Indian Constitution: From NCERT

Need of Constitution:
1)To set up basic rules that allow for minimal co-ordination amongst members of a society.
2)To specify who has the power to make decisions in a society. it decides how the government will be constituted.
3)To set some limits on what government can impose on its citizens. These limits are fundamental in the sense that governmemt may never trespass them.
4)The fourth function of a constitution is to enable the government to fulfil the aspirations of a society and create conditions for a just society.

Constitution committee:
-The constitution was made by the constituent assembly which had been elected for undivided India.
-First sitting:9 Dec 1946
-Re-assembled as constituent Assembly for divided India on 14 Aug 1947.
-Its members were elected by indirect election by the members of provisional Legislative Assemblies that had been established in 1935.
-Constitutional paln was proposed by Cabinet Mission.

According to the plan:
*Each province and each princely state or group of states were alloted seats proportional to their respective population roughly in the  ratio 1:10,00,000
      -Province:292 elected members
      -Princely states: 93 members
*The seats in each province were distributed among the three main communities
 i)Muslims ii) Sikhs iii)General
     in proportional to their respective population.
*Members of each community in the provisional Legislative Assembly elected their own representative by the method of proportional representation with single transferable vote.
*The method of selection in the case of representatives of princely states was to be determined by consultation.d from terrotories 

Composition of Constitutional Assembly:
       -As a consequences of the partition under the plan of 3 june 1947 those members who were elected from terrotories which fell  under Pakistan ceased to be members of the Constitutional Assembly.
      -The numbers in the Assembly were reduced to 299 of which 284 were actually present on 26 nov 1949.
      -The constitution was committed to a new conception of citizenship, where not only would minorities be secure but religious identity would have no bearing on citizenship rights.
     -26 members are SCs.
     -82% members are representing Congress.

Objective Resolution:
    The nationalist movement brought to the constituent Assembly is the Objective Resolution moved by Nehru in 1946.
   Based on this resolution our constitution gave institutional expressions to these fundamental committements: Equality, Liberty, Democracy, Sovereignity and a cosmopolitan indentity.

*Main Points of Objjective Resolution:
1)India is an independent, Sovereign, Republic.
2)India shall be a Union of erstwhile British Indian territories. Indian states and other parts outside British India and Indian States as are wiling to be a part of the Union.
3)Territories forming the Union shall be autonomous units and exercise all powers and functions of the Government and administration except those assigned to a vested in the Union..
4)All powers and authority of Sovereign and Independent India and its constitution shall be flow from people.
5)All people of India shall be guaranteed and secured social, economic and political justice, equality of status and opportunities and equality before law; and fundamental freedom.
6)The minorities, backward and tribal areas ; depressed and other backwaard classes  shall be provided adequate safeguards.
7)The territorial integrity of the republic and its sovereign rights on land , sea and air shall be maintained according to justice and law of civilized nation.
8)The land would make full and willing constribution to the promotion of world peace and welfare of mankind.

PROVISIONS BORROWED FROM OTHER COUNTRIES:

I)British Constitution:
    1.First past the post
    2.Parliamentary form of Government
    3.The idea of the rule of law.
    4.Institutions of the speaker and his role.
    5.Lawmaking procedure.
II)United States Constitution:
    1.Charter of Fundamental Rights
    2.Power of Judicial Review.
    3.Independence of Judiciary.
III)Irish Constitution:
    Directive Principles Of State Policy
IV)French Constitution:
    Principles of Liberty, Equaliity and Fraternity.
V)Canadian Constitution:
    1.A quansi-federal form of government(a federal system with a strong central government).
    2.The idea of residual powers.

Fundamental Rights Vs Ordinary Rights:
1) Ordinary rights are protected and enforced by ordinary law.
     Fundamental Rights are protected and guarded by the Constittion of te country.
2)Ordinary rights may be changed by the legislature by ordinary process of law making. but the      fundamental rights may only be changed by amending the constitution itself.
    No Organ of the government can act in a manner that violates them.
{Judiciary: Protector of Fundamental Rights}
* Executive as well as legislative actions can be declared illegal by the judiciary if these violates the fundamental rights or restrict them.
* Fundamental rights are not absolute or unlimited rights. Government can put reasonable restrictions on the exercise of our fundamental rights.

RIGHT TO EQUALITY:
1.Equality before law.
2.Equal protection of laws.
3.Prohibition on discrimination on ground of religion.
4.Equal access to shops, bathing, ghats, hotels etc.
5. Equality of opportunity in employment.
6.Abolition of titles.
7.Abolition of untouchability.

RIGHT TO LIBERTY AND PERSONAL FREEDOMS:1.Speech and Expression.
2.Assemble peacefully..
3.Form Association.
4.Move freely throughout the territory of India.
5.Reside and settle in any part of India.
6.Practice any profession or to carry on any occupation, trade or business.
7.Right to life and liberty..
8. Rights of the accused and convicts.

RIGHT TO FREEDOM OF RELIGION:1.Freedom of conscience and Profession
2.Freedom to manage religious affairs; freedom to give religious instructions in certain institutions.

RIGHT AGAINST EXPLOITATION:1.Prohibition of forced laboour.
2.Prohibition of employment of children in hazardous jobs.

CULTURAL AND EDUCATIONAL RIGHTS OF MINORITIES:1.Protection of language, culture of minorities.
2.Right of minorities to establish educational institutions.

" Article 16(4): Nothing in this article shall prevent the state from making any prohision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the state is not adequately represented in the services under the state."
"Article 21: Protection of life and personal liberty-No person shall be deprived of his life or personal liberty liberty except according to procedure established by law."
RIGHT TO LIFE AND PERSONAL LIBERTY:
- The foremost right among rights to freedom is the right to life and personal liberty.
-Various judgement includes live with human dignity free from exploitation..

**Preventive Detention:-A person can be arrested simply out of an apprehension that he or she is likely to engage in unlawful activity and imprisoned for someone.
-If government feels that a person can be a threat to law and order or to the peace and security of the nation.
-This preventive detention can be extended only for three months.
-After three months such case is brought before an advisory board for review.


RIGHT OF ACCUSED:-No one is guilty unless the court has found that person guilty of an offence.
-It is also necessary that a person accused of any crime should get adequate opportunity to defend herself or himself.
1.No person would be punished for the same offence more than once.
2.No law shall declare any action as illegal from backdate..
3.No person shall be asked to give evidence against himself or herself

Two Types of Minorities:1.Linguistic
2.Cultural

Writs:
1.Habeas Corpus
2.Mandamus
3.Prohibition
4.Quo Warranto
5.Certiorary.
Directive Principles:
*Goals:
1.Welfare of the people
2.Social, Economical and Political Justice
3.Raising the standard of living
4.Equitable distribution of resources.
5.Promotion of International Peace.


The Supreme Court Performs three important Functions:

1.It is protector and guaranter of Fundamental rights.
2.It has to act as a check on executive authorities and enforce the rule of law.
3.It maintains federal equilibrium.

Nature of the Rights:

1.These rights are negative in form in as much as they restrict authorities from violating these rights.
2.While most of the rights are granted to the individuals, some are granted to groups.

Local Government

Local government is government at the village and district level. Local government is about government closest to the common people. Local government is about government that involves the day-to-day life and problems of ordinary citizens. Local government believes that local knowledge and local interest are essential ingredients for democratic decision making. They are also necessary for efficient and people-friendly administration. The advantage of local government is that it is so near the people. It is convenient for the people to approach the local government for solving their problems both quickly and with minimum cost. Local governments can be very effective in protecting the local interests of the people.Democracy is about meaningful participation. It is also about accountability. Strong and vibrant local governments ensure both active participation and purposeful accountability. 
It is necessary that in a democracy, tasks, which can be performed locally, should be left in the hands of the local people and their representatives. Common people are more familiar with their local government than with the government at the State or national level. They are also more concerned with what local government does or has failed to do as it has a direct bearing and impact on their day-to-day life. Thus, strengthening local government is like strengthening democratic processes.

GROWTH OF LOCAL GOVERNMENT IN INDIA

Let us now discuss how local government has grown in India and what our Constitution says about it. It is believed that self-governing village communities existed in India from the earliest times in the form of ‘sabhas’ (village assemblies). In the course of time, these village bodies took the shape of Panchayats (an assembly of five persons) and these Panchayats resolved issues at the village level. Their role and functions kept on changing at different points of time.
In modern times, elected local government bodies were created after 1882. Lord Rippon, who was the Viceroy of India at that time, took the initiative in creating these bodies. They were called the local boards. However, due to slow progress in this regard, the Indian National Congress urged the government to take necessary steps to make all local bodies more effective. Following the Government of India Act 1919, village panchayats were established in a number of provinces. This trend continued after the Government of India Act of 1935. During India’s freedom movement, Mahatma Gandhi had strongly pleaded for decentralisation of economic and political power. He believed that strengthening village anchayats was a means of effective decentralisation. All development initiatives must have local involvement in order to be successful. Panchayats therefore were looked upon as instruments of decentralisation and participatory democracy. Our national movement was concerned about the enormous concentration of powers in the hands of the Governor General sitting at Delhi. Therefore, for our leaders, independence meant an assurance that there will be decentralisation of decision making, executive and administrative powers.

Local Governments in Independent India

Local governments got a fillip after the 73rd and 74th Constitution Amendment Acts. But even before that, some efforts in the direction of developing local government bodies had already taken place. First in the line was the Community Development Programme in 1952, which sought to promote people’s participation in local development in a range of activities. In this background, a three-tier Panchayati Raj system of local government was recommended for the rural areas. Some States (like Gujarat, Maharashtra) adopted the system of elected local bodies around 1960. But in many States those local bodies did not have enough powers and functions to look after the local development. They were very much dependent on the State and central governments for financial assistance. Many States did not think it necessary to establish elected local bodies. In many instances, local bodies were dissolved and the local government was handed over to governmen officers. Many States had indirect elections to most local bodies. In many States, elections to the local bodies were postponed from time to time.
After 1987, a thorough review of the functioning of local government institutions was initiated. In 1989 the P.K.Thungon Committee recommended constitutional recognition for the local government bodies. A constitutional amendment to provide for periodic elections to local government institutions, and enlistment of appropriate functions to them, along with funds, was recommended.

73RD AND 74TH AMENDMENTS

In 1989, the central government introduced two constitutional amendments. These amendments aimed at strengthening local governments and ensuring an element of uniformity in their structure and functioning across the country.
Later in 1992, the 73 rdand 74th constitutional amendments were passed by the Parliament. The 73rd Amendment is about rural local governments (which are also known as Panchayati Raj Institutions or PRIs) and the 74th amendment made the provisions relating to urban local government (Nagarpalikas). The 73rd and 74th Amendments came into force in 1993.
We have noticed earlier that local government is a ‘State subject‘. States are free to make their own laws on this subject. But once the Constitution was amended, the States had to change their laws about local bodies in order to bring these in conformity with the amended Constitution.
They were given one year’s time for making necessary changes in their respective State laws in the light of these amendments.

