Study Material for Political Science II: Organisation and Institutions, Study notes of Political Systems

Download Study Material for Political Science II: Organisation and Institutions and more Study notes Political Systems in PDF only on Docsity! KLE LAW ACADEMY BELAGAVI (Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai) STUDY MATERIAL for POLITICAL SCIENCE II: ORGANISATION AND INSTITUTIONS Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi Compiled by Dr. Chaitraprasad M.D., Asst. Prof. Madhusudhan G, Asst. Prof. Reviewed by Dr. Chaitraprasad M.D., Asst. Prof. K.L.E. Society's Law College, Bengaluru This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided. Political Science Study Material on Organization & Institutions Page 2 2 TABLE OF CONTENTS SL.NO UNITS TOPICS PAGE NO 01 UNIT I 1) Constitution-Meaning and importance; classification (comparative study & examples); conditions for good constitution. 1-11 2) Conventions- meaning & importance; common law in UK 12-17 3)Amendments- importance & need for; methods; India, USA, UK, France, &; Switzerland-Provisions for amendment. 17-26 4)Forms of Government- a) Unitary- UK &; France b) Federal formation- USA, India, Swiss. c) Quasi federal governments. 27-43 02 UNIT II Organs of Government 1) Legislature- Meaning, functions &; Role, Unicameral Vs Bicameral, legislative process, normal budgetary Procedure. 44-49 2)Executive-Meaning, types, functions; parliamentary &; non parliamentary; Plural executive- organization &; working (Swiss &; Russia). 49-53 3) Civil Service- Meaning, features &; functions, Civil Service in India. 53-81 4) Judiciary- Importance, Organization, functions, methods of protection-Judicial review. 82-95 5)Montesquieu - Theory of Separation of Powers- the pros &; cons 96-98 Political Science Study Material on Organization & Institutions Page 5 5 this information, we still have a question in our mind that why is the constitution important, so let's discuss further on the topic. A country is run by the government, judicial bodies, its people, and most importantly by the Constitution. The constitution serves as the backbone of the country. Without it, the Law and Jurisdiction will not hold up and fall apart in no time, but they are meant to stand strong. The constitution is the embodiment of fundamental regulations and principles according to which the country, state, and its people are supposed to work. The term "Constitution" got its name as the word constitution means accumulation and gathering of various aspects. Similarly, the Constitution we are talking about also is an accumulation of many things that make up the organization of the Legal bodies of any nation. All the rules and principles that are to be established are worked up and wrote down in one place making all the things one single crafted manuscript. The Document formed after this whole procedure is known as the Constitution. CONSTITUTION: MEANING AND DEFINITION: In simple words, we can say a Constitution is the constitutional law of the state. Constitutional law enjoys the position of being the supreme and fundamental law of the state. It lays down the organization and functions of the government of state. The Government can use only those powers which the Constitution grants to it. 1. “Constitution is the collection of principles according to which the powers of the government, the rights of the governed and the relations between the two are adjusted. -Woolsey. 2. “Constitution is a body of judicial rules which determine the supreme organs of state, prescribes their modes of creation, their mutual relations, their spheres of action and the fundamental place of each of them in relation to state.” -Jellinek 3. ” Constitution of a state is that body of rules or laws, written or unwritten which determine the organization of government, the distribution of powers to the various organs of government and the general principles on which these powers are to be exercised.” -Gilchrist On the basis of these definitions it can be said that the Constitution is the sum total of the constitutional laws of the state. It lies down: (1) Organization and powers of the government; (2) Principles and rules governing the political process; Political Science Study Material on Organization & Institutions Page 6 6 (3) Relations between the people and their government; and (4) Rights and duties of the people. The government of state gets organized and works in accordance with the provisions of the Constitution. People get their rights protected from the constitution. No one, not even the government, can violate the Constitution. TYPES OF CONSTITUTION: 1. Written Constitution: A written constitution means a constitution written in the form of a book or a series of documents combined in the form of a book. It is a consciously framed and enacted constitution. It is formulated and adopted by a constituent assembly or a council or a legislature. Garner writes, “A written constitution is a consciously planned constitution, formulated and adopted by deliberate actions of a constituent assembly or a convention.” It provides for a definite design of government institutions, their organizations, powers, functions and inter-relationships. It embodies the constitutional law of the state. It enjoys the place of supremacy. The government is fully bound by its provisions and works strictly in accordance with its provisions. A written constitution can be amended only in accordance with a settled process of amendment written in the constitution itself. It is a duly passed and enacted Constitution. The Constitutions of India, the USA, Germany, Japan, Canada, France, Switzerland and several other states, are written constitutions. 2. Unwritten Constitution: An unwritten constitution is one which is neither drafted nor enacted by a Constituent Assembly and nor even written in the form of a book. It is found in several historical charters, laws and conventions. It is a product of slow and gradual evolution. The government is organised and it functions in accordance with several well settled, but not wholly written rules and conventions. The people know their Constitution. They accept and obey it, but do not possess it in a written form. An unwritten constitution cannot be produced in the form of a book. However, an unwritten constitution is not totally unwritten. Some of its parts are available in written forms but these do not stand codified in the form of a legal document or a code or a book. According to Garner, “an unwritten constitution is one in which most and not all, rules are unwritten and these are not found in any one charter or document.” The Constitution of the United Kingdom is an unwritten constitution. Political Science Study Material on Organization & Institutions Page 7 7 Difference between Written and Unwritten Constitutions: (1) A written constitution is written in the form of a book or document, whereas an unwritten constitution is not written in such a form. (2) A written constitution is a made and enacted by a constituent assembly of the people. An unwritten constitution is the result of a gradual process of constitutional evolution. It is never written by any assembly. (3) A written constitution is usually less flexible than an unwritten constitution. An unwritten constitution depends mostly on unwritten rules or conventions which do not require any formal amendment. (4) A written constitution is definite. Its provisions can be quoted in support or against any power exercised by the government. An unwritten constitution cannot be produced in evidence. It has to be proved by quoting its sources and practices. However, the difference between written and unwritten constitutions is not organic. A written constitution has written parts in majority. Along with these, it also has some unwritten parts in the form of conventions. In an unwritten constitution, most of the parts are unwritten and are not written in the form of a book. However, some of its parts are also found written in some charters and other documents. 3. Flexible Constitution: A Flexible Constitution is one which can be easily amended. Several political scientists advocate the view that a flexible constitution is one in which the constitutional law can be amended in the same way as an ordinary law. Constitutional amendments are passed in the same manner by which an ordinary law is passed. British Constitution presents a classic example of a most flexible constitution. The British Parliament is a sovereign parliament which can make or amend any law or constitutional law by a simple majority. Laws aiming to affect changes in a constitutional law or in any ordinary law are passed through the same legislative procedure i.e., by a simple majority of votes in the legislature. Similarly, a Constitution is flexible when the procedure of amending it is simple and the changes can be made easily. Political Science Study Material on Organization & Institutions Page 10 10 historical evolution and of political needs and practical wisdom of the people. The Constitution of Great Britain presents a key example of an evolved constitution. 6. Enacted Constitution: An Enacted Constitution is a man-made constitution. It is made, enacted and adopted by an assembly or council called a Constituent Assembly or Constitutional Council. It is duly passed after a thorough discussion over its objectives, principles and provisions. It is written in the form of a book or as a series of documents and in a systematic and formal manner. The Constitutions of India the USA, Japan, China and most of other states are enacted constitutions. Qualities of a Good Constitution: 1. Constitution must be systematically written. 2. It should incorporate the constitutional law of the state and enjoy supremacy. 3. It should have the ability to develop and change in accordance with the changes in the environment and needs of the people. 4. It should be neither unduly rigid nor unduly flexible. 5. It must provide for Fundamental Rights and Freedoms of the people. 6. It should clearly define the organization, powers, functions inter-relations of the government of the state and its three organs. 7. It must provide for the organization of a representative, responsible, limited and accountable government. 8. It must provide for: (i) Rule of Law (ii) De-centralization of powers (iii) Independent and powerful Judiciary (iv) A system of Local self-government (v) A Sound Method of Amendment of the Constitution (vi) Process and Machinery for the conduct of free and elections 9. The Constitution must clearly reflect the sovereignty of the people. 10. The language of the constitution should be simple, clear and unambiguous The Constitution must empower the judiciary with the power to interpret, protect and defend the Constitution and the fundamental rights and freedoms of the people against the possible legislative Political Science Study Material on Organization & Institutions Page 11 11 and executive excesses. These are the basic features which must be present in every good Constitution. Importance of Constitution: Each state has a Constitution which lays down the organization, powers and functions of the Government of the State. The government always works according to the Constitution, no law or order of the government can violate the Constitution. Constitution is the supreme law and all government institutions and members are bound by it. Constitution enjoys supreme importance in the state because: 1. It reflects the sovereign will of the people. 2. It lies down of the aims, objectives, values and goals which the people want to secure. 3. It contains description and guarantee of the fundamental rights of the people. 4. It gives a detailed account of the organization of the government. The organization, powers and functions of its three organs of the and their interrelationship. 5. In a federation, the Constitution lays down the division of powers between the central government and the governments of the federating states/provinces. It is binding upon both the center and the state governments. 6. It specifies the power and method of amendment of the Constitution. 7. It lays down the election system and political rights of people. 8. It provides for independence of judiciary and rule of law. 9. The constitution governs all and no one can violate its rules. Every democratic Constitution guarantees to the citizens a protection against arbitrary governmental actions. A democratic state, like India, has a written and supreme constitution which binds all its people and their government. Political Science Study Material on Organization & Institutions Page 12 12 1.2 CONVENTIONS SYNOPSIS ❖ Meaning ❖ Introduction ❖ Characteristics ❖ Importance ❖ Conclusion MEANING “Constitutional Convention is like a medicine which can cure even that disease which cannot be cured by the doctor”, in simple words it is the convention which can cure all difficult situation where there is no law to govern such situations” The study of the constitutional convention is always anchored with an assumption that has been so far remained unchallenged. The constitution of India comprises both written rules enforced by the courts and unwritten rules or principles necessary for constitutional government. Talking about the constitutional conventions they are the informal and uncodified procedural agreement that is followed by the institution of the state. Written rules mandate that they are to be followed in particular specified situation and on the other hand the unwritten rules come into action when there is no given written rule to cover the situation at hand. Constitutional have always regarded to be the rules of political practices. These conventions have the binding effect to those who apply these constitutional conventions; however, these conventions are not considered as laws as they are not enforced by the courts nor they are made by the legislature, still they are considered to be important. In India these constitutional conventions tend to play a very important role apart from the other laws. Can anybody believe in the fact that Indian Constitution being the lengthiest, bulkiest and the most detailed constitution in the world also follows the constitutional conventions? This clearly specifies that Indian constitution in itself does not deal with all aspect. It is due this fact only that Political Science Study Material on Organization & Institutions Page 15 15 3. The Constitutional conventions are distinguishable from rule of law, though they may be equally important or in certain cases they are more important than the law laid down. The power of these conventions can be seen that these conventions can modify the application or enforcement of Rule of Law. Constitutional Conventions develop over time and are not outlined in any document. Conventions grow out of the practices and precedents determine their existence. Such precedents are not authoritative like the precedent of the court of law. “Every act is a precedent but not every precedent creates rule” Sir Ivory Jennings suggested that in order to establish a constitutional convention, three questions must be asked? 1. What are precedents? 