Summary

Polity Class 41

A BRIEF OVERVIEW OF THE PREVIOUS CLASS (05:02 PM)

STATUTORY BODIES (05:06 PM)

CRITICAL ANALYSIS OF NHRC

Recommendations of NHRC are only advisory in nature.
NHRC can not award any monetary compensation
NHRC can not look into human rights excesses committed by Armed Forces
NHRC does not have a separate investigative mechanism of its own. It has to depend on law enforcement agencies only to conduct investigations.
It can not investigate cases that are more than one year old. It does not have the powers of contempt of court. It can summon officials but can not do much if they are deliberately absent.
Appointment of members is also a major issue because all these statutory bodies are becoming offices for ruling party politicians and retired bureaucrats. They are fast losing credibility in the eyes of the stakeholders.
In recent times, NHRC has also come under criticism for not taking up important cases related to the violation of Human Rights.

WAY FORWARD (05:15 PM)

Those people who are working in the field of human rights and who have credibility should be appointed as members of NHRC.
NHRC Act can be amended to remove the provision of appointing former chief justice as the head of the NHRC.
NHRC must have a separate investigative mechanism of its own to investigate cases
NHRC should be given the powers of contempt of court, It should be also given the power to award Monetary compensation in human rights violation cases/
This one-year rule should be removed with regard to taking up of cases by NHRC. It has been misused by the Central government to avoid accountability.
Recommendations of NHRC can be made mandatory, with the central government submitting and action taken reports regarding recommendations bade by NHRC
NHRC should also be given the power to investigate access committed by Army also, with necessary safeguards.

COMPARING OF CONSTITUTIONS (05:27 PM)

COMPARISON OF INDIA AND USA

Features of the USA constitution
It has a presidential form of democracy.
It has a written and Rigid constitution
USA is an example of a classic federation and it is also a Republic
It has a bicameral legislature- Senate and House of Representatives
It has an independent Judiciary and Due process of Law.
It has Weberian Bureaucracy [* Weber's model= Merit-based recruitment, Positions are not hereditary in nature, secrecy, written communication, Rule boundedness, Heiracrchy]
It has equal protection of laws
It has a clear-cut separation of powers between the three organs of state. The executive is independent of the legislature
Impeachment of the president is a difficult and complicated process. It requires a 2/3rd majority in both the Senate and House of Representatives
Residual powers are given to the States
In local self-government, it has a council-manager form of government
It has Dual citizenship
Political rights of civil servants are restricted
Senate is the most powerful house
Central Auditing agency is Comptroller General
Recruitment is based on both Merit System and Spoils System
Similarities between the American and Indian constitutions
Both of them have written constitutions that have defined the structure of government, the rights of citizens, and other aspects of Governance
Both of them are Republics
In the functioning of the Judiciary, India has adopted due process of law.
Both countries have Weberian Bureaucracy and both countries have Bicameral legislature
Difference between the American and Indian constitutions
America has a Presidential form of democracy and India has a Parliamentary form of democracy
India has only single citizenship and America has dual citizenship
America is an example of a classic Federation whereas India has Federalism in form but unitary in Spirit
America has an independent Judiciary whereas India has an integrated judiciary.
America has equal protection of laws whereas India has Equality before the law and Equal protection of laws (Substantive and Procedural).
India has Procedures established by Law and due process of Law whereas American Judiciary functions only on the basis of Due process of law.
America has a clear-cut separation of powers whereas India has a separation of Functions but not of powers. It is based on the principle of checks and balances.
In America, a person who has taken birth on American soil can become the President of America whereas, In India, a person who gets citizenship by Naturalization or by Registration can also become head of the state.
Residual powers are with the Union government in India.

COMPARISON OF CONSTITUTION BETWEEN THE UK AND IN INDIA (05:49 PM)

