By Categories: Daily Current Events

National Court of Appeal :-

Background :-

A National Court of Appeal is being advocated as an intermediate forum between the Supreme Court and the various high courts of India. But a better solution to ease the higher judiciary’s burden may lie in strengthening that of the lower.

Excerpt From Editorial :-

India’s Supreme Court too is a “is a very special kind of court”. It is special because it acts as a final court of appeal. It is special because its decisions are determinative; its pronouncements constitute the law of the land. And it is very special because under our political structure, the court acts as the ultimate arbiter on disputes concerning any interpretation of the Constitution. However, in recent times, especially over the last two decades or so, the court’s ability to remain special, to retain its allure, has somewhat been thwarted by the enormity of its burden.

Unlike its American counterpart, the Indian Supreme Court is a multifarious institution. It often tasks itself with ruling on run-of-the-mill civil and criminal appeals. The court’s docket, in fact, tends to burst with seemingly mundane disputes. These tend to include, to name but a few typical cases, rent control quarrels between landlords and tenants, factual squabbles over tax assessments, internal managerial rows concerning societies and trusts, and what not! As a result of entertaining these everyday appeals, which have little bearing on the larger public interest, the court’s focus has wavered from what many believe is its core task: deliberating on, and settling, questions of pure constitutional significance.

An oft-repeated suggestion aimed at correcting this perceived imbalance in the apex court’s role is the establishment of a National Court of Appeal (NCA) that would act as an intermediate forum between the Supreme Court and the various high courts of India. Although there is little scope under our country’s constitutional structure for the creation of such a court, the idea has once again come into vogue.

It is undeniable that the Supreme Court’s role as the Constitution’s sheet anchor has been weakened in recent times. This dilution, at least partly, owes to the court’s inability to devote itself substantially to the determination of important public questions.

Broadly, the Constitution prescribes to the Supreme Court two types of jurisdiction: an original jurisdiction — i.e. the power to entertain cases at the first instance — where fundamental rights have been violated, or where a State is involved in a dispute with another State or with the Centre; and an appellate jurisdiction, where a case involving a substantial question of law requires adjudication, on appeal. The court was therefore always seen not merely as an arbiter of constitutional disputes, but also as a plenary body that would settle the law of the land. However, by all accounts, the Constituent Assembly believed the court would exercise great discretion in choosing its own scope of work. The court was not seen as a forum to argue over ordinary disputes between litigants that had no larger public bearing. It was believed the lower judiciary and the various high courts would be sufficiently equipped to dispense justice in these kinds of cases.

That the Supreme Court has today used the pliability of its power to grant special leave to often interfere in mundane disputes is therefore not a product of any structural problem, but rather of a deliberate decision by the court’s judges. Viewed thus, it is difficult to understand how the creation of an NCA would somehow ease the burden on the Supreme Court, allowing it to eschew its authority to grant special leave; this power was, after all, always meant to be used only in exceptional cases, where a particular interpretation of a law required definite resolution.

What the NCA is meant to do, therefore, can quite easily be achieved by strengthening the lower judiciary, which generally constitutes the courts of first instance. Correspondingly, as was always intended, the high courts can be viewed as the regular — and, in most cases, final — appellate court. No doubt, to achieve this, it is necessary that there is greater rigor involved in choosing our judges. If socially conscious and meritorious women and men, who subscribe to the best constitutional values, are elevated as judges to our subordinate judiciary and the high courts, the idea of viewing the Supreme Court as a routine court of appeal can be renounced altogether. This would allow the Supreme Court to be more discerning in its use of discretion, thus substantially reducing its burden of acting as a corrector of simple errors. Moreover, at the same time, at least two constitution benches can be designated to hear cases Monday through Friday, thereby solving problems concerning the inability of the Supreme Court to devote itself to its most important duty.

Our Analysis:-

  1. An intermediary like NCA is not a solution , for the simple reason that those who went to Supreme court from lower courts will still go to Supreme court if they have to.This means , as long as the verdict does  not bear the finality of Supreme Court , it will be contested.So , creating another intermediary body with all leg and teeth but no finality will serve no purpose at all.
  2. Another important aspect is that , if we look at who really goes to supreme court , our understanding might emerge clear.For many of us (“Common Man”) , contesting the verdicts until it reaches supreme court is a very costly affair.Moreover geographical proximity plays its role too , a person far from Delhi would not think of going to supreme court if he/she does not have the means and methods to do so.
  3. Thus, the “common man” is generally guided by the immediate needs of life rather than contesting a verdict till the end and putting his/her job and family in stress.This comes from rationality.
  4. The above statements are true if anyone cares to compare the number of cases and distribute them geographically.So , to call supreme court is “everyone’s court” does sound prudential in theory but fails in practice.Many of us would like to go to supreme court but our limited means and methods does not allow us to do so, thus rendering deniability of justice.
  5. Justice have two fundamental principles – equality before law and equal access to law. Although we have equality before the law , equal access to law is far from real.
  6. As mentioned above if any court that does not bear the finality of supreme court would be of little help , for the simple reason that those who can reach NCA , can also reach supreme court as they have the means and methods to do so.
  7. The real question is how to dispense justice without delay, how to give the verdict the necessary “finality” and lastly how to make the supreme court as an accessible court for all.
  8. The possible solution that can serve all above mentioned purpose is to – expand the reach of supreme court itself by establishing supreme court benches in every state.Any intermediary would do no good as far as the finality of verdict is concerned.
  9. The another issue raised by the editorial is the decline of the questions of importance before supreme court and its engagement with mundane tasks.
  10. When there is a decline in cases and especially cases that have wider public impact, it simply means , we have advanced as a society. Lets not forget , between two societies , one having a profound supreme court and another having no supreme court at all as there is no need , the best society would be the latter one and not the former one.Yes, if we transform in to a society that does not need supreme court at all instead to a society that has a profound supreme court, the preferable choice would be the former one.After all , why a few men in robe should decide what the society should do or not do , when the society can decide itself.Moreover, if the solution comes form society that means it has a broader consensus than thrusting a court order in societies throat.
  11. But, to our dismay , mankind has both – the good lot and the evil lot.So , to deal with the devil ,we need the court. Hence , any decline of so called “constitutional” cases is a good sign , which implies that our constitution has evolved and does meet the needs of many.And when jurist cry over decline of the “grandeur ” and “allure” of  “great cases” of our supreme court, we as a society should be happy instead.Lesser the litigation , better the society.
  12. To sum it up , it is a better to expand the constitutional benches than to create an intermediary court of appeal.This would help the court to dispense the cases speedily and make the supreme court accessible to all geographically.And finally, there is bound to be decline in quality of cases, if the 60’s and 70’s were the decades of  “Constitutional debate”, the decades of 21st century going to be decades of “environmental debate”. Environmental debate has replaced the constitutional debate , and the number of cases are indicative of it.So , the “grandeur” of the supreme court remains but the theme has shifted , from deliberating the constitution to debating the environment and pollution  and in  it’s entirety – it’s a good sign for society.

