Polity Terms (Part 2)

1. JUDICIAL ACTIVISM AND SPECIAL LEAVE PETITION (SLP)

• A judiciary is an independent body that is evenhanded, unbiased, and unprejudiced. It functions within the framework of the constitution, defined under the concept of the separation of powers. It interprets the constitution which is supreme and at times needed, supports the rule of law and the standards laid down in the constitution. The Supreme Court of India is considered the sentinel qui vie and protects the fundamental and constitutional rights of the people.
• Judicial Activism means the rulings of the court based on political and personal rational and prudence of the Judges presiding over the issue. It is a legal term referring to court rulings based, in part or in full, on the political or personal factors of the Judge, rather than current or existing legislation.
• According to Black's Law Dictionary judicial activism is a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.
• Judicial activism in India implies the authority of the Supreme Court and the high courts, but not the subordinate courts, to declare the regulations unconstitutional and void if they breach or if the legislation is incompatible with one or more of the constitutional clauses.
• According to SP Sathe , a court giving a new meaning to the provision to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an activist court.
• The Supreme Court of India in its initial years was more a technocratic court but slowly began to become more active through constitutional interpretation. The court became an activist through its involvement and interpretation of law and statutes but the whole transformation took years and it was a gradual process. The origins of Judicial activism can be seen in the court's premature and early assertion regarding the essence and nature of Judicial Review.
• India's Judicial activism can be positive as well as negative:

• A court engaged in altering the power relations to make them more equitable is said to be positively activist and
• A court using its ingenuity to maintain the status quo in power relations is said to be negatively activist.

• Course of Judicial activism

• After the independence, judicial activism was almost silent for the first decade; the executive and legislative organs of the government actively dominated and intervened in the working of the judiciary. It was in 70's the Apex court started viewing the judicial and structural view of the constitution.
• In the landmark Keshwananda Bharti case, just two years before the emergency declaration the apex court of India declared that the executive had no right to intercede and tamper the basic structure of the constitution. Though the exigency imposed by the then Prime Minister Indira Gandhi could not be prevented by the Judiciary, the concept of judicial activism started gaining more power from there.
• In I. C. Golaknath & Ors vs State Of Punjab & Anrs. the Supreme Court declared that Fundamental Rights enshrined in Part 3 are immune and cannot be amended by the legislative assembly.

• Landmark cases of Judicial Activism

• In Hussainara Khatoon (I) v. State of Bihar, the inhuman and barbaric conditions of the undertrial prisoners reflected through the articles published in the newspaper. Many prisoners who were under trial had already served the maximum persecution without being charged for the offense. A writ petition was filed by an advocate under article 21 of the Indian Constitution. The apex court accepted it and held that right to speedy trial is a fundamental right and directed the state authorities to provide free legal facilities to the under-trial inmates so that they could get justice, bail, or final release.
• Another important case Sheela Barse v. State of Maharashtra, a letter written by a Journalist was addressed to the Supreme Court avouching the custodial violence of women prisoners in Jail. The court treated that letter as a writ petition and took cognizance of that matter and issued the apposite guidelines to the concerned authorities of the state.
• Some instances when the mechanism of Judicial Activism turned to the Judicial overreach. The parliament of India has held responsible or accused the Judiciary for intervening and overreaching its constitutional powers.

• In the Supreme Court Advocates-on-Record Association v. Union of India, the National Judicial Appointments Commission (NJAC) Act, and the constitutional amendment was declared unconstitutional by the Apex court and the judgment was delivered with the majority of 4:1. The act was declared unconstitutional as it was violating the judicial independence. And the existing collegium system pertaining to transfer and appointment of judges again came in the operation. Justice Khehar said, the absolute independence of judiciary, from other organs of governance, protects the rights of the people.
• In Christian Medical College, Vellore & Others versus Union of India and Others, The Supreme Court barred the states from conducting separate entrance exams for medical courses and ruled that undergraduate admissions to medical courses can only be done through the NEET.
• The rulings of the Supreme Court on the National Eligibility-cum-Entrance Test (NEET), i.e., the single exam for admission to medical colleges, the reformation of the Board of Cricket Council in India (BCCI), the filing of the post of judge, etc were regarded by the government to be the Judicial Intervention.