Features of the UK constitution
It has a constitutional monarchy. The head of the state is the King or the Queen. The position is hereditary in nature.
It has a parliamentary democracy.
It has an unwritten constitution.
It has a unitary state
Local self-governments do not have many powers or freedom.
It has Weberian Bureaucracy
Individual ministers are accountable for their performance
Central Auditing agency is the Controller and Auditor General.
Judiciary functions on the basis of procedure established by law.
It has Parliamentary sovereignty
FRs are the outcomes of traditions and customs and also Judicial pronouncements
It has a bicameral legislature- the House of Commons and House of Lords. House of Commons is more powerful.
Council of Ministers is responsible to the House of Commons
It has equality before the law as part of the Rule of law.
Similarities between the UK and Indian constitutions
Both countries have a parliamentary democracy
There is no strict separation of powers between the three organs of the state
Both countries have equality before the law
Functioning of Judiciary- Both countries have Procedures established by law.
Both countries have a bicameral legislature
Both countries have a single citizenship
Bpth the countries have Weberain bureaucracy
Political rights of civil servants are restricted
Differences between the UK and Indian constitutions
India has a written constitution whereas the UK has an unwritten constitution
India has limited parliamentary sovereignty whereas the UK has absolute parliamentary sovereignty
UK is a unitary state whereas India has federalism
In India there is collective responsibility of the Council of Ministers whereas in the UK there is Individual accountability
India has the due process of law along with Procedures established by Law
India has equal protection of laws along with equality before the law
Local self-governments in India have more power
Council of States in India i.e. Rajya Sabha has more powers and functions whereas in comparison to the House of Lords
India has a republic where in Head of the state is elected whereas, in the UK, it is a constitutional Monarchy

COMPARISON OF CONSTITUTION BETWEEN INDIA AND FRANCE (06:03 PM)

Features of the Constitution of France
France has a written and Rigid constitution. It has a unitary state and is a Republic.
It has a semi-presidential form of Government.
French President is elected through proportional representation i.e. the candidate must get more than 50% of the votes. President is elected directly by the People. President has the power to select the Prime Minister and the Council of Ministers.
If the same political party rules then President can become a real executive, if different political parties occupy the positions of President and Prime Minister then the powers of the President are restricted.
France also has a bicameral legislature- the Senate and National Assembly.
France has Administrative laws
Local self-governments do not have much autonomy.
Its Financial Year is from January to December
It has single citizenship. It also has Weberian Bureaucracy.
The head of the state is the President. The lower house is more powerful.
France has Administrative courts or Tribunals.
Judicial Review is absent.
Auditing agency is the Court of Accounts
Differences between France and Indian constitutions
France has a semi-presidential form of democracy whereas India has Parliamentary democracy
Election to the office of President- In France, the President is directly elected by the People through the Proportional Representation system, in India president is elected indirectly by electoral college through Proportional representation by a single transfer of vote.
France has a Unitary state whereas India has Federlaims
France has Administrative law and Judicial review is absent whereas In India, both Administrative law and the Rule of law are present and judicial review is also present.
French concept of secularism was based on the non-recognition of religion and state policies dominating religious traditions and customs. The Indian concept of secularism is much more broad-based and is a positive concept. The state recognizes all religions, respects traditions & customs, and does not discriminate against people on the basis of their religious identities.

COMPARISON OF CONSTITUTION BETWEEN INDIA AND JAPAN (06:26 PM)

Features of the Japanese constitution
Japan has a rigid and written constitution
It has a constitutional Monarchy
Japan is a unitary state
It has a parliamentary democracy and bicameral legislature i.e. House of Representatives (Lower House) and House of Councillors (Upper House). The lower house is more powerful
Local self-governments are known as Prefectures.
Japan has Weberian Bureaucracy and judicial review is also present.
It has a capitalist economy and also has Indicative planning
The head of the state is Emperor and the position is hereditary in nature
Central Auditing agency is the Board of Audit.

VARIOUS JUDICIAL OR LEGAL DOCTRINES (06:48 PM)

Doctrine
A Judicial doctrine is a principle, theory, or position that is usually applied and upheld by a court of law
Doctrine of Basic structure
It had its origins in the German constitution.
SC has not clearly defined the basic structure or contents of Basic structure but over a period of time, it has included the following
a) Parliamentary democracy
b) Fundamental Rights
c) Secularism
d) Federalism
e) Independence of Judiciary
f) Judicial review
In 1975, Supreme Court invalidated the 39th Constitutional Amendment Act as it violated the basic structure of the Constitution. SC also invalidated NJAC as it violated the basic structure of our constitution.
Doctrine of Separation of powers
It signifies the division of powers between the three organs of the state i.e. Legislature, executive, and Judiciary.
It has three important features-
a) The same person should not form part of more than one of the three organs of the state
b) One organ should not interfere with the functioning of any other organ.
c) One organ should not exercise the functions assigned to any other organ.
In the Indira Gandhi v/s Raj Narain case, 1975, SC ruled that separation of powers is part of the basic structure of our constitution

