Constitution & Polity of India

‘Why is PM CARES Fund not subject to public audit?’

Context: The Congress party has accused the government of lack of transparency and accountability in the PM CARES Fund and demanded that a public fund that receives donations of ₹5,000 crore should come under the ambit of RTI and show accountability.

About PM CARES Fund

PM CARES Fund has been registered as a Public Charitable Trust under the Registration Act, 1908. Its primary objective is to deal with any kind of emergency or distress situation, like posed by the COVID-19 pandemic, and to provide relief to the affected.
The Prime Minister of India is the ex-officio Chairman of the PM CARES Fund, and the Ministers of Defence, Home Affairs, and Finance are its Trustees.
The PM CARES Fund relies entirely on voluntary contributions from individuals and organizations and does not receive any financial support from the government's budget.
Contributions made to the PM CARES Fund are eligible for 100% income tax exemption under the Income Tax Act of 1961, encouraging people to donate for a good cause.
Donations made to the PM CARES Fund can be counted as part of a company's Corporate Social Responsibility (CSR) expenditure under the Companies Act of 2013.
The PM CARES Fund has received exemption under the Foreign Contribution Regulation Act (FCRA), allowing it to receive donations and contributions from foreign individuals and organizations.
This exemption is consistent with the Prime Minister's National Relief Fund (PMNRF), which has been accepting foreign contributions as a public trust since 2011.

Objectives of PM CARES

The primary goal of the PM CARES Fund is to support relief and rehabilitation efforts in times of crises, with a focus on providing essential resources and services to people in distress.
The PM CARES Fund is authorized to provide relief and support in the event of a public health emergency or any other kind of emergency, whether caused by humans or nature.
The Fund can support various initiatives such as upgrading healthcare or pharmaceutical facilities, providing necessary infrastructure, funding relevant research, or any other form of assistance.

Government’s response on audit of PM CARES Fund

The Centre has informed that PM CARES Fund is set up as a public charitable trust and is not created under the Constitution or any law made by the Parliament or the state. Hence, it does not constitute a public authority under the provisions of the RTI Act
The trust is not a public authority under Right to Information (RTI), and it accepts voluntary donations by individuals and institutions and any contributions flowing out of budgetary sources of government are not accepted.
The government has clarified that the PM CARES Fund/Trust is independent of any government or its agencies. Although some holders of public office serve on the board of trustees, it is for administrative convenience only and does not confer ownership or control over the trust.
Furthermore, the purpose of the PM CARES Fund/Trust is entirely charitable, and its funds are not used for any government projects. Therefore, the trust cannot be classified as a 'public authority' and is not governed by any government policies.

Right to Information:

The Right to Information Act (RTI) of 2005 is a landmark law in India, aimed at combating corruption and ensuring accountability in governance.
It grants citizens the power to access government documents and files and hold public officials accountable for their actions.
The RTI Act is a crucial tool for promoting transparency and accountability in a democratic society, where the government is accountable to its citizens.
In fact, the Supreme Court of India has held in the case of 'Raj Narayan v/s Uttar Pradesh' that the Right to Information is a fundamental right guaranteed under Article 19(1)(a) of the Indian Constitution. This reflects the importance of the right to information in a democratic society.
However, there are certain organizations that are exempted from the purview of the RTI Act. These include intelligence agencies, the central economic intelligence bureau, research bodies working with the country's security agencies, and paramilitary forces.

Success of RTI

2G Scam
Coalgate Scam

Challenges of Right to Information:

Low public awareness: Section 26 of the Act states that the appropriate Government may develop and organize educational programmes to advance the understanding of the public, especially disadvantaged communities, regarding how to exercise the rights contemplated under the Act. However, information seeker survey revealed that only 15% of the respondents were aware of the RTI Act.
Poor record management practices: Under Section 4(2), organizations have to maintain computerized records – but organizations are not doing it.