River and Reservoir Map of India:-

Click on the images to view/save the large images with clarity.

 

India_rivers_and_lakes_map

Large Dams of India :-

 
Sl.No.
Dam Name River Nearest city
State
Basin
1 Tehri Dam Bhagirathi Pratapnagar Uttarakhand Ganga
2 Lakhwar Dam Yamuna Dehradun Uttarakhand Ganga
3 Idukki (Eb)/Idukki Arch Dam Periyar Todupulai Kerala West flowing rivers from Tadri to Kanyakumari
4 Bhakra Dam Satluj Bilaspur Himachal Pradesh Indus up to International Border
5 Pakal Dul Dam Marusudar Kishtwar Jammu & Kashmir Indus up to International Border
6 Sardar Sarover Gujarat Dam Narmada Rajpipla Gujarat Narmada
7 Srisailam (N.S.R.S.P) Dam Krishna Nandikotkur Telangana Krishna
8 Ranjit Sagar Dam Ravi Pathankot Punjab Indus up to International Border
9 Baglihar Dam CHENAB Ramban Jammu & Kashmir Indus up to International Border
10 Chemera I Dam Ravi Bhattiyat Himachal Pradesh Indus up to International Border
11 Cheruthoni (Eb) Dam Cheruthoni Todupulai Kerala West flowing rivers from Tadri to Kanyakumari
12 Pong Dam Beas Dera Gopipur Himachal Pradesh Indus up to International Border
13 Jamrani Dam Gola Naini Tal Uttarakhand Ganga
14 Subansiri Lower HE (Nhpc) Dam Subansiri Lower Subansiri Arunachal Pradesh Brahmaputra
15 Ramganga Dam Ramganga Lansdowne Uttarakhand Ganga
16 Nagarjuna Sagar Dam Krishna Guruzala Telangana Krishna
17 Kakki (Eb) Dam Kakki Rani Kerala West flowing rivers from Tadri to Kanyakumari
18 Nagi Dam Nagi Jamui Bihar Ganga
19 Salal (Rockfill And Concrete ) Dam Chenab Gool Gulab Garh Jammu & Kashmir Indus up to International Border
20 Lakhya Dam Lakhya hole Mudigere Karnataka Krishna
21 Sholayar Dam Sholayar Pollachi Tamil Nadu West flowing rivers from Tadri to Kanyakumari
22 Koyna Dam Koyna Patan Maharashtra Krishna
23 Idamalayar (Eb) Dam Idamalayar Devikolam Kerala West flowing rivers from Tadri to Kanyakumari
24 Supa Dam Kali Nadi Supa Karnataka West flowing rivers from Tapi to Tadri
25 Karjan Dam Karjan Rajpipla Gujarat Narmada
26 Kulamavu (Eb) Dam Kilivillithode Todupulai Kerala West flowing rivers from Tadri to Kanyakumari
27 Koteshwar Dam Bhagirathi Pratapnagar Uttarakhand Ganga
28 Lower : PPSP Dam Puruliya West Bengal Subarnarekha
29 Doyang Hep Dam Doyang Wokha Nagaland Brahmaputra
30 Rihand Dam Rihand Dudhi Uttar Pradesh Ganga
31 Indira Sagar (NHDC) Dam Narmada Khandwa Madhya Pradesh Narmada
32 Warna Dam Varna Shahuwadi Maharashtra Krishna
33 Bhatsa Dam Bhatsa and chorna Shahapur Maharashtra West flowing rivers from Tapi to Tadri
34 Pillur Dam Bhavani Mettuppalaiyam Tamil Nadu Cauvery
35 Upper Kodayar Dam Kodayar Kalkulam Tamil Nadu West flowing rivers from Tadri to Kanyakumari
36 Minimata (Hasdeo) Bango Dam Hasdeo Katghora Chhattisgarh Mahanadi
37 Jakham Main Dam Jakham (mahi) Pratapgarh Rajasthan Mahi
38 Teesta -V (NHPC) Dam Teesta North Sikkim Brahmaputra
39 Lower Ghatghar Dam Shahapur Maharashtra West flowing rivers from Tapi to Tadri
40 Kallada (Parappar) (Id) Dam Kallada Pattanapuram Kerala West flowing rivers from Tadri to Kanyakumari
41 Madupetty (Eb) Dam Palar Devikolam Kerala West flowing rivers from Tadri to Kanyakumari
42 Parbati II Dam Parbati Kullu Himachal Pradesh Indus up to International Border
43 Chakra Dam Chakra Hosanagara Karnataka West flowing rivers from Tadri to Kanyakumari
44 Bandardhara Dam Paravara Akola Maharashtra Godavari
45 Lower Vaitarna Dam Vaitarna Shahapur Maharashtra West flowing rivers from Tapi to Tadri
46 Ukai Dam Tapi Songadh Gujarat Tapi
47 Upper Aliyar Dam Aliyar Pollachi Tamil Nadu West flowing rivers from Tadri to Kanyakumari
48 Aruna Dam Aruna Vaibhavwadi Maharashtra West flowing rivers from Tapi to Tadri
49 Upper Bhavani Dam Bhavani Udagamandalam Tamil Nadu Cauvery
50 Podagada Dam Podagada Nabarangapur Odisha Godavari