73rd Amendment

Let us now examine the changes brought about by the 73 rd amendment in Panchayati Raj institutions.

Three Tier Structure
All States now have a uniform three tier Panchayati Raj structure. At the base is the ‘Gram Panchayat‘. A Gram Panchayat covers a village or group of villages. The intermediary level is the Mandal (also referred to as Block or Taluka). These bodies are called Mandal or Taluka Panchayats. The intermediary level body need not be constituted in smaller States. At the apex is the Zilla Panchayat covering the entire rural area of the District.
The amendment also made a provision for the mandatory creation of the Gram Sabha. The Gram Sabha would comprise of all the adult members registered as voters in the Panchayat area. Its role and functions are decided by State legislation.

Elections
All the three levels of Panchayati Raj institutions are elected directly by the people.
The term of each Panchayat body is five years. If the State government dissolves the Panchayat before the end of its five year term,fresh elections must be held within six months of such dissolution. This is an important provision that ensures the existence of elected local bodies. Before the 73rd amendment, in many States, there used to be indirect elections to the district bodies and there was no provision for immediate elections after dissolution.
Reservations One third of the positions in all panchayat institutions are reserved for women. Reservations for Scheduled Castes and Scheduled Tribes are also provided for at all the three levels, in proportion to their population. If the States find it necessary, they can also provide for reservations for the backward castes (OBCs).
It is important to note that these reservations apply not merely to ordinary members in Panchayats but also to the positions of Chairpersons or ‘Adhyakshas‘ at all the three levels. Further, reservation of one-third of the seats for women is not merely in the general category of seats but also within the seats reserved for Scheduled Castes, Scheduled Tribes and backward castes. This means that a seat may be reserved simultaneously for a woman candidate and one belonging to the Scheduled Castes or Scheduled Tribes. Thus, a Sarpanch would have to be a Dalit woman or an Adivasi woman.

Transfer of Subjects
Twenty-nine subjects, which were earlier in the State listof subjects, are identified and listed in the Eleventh Schedule of the Constitution. These subjects are to be transferred to the Panchayati Raj institutions. These subjects were mostly linked to development and welfare functions at the local level. The actual transfer of these functions depends upon the State legislation. Each State decides how many of these twenty-nine subjects would be transferred to the local bodies.

State Election Commissioners
The State government is required to appoint a State Election Commissioner who would be responsible for conducting elections to the Panchayati Raj institutions. Earlier, this task was performed by the State administration which was under the control of the State government. Now, the office of the State Election Commissioner is autonomous like the Election Commissioner of India. However, the State Election Commissioner is an independent officer and is not linked to nor is this officer under the control of the Election Commission of India.

State Finance Commission
The State government is also required to appoint a State Finance Commission once in five years. This Commission would examine the financial position of the local governments in the State. It would also review the distribution of revenues between the State and local governments on the one hand and between rural and urban local governments on the other. This innovation ensures that allocation of funds to the rural local.

 74 th Amendment

As we mentioned earlier, the 74th amendment dealt with urban local bodies or Nagarpalikas.
What is an urban area? It is very easy to identify a big city like Mumbai or Kolkata, but it is not so easy to say this about some very small urban areas that are somewhere between a village and a town.
The Census of India defines an urban area as having:
(i) a minimum population of 5000;
(ii) at least 75 per cent of male working population engaged in non-agricultural occupations and
(iii) a density of population of at least 400 persons per sq.km.
 As per the 2001 census, nearly 28% of India’s population lives in urban areas.
In many ways the 74th amendment is a repetition of the 73 rd amendment, except that it applies to urban areas. All the provisions of the 73rd amendment relating to direct elections, reservations, transfer of subjects, State Election Commission and State Finance Commission are incorporated in the 74th amendment also and thus apply to Nagarpalikas. The Constitution also mandated the
transfer of a list of functions from the State government to the urban local bodies. These functions have been listed in the Eleventh Schedule of the Constitution.

Legislature

INTRODUCTION

Modern nation state seeks political power to govern by the process of legitimacy attributed to it by its citizens. This political power is an essential instrument of State, in a democracy,for maintaining order and reconciling conflicts in the civil society. It also concerns itself with guiding humanity from lower forms of civilisation to higher forms. The State embodies the political goal of a society, and its institutions express the proper array of principles and techniques that are used in efforts to accomplish that very avowed goal. The entire range,scope, style, purpose and control effectuated by the state needs to be analysed to understand democracy at work.
Modern State, therefore, has undergone structural differentiation in the form of Legislature,Executive and Judiciary as methods of control and guidance to society at large. Out of these three institutions, legislature is a body that represents the people in two distinct ways. One,the representatives can transmit the fears and hopes of their constituencies to the other members of the legislature and to the executive. And second, legislature can represent the cross section of the nation, a “mirror image” of their “multi-cultural” society.

LEGISLATURE

Legislature is often used synonymously with the term parliament. Legislature is derived from the Latin word “Lex”, meaning legal rule through legislation, and “Parliament” from the French verb “to speak”. Legislatures in the classic scheme of government were the law making bodies. Today it is associated with a multitude of functions and has undergone phenomenal structural differentiation. For instance, to exercise control over executive, one of the importantfunctions it performs, various legislative committees and innovations in the interpellation procedure have sprung. Or, legislature is the site where most national “leadership” is trained in participatory democracy. Nevertheless, dialogical discourse in the form of contestations, deliberations and constitutive ethical laws remains at the core of the political process being situated in legislatures. The post-colonial Indian legislature began its journey of democracy and political development since 1952, but the Indians were introduced to this novel institution of the legislature by the British. The chief means by which the British parliament usurped the monarch’s power of rule over subjects was “responsible government”. As early as 1833,during the colonial government, a conceptual distinction was made between the executive and legislative functions of the Governor-General Council. Further, with the introduction of the Indian Councils Act of 1861, there was both gradual expansion of the legislative tasks entrusted to the legislative councils, and a progressive incorporation of “natives” into the legislative machinery. Morley-Minto Reforms of 1909 sought to enlarge the imperial legislative council and provincial legislative council by including elected non-official members. An element of election was also introduced in the imperial legislative council. The deliberative functions of the legislative council were also increased, and it provided for the first time, a separate electorate for the Muslim community.
The belief persisted, nonetheless, that parliamentary politics was unsuitable to Indian conditions. Lord Morley, Secretary of State for India, read in the House of Lords during the first reading on the Indian Council Bill on 17 th December 1908, “If the bill were attempting to set up a Parliamentary system in India, or if it would be said that this chapter of reforms led directly or necessarily up to the establishment of a Parliamentary system in India, I, for one, would have nothing to do for it.”
However, the established British opinion had begun to change by the end of the First World War. The Montague-Chemsford Reforms of 1919 introduced substantive changes into the existing system. It brought further legislative reforms in the form of responsible government in the provinces through Devolution Rules and dyarchy. Indian legislature was made representative and “bicameral” and elected majority was introduced in both the Houses. Despite the declared aim of gradually developing self-governing institutions leading to the progressive realisation of responsible government in India, the political structure still remained unitary and centralised, with the Governor-General in Council continuing to be responsible, as before, to the British Parliament through the Secretary of State. Nevertheless, the roots of parliamentary democracy in India may be traced with these reforms.
Another major reform took place by the introduction of the Government of India Act 1935 which provided, among others, federation and provincial autonomy, dyarchy at the Centre, distribution of legislative powers between the Centre and the provinces, and six provincial legislatures were made bicameral. However, the Central Council retained control over provinces, advised, as before, the Governor General, and was not made responsible to the legislature. The Crown and the Governor General retained the power to veto bills passed by the Central legislature. The Governor General had ordinance making powers, independent powers of legislation or permanent Acts. Provincial legislature also suffered from similar kind of limitations. In December 1946, when a constituent assembly was convened to work on the principle of “constitutional autochthony” as K.C. Wheare puts it, and to provide the structural arrangements of State power, it became quite evident that India would have its own legislature. The Government of India Act 1947 further made it clear, by abolition of the sovereignty and responsibility of British parliament, the crown no longer to be the source of authority and the constituent assembly to have dual function, constituent and legislative, till the framing of new constitution and the constitution of new legislatures, that India embarked on the process of democracy and development, with parliamentary government integral to its political system. The constituent assembly, therefore, framed the legislative provision of the constitution with the aim of creating a basis for the social and political unity of the country. Partition had made this task difficult.Structure. The legislature in India, functioning within the parliamentary system, is the totality of Central, State and local legislatures, their formal and informal arrangements, with inter linkages and their interaction with the other state bodies and environment. The central legislature, also referred to as Parliament, consists of the President and the two Houses – Lok Sabha (House of people and Lower House) and Rajya Sabha (council of states and Upper House). The State Legislature shall include Governor and two Houses (Legislative Assembly and Legislative Council) in some of the states or one house (Legislative Assembly) in the rest (Article 168). The local legislature – Gram Sabha and Municipality- is an institution of self government constituted by the Constitution. The 73rd and 74th Amendment are still in the process of acquiring substantive legislative power to be devolved by the concerned state.
For the purpose of legislation, the Constitution introduces a federal system as the basic structure of the government, wherein there is a threefold distribution of subjects between the Centre and the States enumerated in the Seventh Schedule, viz. Union List, State List and Concurrent List. There is also an effort to distribute the subjects between state and local bodies by incorporating the Eleventh Schedule into the Constitution by the 73rd and 74th Amendments. Such distribution of subjects is essential to make legislature at all levels responsible and accountable by following the ambit of items in the list. However, ambit is defined, in case of conflict, by the judiciary time and again.