Constraints faced in filing applications: Non-availability of User Guides for RTI implementation for information seekers, which was mandated under Section 26 of the RTI Act.
Exemptions: Section 8(1) provides for exemptions to disclosure of info from Intelligence organizations, Judiciary, Cabinet papers, and matters concerning Foreign relations.
Poor quality of information provided: During the information seeker survey, it was also highlighted than more than 75% of the citizens are dissatisfied with the quality of information being provided. The percentage of people who said that incomplete information was provided to them was alarmingly high in Andhra Pradesh – 91% and Uttar Pradesh - 96%.
Lack of Information on certain accounts: During COVID pandemic when the government was asked about specific data on how many people lost their lives due to lack of oxygen, number of migrant workers who lost their jobs – government replied that it does not have such data.
Failure to provide information within 30 days: During the study, more than 50% of the information seekers mentioned that it took more than 30 days to receive the information from the PIO.
Information Commissions are becoming parking lots for retired bureaucrats.
Vacancies: There is a huge backlog of vacancies in the information commission i.e., 24% of the information commissioners posts lying vacant in 28 states.
Threat to RTI Activists: According to Commonwealth Human Rights Initiative (CHRI), 84 RTI activists have been murdered since 2005 for seeking information on illegal construction, alleged scams in social welfare schemes, and corruption in panchayats.

Way Forward:

Reduce pendency
Fill up vacancies
Protection to Whistle Blowers
Bring Political Parties under RTI

Vibrant Villages Programme along China border to be integrated with PM Gati Shakti mega project

Context: The Government launched the ambitious Vibrant Villages Programme to develop 2,967 border villages along China through integrated planning. It aims to boost infrastructure, open villages to tourism, gather intelligence and curb migration. The programme will use satellite images and GIS mapping to track changes. 455 Arunachal villages, 35 Ladakh villages and some in HP, Sikkim and Uttarakhand will be covered first. The Rs. 4,800 crore scheme focuses on roads, livelihoods and motivating residents to stay. It counters China's expanding 'moderately prosperous' villages opposite sensitive areas.

Vibrant Villages Programme (VVP)

The Government of India announced the Vibrant Villages Programme (VVP) in the Union Budget 2022-23. It aims to develop infrastructure and enhance livelihood opportunities in villages located along India's border with China.

The objective of VVP is threefold:

First, Improve connectivity and basic amenities in border villages to curb migration from these areas. Lack of roads, healthcare, education and economic opportunities have led to migration of youth from border villages in search of jobs. This poses challenges for border security as it reduces the population providing intelligence inputs.

Second, Boost the local economy in border villages through promotion of tourism, trade and handicrafts. This will provide livelihood support to communities living in harsh border conditions.

Third, Strengthen security in border areas by enabling access for defense forces and boosting the morale of local communities. Lack of infrastructure has hampered patrolling in some border areas. Locals acting as 'eyes and ears' also need to feel connected to the mainstream.

The VVP aims to cover 2,967 villages in 19 districts across 5 states - Arunachal Pradesh, Sikkim, Himachal Pradesh, Uttarakhand and Ladakh along the China border. In the first phase, 662 priority villages will be covered at a cost of Rs. 4,800 crore over 3 years. Road construction will receive the major allocation of Rs. 2,500 crore.
The program will be integrated with the PM Gati Shakti national master plan for coordinated development of infrastructure. Satellite data and GIS mapping will be used to monitor the progress of VVP in real time. States have been asked to organize cultural and tourism activities in selected villages to support the local population.
The VVP is the Centre's strategic move to strengthen security and spur development in border villages along the sensitive China border. If implemented effectively, it can give a fillip to the economy, improve living standards, reduce migration and enhance India's defense preparedness through a well-connected and thriving border community. However, much will depend on coordinated efforts between the Centre and States as well as cooperation from locals in these sensitive areas.