 

india-map-dams

 

statewise

NGT halts Tawang hydro power project

The National Green Tribunal (NGT) has suspended the Union Environment Ministry’s clearance for hydro power project in Tawang, Arunachal Pradesh. The clearance by the centre was granted in 2012.This move was particularly aimed at protecting the vulnerable black-necked crane in the region.

Background:

The project was planned on the Nyamjang Chhu river and was the largest of 13 hydro power projects to be built in the Tawang basin.

Regarding the black-necked crane:

  • Black-necked crane is a species that breeds on the Tibetan plateau and migrates to Tawang for the winter.
  • The bird, most commonly found in China, is legally protected in Bhutan and India and is considered sacred to certain Buddhist traditions.
  • It is rated as ‘vulnerable’ in the International Union for Conservation of Nature (IUCN) list of endangered species.
  • It is also listed in India’s Wildlife Act as a Schedule 1 species, which gives animals and birds the highest legal protection.

 

Celebrating the  Earth Day

Earth Day 2016 is being celebrated around the world today (April 22).

Theme for Earth Day 2016: Trees for the Earth!

Earth Day

Earth Day was first celebrated in 1970. The idea for it was first proposed at a UNESCO conference a year earlier, when activist John McConnell suggested a day to honour the planet and the idea of peace. US senator Gaylord Nelson founded Earth Day in the US. It was made into an international day in 1990 and now is celebrated by over 193 countries every year.

Significance

Earth Day 2016 is particularly important as it will see nations across the world sign the Paris Agreement on climate change, set out in COP21 last year. The historic agreement saw countries pledge to limit global warming to below 2C on pre-industrial levels. From 22 April, it will be open for signatures for one year. The agreement will come into effect in 2020.

ISRO’s New Light-As-Air Gel Can Keep Indian Soldiers Warm In Siachen Snow

ISRO scientists have developed the world’s lightest synthetic material called ‘silica aerogel’ or ‘blue air’ or ‘frozen smoke’.

Silica aerogel is a nano-structured material with high specific surface area, high porosity, low density, low dielectric constant and excellent heat insulation properties.

  • This material has excellent thermal resistance and if used as a filler in soldiers’ uniforms it can possibly help save many lives at the Siachen glacier.
  • It can also be used in thermal jacket, foot insoles, as well as in window glazing. It is extremely useful for people working in very cold environments, in a very strategic way.

The problems faced by soldiers in Siachen :-

  1. Frost bite
  2. Snow blindness
  3. Neurotic disorder
  4. Cold induced Depression

President nominated six members to Rajya Sabha

The President of India has nominated Shri Swapan Das Gupta, Shri Navjot Singh Sidhu, Dr. Subramanian Swamy, Shri Narendra Jadhav, Sh. Suresh Gopi and Ms. Mary Kom to the Rajya Sabha.

12 people can be recommended to the Upper House. As of now, there are seven vacancies among these 12, for which six names have been announced, and one kept in abeyance.

Nominations to the Upper House:

The government recommends names of people having “special knowledge or practical experience in literature, science, art and social service”.

  • As per Article 80 of the Indian constitution, members are nominated by the President to the Upper House on the recommendation of the government.
  • The government recommends members in this category at anytime and it is not bound to an electoral cycle like the other seats.

 

Panama disease stalks banana cultivation in Kerala

The Panama disease caused by a soil-borne fungus is threatening banana crops across Kerala, posing a potential crisis for farmers.Scientists are concerned that the sporadic cases of infestation could turn into an epidemic. Most of the popular cultivars have shown signs of infestation.

Prevention:-Scientists have recommend soil treatment with fungicides for control of the disease.

About the disease:

Also called Fusarium Wilt of banana, Panama is caused by the soil-borne fungus Fusarium oxysporum f. sp. Cubense (Foc). The fungus enters the plant through the roots and goes on to colonise the plant through the vascular system.

  • It causes discoloration and wilting of leaves, and eventually kills the plant.
  • The fungus spreads through infected planting material, soil and water.

Why the name “Panama”:

In the 1950s, Panama wiped out the Gros Michel banana, the dominant cultivar. Over the years, it spread from Panama to neighbouring countries. A new virulent strain of the disease known as Tropical Race 4 (TR4) is now threatening banana crops in Asia, Australia, Africa and the Middle East.

Cure for high medicine bills: A generics prescription law

The Central government is considering the introduction of a law to make it mandatory for doctors to prescribe generic drugs so that patients can access affordable medicines provided through state-run Jan Aushadhi stores.It is because doctors usually don’t prescribe generic medicines supplied through Jan Aushadi stores. So patients find it tough to ask for the correct generic equivalents.Also, ex-factory cost of medicines gets marked up multiple times owing to supply chain costs and incentives for medical representatives. But, the Jan Aushadhi stores are able to provide the same drugs at very cheaper prices.

Background:

The Government, in June 2015, had proposed to open 1000 more stores under the ‘Jan Aushadhi Scheme’ to make available quality generic medicines at affordable prices through these special outlets.