CENTRAL LEGISLATURE/ PARLIAMENT

President

The President of India is an integral part of the Indian Parliament like the Crown of England and unlike the American President. However, the Indian President differs from the Crown of England in respect of his power and status, e.g. certain discretionary powers vis-a-vis legislation and administering of oath. The Constitution vests the power of carrying on the business of government in the President, but the President exercises this power under the Constitutional limitations, e.g. Article 74(1) “ the executive powers shall be exercised by the President of India ‘in accordance with the’ advice of his Council of Ministers, or Article 53(1) demands that the  resident must exercise his powers according to the Constitution.” The President represents the nation and is the symbol of unity and it is in this sense that (s)he is the “head of the state”. However, the post of  President has raised a few questions, such as, What exactly is a President supposed to do? How can he exercise the powers, formally or informally, vested in him by the Constitution?
Is the President something more than “the first citizen” or a “rubber stamp”? S.S.Khera says that he can certainly have a “mind of his own, free of all political trammels and without any urge or ambition to take an active hand in governmental decision making, ..... or towards changing the provisions of the existing constitution relating to his position and powers.” However, a harmonious correlation between the President and various legislative institutions has led to a sort of successful working of parliamentary democracy. For instance, the relationship between the President and the Prime Minister is crucial in legislation. A sore relationship between the two indicates problematic in the legislative issues and therefore will catch attention of the opposition and civil society for a sustained debate. The relationship may have political ramifications, which perhaps may be echoed in the President’s speech inside as well as outside the Parliament.Lok Sabha
The Parliament of India is bicameral. The Lower House is the Lok Sabha, or House of the people. Its members are elected on the basis of universal adult suffrage. Every adult citizen (18 years and above) is entitled to vote, other than non-residents, the insane, criminals and those who have been convicted of corrupt electoral practices. In a reserved constituency, only members of the Scheduled Castes and Tribes may run for office, but all adults within the constituency may vote. The two nominated seats are filled by the President with representatives of the Anglo-Indian community.
The system of voting is the single member constituency. The system has produced governments that have substantial majorities in the Parliament, yet lack endorsement from a majority of the voters. A proportional reservation system would have been fairer to opposition parties and more representative in a mathematically defined version of deliberative democracy. By and large, Parliament is fairly chosen with the help of the Constitutional body called the Election Commission. While individual seats may have been determined by musclemen or bribes, no general election in India has produced an overall result that was not a fair reflection of voter preferences. The term of the Lok Sabha is for a maximum period of five years, although in an emergency this may be extended to one year at a time indefinitely. There is no minimum term of the parliament. While the parliament may be dissolved and fresh elections held because a government has lost the confidence of the house, the more common occurrence is for a prime-minister to time a call for fresh elections with the goal of maximising personal or party political gains. The Lok Sabha is required by the Constitution to convene, twice a year, with a maximum allowable period of gap between the two sessions being six months. In practice the Lok Sabha has often met in three sessions per year. The language of parliamentary business is mostly Hindi or English, although a member may use any of the recognised official languages. The process of legislation involves three stages corresponding to the familiar three readings of bills in the parliamentary systems: the introduction of a bill, its consideration and its enactmentinto law. The first reading consists of the bill being introduced alongwith an explanation of its aim and purposes. After the second reading, a bill may be referred to select committee, circulated for public response or taken up for immediate consideration. The last course is rare and reserved for urgent and uncontroversial items. The second course is the most frequent. The select committee reports back either unanimously or with a majority recommendation and a minority note of dissent. The bill is then considered in the House clause by clause, with members being able to introduce amendments. Once all clauses have been dealt with, the bill has crossed the report stage, and is listed for its third and final reading, which is tidying-up amendments and then the bill is put to vote. If the speaker authenticates its passing, the bill is sent to the second house, where the entire procedure is repeated. When both Houses of Parliament have passed an identical version of a bill, it is presented to the President for formal assent, and becomes law on receiving his assent. The sessional and daily business of the government is decided by the cabinet and its Parliamentary affairs committee under the chairmanship of the chief whip. Each session of the Lok Sabha is opened with a presidential address. The quorum for the Lok Sabha to be able to meet is one-tenth of its membership. The Lok-Sabha is of course fundamentally akin to other Legislative Assemblies in Parliamentary regimes, its context can, however, be quite different, reflecting its own unique socio-political environment. The conduct of the House is in the hands of the Speaker who recognises members, keeps order and does other things, which are required of presiding officers. The speaker may not vote on an issue before the Lok Sabha, but can exercise a casting vote in the event of a tie on any motion. The Speaker is selected by the governing party for formal election by the House but is expected to conduct Parliamentary business with fairness and impartiality. Parliament is the central forum for amending the Constitution under article 368. The procedural powers are those which allow the parliament to make rules for the conduct of its business. The legislative powers pertain to the authority and role of Parliament in enacting laws for governing the country. Parliament is technically the legislature, the institution that enacts the law of the land and the authority of the people and the assent of the head of state. In reality the legislative agenda is controlled by the government and endorsed by the Parliament with the help of tightly maintained party discipline. The financial powers of Parliament are those empowering it to raise and spend money as it sees fit, including discussion and approval of the annual budget. Only the Parliament has the authority to levy taxes and spend money from the Consolidated Fund.
Parliament formally controls the reins of the government in the sense that the cabinet is required to have the confidence of the Lok Sabha and is collectively responsible to the Parliament. Under constitutive powers, finally, parliament can legislate to admit or create new states into the Union of India; to create a High Court for a Union Territory and to extend the jurisdiction of a High Court to or restrict it from a Union Territory; and to create or abolish a Legislative Council (an Upper House) for a state with the consent of the State’s Assembly (Lower House).
 

Rajya Sabha

Rajya Sabha or the Council of States is the Upper House of India’s bicameral Parliament. Three sets of reasons guided the adoption of bicameral legislature for the Union of India. First, Rajya Sabha as the name implies, was to be the chamber for representing and protecting the rights of the states in a federal polity. Rajya Sabha, therefore, has equal role and status to that of the Lok Sabha in the Electoral College for choosing the president. Members of state legislative assemblies elect Rajya Sabha representatives for their States on a proportional representation system. The Constitutional position of the Rajya Sabha is not comparable in power, functions or prestige to the US Senate when conceived of solely in terms of State rights. In the event of a deadlock between the two Houses of Parliament, for example, if reconsideration of a bill fails to achieve a mutually satisfactory resolution, then the president can convene a joint sitting of both the Houses. Its decisions are made by simple majority. Since Lok Sabha MPs outnumber their Rajya Sabha counterparts by more than 2:1, in a combined sitting, the Rajya Sabha can generally expect to be defeated. The second purpose of establishing a bicameral legislature was to provide an institutional opportunity for second thoughts and a wiser counsel even after the passage of a bill by the Lok Sabha. This largely depends on the party composition in both the Houses. Rajya Sabha’s role as critique seemed largely a chimera during the period of Congress party dominance. The third function of Rajya Sabha in the Indian system of governance is to enable a bill to be introduced in the Parliament even when the Lok Sabha is not in session. Much of the arliamentary debate and work on the bill can be completed by the time the Lok Sabha reconvenes.
In respect of certain specified federal features of the Constitution, the primary amending role has been given to the Rajya Sabha as the custodian of State rights. For example, the powers of Rajya Sabha itself can be altered only with the consent of a two-thirds majority in the Upper House. In theory, the House provides the means to bring in competent or skilled personnel who are not prepared to face the uncertain rigours of political campaigns. They can be appointed to the Rajya Sabha and be inducted into the cabinet without having to go through the formal process of elections.

Committees

The Lok Sabha operates with the aid of Parliamentary Committees. The composition of the committees is determined by the Speaker and the chief whip with due regard to the respective party strengths in the house. To prevent undue Executive influence, no minister who is in charge of a bill being considered by the committee, is permitted to participate in the deliberations of that committee.
Parliamentary Committees help to expedite Parliamentary business and to scrutinise the government activities. They may be divided into four broad groups: those that are concerned with the organisation and powers of the House, for example the rules committee; those that assist the House in their legislative functions, for example select committee; those that assist the House in making government departments more accountable, for example various standing committees; and those that assist the House in their financial functions such as Public Accounts Committee (PAC), Estimates Committee (EC) etc.
Parliamentary committees act as watchdogs in the Parliament to ensure culture of accountabilityand good governance. The financial committees, particularly, are regarded as the most important ones as they unearth ‘scams’ and the convention requires that their recommendations be implemented and to report to the Parliament on the follow-up-actions by the concerned minister.

STATE LEGISLATURE

State legislatures, while in most respects, are similar to the Parliament of India, there are some important differences. The choice of unicameralism or bicameralism was left to the states, depending on how they weighed the functions of the second chamber compared to the costs involved in running it. Any Legislative Assembly may create or abolish a Legislative Council for itself by a special majority (a majority of the total membership that is not less than twothirds of members present and voting), followed by an Act of Parliament (Article 169). The size of the Council must be no less than 40 and no more than one-third of the total membership of the Assembly (Article 171). Like the Rajya Sabha, one-third of a State Council’s members are elected biennially. Five-sixths of the Council Members (MLCs) are indirectly elected on a complicated formula involving graduates, educators and members of the Legislative Assembly (MLAs); and one-sixth are nominated by the Governor. But a state council’s role is even more circumscribed than that of the Rajya Sabha: it is merely an advisory house that may delay the passage of a bill but cannot compel modifications or abandonment. The Legislative Assemblies themselves vary in size from a minimum of 40 to no more than 500; their members are chosen for five-year terms by direct elections on the basis of universal adult suffrage. The State Assembly is subject to dissolution but not the Council. Because of the great difference in size between Parliamentary and State Legislative Constituencies, MLAs are far closer to the people than MPs. The MLAs are correspondingly the more significant political actors.

Judiciary

In  India, the judiciary  occupies an  important  place.  The constitution  visualizes an independent judiciary  to safeguard the rights of  citizens. In a democratic  polity, the independent judiciary  is  a  sine qua non to  the  effective functioning  of the  system. Administration has to function according to the law and the Constitution. The judiciary has an important role to play in protecting the citizen against the arbitrary exercise  of power by administration.  In this unit, we shall be discussing the  features of judicial system in  India, the  scope and  methods  of judicial  control over  administration, the limitations of judicial administration and various other judicial systems in vogue.

JUDICIAL SYSTEM IN INDIA

As mentioned in  the  introduction  of  this  unit, Indian  Constitution envisages an independent judiciary.  There is a separation  of  powers between the executive  and  judiciary.  The judiciary, which interprets the constitutional meaning of law and legality of executive actions, must have a separate existence. Lord Bryce has said that there is no better test of the excellence of a government than the efficiency and independence of its judicial  system. Indian  constitution incorporated  many provisions to  ensure the  independence  of  judiciary.  Though the executive appoints the judges  of the  highest courts, that is,  the Supreme  Court and  High Courts,  their  tenure is  kept beyond the  purview of  the executive. Even in appointing the judges, the executive has to follow certain guidelines. Once they are appointed they are not subject to any executive control in the discharge of their functions. This is done to ensure that the judgments of courts are impartial and fair. In Indian federation, the courts also have an important role to play in adjudicating the disputes between the Centre and States. Thus, the independence of the judiciary is one of the important features of the judicial system in India.
Another important feature of judicial system in India is the single unified judicial system prevailing in  the country.  The  whole  system of  courts taken together is  called  the judiciary.  Unlike.some other federations like the USA, Indian federation has a unified judicial  system.  If we compare legislative and executive system in our federation with the structure of judicial  system, he find a difference. We have separate legislative and executive authorities for the Centre and the States and their functions are divided by the Constitution.  But  our judicial system is different.  It runs like a pyramid from the subordinate courts and districts courts at local level to High Courts for every state to the Supreme Court of India.
The Supreme Court occupies the highest position in the judicial hierarchy in India.  It comprises of the Chief Justice and other judges appointed by the President of India.  The Supreme Court has three areas of jurisdiction, namely, original, appellate and advisory. The original jurisdiction extends to (a) disputes between Government of India and one or more states, and  (b) claims of  infringement of constitutionally guaranteed fundamental rights.  The Court's  appellate jurisdiction  extends to four  types  of  cases,  that is, constitutional, civil, criminal and special leave. .In these types of  cases under certain conditions appeals may be made from any State Hi& Court to the Supreme Court.  The Court's  advisory jurisdiction  pertains to matters referred for  the  purposes of seeking advice.  The President of India may refer a question of public importance for the advise of the Supreme Court.
The High Courts are in the second level of judiciary.  Ordinarily every state has a High Court, but two or more states may also have one High Court.  The High Court consists of a Chief Justice and some other judges appointed by the President of India.  The High court of the  states  have  three  types of jurisdictions,  that is, original,  appellate and administrative.  It  has  among  its  original jurisdiction the  power  to' issue  warrants regarding  the fundamental rights of citizens.  It also has original jurisdiction to try civil and criminal cases.  It's  appellate jurisdiction includes the authority to try appeals about civil and criminal cases from the lower courts.  The administrative jurisdiction of High Courts relate to superintendence over the subordinate courts, The subordinate judiciary, that is, courts at the district level and below come into intimate contact with the people in the judicial field.  The Governor in consultation with the High Court  appoints the judges  of  the  district  courts.  The Public Service Commission , conducts competitive examinaths for the selection of candidates for appointment in the State Judicial Service.
The above discussion on judicial system in India clearly shows that the whole judicial system is based on two  important  features namely  independent judiciary  and single unified judicial system.