Rationale and Significance

Develop border areas: The border villages along China are remote, sparsely populated and lack infrastructure and connectivity. The VVP aims to boost infrastructure like roads as well as livelihood opportunities in these neglected areas. This will spur development in these border regions.
Curb migration: The lack of opportunities in border villages has led to migration of youth to cities. The VVP seeks to generate livelihoods and motivate people to continue staying in border areas. This can help maintain population in sensitive border regions.
Strengthen security: By developing border villages and encouraging people to stay, the VVP will help strengthen India's security apparatus in these areas. The local population can provide intelligence and their presence also acts as a deterrent against incursions.
Counter China: China has been developing model 'Xiaokang' villages close to the LAC opposite Indian border states. The VVP is aimed at countering China's moves by ramping up infrastructure and access in India's border villages. This can boost India's strategic interests along the border.
Promote tourism: Opening up border villages to tourism through activities like fairs, cultural events etc. can generate employment and economic opportunities for locals. It can also bring these scenic but secluded areas into the mainstream, boosting their prosperity.
Integrated planning: The VVP will use technologies like satellite imaging and GIS mapping to monitor development in border villages. This integrated approach can help in targeted policymaking and implementation to transform these villages.

Implementation Strategy

MHA is nodal ministry, will monitor through BISAG-N's satellite data and GIS mapping.

Tailored plans: Border villages have diverse terrains, populations and challenges across states. Plans should be tailored based on local needs and potentials. A 'one-size-fits-all' approach may not work.
People's participation: Local communities must be actively involved in planning and implementation. Their participation can make schemes sustainable and address key priorities. Villagers' inputs should be incorporated.
Focus on connectivity: Lack of connectivity is a key reason for migration and under-development in border areas. Road networks should be expanded along with telecom connectivity. This can open up opportunities.
Livelihood promotion: Schemes for skills training, tourism, agriculture etc. should be based on local resources and demands. This can generate sustainable incomes and jobs for people.
Continued monitoring: Using satellite data and GIS tools, infrastructure and land use changes in border villages should be regularly monitored. This can help review and upgrade plans to achieve desired development.
Convergence of schemes: Various central/state schemes like PMGSY, Skill India, Digital India etc. should be converged for maximum impact. Duplication of efforts should be avoided through integrated planning.
Adequate funds and autonomy: Sufficient funds must be allocated for timely completion of ambitious projects. Local administrations should be given more autonomy and flexibility in utilising funds as per needs.
Security considerations: Development plans should factor in security considerations given the sensitive border locations. Infrastructure like roads should meet the needs of security forces as well.
Promote tourism: In addition to livelihoods, tourism potentials of border villages with natural scenery should be leveraged for economic and connectivity gains. This can boost local prosperity through homestays, guides, handicraft sales etc.

PM Gati Shakti

It is a digital platform for integrated planning and coordinated implementation of infrastructure connectivity projects. It aims to bring ministries like Railways, Roadways, Shipping together for coordinated development of projects. The key benefits of integrating the Vibrant Villages Programme with PM Gati Shakti are:

Breaking silos: Different ministries and departments often work in silos, leading to lack of coordination and duplication of efforts. PM Gati Shakti's integrated platform can enable planning the VVP across ministries, avoiding silos and ensuring convergence.

Prioritising connectivity: The VVP focuses on infrastructure and connectivity in border villages. Use of the PM Gati Shakti platform can help map existing and required connectivity in border areas and prioritise critical gap areas to address first. This data-driven approach aids targeted implementation.

Satellite mapping: PM Gati Shakti uses satellite images and GIS mapping to map terrain and plan projects. This technology can be leveraged for the VVP to map border villages, track infrastructure progress, and make any changes in real-time based on needs. This helps in continued monitoring and optimisation of initiatives.

Identifying chokepoints: The PM Gati Shakti platform uses mapping to identify infrastructure chokepoints and gaps across the country. This approach can similarly help identify key road, rail or digital connectivity chokepoints in border areas that the VVP needs to address on priority to boost access and strategic mobility.

Coordinated security planning: Enhancing infrastructure and connectivity in border villages pertains to national security too. Use of the PM Gati Shakti platform can enable coordinated planning of VVP initiatives along with inputs from security agencies. This helps factor in any security considerations in development plans.