Jan Aushadhi Scheme:-

  • Under this, less priced quality unbranded generic medicines will be made available through Jan Aushadhi stores which inherently are less priced but are of same and equivalent quality, efficacy and safety as compared to branded generic medicines.
  • Under this Scheme, the State Government has to provide space in Government Hospital premises for the running of the outlets (JAS). Government hospitals, NGOs, Charitable Organisations and public societies like Red Cross Society, Rogi Kalyan Samiti typically constituted for the purpose can be operating agencies for the JAS.
  • The operating agency for JAS is nominated on the basis of the recommendations of the State government. Operational expenditure is met from trade margins admissible for the medicines.
  • The State Government has to ensure prescription of unbranded generic medicines by the Government doctors.
  • The Jan Aushadhi Programme is accordingly a self sustaining business model not dependent on government subsidies or assistance. It is run on the principle of “Not for Profits but with Minimal Profits”.

Jan Aushadhi Campaign:-

  • Improve access to healthcare in as much as cost of treatment would come down substantially. This would enable the Public Health System to increase the coverage.
  • Secure a socio-economically viable mechanism/institutional arrangement for efficacious sales of Pharma CPSU products, thereby improving their viability.
  • Promote & encourage private industry to sell their quality unbranded generic products through these retail outlets.
  • Educate doctors that unbranded generic medicines provide a better option that branded products since quality of generic medicines can be equally efficacious and safe at much lower prices.
  • Create consumer awareness by involving private, charitable bodies and NGOs by making them part of the campaign.
  • Reduce promotional cost and profits for the benefit of patients.

At present, there are 283 stores in 22 States and Union Territories.

 

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    • Context:-

    At the recently concluded Leaders’ Summit on Climate in April 2021, Lowering Emissions by Accelerating Forest Finance (LEAF) Coalition, a collective of the United States, United Kingdom and Norway governments, came up with a $1 billion fund plan that shall be offered to countries committed to arrest the decline of their tropical forests by 2030.

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    What is LEAF Coalition?

    • Lowering Emissions by Accelerating Forest Finance (LEAF) Coalition, a collective of the United States, United Kingdom and Norway governments, came up with a $1 billion fund.
    • LEAF is supported by transnational corporations (TNCs) like Unilever plc, Amazon.com, Inc, Nestle, Airbnb, Inc as well as Emergent, a US-based non-profit.

    Why LEAF Coalition?

    • The world lost more than 10 million hectares of primary tropical forest cover last year, an area roughly the size of Switzerland.
    • Ending tropical and subtropical forest loss by 2030 is a crucial part of meeting global climate, biodiversity and sustainable development goals. Protecting tropical forests offers one of the biggest opportunities for climate action in the coming decade.
    • Tropical forests are massive carbon sinks and by investing in their protection, public and private players are likely to stock up on their carbon credits.
    • The LEAF coalition initiative is a step towards concretising the aims and objectives of the Reducing Emissions from Deforestation and Forest Degradation (REDD+) mechanism.
    • REDD+ was created by the United Nations Framework Convention on Climate Change (UNFCCC). It monetised the value of carbon locked up in the tropical forests of most developing countries, thereby propelling these countries to help mitigate climate change.
    • It is a unique initiative as it seeks to help developing countries in battling the double-edged sword of development versus ecological commitment. 
    • The initiative comes at a crucial time. The tropics have lost close to 12.2 million hectares (mha) of tree cover last year according to global estimates released by Global Forest Watch.
    • Of this, a loss of 4.2 mha occurred within humid tropical primary forests alone. It should come as no surprise that most of these lost forests were located in the developing countries of Latin America, Africa and South Asia.
    • Brazil has fared dismally on the parameter of ‘annual primary forest loss’ among all countries. It has lost 1.7 mha of primary forests that are rich storehouse of carbon. India’s estimated loss in 2020 stands at 20.8 kilo hectares.

    Brazil & India 

    • Between 2002-2020, Brazil’s total area of humid primary forest reduced by 7.7 per cent while India’s reduced by 3.4 per cent.
    • Although the loss in India is not as drastic as in Brazil, its position is nevertheless precarious. For India, this loss is equivalent to 951 metric tonnes worth carbon dioxide emissions released in the atmosphere.
    • It is important to draw comparisons between Brazil and India as both countries have adopted a rather lackadaisical attitude towards deforestation-induced climate change. The Brazilian government hardly did anything to control the massive fires that gutted the Amazon rainforest in 2019.
    • It is mostly around May that forest fires peak in India. However, this year India, witnessed massive forest fires in early March in states like Odisha, Uttarakhand, Madhya Pradesh and Mizoram among others.
    • The European Union’s Copernicus Atmospheric Monitoring Service claimed that 0.2 metric tonnes of carbon was emitted in the Uttarakhand forest fires.

    According to the UN-REDD programme, after the energy sector, deforestation accounts for massive carbon emissions — close to 11 per cent — in the atmosphere. Rapid urbanisation and commercialisation of forest produce are the main causes behind rampant deforestation across tropical forests.

    Tribes, Forests and Government

    Disregarding climate change as a valid excuse for the fires, Indian government officials were quick to lay the blame for deforestation on activities of forest dwellers and even labelled them “mischievous elements” and “unwanted elements”.

    Policy makers around the world have emphasised the role of indigenous tribes and local communities in checking deforestation. These communities depend on forests for their survival as well as livelihood. Hence, they understand the need to protect forests. However, by posing legitimate environmental concerns as obstacles to real development, governments of developing countries swiftly avoid protection of forests and rights of forest dwellers.

    For instance, the Government of India has not been forthcoming in recognising the socio-economic, civil, political or even cultural rights of forest dwellers. According to data from the Union Ministry of Tribal Affairs in December, 2020 over 55 per cent of this population has still not been granted either individual or community ownership of their lands.  

    To make matters worse, the government has undertaken systematic and sustained measures to render the landmark Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 ineffective in its implementation. The Act had sought to legitimise claims of forest dwellers on occupied forest land.