DOCTRINE OF PITH AND SUBSTANCE (07:01 PM)

It is taken from the Canadian constitution. India adopted it during the pre-independence period under the GOI Act 1935.
Pith means true nature, and substance means the most important or essential part of something.
It is usually applied with regard to subjects in the seventh schedule. It is applied when a question arises regarding whether a particular law leads to a particular subject or not.
Under Article 246, State legislatures are competent to make laws under the state list. If there is a conflict between the laws made by the state legislature and by the Parliament, this doctrine is used.
Example- Parliament passed three farm laws. The content belongs to the state list i.e. Agriculture.

DOCTRINE OF INCIDENTAL AND ANCILLARY POWER (07:09 PM)

It can be traced to the British Legal system. It is developed as an addition to the doctrine of Pith and substance.
The doctrine of pith and substance deals with only the subjects whereas the doctrine of Incidental and Ancillary powers deals with the power to legislate on those subjects and matters connected to them.
For example- Article 4 of the Constitution talks about the power to make consequential changes in the law on matters incidental to the law providing for altering the names of the state under Articles 2 & 3
Article 169 talks about the powers of parliament on the abolition or creation of legislative councils in the states
SC in the state of Rajasthan v/s G Chawla case, 1958 ruled that the power to legislate on a topic of legislation carries it with the power to legislate on any Ancillary matter.

DOCTRINE OF SEVERABILITY (07:19 PM)

It is also known as the doctrine of Separability. It has its roots in the British Legal system. Its basic objective is to protect Fundamental Rights of citizens.
Under Article 13(1), if any of the laws enforced in India, are inconsistent with the provisions of the constitution or with Fundamental Rights, they shall to the extent of the inconsistency be void.
Example- Section 66 A of the IT Act
In A K Gopalan v/s State of Madras, SC ruled that in the case of inconsistency to the constitution, only the disputed provisions of the Act will be void and not the whole legislation.

DOCTRINE OF ECLIPSE (07:27 PM)

It deals with the relationship between Pre-constitutional laws and FRs Guaranteed under the constitution of India. It is applied when any law or Act violated the FRs of the people. In such a case, FRs overshadow the law or Act and make it non-enforceable but not void.
It becomes Eclipsed or covered by the shadow of the constitution as a result, the law remains in existence but becomes unenforceable against citizens i.e. it can not be used or enforced to infringe upon the FRs of the citizens.
It can be re-enforced if restrictions posed by FRs are removed but at the same time, it can remain in operation against Non-citizens. It is derived from Article 13 (1). It does not apply to post-constitutional laws.

DOCTRINE OF TERRITORIAL NEXUS (07:37 PM)

It is a legal principle that governs the applicability of laws enacted by a state legislature within its territory.
This doctrine is derived from Article 245 of our constitution. Article 245(1) states that the power of state legislature to make laws extend to the whole territory of the state.
It means the Authority of the state legislature is limited to the Geographical boundaries of the state.
Article 245 (2) clarifies that No law made by the parliament would be deemed invalid merely because it may have an extra-territorial operation.

DOCTRINE OF COLORABLE LEGISLATION (07:43 PM)

It is also known as the Fraud on the constitution as it involves attempting to deceive or mislead about the true intention behind the legislation. It comes from a Latin saying that "Whatever legislature can not do directly, it can not do indirectly also".
This doctrine deals with situations wherein a legislative body attempts to enact legislation on a subject beyond the scope of the Legislative body. It is usually applied to Article 246 which delineates the distribution of legislative powers between the parliament and the state legislatures.
Three Farm Bills are an example of Colorable legislation.

DOCTRINE OF FEDERAL SUPREMACY (07:49 PM)

It emphasizes that the central Government has authority over the state governments in certain matters as mentioned in the constitution.
In the state of West Bengal V/S UOI, 1963, SC used this doctrine for the first time. The judgment highlighted the fact that the Indian constitution follows a centralized structure with the states occupying a secondary position in certain matters where the union government has exclusive authority.
According to this judgment Legislative and executive powers of the state governments are subject to the respective powers of the Union Government. In case of any conflict, Union Law or Action prevails.

The Topic for the next class:- Other Judicial Doctrines- Doctrine of Harmonious Construction, UPSC Prelims, and Mains paper discussion.