SCOPE OF JUDICIAL CONTROL OVER ADMINISTRATION

In  the context  of  ever-expanding  activities  of government and discretionary powers vested in the various administrative  agencies and public officials, the need to protect and safeguard the citizen's  rights assumes significance and priority. In developing societies where the state  is playing an important role in  development, judiciary  has  a special responsibility to ensure social justice to the underprivileged sections of the community.
However,  it  must be admitted  that the courts can  not interfere in  the administrative activities on their own accord even if such activities are arbitrary.  They act only when their intervention is sought.  Judicial intervention is restrictive in nature and limited in its scope.  Generally judicial  intervention in  administrative activities is confined to the following cases:
a)  Lack of Jurisdiction: If any public official or administrative agency acts without or beyond hisher or its authority or jurisdiction the courts can declare such acts as ultra- vires.  For  instance,  according to  administrative  rules  and  procedures,  in  all organizations, the competent  authority is identified for taking decisions and actions. If any  authority or person other than the competent  authority  takes  action, the court's intervention can be sought under the provisions of lack of jurisdiction.
b) Error of Law: This category of cases arises when the official misconstrues the law and  imposes upon the citizen  obligations,  which  are  absent in  law.  This is  called misfeasance in legal terminology. The courts are empowered to set right such cases.
c) Error of Fact: this category of cases is a result of error in discovering  cases and actions taken on basis of wrong assumptions. Any citizen adversely affected by error of judgment of public official can approach courts for redressal.
d) Error of Procedure: "due procedure" is the basis  of  governmental  action in  a democracy.  Responsible government means a  government by procedure.  Procedure in administration ensures accountability, openness and justice.  Public officials must act in accordance with the procedure laid down by law in the performance of the administrative activities. If the prescribed procedure is not followed the intervention of the courts can be sought and legality of administrative actions can be questioned.
e) Abuse of authority: if a public official exercises higher authority vindictively to harm a person or use authority for personal gain, court's intervention can be sought.  In legal terms, it is called malfeasance.  The courts can intervene to correct the malfeasance of administrative acts.

FORMS OF JUDICIAL CONTROL OVER  ADMINISTRATION

The forms and methods of judicial  control  over  administration vary from country to country, depending upon the  type of the  constitution and the  system of law.  Broadly speaking, there are two systems of legal remedies against administrative encroachments on the rights af citizens.  One is called the Rule of Law system and the other is called the Administrative Law system.  The  Rule of Law  means that  everybody, irrespective of social and cultural differences, whether an official or a private citizen is subject to the same law and the ordinary law of the land.  The official cannot take shelter behind state sovereignty in  committing  mistakes in  his  official  capacity.  A.V. Dicey, the main exponent d Law system stated that the Rule of Law  assumes equality of  Rule  of  all before law and application of the  same law to all.  The rule of law  system prevails in England and other Commonwealth countries including India. It is also prevalent in the USA and many other democratic counties. The administrative law system is based on the assumption of separate law and courts for dealing with administrative actions. This system prevails mainly in France. We have discussed in  detail  about  this system in  Unit 24 of this  course.  In  the  following paragraphs, we shall discuss some of the forms of judicial control over administration in India, under the Rule of Law system.
 

1.  Judicial Review
The judicial  review  implies  the  power of the  courts to examine  the legality  and constitutionality of administrative acts of officials and also the executive orders and the legislative enactments.  This is very important method of judicial control.  This doctrine prevails ln countries where Constitution is held supreme, for example, in U.S.A. India, Australia, etc.
In India, judicial review is restricted by certain provisions of the constitution as well as of Act declaring finality of administrative decisions in particular matters. However,  it can be stated that the Legislature in India, being non-sovereign body cannot exclude judicial review in  certain  cases  unless  there is a provision to  that effect in the  Constitution.
Generally, the courts do not interfere with purely administrative action unless it is ultra-vires as regards its scope or form. Even in Britain, where judicial review is not applicable, the c6urts can use this system of controlling administrative actions within the scope of parliamentary statutes. In view of the parliament's  sovereignty in  Britain, many administrative  acts  and  decisions  are excluded from judicial view by the  courts themselves under what  is called judicial self-limitation.  it must be noted that administrative actions can be challenged for want of jurisdiction. In the USA, judicial, review, at least in theory extends to the entire field of administrative action. However, in practice, the courts in the USA have, by self-denial, restricted their power in  several  ways.  For instance,  courts usually do not review  certain  type  of  decisions  particularly those  concerning  administrative  discretion.  The power of the courts as regards judicial review, although not crystallized is potentially great. 
 

2.  Statutory Appeal
The statutes made by Parliament and State Assemblies itself provide that in a particular type of administrative action,'the aggrieved party will have a right of appeal to the courts or  to  a  higher  administrative tribunal.  Sometimes,  legislative enactment  itself may provide for judicial intervention in certain matters. 
 

3.  Suits Against the Government
There are several  limitations, varying from country to country, as regards filing  suits against the government for its contractual liability.  The contractual liability of the Union and the State Governments is the same as that of an individual citizen under the ordinary law of contracts,  subject  however,  to any statutory  conditions  of limits, which the Parliament can regulate under the constitution.  The State is liable for the tortuous acts of its officials in respect of the non-sovereign functions only.  In Britain, under the Crown Proceedings Act of 1947, the State is liable for torts committed by its servants i.e., public officials, subject to some exceptions. In U.S.A, subject to a few exceptions, there is no statutory provision to sue the State in tort. On the other hand, the liability of the State for the wrongful acts of its officials is fully established.
 

4.  Criminal and Civil Suits against Public Oflicials
The position  regarding the public officials' personal liability in respect of acts done by them in their official capacity varies form country.to country. In India, civil proceedings can be instituted against a public official for anything  done in his official capacity after giving two  months notice.  When criminal proceedings are to be instituted against an official for the  acts done in his official capacity, previous sanctions of the Head of the State i.e.,  the  President  or the Govefnor  is required.  Some  functionaries like the President and the Governor are immune from legal proceedings even in respect of their personal ac$.  Ministers, however, do not enjoy such immunity. The Monarch in Britain and President infhe U.S.A. are also immune from legal liability.
 

5.  Extraordinary Remedies
Apart from the methods of judicial control already discussed, there are the extraordinary remedies in the nature of writs of Habeas Corpus, Mandamus., Prohibition, Certiorari and Quo Warranto.  These are called extraordinary. remedies because the courts grant these writs except  the writ of Habeas Corpus, in their discretion and as a matter of right and that too when no other adequate remedy is available.  A writ is an  order of the  court enforcing compliance on the part of those against whom the writ is issued. In India, these writs are available under the provisions of the Constitution.  While the Supreme,Court is empowered tu issue these  writs  or  orders or directives only  for the enforcement  of  Fundamental Rights, the High Courts are empowered to issue these writs not only for the enforcement of Fundamental Rights but also for other rights. In Britain, these are called Preregative Writs issued in the name of the King as the fountainhead of justice.  In the 'U.S.A.  these are provided for partly by common law and partly by statute.  The writ of  in junction is not specifically provided in the Constitution.  However, it is issued by the
Indian courts.
We will discuss these writs now.
a)  Habeas Corpus: Habeas Corpus literally means to have the body of.  This writ is an order  issued by the court against a  person who  has detained  another  to produce the latter before the court and submit to its orders.  If it is found that the person in unlawfblly or illegally  detained,  he will  be set free.  A friend or a relation of the detained person may also apply for this writ on hisfher behalf. This writ  is  a  great  bulwark of individual  freedom  and can be described as the
cornerstone of personal  liberty.  This writ  is granted as a  matter of a right of  prima facie, if it is established that the person is unlawfully detained. Its utility is, however restricted in India in view of the provision of Preventive Detention Act.
b)  Mandamus: Mandamus literally  means  command.  If a  public official fails  to perform an act which is  a part of his public  duty  and thereby violates the right of an individual, he /she will be commanded to perform the act through this writ. From the standpoint of judicial  control over administrative lapses, it is an effective writ.  In India, this can also be issued to compel a court or judicial tribunal to exercise its jurisdiction.
c)  Prohibition: It  is a judicial writ  issued by a superior court to an inferior court, preventing it from usurping jurisdiction,  which is  not vested  with it.  While Mandamus commands activity, Prohibition  commands  inactivity.  This writ  can be  issued  only against judicial or quasi-judicial authorities to prevent exercise of excess of jurisdiction by a subordinate court.  As such its  significance as a method of judicial  control over administration is limited.
d)  Certiorari:  While Prohibition is  preventive, Certiorari is  both preventive and curative.  It is a writ issued by a superior court for transferring the records of proceedings of  a  case from an inferior court or quasi-judicial  authority to  the superior  court  for determining the legality of the proceedings.
e)  Quo Warranto: Literally, Quo Warranto means 'on  what authority'.  When any person acts in a 'public office' in which he/she is not entitled to act, the court by the issue of this writ, will enquire into the legality of the claim of the person to that office.  If the said  claim is not well  founded, hetshe will be ousted from that office. It  is, thus,  a powerful instrument against the usurpation of 'public offices'. Besides the units, there is one more  writ, namely the writ of Injunction.  It is of two kinds, mandatory and preventive.  Mandatory injunction resembles the writ of Mandamus while  Preventive  Injunction resembles the writ of Prohibition.  Through this writ, a public  official can  be restrained from doing  a  thing which, if  done would cause
irreparable damage to the rights  of  individuals. While Prohibition  is a writ  available against judicial authorities,  Injunction is  a writ,  which is  issued  against executive officials.