2. FEDERALISM

• Federalism is a system of government in which the power is divided between a central authority and various constituent units of the country. Usually, a federation has two levels of government. One is the government for the entire country that is usually responsible for a few subjects of common national interest. The others are governments at the level of provinces or states that look after much of the day-to-day administering of their state. Both these levels of governments enjoy their power independent of the other.
• Indian Federalism

• Article 1 of the Constitution mentions that India that is Bharat shall be a Union of States. It means that states do not have power or right to secede away from the Union of India. Also unlike USA, in India, different states have not formed because of an agreement among the states.
• Article 3 of the Constitution empowers Parliament to create new States. It allows the federation to evolve, grow and respond to regional aspirations.
• When a new state is formed, Schedule I and Schedule IV of the Constitution shall be amended.
• Schedule I – contains list of States and Union Territories
• Schedule IV – provides for allocation of seats in Rajya Sabha. The allocation of seats in Rajya Sabha is made on the basis of the population of each State.
• Constitution of India effectively establishes a system where the Union Government functions at the Centre and respective State governments functions at the provinces.
• The Constitution has demarcated each level of government by devising an elaborate scheme of distribution of legislative, administrative and financial powers between the Centre and the States.
• In this respect, Article 246 of the Indian Constitution clearly enumerates the Federal character of the Indian Constitution. It empowers
• Parliament to make law under Union List
• States to make law under State List and
• both the Parliament and States to make law under Concurrent List.
• Independent judiciary is another essential feature of Indian Constitution.
• B.R. Ambedkar responded to the question as to why India is a “Union” and not a “Federation of States”: “The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation and that the federation not being the result of an agreement no State has the right to secede from it. The Federation is a Union because it is indestructible.”

3. PARDONING POWER OF PRESIDENT AND GOVERNOR

• Power of pardon under Article 73 and 161 by the Constitution is different from judicial power as the governor or the President can grant pardon or reduce the sentence of the court even if a minimum is prescribed. Hence, there is no doubt that the President or governor can grant pardon/reduce the sentence. For example, in the case of Commander Nanavati who was held guilty of murder, the governor gave him pardon although the minimum sentence for murder is life sentence.
• PARDONING POWER OF PRESIDENT OF INDIA: ARTICLE 72:

• The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence -

• in all cases where the punishment or sentence is by a Court Martial;
• in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
• in all cases where the sentence is a sentence of death.

• Thus, Article 72 empowers the President to grant pardons etc. and to suspend, remit or commute sentences in certain cases.

• PARDONING POWER OF GOVERNOR: UNDER ARTICLE 161:

• Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

• DIFFERENCE BETWEEN PARDONING POWERS OF PRESIDENT AND GOVERNOR:

• The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the Governor under Article 161. The power differs in the following two ways:

• The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
• The President can grant pardon in all cases where the sentence given is sentence of death but pardoning power of Governor does not extend to death sentence cases.
• President's pardoning powers are granted for the cases where the convict has committed an offence against a Union law. Governor's pardoning powers are granted for the cases where the convict has committed an offence against a state law.

4. POWERS OF LOK SABHA AND RAJYA SABHA

• Lok Sabha is commonly known as the House of People that passes bills and laws in India. According to some reports, the people of India have elected seventeen Lok Sabhas. The main function of Lok Sabha is to ensure that the government is performing their functions along with passing bills and laws. It is interesting to note that Lok Sabha has the upper hand in deciding about financial matters
• On the other hand, Rajya Sabha is called the Upper House of parliament. Rajya Sabha is responsible for protecting the rights of a state in response to the union legislature. Rajya Sabha is the permanent house. Well, there are many points of contrast in Lok Sabha and Rajya Sabha. So, let us look at a few of them.