2. Did the Actors in the precedents believe that they are bound by a rule? 3. Whether there is good reason to believe the rule? A single precedent with a good reason may be enough to establish the rule. A wrong string of precedent without such a reason will be of no avail, unless the person concerned themselves to be bound by it. As earlier stated, conventions grow out of and are modified by the practice. At any given time, it may be difficult to say whether a practice has become a convention or not? Constitutional convention does not come from certain number of sources, their origin is amorphous and nobody has the function of deciding whether conventions exist or not. Importance of Conventions in Indian Constitution Despite the fact that our Indian Constitution is a detailed Constitution, the framers of the Constitution left certain matters to be governed by conventions, which gives the holders of constitutional offices some extra powers of discretion in respect of such circumstantial matters. Conventions lubricate the loop holes left at the joints in the constitutional structure and secure them against coagulation. The main purpose of the Constitutional conventions is to ensure that the legal framework of the Constitution retains its flexibility to operate in tune with the prevailing constitutional values of the time. Despite the fact that these all conventions are not enforceable legally and the sanction behind them is moral and political, some conventions of the Constitution set such norms of behavior which regulates psychology of those in power. These also regulate the working of the various parts of the Constitution and their relations with one another, may be as Political Science Study Material on Organization & Institutions Page 16 16 significant, if not of greater importance, as the written word of the Constitution itself. One lamentable fact of the Indian Constitutional situation is that enough attention has not been paid to the evolution and observance of the right codes of conduct and conventions. Even the code of conducts and conventions developed in the previous years has been broken too lightly in the working years. There is an increasing trend to depend upon to extra-Constitutional methods to force settlement of political or economic issues—imaginatively or really, as the case may be. This would be a cause for concern even in a small multi religious country. In India, which is a heterogeneous country of huge dimensions, this cannot be a matter of grave dread. Hence, natural reaction would be that the loopholes in the Constitution which have permitted abnormal developments should be plugged. It is urged that, if these Constitutional conventions do not work, suitable constitutional safeguards must be provided. If appropriate conventions are not followed and the discretion provided under certain situations is misused, the whole system may become a deadwood at the first place. In order that these situational conventions and codes of conduct get evolved, it is essential that the officials holding the constitutional offices should be selected amongst the persons of admitted competence and integrity and provided with reasonable security of tenure. Conclusion According to Dicey, constitutional conventions are means whereby the discretionary authority of the government is regulated. The main purpose of these conventions is to guide the use of the constitutional discretion. Thus, every time there is a general election or there might be the situation in which members can request for dissolution of the House of People, the questions that always arises is that whom will the President invite to form the next government? What if the President invites someone to form a government who does not have a clear majority in the Lok Sabha? Will the President need to the advice of the Cabinet to dissolve the House? These are some of the important questions to which the Constitution provides no answer to anyone else. These might be that complex situation in which no law or no constitution of country has answer. The thing that solves all these situations is “Constitutional conventions”. These constitutional conventions are referred as “Catalyst” which makes certain things possible which in absence would not be possible. It is also a evident fact that some of the constitutional conventions are well established and may be relied upon those conventions absolutely. While some of these conventions are vague and may Political Science Study Material on Organization & Institutions Page 17 17 lead to manipulation for political purpose. There have always been demand for the codification of these constitutional conventions but if these conventions are codified then in such scenario the nature of the flexibility of these conventions will be lost. Therefore, the main purpose of the Constitutional Conventions is to ensure that the legal framework of the Constitution retains its flexibility to operate in tune with the prevailing constitutional values of the period, or even in those times of complex situation it helps the Constitution to adapt and make amends according to the needs and desire of the changing times, as the Founders of our Constitution couldn’t have foreseen and safeguarded the Constitution from future loopholes and hence left certain matters to be governed by the constitutional conventions as they are as important, and have “a greater significance, as the written word of the Constitution itself”. 1.3 AMENDMENTS SYNOPSIS ❖ Introduction ❖ Procedure for Amendment ❖ Types of amendments ❖ Amendments under article 368 ❖ Amending the U.S. Constitution ❖ Amendment to UK Constitution ❖ Amendments to the Constitution of France INTRODUCTION An amendment is a change or an addition to the terms of a contract, a law, or a government regulatory filing. Any such document can be amended with the consent of the parties involved. Amendment, in government and law, an addition or alteration made to a constitution, statute, or legislative bill or resolution. Amendments can be made to existing constitutions and statutes and Political Science Study Material on Organization & Institutions Page 20 20 The second category includes amendments that can be effected by Parliament by a prescribed ‘special majority’; and the third category of amendments includes those that require, in addition to such "special majority", ratification by at least one-half of the State Legislatures. The last two categories are governed by article 368. Ambedkar speaking in the Constituent Assembly on 17 September 1949, pointed out that there were "innumerable articles in the Constitution" which left matters subject to laws made by Parliament. Under article 11, Parliament may make any provision relating to citizenship notwithstanding anything in article 5 to 10. Thus, by passing ordinary laws, Parliament may, in effect, provide, modify or annul the operation of certain provisions of the Constitution without actually amending them within the meaning of article 368. Since such laws do not, in fact, make any change whatsoever in the letter of the Constitution, they cannot be regarded as amendments of the Constitution nor categorized as such. Other examples include Part XXI of the Constitution—"Temporary, Transitional and Special Provisions" whereby "Notwithstanding anything in this Constitution" power is given to Parliament to make laws with respect to certain matters included in the State List (article 369); article 370 (1) (d) which empowers the President to modify, by order, provisions of the Constitution in their application to the State of Jammu and Kashmir; provisos to articles 83 (2) and 172 (1) empower Parliament to extend the lives of the House of the People and the Legislative Assembly of every State beyond a period of five years during the operation of a Proclamation of Emergency; and articles 83(1) and 172 (2) provide that the Council of States/Legislative Council of a State shall not be subject to dissolution but as nearly as possible one. Amendments under article 368 Part-xx Article 368 (1) of the Constitution of India grants constituent power to make formal amendments and empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation. Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976 respectively. The following is the full text of Article 368 of the Constitution, which governs constitutional amendments. New clauses 368 (1) and 368 (3) were added by the 24th Amendment in 1971, which also added a new clause (4) in article 13 which reads, "Nothing in this article shall apply to any amendment of this Constitution made under article 368." The provisions in italics were inserted by the 42nd Amendment but were later declared unconstitutional by the Supreme Court in Minerva Mills v. Union of India in 1980. After the 24th Political Science Study Material on Organization & Institutions Page 21 21 amendment, Article 4(2), etc. of the constitution are superseded/made void by article 368 (1) which is the only procedure for amending the constitution however marginal may be the nature of the amendment. The Supreme court ruled that the constituent power under article 368 must be exercised by the Parliament in the prescribed manner and cannot be exercised under the legislative powers of the Parliament. 368. Power of Parliament to amend the Constitution and Procedure therefor: (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in – (a) article 54, article 55, article 73, article 162, article 241 or article 279A or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (3) Nothing in article 13 shall apply to any amendment made under this article. (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Political Science Study Material on Organization & Institutions Page 22 22 Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article. As per the procedure laid out by article 368 for amendment of the Constitution, an amendment can be initiated only by the introduction of a Bill in either House of Parliament. The Bill must then be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. There is no provision for a joint sitting in case of disagreement between the two Houses. Total membership in this context has been defined to mean the total number of members comprising the House irrespective of any vacancies or absentees on any account vide Explanation to Rule 159 of the Rules of Procedure and Conduct of Business in Lok Sabha. The Bill, passed by the required majority, is then presented to the President who shall give his assent to the Bill. If the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than one-half of the States. These provisions relate to certain matters concerning the federal structure or of common interest to both the Union and the States viz., the election of the President (articles 54 and 55); the extent of the executive power of the Union and the States (articles 73 and 162); the High Courts for Union territories (article 241); The Union Judiciary and the High Courts in the States (Chapter IV of Part V and Chapter V of Part VI); the distribution of legislative powers between the Union and the States (Chapter I of Part XI and Seventh Schedule); the representation of States in Parliament; and the provision for amendment of the Constitution laid down in article 368. Ratification is done by a resolution passed by the State Legislatures. There is no specific time limit for the ratification of an amending Bill by the State Legislatures. However, the resolutions ratifying the proposed amendment must be passed before the amending Bill is presented to the President for his assent. Political Science Study Material on Organization & Institutions Page 25 25 Article 1. Chapters 1,2 and 3; 2. Articles 34 to 36 in Chapter 4; 3. Articles 40, 41, 44,47 to 49 and 50 in Chapter 5; 4. Articles 52 to 57 and 70 in Chapter 6; 5. Articles 78 and 79 and Schedules 1 and 2; 6. Articles 83 to 86, 88 and 89 in Chapter 8 and Part 1 of Schedule 3; 7. Chapters 9 and Schedules 4 and 5,10, 11 and 12. The Bill for the Act is passed if, at its final reading, it is supported by the votes of – 1. not less than two-thirds of all the members of the House of Commons; and 2. not less than two-thirds of all the members of the Second Chamber. 1 Parliament may, by Act of Parliament, amend any of the provisions of this Constitution. 2 The Bill for the Act is passed if, at its final reading, it is supported by the votes of — 1 not less than two-thirds of the members of the House of Commons present and voting, where that two thirds is not less than half of all the members of the House of Commons; and 2 not less than two-thirds of the members of the Second Chamber present and voting, where that two-thirds is not less than half of all the members of the Second Chamber. A Bill for the amendment of any provisions of Articles 53 to 55, which has been passed as the case may be, shall not be presented to the Head of State for Assent unless it has been ratified by at least two-thirds of the Assemblies, by the affirmative votes of a majority of the members present and voting in each such Assembly. 1. A Bill for the amendment of this Constitution — 1 which provides that any part of the United Kingdom should cease to be so; and 2 shall not be presented to the Head of State for Assent unless it has been approved by a majority of the registered voters in that part of the United Kingdom voting in a referendum held solely for that purpose. 2.Act of Parliament shall provide for the holding of referenda for that purpose. . Political Science Study Material on Organization & Institutions Page 26 26 3. The conduct of the referendum shall be under the supervision of the Electoral Commission. A Bill for the amendment of this Constitution shall not be presented to the Head of State for Assent unless there is endorsed upon it, as the case may require — 1 a certificate of the Speaker of the House of Commons, signed by the Speaker. 2 a certificate of the Speaker of the Second Chamber, signed by the Speaker. For the purpose of this Constitution, the expression “amendment”, in relation to this Constitution or any Article or provision of any Article, includes — 1 revocation, with or without re-enactment, or the making of different provision in lieu; 2 modification, whether by omitting, or altering, or inserting additional provision, or otherwise; and 3 suspension of operation for any period or the termination of any such suspension. Nothing in this Article affects the terms of Article I of the Anglo-Irish Agreement 1985, or section 1 and Schedule 1 of the Northern Ireland Constitution Act 1973 for such time as these measures are in force. Title XVI: AMENDMENTS TO THE CONSTITUTION OF FRANCE ARTICLE 89 The President of the Republic, on the recommendation of the Prime Minister, and Members of Parliament alike shall have the right to initiate amendments to the Constitution. A Government or a Private Member's Bill to amend the Constitution must be considered within the time limits set down in the third paragraph of article 42 and be passed by the two Houses in identical terms. The amendment shall take effect after approval by referendum. However, a Government Bill to amend the Constitution shall not be submitted to referendum where the President of the Republic decides to submit it to Parliament convened in Congress; the Government Bill to amend the Constitution shall then be approved only if it is passed by a three- fifths majority of the votes cast. The Bureau of the Congress shall be that of the National Assembly. No amendment procedure shall be commenced or continued where the integrity of national territory is placed in jeopardy. The republican form of government shall not be the object of any amendment. Political Science Study Material on Organization & Institutions Page 27 27 1.4 FORMS OF GOVERNMENT SYNOPSIS ❖ Introduction ❖ Federal State ❖ Federal Features ❖ Unitary State ❖ Unitary Features ❖ Salient Features of UK Constitution ❖ Unitary vs. Federal Features ❖ US Federal System FEDERAL AND UNITARY FORMS OF GOVERNMENT Introduction On the basis of relations between the central government and the units, the governments are classified as unitary and federal. In a unitary system of government, all powers are vested in Centre while in a federal system; the powers are divided between the center and the states by the constitution. The constitution of India provides a federal system even though it describes India as union of states. The term union of states implies that states have no freedom to recede from India. Indian Constitution is also called quasi-federal because it has features of both federal and unitary types of governments. It has been called a unique blend of unitary and federal features by the Supreme Court. The key federal features are written constitution; concept of constitutional supremacy; complex procedure of amendment of constitution in certain matters; an independent Political Science Study Material on Organization & Institutions Page 30 30 Union at the Centre and the States at the periphery, each endowed with powers to be exercised in the field assigned to them respectively, by the Constitution. The powers of the Union and the States are clearly demarcated. The Constitution is written and supreme. Enactments in excess of the powers of the Union or the State Legislatures are invalid. Moreover, an amendment which makes any changes in the status or powers of the Centre or the State Legislatures is invalid. Further, any amendment which makes changes in the status or powers of the Centre or the units is possible only with the concurrence of the Union and of a majority of the States. Finally, the Constitution establishes a Supreme Court to decide disputes between the Union and the States or between the States and to interpret finally the provisions of the Constitution. UNITARY STATE A State is unitary when it is governed constitutionally as one single unit, with one constitutionally created legislature. All power is top down. In federal system, power is divided between federal units. A unitary State is a sovereign State governed as one single unit in which the Central government is supreme and any administrative divisions (subnational units) exercise only powers that the Central government chooses to delegate. Thus, while in a federal State, both the Central government and State governments derive their authority from the same Constitution, in a unitary State, the State governments derive their authority as delegated by the Central government. UNITARY FEATURES OF INDIAN CONSTITUTION 1. Union of States Article 1 of the Constitution describes India as a “Union of States”, which implies two things: firstly, it is not the result of an agreement among the States, as it is there in federations and secondly, the States have no freedom to secede or separate from the Union. Besides, the Constitution of the Union and the States is a single framework from which neither can get out and Political Science Study Material on Organization & Institutions Page 31 31 within which they must function. The Indian federation is a union because it is indestructible and helps to maintain the unity of the country. 