is supposed to ensure their presence and voting on particular days and in a particular manner. Before voting on any matter in Parliament, an order is issued by the whip to all party MPs. Such an order is also known as a whip. Under the provisions of the Anti-Defection Law, violating a party whip can attract disqualification from Parliament. However, as per current provisions, which are likely to undergo a drastic change in future, party splits (i.e. if one-thirds or more legislators from a particular party leave it and join another one) are not termed as defections and do not attract penal provisions.

Conclusion

The study material for policies, governance, and administration are in brief and covered important topics. We advise you to read some other books or related topics on the internet. The syllabus is vast and can not be summarised in limited words or sentences.