    Various government decisions have seriously undermined the position of indigenous people within India. These include proposing amendments to the obsolete Indian Forest Act, 1927 that give forest officials the power to take away forest dwellers’ rights and to even use firearms with impunity.

    There is also the Supreme Court’s order of February, 2019 directing state governments to evict illegal encroachers of forest land or millions of forest dwellers inhabiting forests since generations as a measure to conserve wildlife. Finally, there is the lack of data on novel coronavirus disease (COVID-19) deaths among the forest dwelling population;

    Tardy administration, insufficient supervision, apathetic attitude and a lack of political intent defeat the cause of forest dwelling populations in India, thereby directly affecting efforts at arresting deforestation.

    Way Forward

    • Implementation of the LEAF Coalition plan will help pump in fresh rigour among developing countries like India, that are reluctant to recognise the contributions of their forest dwelling populations in mitigating climate change.
    • With the deadline for proposal submission fast approaching, India needs to act swiftly on a revised strategy.
    • Although India has pledged to carry out its REDD+ commitments, it is impossible to do so without seeking knowledge from its forest dwelling population.

    Tuntiak Katan, a global indigenous leader from Ecuador and general coordinator of the Global Alliance of Territorial Communities, aptly indicated the next steps at the Climate Summit:

    “The first step is recognition of land rights. The second step is the recognition of the contributions of local communities and indigenous communities, meaning the contributions of indigenous peoples.We also need recognition of traditional knowledge practices in order to fight climate change”

    Perhaps India can begin by taking the first step.

    INTRODUCTION:-

    The Constitution of India was adopted on 26 November 1949, which means it was finalised by the Constituent Assembly on that day. But it became operative two months after its adoption, i.e., on 26 January 1950, which is also known as the date of its “commencement”.

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    However, some provisions of it, i.e., those relating to citizenship, elections, provisional Parliament, temporary and transitional provisions had become operative on 26 November 1949 itself. The reason for its commencement after two months of its adoption was to signify the January 26 as the original date of achievement of Independence.

    It was this day, i.e. 26th January, in 1930 which the Indian National Congress (INC) had first celebrated as the Independence Day of India. It is important to note that the Constitution of India is product of a longdrawn process and deliberations.

    EVOLUTION OF THE INDIAN CONSTITUTION 1858-1935

    The Constitution of India embodies provisions providing basic democratic rights of human beings including the persons who are not Indian citizens. It also embodies provisions for the availability of institutions for legislation, execution and jurisdiction for the fulfilment these rights.

    It presents a vision for social transformation and deepening of democracy in India. The process of evolution of democratic institutions and rights had started much before the Constituent Assembly really made the Constitution of India.

    It, however, must be underlined that the features of democratic institutions and values which were introduced during the colonial period were meant to serve the colonial interests in contrast to the purpose of the provisions of the Constitution made by the Constituent Assembly of India.

    Although the Indian Constitution was result of the deliberations (from December 9, 1947 to November 26, 1949) of the Constituent Assembly, some of its features had evolved over three quarters of a century through various Acts, i.e., from 1858 to 1935.

    The Government of India Act, 1935, and Other Acts

    With the transfer of power from the East India Company to the British Crown, the British Parliament got involved in managing affairs of India. For achieving this purpose, from 1858 till 1935, the colonial government introduced certain features of constitution or rules of governance through different Acts. The Government of India Act, 1935 was the most important among these Acts.

    First of these other Acts was Government of India Act, 1858. It provided for a combination of centralised and decetralised power structure to govern India. The centralised structure was introduced in the areas which were under the direct control of the Crown. These areas were known as British India provinces or provinces. The decentralized structure was introduced in the areas which were not under the direct control of the Crown. These areas were ruled by the Indian princes, and were known as princely states or states.

    Under this system, the princes had freedom to govern in all internal matters of their princely states, but they were subject to the British control. In the centralized structure of power which was introduced in the provinces, all powers to govern India vested in the Secretary of State for India (and through him in the Crown). He acted on behalf of the Crown.

    He was assisted by a fifteen-member council of ministers.There did not exist separation of executive, legislative and judicial functions of government; these all were concentrated in the hands of the Secretary of State for India. In British India, the Secretary of State of India was assisted by the Viceroy, who was assisted by an executive council.

    At the district level, the viceroy was assisted by a small number of British administrators. The provincial government did not have financial autonomy. In 1870 viceroy Lord Mayo ensured that all parts of provincial administration received due share of revenue to meet their needs.

    The scope of political institutions in the provinces was expanded a little further following the introduction of Council of India Act, 1909. This Act introduced for the first time a “representative element” in British India, which included elected non-official members.This Act also introduced separate representation to Muslim community.

    The Government of India Act 1919 devolved some authority to the provincial governments, retaining the control of the central government (unitary government) on them.It relaxed the control of the central government in a limited way. It divided the subjects for jurisdiction of administration and sources of revenue between centre and provinces.

    Under this arrangement, the provincial government was given control on resources of revenue such as land, irrigation and judicial stamps. The provincial subjects were divided into “transferred’ and “reserved” categories.

    The “transferred” subjects were governed by the governor, and “reserved” subjects were governed by the legislature. The governor (executive head) was not accountable to the legislature.

    The Government of India Act, 1935 was different from the earlier Government of India Acts. Unlike the earlier Acts, the Government of India Act, 1935 also provided for provincial government enjoying provincial autonomy. It provided “safeguards” for minorities.

    Such “safeguards” included provisions for separate representations to Muslims, Sikhs, the Europeans, Indian Christians and Anglo-Indians. This Act also provided for three lists of divisions of power between the federation (central government) and provinces: federal (central), concurrent and provincial.

    The Act also provided for establishment of a federal court to adjudicate disputes between federation and provinces. The executive head of the provincial government was Governor, who enjoyed special power. Under the special power the Governor could veto the decisions of the provincial legislature.