2. Power to form new States and to change existing boundaries In the USA, it is not possible for the federal government to unilaterally change the territorial extent of a State but in India, the Parliament can do so even without the consent of the State concerned. Under Art 3, Centre can change the boundaries of existing States and can carve out new States. This should be seen in the perspective of the historical situation at the time of independence. At that time there were no independent States. There were only Provinces that were formed by the British based on administrative convenience. At that time States were artificially created and a provision to alter the boundaries and to create new States was dept so that appropriate changes could be made as per requirement. It should be noted that British India did not have States similar to the States in the USA. Thus, the States in India do not enjoy the right to territorial integrity. 3. Unequal Representation in the Legislature The equality of units in a federation is best guaranteed by their equal representation in the Upper House of the federal legislature (Parliament). However, this is not applicable in case of Indian States. They have unequal representation in the Rajya Sabha. In a true federation such as that of United States of America every State irrespective of their size in terms of area or population, sends two representatives to the Upper House i.e. Senate. 4. Single Constitution There is a single Constitution for both Union and the States. There is no provision for separate Constitutions for the States, except for Jammu and Kashmir. In the USA and Australia, the States have their own Constitutions which are equally powerful as the federal Constitution. Nor the States of India can propose amendments to the federal Constitution. As such amendments can only be made by the Union Parliament. 5. Single citizenship Political Science Study Material on Organization & Institutions Page 32 32 India follows the principle of uniform and single citizenship, but in the USA and Australia, double citizenship is followed. This means that people are citizens of both the federal State and their own State which has its own Constitution. 6. More powers to the Central government in the list of subjects In India, the distribution of powers has made the Central government very strong. In the Schedule VII which contains the distribution of powers among units of federation, the Union list consists of 100 subjects whereas there are only 61 subjects in the State list. Again, in the Concurrent list, there are 52 subjects. In case of an overlap or conflict, the Constitution secures the predominance of Union list over Concurrent and State lists as well as that of Concurrent list over State list. Even the Residuary powers (the power to make laws on those subjects which have not been mentioned in any of the lists) have been given to the Union government, which are otherwise given to federal units in conventional federations such as USA and Australia. 7. Power to make laws on the subjects in State list The Parliament has the exclusive authority to make laws on the 100 subjects of the Union list, but the States do not have such exclusive rights over the State list. Under certain circumstances, the Parliament can legislate on subjects of State list. This power is exercised only on the matters of national importance and that too if the Rajya Sabha agrees with 2/3rd majority. There are five such situations as mentioned below: i. Under Art. 249, if the Rajya Sabha passes a resolution with not less than 2/3rd majority, authorizing Parliament to make laws on any State subject, on the ground that it is expedient or necessary in the national interest, then Parliament can legislate over that subject. Such laws shall be in force for only 1 year and can be continuously extended any number of times but for not more than one year at a time. ii. Under Art 250, if national emergency is declared under Art 352, the Parliament has the right to make laws with respect to all the 61 subjects in the State list automatically i.e. the State list is transformed into the Concurrent list. Political Science Study Material on Organization & Institutions Page 35 35 as for the nature of legislative powers, administrative and financial control of Centre over the States. Thus, it is quite obvious that the Indian Constitution is more unitary than federal in nature. It is for this reason that Dr. K. C. Wheare said: “The Indian Constitution establishes, indeed, a system of government which is at the most quasi-federal, almost devolutionary in character; a unitary State with subsidiary federal features rather than a federal State with unitary features.” Hence, it is true to say that Indian Constitution establishes a system of government which is only ‘federal in form but unitary in spirit’. Here, the Centre has been made strong at the cost of the States. Having said this all, it must be noted that whatever the structure of the Constitution and resultant government is – federal, quasi-federal or unitary – its real nature depends on the spirit of functionaries occupying the government. They can run it in the spirit of ‘co-operative federalism’ or ‘unitary centralism’. The beauty of the Indian Constitution is that it has been made relatively flexible so as to showcase its federal or unitary face in accordance with the socio-political situations in the country. Dr Ambedkar, one of the architects of the Indian Constitution, rightly remarked, “Our Constitution would be both unitary as well as federal according to the requirements of time and circumstances.” The aforementioned provisions in the Constitution are aimed at establishing a working balance between the requirements of national unity and autonomy of the States. The federal Constitutions of the USA and Australia, which are placed in a tight mould of federalism, cannot change their form. They can never be unitary as per the provisions of their constitution. But the Indian Constitution is a flexible form of federation – a federation of its own kind. It is a federation sui generis. The dominance of a single party both at the Centre and in the States till the 6th General elections had contributed further to the centralized structure of government in India. The Central government treated the State governments in those years as their subordinates. The financial strength of the Centre vis-à-vis states has kept it powerful all along. With every passing five-year term, the Planning Commission in India has also been emerging as stronger instrument for extending the sphere of influence of the Union government over the States. The situation has changed in the coalition era in the last twenty years or so and the regional parties are becoming Political Science Study Material on Organization & Institutions Page 36 36 strong. These regional parties are bargaining hard with the Centre in order to promote their local interests. With the rise of regional parties India now seems to be moving towards ‘bargaining federalism’. SALIENT FEATURES OF UK CONSTITUTION • Unwritten One of the most important features of the British constitution is its unwritten character. There is no such thing as a written, precise and compact document, which may be called as the British constitution. The main reason for this is that it is based on conventions and political traditions, which have not been laid down in any document, unlike a written constitution, which is usually a product of a constituent assembly. Indian Constitution, in comparison, is the lengthiest written constitution in the world. • Evolutionary The British constitution is a specimen of evolutionary development. It was never framed by any constituent assembly. It has an unbroken continuity of development over a period of more than a thousand years. It is said that the British Constitution is a product of wisdom and chance. The Indian Constitution has certain similarities as well as differences on this particular aspect. It differs from the British Constitution to the extent that it is a written document and has well defined provisions. However, it too is open to evolution, given that the provision of However, it too is open to evolution, given that the provision of an amendment is kept such, so as to allow for the Constitution to evolve according to the needs and sensibilities of the time. • Flexibility The British constitution is a classic example of a flexible constitution. It can be passed, amended and repealed by a Simple Majority (50% of the members present and voting) of the Parliament, since no distinction is made between a constitutional law and an ordinary law. Both are treated alike. The element of flexibility has provided the virtue of adaptability and adjustability to the British constitution. This quality has enabled it to grow with needs of the time. Indian Constitution, in contrast, is both flexible as well as rigid. This compliments the basic ideology of the Indian Political Science Study Material on Organization & Institutions Page 37 37 Constitution quite well, wherein certain features like Sovereignty, Secularism, and Republic et al have been held sacrosanct, but otherwise the Constitution is amendable. • Unitary vs. Federal Features The British constitution has a unitary character as opposed to a federal one. All powers of the government are vested in the British Parliament, which is a sovereign body. Executive organs of the state are subordinate to the Parliament, exercise delegated powers and are answerable to it. There is only one legislature. England, Scotland, Wales etc. are administrative units and not politically autonomous units. The Indian Constitution, on the other hand, is federal. Unitary Federal Confederation Units come together and form the state. Example: India Real power with the units. All power lies with the Centre Powers for Provincial. Example: Britain Opposite to Unitary Government comes from the Constitution. Centre delegates power to the provincial government. Example: EU, USA • Parliamentary Executive This is one important similarity between the British and the Indian Constitution. (In addition to the Sovereignty of Parliament) Britain has a Parliamentary form of government. The King, who is sovereign, has been deprived of all his powers and authority. The real functionaries are Ministers, who belong to the majority party in the Parliament and remain in office as long as they retain its confidence. The Prime Minister and his Ministers are responsible to the legislature for their acts and policies. In this system, the executive and legislature are not separated, as in the Presidential form of government • Sovereignty of Parliament The term Sovereignty means Supreme Power. A very important feature of the British Constitution is sovereignty of the British Parliament (a written constitution being absent). The British Political Science Study Material on Organization & Institutions Page 40 40 US FEDERAL SYSTEM Introduction: With the “Declaration of Independence”, published on July 04, 1776, written by Thomas Jefferson, begins the independent history of United States of America. On July 11, 1776, a committee under John Dickenson was appointed which drafted the Articles of Confederation which were approved by Congress of states. However, interstate bickering started over a number of issues. To solve the problems and disputes, amendments in Articles of Confederation was felt and thus a convention was arranged in Philadelphia for the purpose in which delegates of 12 states participated (Rhode Island did not). After 16 weeks of discussion, the new constitution of USA was unanimously signed on 17th September 1787 by delegates of states present there. The constitution was adopted/ratified on 21st June 1788 (as nine state (New Hampshire-ninth state) convention ratified) and enforced on March 07, 1789 (Rhode Island last state to ratify it). James Madison is considered as the primary author of US Constitution. Members of the National Assembly are called deputies and are elected directly, in contrast with senators, who are chosen by indirect elections. Deputies are elected for five-year terms. Senators are elected for six-year terms, but elections are held every three years to elect an alternating half of the chamber. Both chambers are organized in a similar manner, with a chamber president, a governing bureau, commissions, and formal political groups. Bills are submitted either by the Prime Minister or by members of either chamber. Once submitted to one of the two chambers, a bill is first discussed, amended if need be, and voted on in commissions before being discussed, amended, and voted on by the chamber as a whole. The bill must then go to the other chamber, where it follows the same procedure: discussion, possible amendment, and vote in commission followed by discussion, possible amendment, and vote in the chamber’s plenary session. A bill must be adopted by both chambers with identical language before it can be signed into law by the President of the Republic. If the two chambers disagree on the terms of the bill, a joint commission comprised of seven deputies and seven senators is tasked with finding a compromise draft, although that compromise draft must still be voted on by both chambers. In extreme cases of deadlock, the National Assembly may have the final say. Political Science Study Material on Organization & Institutions Page 41 41 1. Written Constitution: American constitution is a written constitution framed in 1787 and enforced in 1789. It consists of seven articles; three of them related to structure and powers of Legislative (Article 1), Executive (Article 2) and Judiciary (Article 3) and the other four dedicated to position of states (Article 4), modes of amendments (Article 5), supremacy of national power (Article 6) and ratification (Article 7). It also holds that constitution is the supreme law of the land. Article one is the longest and cannot be amended. Like other constitutions, it also consists of preamble; a single sentence that introduces and defines purpose of the document. 2. Rigid Constitution: It is one of the most rigid constitutions in the world which means that for amending it, a special and difficult procedure has to be followed. It consists of 2 steps; 2.1 Proposal for Amendment: Either two-third (67%) of both the houses (Senate and House of Representatives) shall propose for amendment to constitution or on the application of legislatures of two-third (67%) states shall call a convention for proposing amendment. 