PUBLIC INTEREST LITIGATION (PIL)

Public  Interest  Litigation  refers  to a system of intervention of social action groups in making courts  accessible  to  the  deprived, poor and the victims of social  oppression. Earlier the  'rule of standing' that means only the wronged  person  can seek the help of courts, came in the way of judiciary reaching the poor.  The poor who are not aware and capable do not exist for the court purposes.  The  imaginative interpretation of judicial process by creative and socially  conscious judges led to the system of PIL, which facilitated the  social action groups and conscious individuals to enable the courts take cognisance of various forms of injustices done to the poor. In the Asiad Workers Case, Justice Bhagwati of  Supreme Court who  championed the PIL observed: "now for the first time the portals of the court are being thrown open to the poor and the introdden. The courts must shed their character as upholders of the established order and the status quo.  The time has now come when the courts must become the courts  for the poor and
struggling  masses  of  this country".  In  recent  times,  the  courts  are  allowing representations  and  petitions from members of public through  postcards,  newspapers, editorials,  letters to the editors and as writ petitions.  Some of the PILs relate to environment  conservation, rehabilitation  of bonded labour,  undertrials  languishing in jails, atrocities on scheduled castes, scheduled tribes, women and other weaker sections, violation of civil  liberties, police atrocities, etc.  The courts have intervened in such cases on the initiatives of social activists and civil liberties groups.  Judicial activism has thus certainly facilitated more access to justice to the poor.
LEGAL AID
The Constitution of India clearly envisages that opportunities for securing justice are not denied to any citizen by reason of economic or other  liabilities.  The  fundamental entitlement of legal aid is concomitant right that arises out of Art. 14 of the Constitution which enjoins the state not to deny to any person equality before law or equal protection of  law. Many commissions made suggestions to provide legal aid to poor to eliminate the implicit bias towards the rich in our legal system.  In response, the Government of India, constituted a High Powered Committee in 1980 under the chairmanship of Justice P.N. Bhagwati, the then Judge of Supreme Court to evolve a comprehensive scheme of  legal aid. The Committee was reconstituted in May  1987 with Justice R.S. Pathak, Chief Justice of India, as Patron-in-Chief, and Justice R.N. Misra, Judge of the Supreme Court of India, as its executive chairman.  As a request to the Committee's work, the National Act that governs the system of legal aid to the poor in this country is the Legal Services Authorities Act, 1987, under which "Authorities"  have been set up at national, state and sub-state  levels.  Under the Act there  is  a model scheme, for  those  citizens whose annual income from all sources does not exceed a certain limit are eligible for free legal aid. The limitation as to income is  not applicable in case of disputes where one of the parties belongs to scheduled castes, scheduled tribes, vimuktajatis, nomadic tribes or is a woman or a child.
The Legal Services Authorities have been set up in accordance with the provisions of the national law and respective State Regulations in most of the States.  The  Legal Services Authorities have been set up at the High Court and district levels and in most of the places at taluka levels also. The Supreme Court Legal Aid Committee has been set up for dispensing legal aid in cases coming before the Supreme Court of India. Under the Legal Services Authorities Act 1987, the institution of Lok Adalat is provided at all levels (State, District and Taluk) for resolution of disputes through  conciliatory methods.  Such Adalat. are  proving a successful  alternative forum for resolution of  disputes through  conciliatory methods outside the regular courts, and  very  near to the clients or the people who need legal support, aid and speedy resolution of disputes.

NYAYA PANCHAYATS

The Nyaya Panchayat system aims to take justice to the doorstep of rural people.  Under the panchayati raj system attempts were made by many state governments to establish Nyaya Panchayats to decide civil and criminal disputes of bet nature. Different state laws  provide for different  kinds  of  jurisdiction  of the courts.  The members are appointed by the  state government from the panel recommended by the village panchayats or block panchayats. The members appointed to the Nyaya Panchayat should be literate and should not  hold any office nor should be active member of  any political party.
The effective functioning af Nyaya  Panchayats can facilitate the speedy  settlement of  many disputes at the village level  itself.  They  provide for  the speedy and summary disposal  of  cases.  Structurally, the system has  the  advantages of easy accessibility, speedy settlement of disputes, openness, etc.  But enough steps should be designed to protect these institutions from the influence of rural rich and vested interests.

Basics Of Constitution

The Constitution of India is a remarkable  document. It occupies an  important place not  only among the newly  emerged States but also in the constitutional history of the world. The Constitution of India deals, in an elaborate manner with the problem of  relations between  Union  and the  States, probleins relating to public services,  special  classes  like  Anglo-Indians,  scheduled  castes and scheduled tribes.  The Constitution  embodies an  elaborate list  of  Fundamental Rights and also the Directive Principles of the State Policy. The Preamble of the Constitution  declares India to  be a sovereign socialist  secular democratic republic. A study of its features reveals that it is a unique document in size, form and  content.  In this  Unit, we shall study the  important  features of our Constitution, role of council of ministers, constitutional authorities, constitutional commissions and the powers  of the  central government. This will give you a clear idea of how our constitutional set up is working at the central level.

BASIC FEATURES:

1)Written Constitution
2)Preamble:
"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."
3)Parliamentary Democracy
4)Federalism
5)Fundamental Rights
6)Directive Principles of State Policy
7)Fundamental Duties
8)Independence of Judiciary

POWERS OF CENTRAL GOVERNMENT

Having discussed the  special features of the  Indian Constitution which  have  an  impact on the federal balance, we shall now turn to the division of powers between the Centre and the States which forms the core of the doctrine of fecteralism. The distribution of legislative powers between the Centre and the States has been provided for in the  Constitution according to  three  lists of subjects, these are Union, State and concurrent. The union list gives the Centre exclusive authority to act in matters of national importance and includes among its ninety nine items like defence, foreign affairs, currency, communication, banking, income taxation and custom duties.
The State list has sixty one entries like law and order, local government, public health, education and agriculture. There are fifty two entries in the Concurrent list. These include the legal system, trade and  industry and economic and social planning.  In respect of Concurrent items the  laws passed by Central Parliament prevail over those passed by State legislatures.
The residual powers lie with the Union and in conflict between Union and State, the Union law prevails. Thus, the Constitution gives vast powers to the Central Government as compared to the  State governments. During emergency, the Parliament can make laws for the whole or any part of the territory of India with respect to any of the matters, enumerated in the State list. The President, if advised by the Governor, or on his own, feels that the government of the  State cannot be carried on in accordance 'with the provisions of the Constitution may proclaim a state of emergency and assume all executive  functions  to  himself  and  declare the  powers  of State Assembly to be under the authority of the Parliament. Even, the Rajya Sabha by a two third majority can ask the Parliament to make laws on the items in/State list for a temporary period.

ROLE OF COUNCIL  OF MINISTER:

At the head of the Union executive stands the President of India and the States, it is the Governor who is the executive head. Though the executive power of the Union is vested in the president, he  in practice is  aided and  advised by the Council of Ministers headed by  the  Prime Minister. The Union legislature  is  called Parliament. It consists of the President and the two Houses. The Lower House  is called the House of People or  'Lok Sabha'. Entire responsibility of enactment of laws  rests with the Rhe Minister who heads  the  Council of Ministers. The Constitution provides that there shall be a Council of Ministers with the  Prime Minister at the head to aid and advise the  President who shall, in exercise of his functions, act in accordance with the advice rendered after such reconsideration (Article  74).  While  the  Prime Minister  is selected by the  President, the other Ministers are appointed by the  President on the advice of the Prime  Minister (Article 75(1)).
The number of members of the Council of Ministers is now specified in the Constitution. As per the constitution (Ninety-first Amendment) Act, 2003 the total number of Ministers, including the Prime Minister,  in the Council of Ministers shall not exceed fifteen per cent of th;  total number of members of the House of the People (Lok Sabha). All the Ministers do not belong to the same rank. They are classified under three ranks.
a)  Cabinet Ministers
b)  Ministers of State
c)  Deputy Ministers
Thus, the  Council of Ministers is  a composite body,  consisting of different categories. The rank of the different ministers is determined by the Prime Minister. He also allocates portfolios among them. Ministers may be chosen from members of either house and a minister who is a member of one house has a right to speak and take part in the proceedings of the other House, though he has no right to vote in the House of which he is not a member.  Under the Constitution, there is no bar to  the appointment of  a person from  outside the legislature as minister.  But he cannot continue as minister for more than six months unless he secures a seat in either  house of Parliament.  Though theoretically the  function of the Council of Ministers is  to  only aid and  advise the  President, practically the  vast power provided to the  President by the Constitution is actually exercised by Council of Ministers with the Prime Minister as their head.
Our Constitution is based on the concept of collective responsibility. The Council of Ministers is collectively responsible to the  lower house of the Parliament.  The essence of collective  responsibility is  that  once a decision is  taken  by  the government, it is  binding on all the  ministers.  Ministry as a body,  is  under a constitutional  obligation to  resign as soon as it loses  the  majority in  the lower House (House of People) of the legislature.
In practice, the Council of Ministers seldom meets as a body. It is the Cabinet, an inner body within the Council, which makes all the government policies.

CONSTITUTIONAL AUTHORITIES AND  COMMISSIONS

The Constitution  provides for the  creation  of  the  following  Authorities  and Commissions:
1.The Comptroller and Auditor General of India (Articles 148- 15 1).
2.The Election Commission (Article 324).
3.The Union Public Service Commission (Article 3 15-323).
4.The Attorney-General for India (Article 76).
5.The Special Officer for Linguistic Minorities (Article 350 B).
6.The Finance Commission (Article 280-28 1).
7.The Official Language Commission (Article 344).
8.The  Committee of Parliament to Examine the Report of the Language
9.Commission [Article 344(4)].
10.The State Public Service Commission (Articles 3 15-323).
11.The Advocate-General for the State (Article 165).
12.Administrative Tribunals (Article 323 A).
13.National Commission for Schedule Castes (Article 338).
14.National Commission for Scheduled Tribes (Article,338  A).

Comptroller and Auditor-General of India

With the enactment of the Constitution in  1950, the Auditor Genera1,of India was redesignated as  Comptroller and Auditor General of India (CAG). The CAG is appointed by the President by warrant under his hand and seal. He can be removed from  the Office in  the  like manner  and on the like  grounds as a Judge of the Supreme Court.
The CAG is not given re-employment under the State after his retirement.  This ensures his independent functioning. His salaries and pension are not subjected to vote of Parliament; these are charged upon the Consolidated Fund of  India. The Constitution does not define the terms and conditions of his service and ,his duties and powers. It is the Parliament that defines them.
The CAG performs such duties and exercise such powers in relation to the audit of  accounts of the Union and of the States and of any authority or body as may be prescribed by or under  any law made by Parliament. The report of the CAG of India relating  to the  Union ts submitted to the  President who causes it to be laid before each house df ~drliament. The  report relating to State is submitted  to the Government  lays it before  the State legislature. Earlier CAG was engaged both in maintainance of  accounts as well  as audit. Since 1976, the CAG has  shed  his responsibilities in regard to the compilation and maintenance of accounts. Now he audits all expendihkres fiom the  revenues of the Central  Government and State governments in and outside India and sees whether the disbursed money shown in the  accounts was regally available and  whether expenditure  conforms to  the authority  that governs it.  So the CAG scrutinises the  financial  affairs of the executive and submits his tepott to the parliament to which alone he is resporlsible,
He audits all tnznsactiofis  of the  Central and State  governments  relating to Contingency Pund ilnd Public account^. lie audits all trading, manufacturing profit and loss accounts and balance sheets in any department of the Centre or the State and in each case reports on   the expediture, transactions or accounts audited by him. He audits the receipts and expenditure of organisations substantially financed from central or State revenues.