    He acted on behalf of the Crown, and was not a subordinate of the Governor-General (the changed designation of Viceroy). He enjoyed discretionary powers to exercise his “individual judgments” in certain matters. In such matters, he did not need to work under the advice of ministers: he was to act under the control of the Governor-General, and indeed the Secretary of the State.

    He was also not accountable to the legislature but he was required to act on the advice of ministers, who were accountable to the legislature.

    Government of India Act, 1935 also had provisions for setting up a central government consisting of representatives from the provinces(areas ruled by the British India government) and the states (the areas covered under princely states).Such government was supposed to be known as federal government because of composition with members both from provinces and the states.

    However, the federal government could not be formed because there was no unanimity among the princes to join the federation; consent of all princes was essential for the formation of federation. Thus, only the provincial governments could be formed as per this Act.

    And election to the provincial legislature as per the Government of India Act, 1935 was held in 1937. Following the election of 1937, provincial governments headed by the Indian National Congresswere formed in eight provinces. The Indian National Congress government resigned in 1937. Nevertheless, according to M. Govinda Rao and Nirvikar Singh (2005), the Government of India Act, 1935 provided a basis to the Constituent Assembly to make the Constitution.

    The Nehru Report(1928): First Indian Initiative to Draft Constitution

    As you have read above, attempts to introduce elements of constitution in British India through different Act since 1858 were made by the British rulers. Indians had no role in it.

    The first attempt by Indians themselves to prepare a Constitution of India was made in the Nehru Report(1928).Earlier, effort by Indians was made in the name of the swaraj (self-rule) by leaders of Indian national movement during the non-cooperation movement in 1921-22.

    The Nehru Report was known as such because it was named after the chairman of its drafting committee, Motilal Nehru. The decision to constitute the drafting committee was taken in the conference of the established All India parties. The principal among these parties included Indian National Congress, Swaraj Party and Muslim League. The Justice Party of Madras and Unionist Party of Punjab did not participate in this meeting.

    The Nehru Report demanded universal suffrage for adults and responsible government both in the centre and in the provinces. It, however, supported the Dominion Status, not complete independence for India.

    It meant that Indians would have freedom to legislate on certain limited matters under the control of the British India government. For this, the Nehru Report prepared list of central and provincial subjects, and fundamental rights. It also raised demands for universal suffrage for men and women adults.

    Indeed, it was in 1934, a few years after the preparation of the Nehru report, that the Indian National Congress officially demanded a constitution of Indian people, without the interference of outsiders.

    FORMATION OF THE CONSTITUENT ASSEMBLY

    The Cripps Mission

    Initially, the colonial authorities resisted the demand for creation of a Constitution of India. But with the change in the circumstances – the outbreak of the World War II and formation of the new Coalition (Labour-led) government in Britain, the British government was forced to acknowledge the urgency to solve the problem related to Constitution of Indians.

    In 1942, the British government sent its cabinet member – Sir Stafford Cripps with the draft declaration on proposals (regarding formation of constitution for Indians) to be implemented at the end of the WW II provided both the Muslim League and the Indian National Congress had agreed to accept them.

    The draft proposals of the Cripps Mission recommended the following:

    1. providing Dominion Status to India, i.e., equal partnership of the British Commonwealth of Nations;
    2. all Provinces (ruled by the British India government) and Indian States (ruled by Indian princes) should constitute one Indian Union by the British Constitution;
    3. the Constitution of India should be framed by an elected Constituent Assembly of Indian people but if any province (or Indian State) which was not prepared to accept the Constitution was to be free to retain its constitutional position which had existed at that time.
    4. Such provinces were to be free to enter separate constitutional arrangements.

    Both the Indian National Congress and the Muslim League did not accept the proposals of the Cripps Mission. The Muslim League demanded that India should be divided on the communal lines and some provinces should form an independent state of Pakistan; and, there should be two Constituent Assemblies, one for Pakistan and another for India.

    The Cabinet Mission

    The British Indian government made several attempts to bridge the differences between the Indian National Congress and the Muslim League. But it was unsuccessful.

    The British government sent another delegation of the Cabinet members, known as the Cabinet Delegation, which came to be known as the Cabinet Mission Plan. It consisted of three cabinet members – Lord Pathic Lawrence, Sir Stafford Cripps and Mr. A.V. Alexander.

    The Cabinet Delegation also failed to bring the Indian National Congress and the Muslim League to an agreement. It, however, made its own proposal which was announced simultaneously on 16 May, 1946 in England as well as in India.

    The Cabinet delegation made the following recommendations:

    1. there should a Union of India consisting of British India and the States, which would have jurisdiction over subjects of Foreign Affairs, Defense and Communication;
    2. all residuary powers would belong to the Provinces and the States;
    3. the Union would have Executive and Legislature consisting of the representatives from the Provinces and the States but for decision relating to a major communal issue in the legislature a majority of representatives of two major communities would be present, and voting along with the majority of all members present and voting would be required;
    4. the provinces would be free to form Groups with executives and legislatures;
    5. and each group would be free to determine the Provincial Subjects which would be taken up by the Group organisation.

    Election to the Constituent Assembly

    Meanwhile, according to the proposals of the Cabinet Mission, the election to the Constituent Assembly was held in which members of both the Indian National Congress and the Muslim League were returned. The members of the Constituent Assembly were elected by the Provincial Legislative Assemblies.

    However, differences between the Indian National Congress and the Muslim League arose on interpretation of “Group Clauses” of the Cabinet Mission.

    The British government intervened at this stage and explained to the leaders in London that the contention of the Muslim League was correct. And on December 6, 1946, the British Government published a statement, which for the first time acknowledged the possibility of two Constituent Assemblies and two States.