2.2 Ratification of Proposal: The amendment shall be ratified by the legislatures of three fourth (75 %) of all states or by the convention of three fourth of states. It is because of this rigidity that American constitution has been amended only 27 times in over 200 years. 3. Popular Sovereignty: In U.S, the people rule i.e. they have delegated their powers to the government and the government owes its authority to the will of the people. The principle of popular sovereignty is stated in the Preamble of constitution as “we the people…do ordain and establish this constitution for United States of America.” 4. Bicameral Legislature: The constitution of USA provides for bicameral legislature i.e. two houses in the centre. According to Article 1, “All legislative powers are vested in Congress.” Congress consists of two houses i.e. Lower House or House of Representatives and the Upper House or Senate. 4.1 House of Representatives: The House of Representatives has 435 members who are elected by the people through adult franchise method for a period of two years on population basis i.e. state with larger population gets more seats in this house like California has 53 members. 4.2 Senate: The members of Senate are elected by the state legislatures. Each state has two senators meaning Political Science Study Material on Organization & Institutions Page 42 42 that each state has two votes in senate. These senators are elected for a period of six years on parity basis. The total number of senators is 100 as the total states are 50. 5. Separation of Powers: The doctrine of separation of powers divides power between the three pillars/institutions of government to prevent interference of one institution in the affairs of another. The powers are divided among Congress, President and the Judiciary. Congress has the power to make laws which outline general policies and set certain standards. President can enforce, execute and administer law. He is assisted by his cabinet but is solely responsible for all actions of Executive branch. Judicial Powers are exercised by the Supreme Court which interprets laws and decided cases and controversies in conformity with the law and by the methods prescribed by law. 6. Checks & Balances: The system of Checks and Balances laid down by the separation of powers prevents misuse of powers. The powers are provided in such a way that it provides a check upon other institutions. Examples: a) President can veto a bill passed by the Congress. The congress can pass legislation over president’s veto by two third majority. b) President has the power to appoint judges of the Supreme Court subject to approval of the Senate. c) The constitution has vested the powers of “Judicial Review” in Supreme Court. Supreme Court can approve, reject or review any action taken by the President or laws made by the Congress as it did in Marbury vVs Madison Case. All this creates a system which makes compromises necessary which is a sign of healthy democracy. It prevents the rise of dictators as well. 14. Federal System: The U.S constitution provides for a federal system of government which means that powers are divided among centre/federal government and the states. According to Article 1, the federal government has jurisdiction over 18 matters and residuary powers are vested in states. States are autonomous bodies and centre cannot meddle in their affairs. In case of conflict, Supreme Court decides or settles the dispute. Political Science Study Material on Organization & Institutions Page 45 45 • The Parliament of India is bicameral (i.e. consists of two houses) namely Rajya Sabha (the Council of States) and Lok Sabha (the House of the People). • Indian states also have the option to have either bicameral or unicameral; however, at present, there are seven states (shown in the map given below), which have bicameral legislature namely − o Jammu & Kashmir, o Uttar Pradesh, o Bihar, o Maharashtra, o Karnataka, o Andhra Pradesh, and o Telangana. o Rajya Sabha • The Rajya Sabha is an indirectly elected body and represents the States of India. • The elected members of State Legislative Assembly elect the members of Rajya Sabha. • In the U.S.A, every state has equal representation in the Senate irrespective of size and population of the states, but in India, it is not the same. • In India, states with larger size of population get more representatives than states with smaller population. For example, Uttar Pradesh (the most populated state) sends 31 members to Rajya Sabha; on the other hand, Sikkim (the least populated state) sends only one member to Rajya Sabha. • The number of members to be elected from each State has been fixed by the fourth schedule of the Constitution. • Members of the Rajya Sabha are elected for a term of six years and then they can be re- elected. Political Science Study Material on Organization & Institutions Page 46 46 • Members of Rajya Sabha are elected in such a manner that they do not complete their tenure altogether; rather after every two years, one-third member complete their term and elections are held for those one-third seats only. • Likewise, the Rajya Sabha never gets fully dissolved and hence, it is known as the permanent House of the Parliament. • Apart from the elected members, the President appoints 12 members from the fields of literature, science, art, and social service. Lok Sabha • The members of Lok Sabha and the State Legislative Assemblies are directly elected by the people for the period of five years. • However, before the completion of tenure, if the Lok Sabha is dissolved (no party forms government with majority), a fresh election will be conducted again. Functions of the Parliament • The Parliament has legislative (law making) and financial functions (money bill and budgetary function); besides, it also controls the Executive and ensures its accountability. • The Parliament is the highest forum of debate in the country and hence, there is no limitation on its power of discussion. • The Parliament has the power of discussing and enacting changes to the Constitution (i.e. amendment power). • The Parliament also performs some electoral functions, as it elects the President and the Vice President of India. • The Parliament has also judicial functions, as it considers and decides the proposals for the removal of President, Vice-President, and Judges of the Supreme Court and High Courts. • Following are some distinct between Powers of Lok Sabha and Rajya Sabha − Political Science Study Material on Organization & Institutions Page 47 47 o Lok Sabha makes ‘Laws’ on matters included in Union List and Concurrent List and can introduce and enact money and non-money bills. o Rajya Sabha considers and approves non-money bills and suggests amendments to money bills. o Lok Sabha approves proposals for taxation, budgets, and annual financial statements. o Rajya Sabha approves constitutional amendments. o Lok Sabha establishes committees and commissions and considers their reports. o Rajya Sabha can give the Union parliament power to make laws on matters included in the State list. Special Powers of Rajya Sabha • Rajya Sabha has some special powers. If the Union Parliament wishes to remove a matter from the State list (over which only the State Legislature can make law) to either the Union List or Concurrent List in the interest of the nation, the approval of the Rajya Sabha is essential. Special Powers of Lok Sabha • Regarding Money Bills, the Lok Sabha has the exclusive power and hence, the Rajya Sabha cannot initiate, reject, or amend money bills. • Amendment/s made by the Rajya Sabha to the Money Bill may or may not be accepted by the Lok Sabha. Bills • A bill proposed by a minister is described as Government Bill; however, if a bill proposed by a non-minister member, it is known as private member’s Bill. • If there is disagreement between the two Houses on a proposed Bill, then it is resolved through the Joint Session of Parliament. Political Science Study Material on Organization & Institutions Page 50 50 • The Executive is the branch of Government accountable for the implementation of laws and policies legislated by the legislature. • In the Parliamentary form of executive, the Prime Minister is the head of the government and the head of the State may be Monarch (Constitutional Monarchy, e.g. UK) or President (Parliamentary Republic, e.g. India). • In a Semi-Presidential System, the President is the head of the State and the Prime Minister is the head of the government, e.g. France. • In a Presidential System, the President is the head of the State as well as the head of government, e.g. the US. Indian System • Article 74 (1) of the Indian Constitution states that “there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall in the exercise of his functions, act in accordance with such advice.” • The President has a wide range of power including executive, legislative, judicial, and emergency powers. However, in a parliamentary system (e.g. India), these powers are in reality used by the President only on the advice of the Council of Ministers. • The Prime Minister and the Council of Ministers have support of the majority in the Lok Sabha and they are the real executive. • The President is the formal head of the government. • The Prime Minister is obliged to furnish all the information that the President may call for. • The Council of Ministers is headed by the Prime Minister. • In the parliamentary form of executive, it is essential that the Prime Minister has the support of the majority in the Lok Sabha. And the moment the Prime Minister loses this support of the majority; he or she loses the office. • In case no party is in majority, a few parties can form government ‘in coalition.’ Political Science Study Material on Organization & Institutions Page 51 51 • A Prime Minister has to be a Member of Parliament (MP); however, if someone becomes the Prime Minister without being an MP; in such as case, he or she has to get elected to the Parliament within six months of period. • The Council of Ministers constitutes not more than 15 percent of a total number of members of the House of the People (91st Amendment). • Persons selected by the Union Public Service Commission for Indian Administrative Service (IAS) and Indian Police Service (IPS) constitute the backbone of the higher level bureaucracy in the States. • Though IAS and IPS work under the state government, they are appointed by the central government; hence, only the central government can take disciplinary action against them. However, the officers appointed through the State Public Service Commission look after the state administration. The President • The President of India is the head of the State. He exercises only nominal powers. His functions are mainly ceremonial in nature like the Queen of Britain. • All the political institutions in India, function in the name of the President of India and the President supervises their functions to bring harmony in their works to achieve the objectives of the State. • In India, the President is elected, not appointed, (although not elected directly by the people). The President is elected by the Members of Parliament (MPs) and the Members of the Legislative Assemblies (MLAs) of each state. • Participation of Members of the state’s Legislative Assemblies in the election of the president of India shows that the President of India represents the entire nation. At the same time, the indirect election of the President ensures that he cannot claim popular mandate like that of the Prime Minister and thus remains only a nominal head of the State. • All major policy decisions and orders of the government are issued in the President’s name. Political Science Study Material on Organization & Institutions Page 52 52 • The President appoints all the major heads of the institutions of the government, i.e., o The appointment of the Chief Justice of India, o The Judges of the Supreme Court and the High Courts of the states, o The Governors of the states, o The Election Commissioners, o Ambassadors to other countries, etc. • The government of India makes all international treaties and agreements in the name of the President. • The President is the supreme commander of the defense forces of India. • However, all these powers are exercised by the President only on the advice of the Council of Ministers headed by the Prime Minister. • The President can ask the Council of Ministers for reconsideration on any advice (asked to him by the Council of Ministers), but if the Council of Ministers recommend the same advice again, he is bound to act according to it. • A Bill passed by the Parliament becomes a law only after the President gives assent to it. The President can return a Bill back to the Parliament for reconsideration, but he has to sign it, if the Parliament passes the Bill again (with or without amendment). Discretionary Power • In three circumstances, the President can exercise his or her discretionary power − o The President can send back the advice given by the Council of Ministers for reconsideration. o The President has veto power (also known as ‘pocket veto’) by which he or she can withhold or refuse to give his or her assent to any Bill (other than Money Bill) passed by the Parliament. It happened once, i.e. in 1986, President Gyani Zail Singh withheld the “Indian Post Office (amendment) Bill.” o The President appoints the Prime Minister. Political Science Study Material on Organization & Institutions Page 55 55 demands an organisation of skilled and specially trained group of officials. This is civil service an essential part of modern public administration. CLASSIFICATION OF SERVICES: Part XIV of Indian Constitution provides for different types or classes of services for India. The name of the chapter is Services under- Union and the States. The Constitution has not elaborated the types and categories of services. In accordance with the Constitution we divide the services into the followings categories All India Services (AIS), State Services, and Local and Municipal Services. There are four groups of central services Central Services Group A, Central Services Group B, Central Services Group C and Central Services Group D. In the AIS there are several groups and the most important groups are — Indian Administrative Service (IAS) and Indian Police Service (IPS). From the standpoint of prestige and status IAS and IPS are at the top position. These two services are also called premier services in India. In fact, the holders of these two most important posts manage and control the general and police administration. So far as the administrative system in India is concerned it is said that there is a difference. All-India Services include IAS and IPS. The Central Services are divided into four groups. But the former is more important than the latter. In Group A of central services there are 34 types. Some of them are Indian Foreign Service, Indian Audit and Accounts Service, Indian Statistical Service, Indian Economic Service, Indian Information Service, Indian Railway Service etc. In the Group B Services following categories are included—Central Secretariat Service, Geographical Survey of India, Zoological Survey of India, Central Secretariat Stenographers Service. In Group C All India Service we find the following types. Members of the Clerical Service of Central Secretariat and Telegraph Service. The members of the Group C staff are recruited by the Staff Selection Committee through an open competitive examination. The Staff selection committee sends the list of successful candidates to the various departments of central government and they recruit from the list of successful candidates. Finally, there is the Group D service. Peons, Gardeners etc. fall in this group. Top central government officers appoint peons, sweepers and gardeners for their use. The All-India Services have a long history. The AIS system was introduced in the first decade of the 20th century. There were several types of