The Attorney-General  of India

The Attomey-General of India is appointed by the  President and holds Office during the  latter's pleasure. His emoluments and conditions of service are determined by the President. His function is to advise the Central  Government upon legal matters as may be referred to him  and to carry out duties of a legal character as assigned to him.
The Office of the Attorney-General  is one of the offices placed on a special footing by the constitution. He is the first Law Officer of the Government of India. His duties are:  C
i) to give advice on such legal matters and to perform such other duties of a legal character as may, from time to time, be refeired-or assigned to him by the President
ii)  to discharge the functions conferred on him by the Constitution or any law for the time being in force (Article 166).
Though the Atteney-General of India is not a member of the Cabinet, he has a right to speak in the Houses of Parliament or in any Committee thereof, but he has no right to vote.

The Special Officer for Linguistic Minorities

The Special Offlcer for  Linguistic  Minorities  is  appointed by the President to inteatigate matters  relating to  the safeguatds provided  for linguistic minorities under the Constitution and reports to the President upon those matters. His report is laid  before  Parliament. The Constitution  did not originally  provide  for  this functionary; this  came  into  being  when article 350 B was inserted  in  the Constitution in 1956 (at the time of reorganisation of States).

CONSTITUTION COMMISSIONS

Finance  Commission
Articles  270, 273, 275 and 280  provide  for  the  constitution of  a Finance Commission to recommend to the President measures relating to the distribution of financial resources between the Union and the States. The distribution between the union and the states of the net proceeds of taxes which are to be or may be, divided between them, and the allocation between the States of respective shares of such proceeds. It also determines the principles, which should govern the grants-in-aid of the revenues of the States, out of the Consolidated Fund of India and any other
matter  referred to the  Commission by President in the interests of sound finance.
The Twelth Finance Commission is expected to be constituted in the current year.
The constitution of the  Finance Commission  is  laid  down in  Article 280. The Commission is  constituted by the President every five years. It consists  of  a Chairman and four members to be appointed by the President. The Chairman must be a person having experience in public affairs, and the other four members must be appointed from amongst the following:
a)  High Court judge or one qualified to be appointed as such,
b)  Person having  special  knowledge of the  finances and accounts of  the government,
c)  Person having wide experience in financial matted and administration, and
d)  Person having special knowledge of economics.

Similarly in every state there is a State Finance Commission created by the 73d and 741h Constitution Amendment to review the  financial position of the local government and make certain recommendations to  the  Governor.  It has been discussed in the Block dealing with local  Government.

Election Commission
For conducting  free and fair  elections, an  impartial and independent agency for conducting  elections is needed. For this purpose,  Constitution has set up  the Election  Commission.  The  Election Commission has to  supervise the  entire procedure and machinery for election.
The Election  Commission consists of a  Chief Election  Commissioner and the Constitution provides for other commissioners in the Commission as President may fix from time to time. To begin  with the Election Commission consisted of  the Chief Election Commissioner were appointed by the  President.  The Chief  Election Commissiondr is also appointed by the President. After.the ninth Lok Sabha  Elections  the Election  Commission  again  became a single-member
Commission.  Election  Commission  has  again been converted  into  a multi- member body with the appointment of two Election Commissioners in  1993. This is  now a present amgement. The Chief Election  Commissioner and the Election Commissioners have equal say in the decision-making of the body. In order  to  ensure the  independence of the  Chief Election Commissioner, two provisions have been made:
i)  the conditions of his service shall not be varied to his disadvantage after his appointment and
ii)  he cannot be removed from his office without an impeachment process.
The main function of Chief Election Commissioner is to  direct,  control and conduct all electoral  operations,  including  preparation  of  electoral  rolls and conduct of all elections to Parliament and State legislature as also of the election of the President and Vice President. The Election  Commission  has  not only administrative but also some quasi-judicial fimctions. It has the power to  settle the election disputes.
Similarly in every state there is a State Election Commission created by the 73rd and 74th Constitution Amendment for the  conduct  of  all  elections  to  the Panchayats and  Municipal  bodies.  The State Election  Commissioner is appointed by the Governor. It will be discussed in the  Block dealing with the Local Government.

Official Language Commission
The official  language of the Union of India according to our  Constitution is Hindi in  Devnagari script. The Constitution authorises the  President  at  the expiration of every ten years  since the  commencement of the  Constitution, to constitute a Commission which shall consist of a Chainnan and other members.  The Official Language Commission makes recommendations to the President as to the:
a)  Progressive use of Hindi language for the official purposes of the Union;
b)  restriction in the use of the English language for all or any of the official purposes of the Union;
c)  Form of numerals to be used for any one or more specified purposes of the Union;
d)  Matter  (Any other) referred to the Commission by the President as regards the official language of the Union and the  language for communication between the Union  and a State or between one State and another and their use. Thus,  the Oficial Language  Cominission tries to establish  linguistic harmony within the Union and between the States.

Union Public Service Commission
In  India  a limited  role  has  been  assigned to  the  .Union  Public Service Commission (UPSC) in  personnel administration. The UPSC is  a recruiting agency to the  All  India services, and  the Central Civil  Services - Class I and Class II - the responsibility for staffing lower services and posts  rests with the departments  concerned.  The  Constitution  endows the  UPSC with advisory
functions. UPSC is required to submit an annual  report of  its  functioning in which it draws particular attention to the non-acceptance, if any, of its advice by the government, and which is discussed in Parliament. The UPSC is consulted by the Central Government on:
a)  Matters relating to methods of recruitment to civil services and civil posts;
b)  Principles to be  followed in  making appointments to civil services and in making promotions and transfers from one service to another and  on  the suitability of candidates for such appointments, promotions or transfers;
c)  Disciplinary  matters affecting a person serving under the Government of  India or the Government of State in a civil capacity, including memorials or petitions relating to such matters;
d) Any claim by or in respect of a person who is serving or has sewed under the Government of India or the Government of a State or under  the  Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in  respect of acts done or purporting to be done in the execution of his duty
should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State; and
e)  Any claim for the award of a pension in  respect of injuries sustained by a person while serving under the government.
The Constitution does not prescribe the number of members of the Commission. It only says that at least half of the members must be government employees with at least ten years governmental experience, that the members would  hold Ofice until the age of sixty five years or for a term of six years whichever comes first, and finally  that  the  Chairman  is  debarred from accepting any  employment under the government of a State while other members are eligible for appointment to only one  position, i.e.,  Chaipnanship of either UPSC or  a State Public Service Commission.

National Commission for Scheduled Castes
The 89th Constitution Amendment Act 2003, provided for the constitution of  National Commission for Scheduled Castes.  The Commission shall consist of a Chairperson, Vice-Chairperson  and  three other Members.  The  President determines the condition of service, the tenure of the office of the Chairperson, Vice-Chairperson  and other Members from time to time.  The President will appoint  them  by warrant  and  under  his hand  and seal.  The duty of the
Commission are as follows:
1)  The Commission shall have the power to regulate its own procedute.
2)  It shall be the duty of the Commission -
a)  to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Govemment and to evaluate the working of such safeguards;
b)  to  inquire into specific  complaints with respect to the deprivation of  rights and safeguards of the Scheduled Castes;
c)  to participate and advise on the  planning  process of socio-economic  development of the Scheduled Castes and to evaluate the  progress of  their development under the Union and any State;
d)  to present  to  the President, annually  and at  such other  times as the Commission may deem fit,  reports  upon  the  working of those safeguards;
e)  to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those  safeguards and other measures for  the  protection, welfare and socio-economic development of the Scheduled Castes; and
f)  to  discharge such other  functions in relation to the protection, welfare and development and advancement  of  the  Scheduled  Castes as the President may, subject to the provisions of any law made by Parliament, by the rule specify.
3) The President shall cause all  such reports to be laid before each  House of  Parliament along with a memorandum explaining  the action  taken or proposed to be taken on the recommendations relating to the Union  and the reasons for the non-acceptance, if any, of any of such recommendations.
4)  Where any such report, of any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to  the  Governor of the  State  who  shall cause it to  be laid  before the Legislature of the  State  along with a  memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Statt
and  the  reasofis  for  the  non-acceptance,  if  any of  any  of  such recommendations.
5) The Commission  shall  while investigathg any matter referred to in  such- clause (a) or inquiring into  any  complaint referred  to in sub-clause (b) if clause (Z), have all the powers of a civil court trying a suit and in particular in respect of the follower matters, namely:-
a)  summoning and enforcing the attendance of any person from any part of India and examining him on oath;
b)  requiring the discovery and production of any document;
c)  receiving evidence on affidavits;
d) requisitioning any public or copy thereof from any court or ofice;
e)  issuing comrhissions for the examination of witnesses and documents;
f)  any other matter which the President may, by rule, determine.
6) The Union and every State Government shall consult the Commission on all  major policy matters affecting Scheduled Castes.

National Commission for Scheduled Tribes
The 89th Constitution Amendment Act 2003,  provided  for  the  constitution of National  Commissiop for Scheduled Tribes.  The Commission shall consist of a Chairperson, Vice-Chairperson and  three  other  Members.  The President determines the condition of service, the tenure of the office of the Chairperson, Vice-Chairperson 'and  other  Members from time to  time.  The  President will appoint them  by  warrant and under  his hand  and seal.  The  duty  of the
Commission are as follows:
1)  The Commission shall have the power to regulate its own procedure.
2)  It shall be the duty of the Commission -
- a)  to investigate and monitor all matters relating to the safeguards provided  for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
b)  to inquire  into  specific  complaints'with  respect to the deprivation of rights and safeguards of the Scheduled Tribes;
c)  to participate and adverse on the planning  process of socio-economic development of the Scheduled  Tribes  and to evaluate the  progress of their development under the Union and any State;
d) to present to the  President,  annually and at  such other times as the Commission may deem  fit,  reports  upon  the  working  of those safeguards;
e)  to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of  those  safeguards  and  other measures for  the protection,  welfare and socio-economic development of the Scheduled Tribes; and
f) to  discharge such other  functions in  relation to the protection,  welfare and  development  and  advancement of the  Scheduled  Tribes as the President may, subject to the provisions of any law made by Parliament, by the rule specify.
3)  The President  shall cause all such reports to be laid  before each House of Parliament along with a memorandum explaining  the  action  taken  or proposed to be taken on the recommendations  relating to'the Union and the reasons for the non-acceptance,  if any, of any of such recommendations.
4) Where any such report, of any part thereof, relates to any matter with which  any State Government is concerned, a copy of such report shall be forwarded to  the  Governor of the  State  who  shall cause it  to  be laid  before  the Legislature of the  State  along with  a memorandum  explaining the action taken or proposed to be taken  on the recommendations relating to the State
and  the  reasons  for  the  non-acceptance,  if  any,  of any  of such recommendations.
5)  The Commission shall while investigating any matter referred to in  such- clausc (a) or inquiring  into any complaint referred to in sub-clause (b) of clause (2), have all the powers of a civil court trying a suit and in particular in respect of the follower matters, namely:-
a)  summoning and enforcing the attendance of any person from any part of India and examining him on oath;
b)  requiring the discovery and production of any document;
c)  receiving evidence on affidavits;
d) requisitioning any public or copy thereof from any court or office;
e)  issuing commissions for the examination of witnesses and documents;
f)  any other matter whioh the President may, by rule, de'termine.
6) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes.