    As a result, when the Constituent Assembly first met on December 9, 1946, it was boycotted by the Muslim League, and it functioned without the participation of the Muslim League.

    NATURE OF THE CONSTITUENT ASSEMBLY’S REPRESENTATION

    It is often argued that the Constituent Assembly of India did not represent the masses of India because its representatives were not elected through the universal adult franchise. Rather they were indirectly elected by the restricted adult franchise confined to the elite sections of society – the educated and tax payers.

    According to Granville Austin the reasons for the restricted franchise and indirect election to the Constituent Assembly members were spelled by the Cabinet Mission Plan. These were to avoid the cumbersome and slow progress in the process of Constitution making.

    The Cabinet Mission provided for the indirect election to the Constituent Assembly by the elected members of the provincial legislature. The Indian National Congress agreed to this proposal of the Cabinet Mission forsaking the claim of adult franchise to hold election to the Constituent Assembly.

    Despite having been elected through the restricted adult franchise, the Constituent Assembly represented different shades of opinions and religious communities of India. Austin observed that though there was a majority of the Indian National Congress in the Constituent Assembly, it had an “unwritten and unquestioned belief” that the Indian National Congress should represent social and ideological diversity.

    There was also its “deliberate policy” that the representatives of various minority communities and viewpoints should be represented in the Constituent Assembly. The Constituent Assembly consisted of members with different ideological orientations, and three religious communities -Sikhs, Muslims and General (Hindus and all other communities like the Anglo-Indians, Parsis, etc).

    In words of K. Santaram “There was hardly any shade of opinion not represented in the Assembly”. Majority of the Constituent Assembly members belonged to the Indian National Congress. It also included more than a dozen non-Indian National Congress members.

    Some of these were A.K. Ayyer, H.N. Kunjru, N.G. Ayyanger, S.P. Mukherjee and Dr. B.R. Ambedkar. S.P. Mookerji represented the Hindu Mahasabha.

    The Constituent Assembly included representatives from the Princely States as well. It needs to be underscored that Dr. Ambedkar was initially elected to the Constituent Assembly from Bengal as member of the Scheduled Caste Federation. But he lost this seat due to the partition of Bengal and was re-elected by the Bombay Indian National Congress (as a non-Indian National Congress candidate) at the request of the Indian National Congress High Command.

    The Constituent Assembly sought to address concerns of every person irrespective of their social and cultural orientations. Before incorporating a provision in the constitution, it held elaborate deliberations. Thus, the members of the Constituent Assembly could overcome the limitations of having been elected by the restricted franchise.

    The Constituent Assembly sought to accommodate universal values of democracy. The Constituent Assembly adopted several provisions from different constitutions of world and adapted them to the needs of India. In fact, Austin argues that while incorporating different provisions in the Constitution including those which were borrowed from other countries the Constituent Assembly adopted “two wholly Indian concepts” of resolving differences among its members, i.e., consensus and accommodation.

    Most members of the Constituent Assembly participated in its proceedings. But these were twenty individuals who played the most influential role in the Assembly.

    Some of them were Rajendra Prasad, Maulan Azad, Vallabhbhai Patel, Jawaharlal Nehru, Govind Ballabh Pant, P. Sitaramayya, A.K. Ayyar, N.G. Ayyangar, K.M. Munshi, Dr. B.R. Ambedkar and Satyanarayan Sinha. Though the Constituent Assembly was the sole forum where deliberations took place, yet the deliberations took place in coordination of three bodies – the Constituent Assembly, the Indian National Congress Party, and the interim government.

    Some members of the Constituent Assembly were also members of other bodies at the same time. Austin said that “an oligarchy” of four – Nehru, Patel, Prasad and Azad had enjoyed unquestioned honour and prestige in the Assembly. They dominated the proceedings of the Constituent Assembly.Some of these were simultaneously in the government, Indian National Congress Party and the Constituent Assembly.

    Prasad was President of Indian National Congress before becoming the President of the Constituent Assembly. Patel and Nehru were Prime Minister and Deputy Prime Minister respectively at the same time. They were part of the inner circles of the committees of the Constituent Assembly.

    The Constitution Drafting Committee meticulously incorporated in the draft constitution the decisions of the Constituent Assembly. Dr. B.R. Ambedkar, chairman of the Drafting Committee played the leading role in drafting of the Constitution.

    Acknowledging the pivotal role of Dr. Ambedkar, T.T. Krishnamachari, a member of the Drafting Committee, said in one of his speeches: “The House is perhaps aware that out of the seven members nominated by you, one had resigned from the house and was replaced. One had died and was not replaced. One was away in America and his place was not filled up, and another person was engaged in State Affairs, and there was a void to that extent. One or two people were far away from Delhi and perhaps reasons of health did not permit them to attend. So it happened ultimately that the burden of drafting this constitution fell upon Dr. Ambedkar and I have no doubt that we are grateful to him for having achieved this task in a manner which is undoubtedly commendable.”

    Dr. Ambedkar on his part “gave much of credit” to S.N. Mukerjee – B.N. Rau’s and Ambedkar’s assistant, the Drafting Officer of the Assembly, “for the careful wording of the Constitution”.

    THE ROLE OF THE CONSTITUENT ASSEMBLY IN THE MAKING OF INDIAN CONSTITUTION 1946-1949

    The inaugural session of the Constituent Assembly was held on 9 December 1946. It was supposed to be attended by all 296 members but only 207 members could attend it because the Muslim League members absented from it.

    As stated earlier, they had boycotted the Constituent Assembly. In this meeting, Acharya J.B. Kripalani requested Dr. Sachchidananda Sinha to be the temporary chairman of the House. The members passed a resolution on 10 December 1946 for election of a permanent chairman, and on 11 December 1946, Dr. Rajendra Prasad was elected as the permanent Chairman of the Constituent Assembly.