AIS and the most important were Indian Civil Service and Imperial Political Science Study Material on Organization & Institutions Page 56 56 Police Service. There were only few thousand ICS and IPS with whom the British government administered undivided India. These two services were the most powerful instruments of British administration in India. Of course, the public administration of British India had to maintain law and order and to collect -axes by adopting various penal measures. The independent Indian government adopted the AIS system of British Raj with a large number of changes. In British India the ICS and IPS were the most important services and the same tradition remained intact in free India. In India there is a special importance of AIS. It is because India from the standpoint of structure, is a federal state, but, in fact, it is a unitary state. This unitary feature is reflected in the administrative system. The constituent units of Indian federation will have their own administrative systems but there shall be unity in administration of whole India. Besides AIS there are two other services-the State Services and Local Services. Local services are also called municipal services. Here we find that federation has been given priority. There are certain subjects which fall within the jurisdiction of states. Some of these are health, police, agriculture, forest etc. For the recruitment for the posts of state services there are laws enacted by the state legislature. The persons for the state services are recruited through a competitive examination and the process is very much similar to the competitive examinations conducted by the Union Public Service Commission. At present many top positions of state administration are held by IAS, IPS etc. There are large number of services that fall under the category of state services. Such as education, police, tourism, judicial service, medical service, co- operative service, irrigation, fisheries etc. In the case of central government, the general administrative and police service are very important, so also in the case of state service. All the state government give maximum importance to these two services. Local services include municipal services and panehayati raj. Today the local self-government enjoys greater importance. When Rajiv Gandhi was Prime Minister, he introduced two constitutional amendments to give greater importance to the system of local self- government. I he purposes of the amendment was to decentralize the administration and spread it to the grass root level of Indian polity. These are the broad categories of the types of services in India. Recruitment: The recruitment policy for the persons in AIC services has been stated in our Constitution. Art. 309 states that subjects to the provisions of this Constitution Acts of the appropriate legislature Political Science Study Material on Organization & Institutions Page 57 57 may regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with the affairs of the union or any state (Art. 307). The recruitment to the posts for both central and state governments shall be done by constitutional bodies known as Public Service Commissions. There shall be two broad Public Service Commission’s one for the AIS and the other for the state services. The former is known as UPSC (Union Public Service Commission) and the other is called State Public Service Commission. The UPSC is in the charge of recruiting four types of persons to various posts for central government services-one type of post is Civil Service. It is nontechnical. Two All-India Services fall in this category-the IAS and IPS. These two are the most important posts. Besides IAS and IPS there are also other categories of services. The UPSC has been empowered to conduct examination for the recruitment to the Engineering Services. This is a technical service and falls in the second category. In the third category falls Combined Medical Service. The final category is Indian Forest Service. From the above analysis it is obvious that the UPSC is entrusted with the responsibility of recruiting persons to all varieties of public services. But to average Indians, only two categories of posts have importance. These are IAS and IPS. Naturally our analysis will be confined within the selection m service, training etc. of these two premier services. Let us now turn to it. The aspiring candidates are recruited through an open competitive examination conducted by the Union Public Service Commission. There are two stages of examination. The first stage is Civil Service Examination (Objective). The other stage is Civil Service Examination (Main) and it is the final stage. It has two stages first is written. The candidates who will pass in the written examination will be called for interview. The first stage of examination is called Preliminary, the second stage is more important. In the Preliminary Examination there are two papers. The first paper is General Studies of 150 marks. The second paper is called optional paper with three hundred (300) marks. There are several subjects and the candidates will have to select from the list of these subjects. Some of the optional papers are Political Science, Public Administration, Mathematics, Civil Engineering etc. There are 22 subjects. The minimum qualification to appear in the examination is graduation from any recognized university. Previously the students of general streams appeared in the examination. But subsequently engineering and medical graduates are also competing and are becoming successful. The main examination is the most important one. It is difficult and requires through knowledge in the subject the candidate selects. There are four compulsory papers in the main examination and Political Science Study Material on Organization & Institutions Page 60 60 Importance of Training: Many believe that (and it is true) the success (even it may be brilliant) in the written examination cannot make a man a good administrator. He must go through a number of serious and rigorous training. Without it a person can never be a good administrator. In every country enough emphasis is given to the proper training. A candidate can be successful in the written examination. But a good scholar cannot always be a good administrator. Administration means governance and, for good governance, a person must be given proper training. Again, training is a continuous process. New situation arises, problems crop up, and the administrator must be prepared to meet the situation and solve the problem. Because of the immense importance of training both IAS and IPS the trainees are sent to districts and in remote areas. The simple purpose is the candidates must be prepared with the realities. This practical experience will help them to be a good administrator. From practical experience we come to know that the importance of IAS and IPS officers is increasing specifically in parliamentary form of government. In this type of government both legislature and executive change after certain period of time. Naturally the entire burden of state administration falls upon the bureaucrats or civil servants. This indirectly means that the civil servants, in parliamentary system, are the key figures of state administration. So, the situation that comes out of the above discussion is that the bureaucrats must be good administrators and that largely depends what type of training they have proper received. Every bureaucrat must have proper training and experience about various aspects of society. So only training makes a man good administrator. Training is an important part of civil service and necessary emphasis is paid to it. For proper training the Government of India has set up two premier institutions —one for IAS officers and the other for IPS officers and huge amount of money is spent for training and maintenance of these institutes. But many people have raised their eyebrows about the efficacy of the long and costly process and programmes of training. S. R. Maheshwari observes: many people take “an optimistic view of training. They hold that it invariably adds to the functional efficiency of personnel, broadens their mental horizon and endows them with perspective. The other end of the spectrum views training as a paid holiday, enabling the bureaucrats to have a pleasant time at the taxpayers’ expense”. Both these views are partially correct. All the trainees are never serious. Many of them Political Science Study Material on Organization & Institutions Page 61 61 take the training period as paid holiday particularly when they are sent to districts or rural areas some take it as a form of outing and enjoy it. But there are good number of trainees who take the training period very seriously. To them “training is a stimulant”. They try to utilize the period of training by doing the work they have been asked to do. They gather practical experience and in their service life they utilize it. It has been maintained that training stimulates them in various ways such as to do something for the people, to gather experience, and they apply the experience when they staff to work as administrator. When several trainees meet together, they exchange views among them. In this age of globalization and liberalization there is an immense importance of bureaucracy and the training it has received. It is generally observed that the world today (in the age of liberalization) has become a big village or a single unit. The states, big or small, are influenced by each other and this influence falls upon the public administration. If the public administration is not well equipped, it is not properly trained, it will not be able to adjust itself with the changes that are taking place. Particularly the public administration of a developing nation like India must be capable of adjusting itself with the changes that are regularly taking place everywhere. Because of this expert are talking about proper training for civil servants. The idea of good governance also appears. A critic says, “Good governance leads to sound economic, human and institutional development”. The term good governance is a questionable matter. Does it mean that a democratic government assures good governance? This is not. Because the East Asian states are not democratic. But they have achieved miraculous success in the sphere of development. Though Amartya Sen emphasizes that development and democracy are closely linked the East Asian states have falsified it. Now many people say that whether the state is democratic or unitary or dictatorial, that matters little. Its administrative system must be well equipped and properly trained. An efficient and able public administration is capable of meeting any situation and can assure good governance. In an age of globalization, a well-equipped and well-trained public administration can meet any situation and can help the speed of development to the vital key to progress lies in both selection of public servants and their proper training. Today’s states are not simply political states —they are also welfare states where the bureaucracy has a vital role to play. It should act like a good Samaritan. The civil servants must collect taxes Political Science Study Material on Organization & Institutions Page 62 62 and maintain law and order. Simultaneously they will extend their helping hands to the people in great distress or in the great natural calamities. The purpose of training must be this. A large section of India’s peoples is in the grip of poverty, misery, diseases, illiteracy etc. The Government of India makes continuous efforts to lift the people from this stage. But this is not enough. The bureaucracy must be prepared to make government’s effort a great success. The in- service training tries to inculcate this. In India a party comes to power for a fixed period of time. Naturally there is a gap between the coming and going of party or parties. During the period the civil servants run the administration. They decide policies and implement them. Here the basic point is that the civil servants must not forget that they are not the real rulers. They should not do anything that will violate the principles and purposes of India’s Constitution, particularly the principles laid down in the Preamble and also the Fundamental Rights. S.R. Maheswari correctly says, “A training programme ought to deal with the live problems and issues currently faced by the administrators attending it, with a sustained focus on devising strategies and styles to solve them”. Code of Conduct: In every service there are certain rules of conduct which must be strictly followed by every member of the service. Failure to follow the code of conduct or rule will create an atmosphere or chaos in the organisation. In the vast field of Indian civil service there is code of conduct. It is obligatory for everyone to follow the conduct. These rules or codes are to be found in the All India Service (Conduct) Rules 1958. One such rule is Every member of the service shall maintain integrity and devotion to duty. The two words integrity and devotion are significant. A public servant must take his job seriously are do the allotted duty with all seriousness. There is another code which is stated in Rule 4: It is, employment of near relatives in firms enjoying government patronage is forbidden. In other words, the son, daughter, wife or any other near relative of a government officer will not accept any offer of employment in a firm which is getting patronage of the government. The government officers are prevented from accepting any gifts or subscriptions from any firm or organisation or person. Even the family members of the officer cannot accept gifts. The government officers are not allowed to be involved either directly or indirectly in any business or trade or they are not allowed to get any job in private firms. If they desire to have a job in any other Political Science Study Material on Organization & Institutions Page 65 65 of the proposals raised by the political executive, then the progress of the country will be seriously affected. In this background many persons question the time- old issue of neutrality. So far as the issues of neutrality and progress are concerned who will decide the final issue? In the name of neutrality progress-cannot be scarified. It means that the so-called neutrality of civil service, if it stands on the way of national progress, cannot be given priority at all. The All India Congress Committee held in Delhi on December 1, 1969 made the following complaint: “The present bureaucracy under the orthodox and conservative leadership of the Indian Civil Service with its upper-class prejudices can hardly be expected to meet the requirement of social and economic change along socialist lines. The creation of an administrative cadre committed to national objectives and responsive to our social needs is an urgent necessity”. The implication is as clear as broad daylight. Indira Gandhi and her party wanted a committed bureaucracy which means the neutrality of bureaucracy is to be sacrificed. From the standpoints of Indira Gandhi and her party the idea of committed bureaucracy is perfectly right. But we are to view from a broader perspective. A committed bureaucracy may be salubrious in a particular situation but from the general standpoint it is not an acceptable solution. The leaders of a party decided everything from the background of their party but that may not be good for the whole nation. To view everything, neutrally is essential. Progress is, to some extent, a political issue, but it is not political from top to bottom. The concept of progress and other related matters are required to be viewed impartially Particularly, in a party government, progress is colored by the party ideology. When a new party comes to power the concept of progress, the previous party government held, is bound to change. Naturally we are of opinion that though everyone needs change, it to essential that it is essential to be considered neutrally and only the bureaucrats can do the job. What is the solution? As far as possible the bureaucracy must be neutral and this neutrality must always relate