LOK SABHA

• Lok Sabha is defined as the house of people wherein several bills and laws are passed for a better running of the nation.
• The Lok Sabha is not a permanent House. It is dissolved after the expiry of its term of five years. But it can be dissolved before the period of five years by the President on the advice of the Council of Ministers. New Lok Sabha is elected and constituted within a period of 6 months from the date of its dissolution.
• The members of the Lok Sabha are elected by the people directly on the basis of the secret vote and universal franchise. For the purpose of the election, the population is divided into various constituencies.
• The Speaker and the Deputy Speaker of the Lok Sabha are the members of the House and are elected by the members of the Lok Sabha themselves.
• The Money Bills can be introduced only in the Lok Sabha. The Lok Sabha is not bound to accept the recommendations of the Rajya Sabha with respect to Money Bills. The Lok Sabha has the real and final authority in respect of Money Bills.
• The Council of Ministers is in fact, responsible to the Lok Sabha. It can remove a government from office by passing a resolution of no-confidence.
• The Lok Sabha does not have any such power to declare a subject of the State List of national importance.
• The Lok Sabha does not enjoy any such power to create new All India Services.
• The Lok Sabha does’ not get this opportunity as the Rajya Sabha is not subject to dissolution.
• Lok Sabha either approves or rejects such proposal to remove the Vice-President but it cannot initiate such a proposal. RAJYA SABHA
• On the other hand, Rajya Sabha is defined as the upper house of the parliament that protects the rights of several states.
• The Council of States or Rajya Sabha is a permanent House and it is not subject to dissolution. After every two years, one-third of its members retire and its same numbers of seats are filled up by new members.
• The members of the Rajya Sabha are elected by the Legislative Assemblies of the respective States on the basis of proportional representation.
• The Chairman of the Rajya Sabha is not a member of this House. The Vice-President of India is the ex-officio Chairman of the Rajya Sabha. But the Deputy-Chairman of the Rajya Sabha is elected by the members of the Rajya Sabha from amongst its members.
• The Money Bills cannot be introduced in the Rajya Sabha. With respect to Money Bills, the Rajya Sabha can make only recommendations which may or may not be accepted by the Lok Sabha. The Rajya Sabha is given 14 days time to consider the Money Bills and if it fails to do anything within that period, the Bill is deemed to have been passed in the manner it was passed by the Lok Sabha.
• The Council of Ministers is not responsible to the Rajya Sabha. Therefore, a no-confidence motion cannot be introduced in the Rajya Sabha.
• But the Rajya Sabha exercises certain powers which are not available to the Lok Sabha. It can declare a subject included in the State List as a subject of national importance by passing a resolution supported by not less than two-third members present and voting. If a subject of State List is declared of national importance, Parliament gets the power to legislate upon such a subject.
• The Rajya Sabha has the power to create new All India Services by passing a resolution supported by not less than two-third members present and voting.
• If and when the Lok Sabha is dissolved and the declaration of Emergency is in force, the Rajya Sabha approves such declaration of Emergency.
• The proposal to remove the Vice-President is initiated only in the Rajya Sabha, not in the Lok Sabha.

5. POWERS OF LEGISLATIVE ASSEMBLIES AND LEGISLATIVE COUNCILS

• The Legislative Assembly is the popularly elected chamber and is the real Centre of power in a State. Owing to changes introduced since the inauguration of the Constitution, in accordance with the procedure laid down in Article 169, the States having two Houses are Bihar, Maharashtra, Karnataka, Andhra Pradesh, Telangana and Uttar Pradesh.

LEGISLATIVE ASSEMBLIES (VIDHAN SABHA)

• Legislative Assembly refers to the lower house of the State Legislature. It is a temporary body.
• Direct election is the mode of electing members of Legislative Assembly.
• Members of the Legislative Assembly are directly elected by the people.
• Legislative Assembly members are elected by for a term of 5 years.
• Maximum number of members is 500 and the minimum members are 60.
• The State Legislature has got the power of making laws on the subjects of the State List and the Concurrent List. In this connection the real law-making powers are in the hands of the Legislative Assembly. Ordinary bills can be introduced in either of the two Houses and these become laws only when passed by the two Houses and signed by the Governor.
• The Legislative Assembly controls the finances of the State. A Money Bill originates only in it. After having been passed by it, the money bill goes to the Legislative Council which has to act within fourteen days.

LEGISLATIVE COUNCILS (VIDHAN PARISHAD)

• Legislative Council is the upper house of the State Legislature. It is a permanent body.
• The indirect election is the mode of electing members of Legislative Council.
• Members of Legislative Council are elected by state legislative assembly, local bodies etc.
• Legislative Council members are elected for a term of 6 years.
• The number of members should be one-third of the total number of members in the Legislative Assembly. The number of members should not be less than 40.
• The Legislative Council can only delay the passing of an ordinary bill by a maximum of 4 months.
• After 14 days, irrespective of the fact whether it has been passed or rejected by the Legislative Council, the money bill is considered to have been finally passed.

Sources

• The Legal Service India website
• Hindustan Times
• The Hindu
• The Indian Express
• Business Standard
• Old NCERTs class 6-10
• NIOS