    The Constituent Assembly divided its work among different committees for its smooth functioning. Some of the important committees were:

    (a) Union Power Committee. It was chaired by Jawaharlal Nehru and had nine members;

    (b) Committee on Fundamental Rights and Minorities. It had 54 members and Sardar Ballabh bhai Patel was its chairman;

    (c) Steering Committee and its 3 members which included Dr. K.M. Munshi (chairman), Gopalaswami Iyangar and Bhagwan Das;

    (d) Provincial Constitution Committee. It had 25 members with Sardar Patel as its chairman;

    (e) Committee on Union Constitution. It had 15 members with Jawahalal Nehru as its chairman.

    After discussing the reports of these committees, the Constituent Assembly appointed a Drafting Committee on 29 August 1947 under the chairmanship of Dr. B.R. Ambedakar. The draft was prepared by Sir B.N. Rau, Advisor to the Constituent Assembly.

    A 7-member Committee was constituted to examine the draft. Dr. B.R. Ambedkar, who was Law Minister as well as chairman of the Drafting Committee piloted the draft in the Assembly. Dr. Ambedkar presented “Draft Constitution of India”. The “Draft Constitution” was published in February, 1948.

    It was discussed by the Constituent Assembly clause by in its several sessions and was completed by October 17, 1949. This discussion was known as the second reading. The Constituent Assembly again met on 14 November 1949 to discuss the draft further or to give it a third reading.

    It was finalised on 26 November 1949 after receiving the signature of the President of the Constituent Assembly. But it was January 26, 1950 which became the date of commencement of the Constitution.

    SALIENT FEATURES OF THE CONSTITUION

    The Indian Constitution has some salient features. These features give Indian Constitution a distinct identity. It is based on the features of different constitutions of the world. In the words of Dr. Ambedkar, The Indian constitution was prepared “after ransacking all the known Constitutions of the world”.

    The chapter on Fundamental Rights  is based on the American Constitution; the Parliamentary System has been adopted from the British Constitution; the Directive Principles of State Policy  have been adopted from the constitution of Ireland; the Emergency provisions  are based on the Constitution of Weimar (Germany) and Government of India Act, 1935.

    The features which have been borrowed from other Constitutions have been modified in the light of the needs of our country. It is the longest written constitution. At the time of its formation, the constitution of India had 395 Articles and 8 Schedules. It ensures both Justiciable and Non-Justiciable Rights: Fundamental Rights and the Directive Principles of the State Policy.The constituent makers preferred universal adult franchise over the separate electorates. 

    Universal Adult Suffrage and Abolition of the Separate Electorate

    After debating its draft list of Fundamental rights the Sub-Committee on Fundamental Rights did not recommend inclusion of all of them in the section III of the Constitution as the Fundamental Rights. Instead, it suggested that these should be incorporated in other places in the Constitution.

    One such example is that of the Universal suffrage, and Secrete and periodic elections. The sub Committee agreed unanimously in favour of the Universal suffrage but suggested that it should not be part of the Fundamental Rights.

    Accordingly, it was placed in the Article 326 of the Part XV on election.The word “universal”, however, is missing from the Article 326. But the fact that every adult citizen of the country is entitled to vote makes it practically a universal adult franchise.

    In fact, before Indians really got the right to universal adult franchise, the prominent leaders of the Indian National movement strove for the abolition of the separate electorate in favour of the joint electorate.

    The British had sought to continue separate electorate in India since the Morley-Minto reforms, 1909 till the Communal Award of 1932 in the Constitution.

    The Communal Award aimed to accord separate electorate for Muslims, Europeans, Sikhs, Indian Christians and Anglo-Indians. It also provided for seats for the Depressed Classes which were to be filled in elections from special constituencies. In such constituencies only the depressed classes could vote.

    In addition, the depressed classes were also entitled to vote in general constituencies. Gandhi opposed the recommendation of the notion of separate electorate for the depressed classes. In opposition to the proposal for separate electorate, he set on fast unto death in September 1932. Gandhi’s fast evoked opposition from Ambedkar. However, both Gandhi and Ambedkar reached compromise in Poona Pact.

    According to the Poona Pact, seats were reserved for the depressed classes in the general constituencies. This resulted in the abolition of the separate electorate.The abolition of separate electorate got reflected in the reservation of seats in the legislative bodies Constitution.

    CONCLUSION

    The making of Indian Constitution largely consisted of two phases – 1858 to 1935 and 1946 to 1949. With the transfer of power from the East India Company to the British Crown, the British government introduced different elements of governance through different Acts.

    These also included the elements of representation of Indians in the institutions of governance. The motive of the British to introduce them was to serve their colonial interests rather than to provide democratic rights to them. The provision for communal representation introduced through the Morley-Minto Reforms in 1909 and through the Communal Award in 1932 was opposed by the leaders of the Indian National Movement.

    Gandhi’s fast resulted in the Poona Pact abolishing the separate electorate and in giving the reservation to the depressed classes in the provincial legislature. After the Indian National Congress emphasized the need for making of a Constitution of India by their own Constitient Assembly, the changed political situation following the Second World War and change of government in Britain, the British reluctantly realized the urgency for establishment of the Constituent Assembly of India for Indians.

    The Constituent Assembly which was set up following the recommendations of the Cabinet Mission Plan was elected through the restricted adult franchise by the provincial assemblies. Despite having elected by the privileged sections of the society, the Constituent Assembly represented different shades of opinions and ideologies.

    It also represented different social groups of India. The Constituent Assembly discussed all issues thoroughly before reaching decision on them. The decision and suggestions of different sub-Committees of the Constituent Assembly were finally incorporated in the Constitution of India.

    The Constitution of India is a document which provides a vision for social change. The Constitution is an embodiment of principles of liberal democracy and secularism, with some elements of social democracy. It ensures protection of cultural, linguistic and religious rights of individuals and communities.