to the national progress, security and welfare of the people. That is, if any progress appears to challenge that the bureaucracy must raise its voice. But when the policy and programmes of a party in power are about to hinder the national progress and security of the nation the bureaucracy must bring it to, the notice of the general public. It is true that many top bureaucrats Political Science Study Material on Organization & Institutions Page 66 66 come from the affluent section of the society and because of their background they support a class to which they belong. But a recent study reveals that many civil servants belong to middle class and this class background has cast an impact upon their behaviour and administrative functions. A bureaucrat must be well-acquainted with the social, economic, political conditions of India and needs of the people. In this general background a civil servant must try to run the administration. He must have his own view, but to him the needs of the nation are more important. To the greater interests of the nation the civil servants will sacrifice his own view and ideology. This is, a new- interpretation of political neutrality. India is a multiparty state and each party has its own programme and ideology. But still there are certain fields on which almost all the major parties agree. A bureaucrat ought to be well-acquainted with it and whenever a policy is going to be made, he must see that the policy must be supported by the national consensus. When a particular policy is going to contradict the national interest or national consensus the bureaucracy must point it out. The concept of political neutrality should be interpreted in this way. The policy of the government must be stated in unambiguous terms and it must be circulated among the civil servants. If necessary, their considered opinion must be sought. After a thorough discussion attempts shall be made to “reach a general consensus. After this the policy should be ready for implementation. If this democratic process is adopted the management of public admin- istration should be smooth and the question of political neutrality of bureaucracy will not make any complicated issue. The issue of neutrality is required to be viewed still from another angle. If the question of neutrality is challenged and if it is said that the civil servants must two the line of political executives and they will have no freedom to express their views, then they will be denied their right to express opinion. This is a clear abnegation of right and no sensible authority can do this. A civil servant is, after all, an educated person and he has overcome a number of hurdles to reach the stage of an administrator. It is a gross injustice to deprive a man of expressing his considered opinion. A clear line of difference must be drawn between the expression of opinion and to criticize and challenge the policy of the political executive. Our point is that the bureaucrat will have freedom to express his opinion but once the policy has been taken or adopted at the highest level, he must accept it and must do everything to make it a grand success. The civil servants must be well-acquainted with the vexed issue of neutrality. What is exactly meant by neutrality? How far can a civil servant be neutral? Should he be allowed to express his opinion on Political Science Study Material on Organization & Institutions Page 67 67 each and every issue? There are also many other questions. Two things are to be noted here. One is an intelligent bureaucrat should and must know how far to go. That is, to what extent he should oppose the view of his political master. The other is, he must accept that his political master is the final authority. It may be that his political master is wrong and he is right. But, in democracy, political master’s is the final voice. Finally, I say that the bureaucracy should be trained in this way. Control over Bureaucracy: Bureaucracy is an indispensable part of modern administrative system and in this sense, we cannot think of public administration without bureaucracy. Thinking in this line Ball and Peters have aptly remarked: “The need for controlling bureaucratic discretion and power is apparent in every political system” This observation of Ball and Peters also holds good for India. It is because India is a liberal democratic country and multiparty state. After general election a new government is formed and though political executives change, the civil servants remain almost same. This continuity in service and indispensability in administration create opportunities for civil servants to indulge in high-handedness and other anti-people activities. For this reason, the control of bureaucracy or to keep a vigil on bureaucrats has arisen. In other words, it is said that the civil servants will be allowed to perform their duties but they shall not be allowed to cross the Lakshman Rekha which is generally interpreted as control of bureaucracy or to make it accountable to the public. There are several processes of control of bureaucracy and we shall discuss them: (1) A very important agency of controlling bureaucracy is control by legislature or legislative control. In parliamentary form of government, the legislature enjoys enormous powers. The council of ministers is responsible to the legislature and because of this the members can ask questions to ministers regarding the functions of bureaucracy or the lapses of any particular department or the wrongdoing of any bureaucrat. Again, the legislatures can raise motions, can pass resolutions about the functions of civil servants. The legislature may adopt resolution about bureaucracy, can initiate discussion and start debate. In these ways the legislature can control the Political Science Study Material on Organization & Institutions Page 70 70 may be stopped or any disciplinary action may be taken. The personnel department also decides other matters in respect of service and the civil servants know that when these are followed or adopted that will lead to penalization such as demotion, stopping of increment, transfer etc. The personnel department also frames some service rules for the bureaucrats which must be followed. The public vigilance is also a way that controls the bureaucracy. In all democracies the bureaucracy is accountable or is supposed to be accountable. Any negligence of duty or violation of rules and regulation is strongly opposed by the vigilant public. There is an old and common saying eternal vigilance is the price of liberty. An educated, politically conscious and vigilant public is perhaps the most effective and powerful control over civil servants. Of course, for an effective public control over bureaucracy a large-scale political socialization is essential. People must be well- acquainted with the political culture, administration, purposes and principles of state administration. This acquaintance helps the general public to keep an eagle’s eye over the administration. This also requires that the foundation of democracy must be strong and widespread. SALIENT FEATURES OF INDIAN CIVIL SERVICE SYSTEM Public administration of a country has to be manned by public services which can be called civil services also if they constitute a professional body of officials – permanent, paid and skilled. This great body of men and women that the government has for its daily contacts with the rank and file in the country performs varied functions. It is a civil army of functionaries necessary for the realization of the purposes for which government exists. Public service denotes a wider canvas and can encompass employees of public corporation and local bodies, while civil service in British sense is quite restrictive and excludes judges. All civil servants are public servants but the opposite is not necessarily acceptable to all students of personnel administration. Starting from man management to personnel administration, the studies in this area have come to human resource development (HRD). The narrow objectives of Weberian bureaucracy are being replaced by democratic participatory models of public service, wherein efficiency has given way to effectiveness or long-term result orientation for good governance. The ancient Indian or medieval Mughal models of civil service were out rightly rejected by the British who initiated a new model of merit bureaucracy for their senior civil services in the colony. But this Weberian model has to be combined with a guardian and patronage bureaucracy which at Political Science Study Material on Organization & Institutions Page 71 71 lower levels was bound to degenerate into a cast bureaucracy of M. Marx’s classification. The English rulers for sure knew the limitations of their model, but this was the ‘least bad’ for a colony which was too vast and had diverse groups without any national system of education. So, the Indian Civil Service was gradually evolved from 1858 to 1947 on the base which the East India Company rulers built on the Mughal structure to extract colonial revenue along with some civilizational characters of liberalism. Started as covenanted and un-covenanted services of the company, the public services in later era became imperial/central provincial and subordinate services. The idea of 1935 Federation concretized the concept of all India services which happens to be unique characteristics of Indian civil service system. The 1909 and 1919 Constitutional Reforms articulated several innovations in the structure and working of civil services in India and the secretary of state for India continued to be a guardian of civil servants till the end of the British Raj. The salient features of Indian civil service system during these 90 years of Crown’s rule can be identified as under: (1) A three-tier service system, namely, (a) All India Services (b) Functional Central Services, and (c) Provincial Services. (2) Generalist services to function as a support structure for the nascent parliamentary institutions of self-government. (3) Elitist public services to ensure merit, efficiency and above all loyalty of the senior civil servants to the Raj. (4) Political neutrality of meritorious civil servants, working anonymously and independently for the colonial power in the midst of a nationalist freedom struggle. (5) Unaccountability to the people of India, who were not their sovereign masters. Public welfare was a secondary function, development works were conspicuous by their absence and the professed objective was association of Indians rather than serving the teeming minions. Independence has radically and totally revised the philosophy, structure and objectives of civil service in India. It is a common sense clichés that civil services cannot rule free India. Today they will have to work with people’s representatives. Their role in development and planned economy Political Science Study Material on Organization & Institutions Page 72 72 has to be varied and critical and they will have to be representative, accountable and professional. Their size has expanded and learning from British and American experiences they seem like an apology of the past. The political system has democratized itself but the administrative response to this change is still slow and halting. On the other hand, the pressure of work and the revolution of rising expectations have pushed the civil services into defensive. They accept their new tasks and roles but find themselves structurally and behaviorally handicapped to move faster. Civil service: The body of government officials who are employed in civil occupations that are neither political nor judicial. In most countries the term refers to employees selected and promoted on the basis of a merit and seniority system, which may include examinations. Appointment: In earlier times, when civil servants were part of the king’s household, they were literally the monarch’s personal servants. As the powers of monarchs and princes declined and as, in some countries, their sovereignty was denied them, appointment became a matter of personal choice by ministers and heads of departments. The influence senior civil servants may wield over policy and the need for them to work in close harmony with ministers induce all governments to insist on complete freedom of choice in appointments, even when, as in Great Britain, the freedom is rarely invoked. In some countries, notably the United States, senior advisers usually are replaced whenever a new administration takes office. In Europe in the 19th century, appointment and promotion frequently depended on personal or political favour, but tenure was common in the lower and middle ranks once an appointment had been made. Dependency on a superior’s favour led civil servants to ally themselves with liberal public opinion, which was critical of the waste and corruption involved in political patronage. Pressure for reform led to official formulations of basic qualifications for different posts; appointments and promotions boards were established within each department to prevent or obstruct overt political favoritism and nepotism; and salary scales were introduced for different grades to provide a civil servant with increments for good service while still holding the same post. In many countries civil service commissions were set up to ensure impartiality in selection procedures and to lay down broad principles for personnel management in the civil service. Recruitment in many European countries corresponded to the national educational systems: the highest class of civil servants entered service after graduation from a university, the executive class after full completion of secondary school, the clerical class Political Science Study Material on Organization & Institutions Page 75 75 supplemented or revised to accord with recommendations from periodic commissions of enquiry, which pay special attention to official conduct in relation to political activities and business dealings. In France and Germany these codes of conduct have been based mainly upon the rules of administrative law and the jurisprudence of administrative courts, although certain civil service rights and duties are specified in constitutional law. In other countries, particularly in the United States and India, conduct and discipline are regulated by administrative rules and codes promulgated by executive order after discussion and enquiry. The standards placed upon a civil servant’s conduct are partly those to be expected of any loyal, competent, and obedient employee and partly those enjoined upon a public employee. Ideally, the civil servant should be above any suspicion of partiality and should not let personal sympathies, loyalties, or interests affect the performance of duties; for example, a civil servant is obliged to be circumspect in private financial dealings. As a general rule, a civil servant is not allowed to engage directly or indirectly in any trade or business and may engage in social or charitable organizations only if these have no connection with official duties. There are always strict limits on a civil servant’s right to lend or borrow money, and they are prohibited from accepting gifts. Civil servants and politics There are different attitudes about the extent to which civil servants may engage in political activities. One view is that a civil servant has the same constitutional rights as other citizens and that it is therefore unconstitutional to attempt to limit those rights other than by the common law. The opposing view is that, since civil servants are engaged in the unique function of national government, their integrity and loyalty to their political masters might be affected by active participation in political affairs, and public confidence in their impartiality could be shaken. Broadly speaking, those countries that traditionally expect civil servants to behave with complete impartiality and to conform to ministerial policy with energy and good will, whether they agree with the policy or not, expect all civil servants to behave with circumspection in political affairs. The United Kingdom has a total ban on its senior civil servants’ engaging in any form of political activity. The