Reforms in British Administration

THE WAR OF INDEPENDENCE AND AFTER

The  outbreak of 1857, called by Dr. Pattabhi Sitaramayya as the First War of Independence, was a shock to  the  British  government and  its  bureaucracy. - Economic exploitation, social  deprivation, and political unrest made 1857 outburst inevitable. The British rulers had to revise their policy of conquest and annexations and to adopt  a cautious and calculated view of association and cooperation. The Act of 1858 ended the Company rule and the system of Double Government  by Board of Control in  England  and the Court of Directors of  the company  introduced by the Pitt's India Act, 1784. Indian Administration  came  directly under the-Crown. The Act created the office of the Secretary of State who was a cabinet minister in the British cabinet. His salary and establishment was  paid from the Indian revenue. He was assisted by a council of fifteen members to make him familiar with Indian affairs. With the end of the East India Company, British Parliament lost much interest in Indian affairs and the Secretary of State for India became the defacto  government of  India. He  had overriding powers over. the  Council in  deliberations, appointments and the supremacy  of Home government over the Government of India as firmly established. The enlightened Indian opinion always criticised the constitutien and functioning of this council. The various changes introduced by the Act of 1858 were formally announced by a proclamation of Queen Victoria. The Queen felt that such a document should, lead to feeling of generosity, benevolence and religious toleration. It assured the, native  princes  their  rights,  dignity and  honour. This would specify them  and would make them act as a reactionary block against any progressive force raising its head against the British rule.

THE INDIAN COUNCILS ACTS

The Indian Councils Act 1861

The advance made by'the Indian Councils Act 1861 over the 1858 Act was mainly in the inclusion of a number of non-official members in the Executive Council of the Governor-General. The Governor General's executive council consisted of five members. And for the purpose of legislation, the council was reinforced by six to twelve nominated members for a two-year  term. Half of these were to be non- officials, both  European  and Indian not in the service of the Crown. There were similar councils at the provinces.
The powers of the Governor-General increased more in the field of legislation. The Council was presided over by the Governor-General. His prior approval was necessary to introduce measures affecting public finance, religion, discipline and maintenance of military and  naval forces and relations of the Government with foreign princes and States. His consent was nec9sary for any Act passed by the legislature and his Ordirances had the validity of an Act. The idea was that the legislature  should  conduct  its  business like a 'Committee'  or  a 'Commission', their  publicity  being limited  to  official  reports on  . The aim of  the Act, according to Sir Charles Wood, Secretary of State for  f ndia, was to prevent the legislature from interfering with the functions of the executive government. In the official despatch he avoided the word 'legislative council' and there was no mention of session in the  rules of business. The Executive government became too  strong  as  legislature  had  power without  control,  association  without representation. The belief of the British  rulers was that the most members of a dominant class. The earlier non-official members were mostly ruling princes, or their diwans or big landlords. Thuy had little interest or initiative in  its  working. And their representation was hardly 'public'.  European  interests settled in India differed from the  purely  imperial interests rooted in  Britain. The  practice  of private correspondence between  the Secretary of State and the Viceroy bypassed the majority of the  council. Also as the  functions of the council were merely legislative, it was a step backward with the provisions of the 1853 Act. It looks as if that the British Statesmen and thinkers, both conservative and liberals, felt sincerely  (though  wrongly)  that  Parliamentary form  of government  was unsuitable for India. Even John Stuart Mill, the  liberal, believed that India was not in a sufficiently advanced state to aspire for a representative government.

The Indian Councils Act 1892
The Indian Councils Act 1861 naturally could not satisfy the progressive public opinion in  India. in its very first  session  the  Indian National  Congress passed resolution  to make these councils broad based,  elective and with powers, over budget and powers to interpellate the Executive. To move too fast is dangerous, but to lag behind is more dangerous still (Lord Ripon). The liberal Governor-Generals and Viceroys advocated the need for making  councils more  popular. Also the Government of India felt that it would strengthen its position vis-a-vis the British government with the help of elected Indian members. European business interests in India also favoured larger elective element and broader functions expected to the councils. Lord Dalhousie's policy of providing for legislation on the basis of petitions from individuals and their associations contributed to the organisation of opinion for reforms. Constitutionalism and consultative  machinery thus moved towards a government based on popular representation.
Lord Dufferin's  Egyptian  experience in the  establishment of elected  provincial  councils was encouraging. He wanted to experiment the same in India. The main recommendations of the Dufferin Committee (1888) were: (i) the  expansion of Presidency councib and enlarging their  functions; (ii) providing representation to important interest; (iii) representation to Muslims in proportion to their population; (iv) reservation of a few seats to be filled by nomination as a safeguard against any inequality in the results of elections. The provincial iouncils would be of two tiers. The first representing hereditary trade, professions, commercial interest. The first directly elected and the second indirectly. The provincial administration would also be divided in two parts - general and  local  and the councils would have larger powers in local matters. As the  British  Statesmen were still influenced by the feeling that 'constitutional  ' principles could not be applied to a conquered country' and that there would be no relaxation of 'bureaucratic despotism', The Indian Councils Act 1892 did not much satisfy local  aspirations. It expanded  the  Executive  Council of the  Governor- General.  Nominations  were to be made by provincial  councils, local  bodies, professional bodies, etc. The members had  now a right to put questions and discuss on  matters of budget.  Though a previous notice was necessary and the question could be disallowed without assigning any reason, this right was more than symbolic. Obviously, official majority was mainstreamed in both the Supreme as well as provincial councils.
The Act  really  was an advance over the  1861 legislation as it gave  rights to the council which way Parliamentary in nature. It was an attempt at a  compromise between the official views of the council as 'pocket  legislature' and the educated Indian view as embryo Parliaments. The right of interpellation without the right to veto carries little meaning and less weight. The extremist element in the National Congress was dominating and the practice of the Act also defeated its purpose of 'giving further opportunities to the non-officials and the  native element in Indian society to tab part in the workof the government'.

The National Movement and Constitutional Reforms

While the British established a regular system of government in India from 1857 to  1947, the slow pace of constitutional experiments  showed uneasy compromises, the British Statesmen were making with the exigencies in the Indian situation. The policy of apparent association, therefore, went had in  hand with the policy of oppression, and constitutional  advances were always barbed  with restrictive conditions so that the core of executive bureaucratic responsibility would  remain untouched.  Such contradictions seem to be inevitable with imperialism  because imperialism itself is incompatible with democratic theory and practices. The contradictions were clearly  exposed in Lord Lytton's repressive  policy,  the Arms  Act, the Vernacular  Press  Act,  holding of Imperial  Darbar during severe famine, abolition of cotton import duty to serve British textile interest. (This was the  first time when the  veto power  was exercised by the Governor-General in
India). The Ilbert Bill controversy (1 883) also was an eye opener to Indians. The Bill was to empower Indian magistrates to try criminal cases of white people which were objected by the whites.  Equally  eye  opening  were the  attempts to keep Indiafis out of higher jobs, especially the Indian Civil  Service. All  these clearly indicated the imperialist belief in white man's  supremacy.
The Indian National  movement organised itself in the Indian National Congress (1 885). Initially influenced by the Western educated upper middle class, it aimed at securing reforms through peaceful and constitutional means. The British rulers also felt  that  this wound remove  misunderstanding  about  the interactions  of the government and wouM save thc empire.  The moderats had faith in the British sense ofjustice and fair play.
Their aim  was gradual  reforms with constitutional means. The  Congress progromrne tossed Mlwecn extremists and liberals till it became a mass movement, in the real sense and &manded nothing short of 'Purna Swaraj'.
 