prohibition becomes progressively less strict, however, for the medium and lower grades of the service. Political Science Study Material on Organization & Institutions Page 76 76 Another group of countries, including France and Germany, have deemed policy and administration to be so intimately connected that all top posts are filled at the discretion of the government of the day; thus, civil servants are allowed greater scope in political activities. They are nevertheless expected to act with greater discretion and public decorum than private citizens, and an excess of power or an abuse of office for political purposes renders a civil servant instantly liable both to statutory regulations and to severe internal disciplinary proceedings. Civil servants and unions Traditionally, governments have been hostile toward civil service unions, and in the past repressive laws made strike action unlawful. Strikes nevertheless occurred, and governments eventually adopted an attitude of open encouragement toward trade unionism. Most governments accept, in theory at least, that the state should be a model employer. It follows that, if the state genuinely pursues a policy of discussion and negotiation with civil servants and attempts properly to fulfill agreements with them, it should in return be freed from the threat of strike action. Mindful that the withdrawal of civil servants from some public services would lead to chaos, many governments have found it prudent to establish permanent channels for negotiating such matters as salaries and discipline. Organizations representing the staff and a management side of senior officials representing the state mirror the employer-employee relationship of private industry, although a higher percentage of public- than private-sector employees are members of unions. The United Kingdom was the first country to establish negotiating machinery for civil servants. Following a report in 1917, organizations known as Whitley Councils were set up, consisting of equal numbers of medium and lower staffs on the one hand and directing and supervisory staffs on the other. These councils operate within the ministries, and a National Whitley Council performs central advisory functions for the government. They have no powers of decision, however, only of recommendation, because governments are never prepared to surrender their ultimate responsibility for determining the public interest. The councils have done a good deal to provide a sense of common purpose and joint responsibility within the civil service as a whole, although pay restraints from the early 1970s generated great friction between civil service unions and government. Political Science Study Material on Organization & Institutions Page 77 77 In France each department has a comparable consultative body, but its work is broader in scope in that it can scrutinize recruitment, personnel records, promotions, and disciplinary procedures. There is also a national council, presided over by the prime minister or a specially nominated minister for civil service affairs, which is concerned with general personnel policy, conditions of service, and coordination of departmental committees. Until after World War II, the commonly accepted view in the United States was that expressed by Pres. Calvin Coolidge: “There is no right to strike against the public safety by anybody, anywhere, at any time.” Although federal employees are still forbidden to strike, a rule illustrated by the dismissal of striking air traffic controllers in 1981, consultation has increased, and in many federal departments appeals committees comprising departmental heads and one or more members of the Merit Systems Protection Board may now hear appeals from civil servants against decisions adversely affecting their careers. These committees are also consulted on general matters of departmental interest, such as job classifications, pension schemes, promotion policies, and office procedures. Patterns of Control The expansion of public services, as well as the development of permanent civil service career structures, raised fears that civil services were becoming autonomous powers in their own right, no longer subject to the traditional forms of control. This view is associated with the sociologists Max Weber, who criticized the bureaucracy of imperial Germany, and Robert Michels, who formulated the “iron law of oligarchy.” Michels’s law suggested that every organization with a permanent staff produces an oligarchy running the organization according to the interests and values of the bureaucratic group. In addition, the growing complexity of modern government has greatly augmented the informal power of senior civil servants who act as advisers to ministers. This is particularly the case in countries (usually the more democratic ones) where ministries frequently change hands. In the 19th century civil services were normally restricted to maintaining law and order and minor economic regulations such as those concerning weights and measures and factory laws. The subordination of civil servants to their political masters and their political masters’ responsibility to the courts and legislatures seemed to provide an adequate safeguard against arbitrary administrative actions. But in some countries, notably Germany, France, and Austria, civil services Political Science Study Material on Organization & Institutions Page 80 80 administration and maintained audits of their work. Its officers had the right of access to all administrative records and could issue directives to other institutions. They had powers to prosecute civil servants for criminal offenses, and they could apply a formidable range of disciplinary measures to civil servants, either by direct action or through the responsible minister. The second agency of control arose because of the difficulty of reconciling disputes between production units and their controlling ministries in an economy that lacked the traditional forms of market discipline and could not rely upon an enforceable law of contract. A special system of compulsory arbitration operated through the State Arbitration Tribunal under the Council of Ministers and through arbitration tribunals responsible to the councils of ministers in each of the republics. It settled all disputes concerning contracts, quality of goods, and other property disputes between various state enterprises. The system was staffed by civil servants charged with enforcing “contractual and plan discipline,” but it was supported by technical experts qualified in economic and industrial matters. International Civil Service The elements of an international civil service first appeared in the Universal Postal Union (established 1874–75). Some four and a half decades later the League of Nations and the International Labour Organization (ILO) were founded. They required a staff of almost 600 experts and subordinate personnel, which took the form of a true international civil service. It drew mainly on British, French, and Swiss personnel, but more than 40 states contributed members in order to spread recruitment as widely as possible. There were no formal methods of selection for the higher personnel; the secretary-general of the League used personal contacts. The staff fell into three divisions: administrative, supervisory and clerical, and custodial. The history of the League shows that, at any rate as far as a secretariat was concerned, a broad measure of international loyalty could be achieved. The staff of the ILO was maintained after the League’s disbandment in 1946. Until World War II the League of Nations was the only major international organization of its kind. Since then, international organizations have multiplied, and compared with most of them the League had a small staff. The postwar organizations include the United Nations, the Organization of American States, the European Community (EC; ultimately succeeded by the European Political Science Study Material on Organization & Institutions Page 81 81 Union [EU]), and the Organisation for Economic Co-operation and Development. By the mid- 1980s there were nearly 20,000 smaller bodies, ranging from the Nordic Council to small research institutes. International organizations have evolved into two general types. In the first an example of which is the EU a genuinely supranational civil service exists; its members have a career structure within the organization and can identify with it. In the second (the UN, for instance), officials undertake a particular job for a limited period and seldom develop a career within the organization. In the EU the civil service is divided into several grades, recruitment to the service generally being through competitive examination. After recruitment a period of training follows. Each agency within the UN operates its own recruitment system. By far the majority of senior appointees assigned to the UN at any one time have served there for less than 15 years. In both types of international organization, there is a danger that officials will promote the interests of their own country to the detriment of internationalism. In the UN a quota system operates by which each country is allocated a number of appointments in proportion to its UN budget contribution. As a result, some national governments are in a strong position to influence recruitment. In contrast, the statutes governing the EU’s civil service forbid quotas, but an unofficial system has developed whereby a relatively high proportion of senior officials are from the more populous states. Such practices risk sacrificing meritocracy to nationalism. Some countries do expect their nationals working at the UN to promote national interests. But the quota system and this is one of the arguments for it leads to administrators from at least the more prosperous countries competing with fellow nationals rather than with colleagues from other countries. Moreover, it is unlikely that decisions, whether biased or not, will be made in the bureaucracy alone. And since officials’ national origins are no secret, partiality is fairly difficult to conceal. Political Science Study Material on Organization & Institutions Page 82 82 2.4 JUDICIARY SYNOPSIS ❖ Introduction ❖ Structure of Judiciary ❖ Supreme Court ❖ High Court ❖ Judicial Activism ❖ Judiciary and Rights ❖ Judiciary and Parliament ❖ Conclusion Introduction Many times, courts are seen only as arbitrators in disputes between individuals or private parties. But judiciary performs some political functions also. Judiciary is an important organ of the government. The Supreme Court of India is in fact, one of the very powerful courts in the world. Right from 1950 the judiciary has played an important role in interpreting and in protecting the Constitution. In this chapter you will study the role and importance of the judiciary. In the chapter on fundamental rights you have already read that the judiciary is very important for protecting our rights. After studying this chapter, you would be able to understand the meaning of independence of judiciary; the role of Indian Judiciary in protecting our rights; the role of the Judiciary in interpreting the Constitution; and the relationship between the Judiciary and the Parliament of India. WHY DO WE NEED AN INDEPENDENT JUDICIARY? Political Science Study Material on Organization & Institutions Page 85 85 by special majority in both Houses of the Parliament. Do you remember what special majority means? We have studied this in the chapter on Elections. It is clear from this procedure that removal of a judge is a very difficult procedure and unless there is a general consensus among Members of the Parliament, a judge cannot be removed. It should also be noted that while in making appointments, the executive plays a crucial role; the legislature has the powers of removal. This has ensured both balance of power and independence of the judiciary. So far, only one case of removal of a judge of the Supreme Court came up for consideration before the Parliament. In that case, though the motion got two-thirds majority, it did not have the support of the majority of the total strength of the House and therefore, the judge was not removed. STRUCTURE OF THE JUDICIARY The Constitution of India provides for a single integrated judicial system. This means that unlike some other federal countries of the world, India does not have separate State courts. The structure of the judiciary in India is pyramidal with the Supreme Court at the top, High Courts below them and district and subordinate courts at the lowest level (see the diagram below). The lower courts function under the direct superintendence of the higher courts. Supreme Court of India Its decisions are binding on all courts. Can transfer Judges of High Courts. Can move cases from any court to itself. Can transfer cases from one High Court to another. High Court Can hear appeals from lower courts. Can issue writs for restoring Fundamental Rights. Can deal with cases within the jurisdiction of the State. Exercises superintendence and control over courts below it. District Court Deals with cases arising in the District. Considers appeals on decisions given by lower courts. Decides cases involving serious criminal offences. Political Science Study Material on Organization & Institutions Page 86 86 Subordinate Courts Consider cases of civil and criminal nature • Judiciary is an independent body that protects and ensures the ‘rule of law.’ • Any other organs of the government including the executive and legislature must not restrain the functioning of the judiciary. • The judicial system in India is in the form of an integrated judiciary, which consists of a Supreme Court for the whole nation, High Courts in each state, and District Courts and the courts at the local level (as shown in the diagram given below). • The Supreme Court controls the judicial administration and the judgments of the Supreme Court are binding on all other courts of the country. Judges of Supreme Court • The Judges of the Supreme Court (and the High Courts) are appointed by the President (of India) after ‘consulting’ the Chief Justice of India (CJI). • Normally, the senior-most judge of the Supreme Court of India is appointed as the Chief Justice of India (CJI); however, this convention was broken two times o In 1973, A. N. Ray was appointed as CJI superseding three senior Judges and o In 1975, Justice M.H. Beg was appointed superseding Justice H.R. Khanna. • A judge of the Supreme Court (or High Courts) can be removed only on the ground of proven misbehavior or incapacity. Political Science Study Material on Organization & Institutions Page 87 87 • A motion containing the charges against the judge must be approved by special majority in both the Houses of Parliament; only then a judge can be removed. Jurisdictions of Supreme Court The Supreme Court of India is one of the very powerful courts anywhere in the world. However, it functions within the limitations imposed by the Constitution. The functions and responsibilities of the Supreme Court are defined by the Constitution. The Supreme Court has specific jurisdiction or scope of powers. • The Supreme Court of India acts as the highest court of appeal in civil and criminal cases. It hears appeals against the decisions of the High Courts. However, the Supreme Court hears any case if it pleases to do so. • The Supreme Court has got jurisdiction to take up any dispute such as − o Between citizens of the country; o Between citizens and government; o Between two or more state governments; and o Between governments at the union and state level. • The Supreme Court and the High Courts are the custodian of our constitution. They have the power to interpret the Constitution of the country. • The Supreme Court can declare any law of the legislature or the actions of the executive unconstitutional if such a law or action is against the provisions of the Constitution. • The Supreme Court has ‘Original Jurisdiction’. It means – some cases can be directly considered by the Supreme Court without going to the lower courts. Original jurisdiction means cases that can be directly considered by the Supreme Court without going to the lower courts before that. Form the diagram above, you will notice that cases involving federal relations go directly to the Supreme Court. The Original Jurisdiction of the Supreme Court establishes it as an umpire in all disputes regarding federal matters. In any federal country, legal disputes are bound to arise between the Union and the States; and among the States themselves. The power to resolve such cases is entrusted to the Supreme Court of India. It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases. Neither the High Courts nor the lower courts can deal with such cases. In this capacity, the Supreme Court not just Political Science Study Material on Organization & Institutions Page 90 90 • The Supreme Court of India also guards the Constitution against any change in its basic principles by the Parliament. • The independence and powers exercised by the Indian judiciary in India make the Supreme Court to act as the guardian of the Fundamental Rights. • The Indian Constitution is based on a subtle principle of limited separation of powers and checks and balances, which means - each organ of the government has a clear area of functioning. For example, o The Parliament is supreme in making laws and amending the Constitution; o The Executive is supreme in implementing the laws; and o The judiciary is supreme in settling disputes and deciding whether the laws that have been made are in accordance with the provisions of the Constitution. • In a landmark judgment of Kesavananda Bharati case (1973), the Supreme Court ruled that there is a ‘Basic Structure’ of the Constitution and nobody — not even the Parliament (through amendment)— can violate the basic structure. • In Kesavananda Bharati case, the Supreme Court did two things − o It said that right to property was not part of the basic structure and therefore could be suitably amended. o The Court reserved to itself the right to decide whether various matters are part of the basic structure of the Constitution. JUDICIAL ACTIVISM Have you heard of the term judicial activism? Or, Public Interest Litigation? Both these terms are often used in the discussions about judiciary in recent times. Many people think that these two things have revolutionized the functioning of judiciary and made it more people-friendly. The chief instrument through which judicial activism has flourished in India is Public Interest Litigation (PIL) or Social Action Litigation (SAL). What is PIL or SAL? How and when did it emerge? In normal course of law, an individual can approach the courts only if he/she has been personally aggrieved. That is to say, a person whose rights have been violated, or who is involved in a dispute, could move the court of law. This concept underwent a change around 1979. In 1979, the Court set the trend when it decided to hear a case where the case was filed not by the aggrieved persons but by others on their behalf. As this case involved a consideration of an issue of public interest, it Political Science Study Material on Organization & Institutions Page 91 91 and such other cases came to be known as public interest litigations. Around the same time, the Supreme Court also took up the case about rights of prisoners. This opened the gates for large number of cases where public spirited citizens and voluntary organisations sought judicial intervention for protection of existing rights, betterment of life conditions of the poor protection of the environment, and many other issues in the interest of the public. PIL has become the most important vehicle of judicial activism. Judiciary, which is an institution that traditionally confined to responding to cases brought before it, began considering many cases merely on the basis of newspaper reports and postal complaints received by the court. Therefore, the term judicial activism became the more popular description of the role of the judiciary. Through the PIL, the court has expanded the idea of rights. Clean air, unpolluted water, decent living etc. are rights for the entire society. Therefore, it was felt by the courts that individuals as parts of the society must have the right to seek justice wherever such rights were violated. Secondly, through PIL and judicial activism of the post-1980 period, the judiciary has also shown readiness to take into consideration rights of those sections who cannot easily approach the courts. For this purpose, the judiciary allowed public spirited citizens, social organisations and lawyers to file petitions on behalf of the needy and the deprived. Judicial activism has had manifold impact on the political system. It has democratized the judicial system by giving not just to individuals but also groups access to the courts. It has forced executive accountability. It has also made an attempt to make the electoral system much freer and fairer. The court asked candidates contesting elections to file affidavits indicating their assets and income along with educational qualifications so that the people could elect their representatives based on accurate knowledge. There is however a negative side to the large number of PILs and the idea of a pro-active judiciary. In the first place it has overburdened the courts. Secondly, judicial activism has blurred the line of distinction between the executive and legislature on the one hand and the judiciary on the other. The court has been involved in resolving questions which belong to the executive. Thus, for instance, reducing air or sound pollution or investigating cases of corruption or bringing about electoral reform is not exactly the duty of the Judiciary. These are matters to be handled by the administration under the supervision of the legislatures. Therefore, some people feel that judicial activism has made the balance among the three organs of government very delicate. Democratic Political Science Study Material on Organization & Institutions Page 92 92 government is based on each organ of government respecting the powers and jurisdiction of the others. Judicial activism may be creating strains on this democratic principle. JUDICIARY AND RIGHTS We have already seen that the judiciary is entrusted with the task of protecting rights of individuals. The Constitution provides two ways in which the Supreme Court can remedy the violation of rights. First it can restore fundamental rights by issuing writs of Habeas Corpus; mandamus etc. (article 32). The High Courts also have the power to issue such writs (article 226). Secondly, the Supreme Court can declare the concerned law as unconstitutional and therefore non-operational (article 13). Together these two provisions of the Constitution establish the Supreme Court as the protector of fundamental rights of the citizen on the one hand and interpreter of Constitution on the other. The second of the two ways mentioned above involves judicial review. Perhaps the most important power of the Supreme Court is the power of judicial review. Judicial Review means the power of the Supreme Court (or High Courts) to examine the constitutionality of any law if the Court arrives at the conclusion that the law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and inapplicable. The term judicial review is nowhere mentioned in the Constitution. However, the fact that India has a written constitution and the Supreme Court can strike down a law that goes against fundamental rights, implicitly gives the Supreme Court the power of judicial review. Besides, as we saw in the section on jurisdiction of the Supreme Court, in the case of federal relations too, the Supreme Court can use the review powers if a law is inconsistent with the distribution of powers laid down by the Constitution. Suppose, the central government makes a law, which according to some States, concerns a subject from the State list. Then the States can go to the Supreme Court and if the court agrees with them, it would declare that the law is unconstitutional. In this sense, the review power of the Supreme Court includes power to review legislations on the ground that they violate fundamental rights or on the ground that they violate the federal distribution of powers. The review power extends to the laws passed by State legislatures also. Together, the writ powers and the review power of the Court make judiciary very powerful. In particular, the review power means that the judiciary can interpret the Constitution and the laws passed by the legislature. Political Science Study Material on Organization & Institutions Page 95 95 government. Some issues still remain a bone of contention between the two can the judiciary intervene in and regulate the functioning of the legislatures? In the parliamentary system, the legislature has the power to govern itself and regulate the behaviour of its members. Thus, the legislature can punish a person who the legislature holds guilty of breaching privileges of the legislature. Can a person who is held guilty for breach of parliamentary privileges seek protection of the courts? Can a member of the legislature against whom the legislature has taken disciplinary action get protection from the court? These issues are unresolved and are matters of potential conflict between the two. Similarly, the Constitution provides that the conduct of judges cannot be discussed in the Parliament. There have been several instances where the Parliament and State legislatures have cast aspersions on the functioning of the judiciary. Similarly, the judiciary too has criticised the legislatures and issued instructions to the legislatures about the conduct of legislative business. The legislatures see this as violating the principle of parliamentary sovereignty. These issues indicate how delicate the balance between any two organs of the government is and how important it is for each organ of the government in a democracy to respect the authority of others. Conclusion In this chapter, we have studied the role of the judiciary in our democratic structure. In spite of the tensions that arose from time to time between the judiciary and the executive and the legislature, the prestige of the judiciary has increased considerably. At the same time, there are many more expectations from the judiciary. Ordinary citizens also wonder how it is possible for many people to get easy acquittals and how witnesses change their testimonies to suit the wealthy and the mighty. These are some issues about which our judiciary is concerned too. You have seen in this chapter that judiciary in India is a very powerful institution. This power has generated much awe and many hopes from it. Judiciary in India is also known for its independence. Through various decisions, the judiciary has given new interpretations to the Constitution and protected the rights of citizens. As we saw in this chapter, democracy hinges on the delicate balance of power between the judiciary and the Parliament and both institutions have to function within the limitations set by the Constitution. Political Science Study Material on Organization & Institutions Page 96 96 2. 5. MONTESQUIEVS THEORY OF SEPARATION OF POWERS “Power corrupts and absolute Power tends to corrupt absolutely” (said Lord Acton). For any democratic government to remain stable and function efficiently as well as effectively, the holders of power need to be put on a check against each other. This was the underlying principle behind what was propounded by Baron de Montesquieu in his book Esperit de Lois 1748. The Doctrine of Separation of Powers deals directly with the three organs of the government - the legislature, the judiciary and the executive - and tries to instill exclusivity in their operation. The fact of the matter remains that the Doctrine of Separation of Powers, as put forth and envisioned by Montesquieu has not been implemented in its strict sense in India because it describes an idealistic situation. In the Indian context, the three organs of government cannot be separated into water- tight compartments and an adaptive and flexible principle of separation of powers is followed instead. The Theory of Separation of Powers has a few key elements to it as Montesquieu envisioned; (a) The same person should not form a part of more than one of the three organs of the government. (b) One organ of the government should not interfere with any other organ of the government. (c) One organ of the government should not exercise the functions assigned to any other organ. From a prima facie inspection in regards to these principles, it is clear that in India, there is a functional overlapping in the three organs which deviates from Montesquieu’s third principle. The Doctrine of Judicial review allows the courts to invalidate certain laws passed by the legislature if they are unconstitutional while the executive can also be said to have certain impact on the structure of the judiciary as it reserves the power to make appointments to the offices of the chief justice and other judges. “Even in the United States of America where the Doctrine of Separation of powers finds itself most vigorously canvassed, it has not found favour in absolute undiluted form” (Bakshi 1956,). The intermingling of certain functions thus becomes inevitable. Durga Das Basu is of the view that “in modern practice, the theory of separation of powers means an organic separation and the distinction must be drawn between 'essential' and 'incidental' powers and that one organ of Political Science Study Material on Organization & Institutions Page 97 97 government cannot usurp or encroach upon the essential functions belonging to another organ, but may exercise some incidental function thereof” (Basu 2003). This view can be read in light of the second principle that was put forward in Montesquieu’s theory and it goes further to prove that the interpretation of his theory has not been followed to the letter and its actual implementation diverges from the initial principle. This points towards the inference that a strait jacket division of powers in the strict sense of the Doctrine of Separation of Powers is undesirable in a democracy. The water-tight separation of the functions of the three organs of the government is not only unfeasible but also impractical as the inherent nature of their functions requires a certain degree of interdependency. A situation where there is an absolute division between their powers or functions would lead to less effective governance. Taking example of the judiciary, its legislative functions include inter alia, making rules for its own practice and procedure and filling gaps in law where the law remains silent on an issue which the courts are faced with. The executive powers of the judiciary include the power to appoint officers and servants of the high court. Although there are some intended overlaps between the functions or powers between the organs, there still remains an essential and organic division between their powers as is clear from Bankey Singh v Jhingan Singh, A.I.R [1952] Patna 166, where the court held that “"The State Legislature is not competent to reverse the decisions and orders of the court because the power to nullify the decrees and orders of the court is purely a judicial power and the Constitution does not appear to have given jurisdiction to the legislature either expressly or by necessary intendment to arrogate to itself the power to adjudicate a power which is exclusively within the jurisdiction of the court.” The court in this case, took it upon itself to outline that the state legislature overreached and encroached upon the powers of the judiciary in accordance with Montesquieu’s second principle and this reaffirms that there exists a division of power between the organs although it may not be water-tight. The Doctrine of Separation of Powers, insofar as its implementation in India is concerned, has neither been given official status in the constitution nor in any statute but has been recognised and been given effect through decisions of the courts in specific regard to the Basic Structure Doctrine. It can be argued that the Doctrine of Separation of Powers has been used as a “guiding philosophy” (Garg 1964, 331-338) in governance in India. The Indian democratic system lays out a framework