THE MORLEY MINTO REFORMS 1909

The Main Provisions

The Indian Councils Act (1909) substantially increased the strength of legislative councils - the Imperial and provincial. For the Imperial, the Supreme Council, the number of  additional members was  raised fiom 16 to 60.  For  major provincial councils, the number was raised to 50 and for minor provinces it was fleed to 30. The  additional members were both nominated and elected. The principle of election was council representation. In the  Supreme Legislative  Council, the official majority  was  maintained by in he provincial  councils, the non-officials
formed the majority. The A& definitely expanded the  functions of the legislative councils. These canaerned discussions on' the  budget (The Annual Financial statement), discussion on any matter of general public  interest  and  thirdly the power of asking questions. Tb Act also increased the number of Executive conncillors  in the three major Presidencies - Bombay, Madras and Bengal, Indians were now appointed as members of the Secretary of States' Council (1907) and members of the  Governor-Generals'  Council  (1909).  Some  other  important feature of the Act of 1909 included: right of separate electorate to the Muslims; the Secretary of the state for India was empowered to increase the number of the Executive 43ouncils of Madras and Bombay fiom two to four; two Indians were nominated to  the  Cquncil of the  Secretary  of state for  Indian  affairs;  and empowering Governor-General to nominate one Indian Member to his Executive Council. etc.
Both Lord Morley, the then Secretary of Statc, and Lord Minto, the then Governor General of India,  felt that  it  wes not  desirable to  introduce  a responsible government in India and it would never suit the Indian conditions. 'The safety and welfare of this  country must depend upon the  supremacy  of  the British administration and that Bupremacy can in  no circutllstances be delegated to' any kind of representative assembly' (Lord Minto). .
The reforms introduced Indians to the legislative culture - developing opinions out of the  interaction  of different interests.  This is  the essence of Parliamentary institutions. The transfer of Parliamentary responsibility now became the logical next. Introduction of elections.(though indirect-elections),  the  power of  asking supplementary questions (though restricted), the right of voting on some part of the budget (the votable part), the right of moving resolution on the matters of public interest strengthehed legislative practices. The non-offtcial and elective base also was  sufficient1 hvanced as compared  to the earlier Acts. The Indian Netional Congress, handled by the Moderates,  said  that  the  scheme was a 'large  and liberal installment o reforms'.  Morley had discussed these reform proposals with Gokhale, the liberal leader.
But the rules and regulations made under the Act and the  implications of certain provisions defeated the liberal spirit. The indirect system of.elections inspired little interest  and offered less  political  education. The representation of different functional interests affected the team spirit of the non-officials. The most harmful was the provision for separate representation for Muslims. This was the beginning of the  communal representation, the  communal electorate which  logically led to the partition of the country on communal basis. The Muslims objected to the joint electoral colleges but the role of the Government has also been  very evident and positive  in  introducing  communal  electorates.  The  Muslims  had  got proportionately more representation than  their population on  the  assumption of their political importance. Similar protection was not extended to Hindus minority in Muslim majority provinces. Also the Governor General had powers to reject the appointment of any elected member to the council. And this provision  restricted the freedom of the electorate.
The non-official majority in provincial councils yas n.ot elective. The Europeans in the Indian eyes were as good as officials. The fantilords and nominated members habitually voted  with the  government. The representation  gave  Indians  only personal influence but  not power in  legislative councils. The constituencies were small (the largest which returned a Member directly had 650 voters). Even with enlarged functions, the powers and position of legislative councils were secondary. The resolutions of the council were not binding on the Gbvemment. Its deliberations were of advisory nature. The official members were fully controlled by the official mandate and had tittle freedom in legislative participation. Reorganigation of Departments Constitutional refms were reflected  in  the  changing  structure  of  the governmntal machihery as the government moved towards the federal  form. Creation  of new departments,  their  reorganisation and setting procedures for smooth conduct of department business naturally became inevitable. Departmental orNsation not  only  makes administration smooth  but  also streamlines its processes and secures economy in its operation. In the beginning, administration was grouped  under two broad segments one covering  General, Foreign and Finance and the second covering  Secret, Revenue and Judicial departments. In  1843, administration was divided into four departments, Military, Foreign, Home and Finance. The Home department dealt with legislation also. In 1855, a  separate department of Public Works was established  with the development  of  irrigation and  railways.  In  the  cause of time  three  main departments were established.  The Legislative Department (1869) took over the legislative work of the Home Depment. Obviously, it did not initiate or originate legislation.  The second department was Agriculture, Revenue and Commerce created in  1871  mainly to work as a guiding agency in  the context of  recurring famines. The third dbpartment was Industries and Commerce established in  1905. The Railway Board also yas constituted in the same year. It was to look after the Industrial and commercial development of the  country. Due to the controversy between Cumn atrd Kitchner  over  the  military  administration in  India, the Military  department was divided into  two  separate departments,  the Army Department and theiMilitiuy Supply Department. In  191 1, Education department was created. The ctljation of departments reflects the growinguolume of work attended by them. It is during this peribd that the concept of departmental responsibility grew: Lord Dalhousie assigned each member of the Council some specific departments and introduced  the  classification  of  papers as urgent,  routine,  unimportant and important. Only urgent papers would go directly to the Governor-General. Finally, in  1862 the portfolio system came  into operation. The  distribution of work was made specific and the  system of noting was introduced. In 1882 the flat file system was adopted. Lord Cunon improved upon this system to reduce delay to minimise official pedantry. The  emphasis was  on discouraging  excessive  noting and encouraging personal communication The Civil Service Before the Charter Act of 1833, the kourt of Directors of the East India Company controlled the selection and appointment of Civil Servants. The nominations were made individually by the Directors. Young Englishmen took writership as a career and they entered into a covenant to serve the company faithfully and honestly. They  were, therefgre,  called as  'Covenanted  Servants'.  The uncovenanted personnel were nqt a part of regular graded service. Abo the  security of service was limited. The distinction between the two was, however, getting blurred over a period. With the Act of  1833, the disciplinary control 6f the Government of India was established over civil servants. The important  issues in the development of civil service were thb age of reMtment, division of service between executive and judicial  branches dd the need and en*  of  Indians  into these services. Lord Salisbury in  1874 keduced the upper age limit  to nineteen and the  lower  to seventeen. This affkted Indian candidates. Though the  division  of  service  into administrative and judicial branches was  not favoured, Sir Campbell  &vised the system of Parallel lines of Promotion and a covenanted servant would choose after some years of service one or the other line. As the number of covenanted servants was restricted, the need for expanding uncovenanted services to fill in subordinate services was felt. ?this became obvious with provincial services and  growth in governmental work. This subsequently led to the demand of Indianisation of these services as later reflected in the Lee Commission Report(1924).

Financial Administration

A centralised financial system was introduced in  1833 as the earlier structure was  too diffused for effective control and economy. Lord Ellenborough created the post of a Finance  Secretary at  the Central  level and brought  all  financial operations under the review of the  Government of India. It realised effective control and economy but ended in delay in final approval. Ellenborough really wanted to have a Finance Member on his council. For Central control the ofice of the Comptroller General of Accounts was created and he remained in charge of appropriation audit.
In  1860, the  system  of budget  was  introduced.  Financial  relations  were decentralised for  the  first  time  in  1870 when Lord Mayo made provincial government responsible for the management of local finance in some areas which were primarily of provincial  interest. This relieved  the  Imperial  Finance  too because  provincial  governments  were  expected to raise  additional  revenue by raising local taxes. Obviously provincial budgets were required to be submitted to the Government of India for approval.

Police Administration

The law and order was earlier a community function and  was administered by a  non-official force controlled by individual zamindars. Lord Cornwallis introduced bthe daroga system in  1792, replacing zamindari thanedars under the direct control of the district head  and on its payroll. At the village level, village patels performed the  functions, both revenue  and  police. With the experiment in  Sindh by Sir Charles Napier, a separate self-contained expert police force came into existence.
At every district there was a Superintendent who was subordinate to the District Magistrate but departmentally under the control of the Commissioner of Police. In 1860, the Government of India appointed a Police Commission. It recommended the  establishment of a single homogenous force  of civil constabulary. It  was controlled by the Inspector General of Police. He was assisted in his work at the district level by a District Superintendent. The District Magistrate  retained  his judicial  authority  in  the administration of criminal justice.  The codification of  penal and procedural law also was undertaken.

Local Administration

Local government institutions are both n itural and useful.  Village  community government  existed in  India with a vil1ak.e headman  performing both civil and judicial functions. But the present system of local government is entirely a British creation.  The principle of election  and Lie concept of representativeness  were foreign to the old local government systeni. The Mayo resolution of 1870 stressed the need for introducing self government in local areas to raise local resources to administer locally important services and also to provide local interest and care in the management of their funds. Municipal Acts were accordingly passed in many provinces with elective local  bodies  coming  into  existence.  The first  local government, the Madras Corporation was established in 1687. In a course of time, other Presidency towns also formed local governments. Lord Ripon's resolution in 1882 has. been regarded as the landmark in  the history of local government in India.  The resolution  declared  that  'it  was not  primarily with a view of improvement that  this measure is  put forward - It  is chiefly  desirable as an instrument of political and popular education'. The resolution  extended election principle with an elected non-official Chairman. Ripon wanted to provide for the new educated middle class an opportunity for association and thereby check rigid bureaucracy.

THE MONTAGUE-CHELMSFORD REFORMS 1919

The Preamble of the Government of India Act 1919

'It is the declared policy of the Parliament to provide for the increasing association  of Indians  in  every  branch of lndian  administration  and  for  the  gradual development of the empire,governing institutions with a view  to the  progressive realisation of responsible government in  British  India as an integral part of the Empire. In response: to the spirit'of the preamble, the Act provided complete popular control as far as possible in  local  government  areas.  There was also maximum popular repesentathn ed freedom to provincial  government. This is reflected in  the system of diarchy. The Government of  India was still  to be responsible to the British Parliament. But Indian  legislative council was enlarged and made more propularly representative. In tune with the spirit of the declaration, the control of British parliament over the Indian Government was relaxed and that of Central Governmedt over the provincial .government was  reduced. The basic contention was that where  the Government of India  and the Central  legislature were in agreement, the Home Government would not  interfere. Main features of the 1919 Act include& (a) the Council of the Secretaq of state to have eight to twelve members with thee Indian Members and at least one-half of them  to have spent a minimum of ten years in India; (b) the Secretary of the state to follow the advice  rendered by the Council; (c) the Secretary of  state was not allowed to interfere in the  administrative matters of the provinces concerning 'Transferred subjects'; (d) to carryout their administrative affairs, the  Governors were  given power  of instructions &  a guide; (e) other than  Muslims, the minorities including Sikhs,  Anglo-Indians, Christians and Europeans were  given right of  separate electorate; etc.

The Central Government

The  Central Government was more representative and  responsive but  not responsible. The Govetnor General at the  apex of  administration was still an autocrat. He had the powers of superintendence, direction and  control  over the entire administration  and these  were  very effective powers. Ih theory,  the Government of India was ruled by the Government of England and the Governor General who differed fiom the policy of the Secretary of State had  no alternative but to resign. But in actual practice, the Governor General as the man on the spot carried a great deal of power and influence. He could werrule the decisions of his Executive  Council. He was 'the  executive'.  The  executive  councillors  were virtually his nominees. He had full control over foreign and political department (department dealing with princely States in India). Every bill passed by the Central or  Provincial  Legislature needed  his assent, in certain cases his  prior ascent. He could put any bill  on the statute,  also restore cuts. He has used his powers to overtide the legislature (for example,  Princes'  Protection Act  1923, the Finance Bill 1925 raising salt duty).
The Legislature was broad based (the strength of the Council of States 60, and the Central Legislative  Assetnbly  140). But its composition was faulty  and powers very much restricted. The Communal representation introduced in the 1909 Act for Muslims was now extended to other communities like the Sikhs, the European thus encouraging separatist teqdencies in tbe Indian people. The Governor General thus had too many powers and was not responsible to the Legislature.

Mochinev of'Dyarchy at the Provinces

The division of subjects into Central and Provincial '(Federalism) and the further division at the provincial level between Reserved and Transferred subjects was a novel feature of the Mont-Ford Reforms. Dyarchy means double government at the provinces. The  'Reserved'  subjects in charge of councillors, 'nominated' by the Governor and transferred subjects in charge of councillors - Ministers 'appointed' by him. The  reserved subjects were  really  'key' departments while  transferred subjects were felt 'safe'  even  if  placed in the Indian  hands. The councillor in charge of reseved subject was not responsible to the Secretary of State and  the British parliament. The ministers in charge of transferred subjects were responsible to the  provincial legislature. -The Governor exercised effective powers over the whole administration through the Instrument of Instruction and Executive Business  Rules.

The Balance Sheet of Reforms 

The experiment of diarchy failed. The Indian National Congress boycotted the first elections (1920). Though it participated in the second election (1924), its expressed objective was to wreck the reforms. Dyarchy was bound to fail. It was structurally weak and insincere in spirit. It could not, therefore, evolve those conventions and practice which are very necessity for  administration of any constitutional experiment of such as  magnitude. Thd division of subject also was  wrong as a subject would be partly divided as reserved and partly transferred, e.g., irrigation  was reserved but agriculture which very much depended on alsb the concept ofjoint responsibility of the council. The division of Council between councillors and Ministers and the excessive control of Finance reforms  (reserved subject) over the  administration of transferred  subject affected their smooth functioning. Transferred subjects starved financially as they needed more  money for development. And to their  disadvantage the sources of revenue were 'jointly' kept. The Secretaries of the Departments, belongng to the ruling class also did not cooperate with ministers in charge of transferred subjects. ' But it  created parliamentary atmosphere in the  legislature and gave  people an opportunity to have a look in  administration. Some  major reforms pertaining to local government (Bombay, Bengal) and Education Social Welfare (Madras) were carried out during this period. Almost in every province, right to vote was extended to women.
Dyarchy  failed but it showed the way to further reform - a  federal government which should be more representative and more responsive.