Optimising resources: A comprehensive view of existing and needed infrastructure, enabled by the PM Gati Shakti platform, can help optimise allocation of funds and resources for the VVP. Duplication of efforts can be avoided and funds channeled to priority areas.

Kesavananda Bharti: case and its legacy

Context: April 24^th, 2023, marked the 50th anniversary of the landmark Kesavananda Bharati case, in which the Supreme Court established the "basic structure" doctrine to set boundaries on Parliament's authority to amend the Constitution.

Kesavananda Bharati Sripadagalvaru and Ors vs State of Kerala and Anr (1973):

Fifty years ago, on April 24, 1973, the Supreme Court delivered its judgment in the landmark case that redefined the relationship between Parliament and the Constitution.
It established that the Constitution's "basic structure" is sacrosanct and cannot be altered by the Parliament.
The court allowed land ceiling laws to stand but struck down a portion of the 25th Amendment that allowed laws enacted to implement Directive Principles to override fundamental rights.
The court outlined specific boundaries for Parliament's power to amend the Constitution, emphasizing that no amendment may violate the Constitution's basic structure.
It places judiciary as the ultimate authority in determining whether an amendment infringes on the Constitution's basic structure and what constitutes that structure.

Some of the features which has been said to be the Basic Structure over a certain period are

Supremacy of the Constitution
Sovereign, democratic, and republican nature of the Indian Polity
Secular character of the Constitution
Separation of powers between the legislature, executive and the judiciary
Federal character of the Constitution
Welfare State (socio-economic justice)
Unity and integrity of the nation
Judicial Review
Free and fair elections
Rule of law

Basic Structure Doctrine – Example of Living & Dynamic Constitution

The theory of basic structure exemplifies the concept of a living constitution, as it was not explicitly stated in the Constitution but was derived from judicial interpretation.
This implies that the Judiciary has effectively altered the Constitution without a formal amendment, indicating that the Constitution evolves through judicial rulings.
Moreover, the Basic Structure doctrine has reinforced the equilibrium between rigidity and flexibility by disallowing amendments to specific constitutional provisions while permitting changes to others.

Veto by silence

Context: Centre seems to be forcing Collegium to recall its recommendations by inaction. I n recalling its recommendation to appoint Justice S. Muralidhar as Chief Justice of the Madras High Court, the Supreme Court collegium has let the Union government, which did not act on the decision for eight months, have its way.

Collegium system in appointment of judges
- The Collegium System is one where the CJI and a forum of four senior-most judges of the Supreme Court recommend appointment and transfer of judges of higher judiciary.
- The collegium system evolved through three different judgments which are collectively known as the Three Judges Cases.

First Judges Case - S.P. Gupta vs Union of India (1982) - (In favour of Executive)
- SC held - opinions of Chief Justice of India (CJI) and Chief Justice of respective High Courts were merely “consultative” and the power of appointment resides solely and exclusively with the Central Government.
- Central government “could” override the opinions given by the Judges. Thus, the opinion of Chief Justice of India in matters of appointment was not given primacy in matters of judicial appointments under Article 217(1).

Second Judges case - S.C advocates on record association vs Union of India (1993) - (Primacy of Judiciary) - (Decided by nine judge constitution bench)
- The Court considered the question of “Primacy of opinion of CJI in regard to appointment of Supreme Court Judges”.
- Referring to ‘Consultative Process’ as envisaged in Article 124(2), SC emphasized that Government does NOT enjoy primacy or absolute discretion in matters of appointment of Supreme Court judges.
- Court said that provision for consultation with Chief Justice was introduced as CJI is best equipped to know and assess the worth and suitability of a candidate and it was also necessary to eliminate political influence.
- SC held that initiation of the proposal for appointment of a Supreme Court Judge must be by the Chief Justice.

Third Judges case - RE: Presidential reference (Emergence of collegium system)

Supreme Court on a reference made by the President under Article 143 has laid down the following proposition with respect to appointment of Supreme Court judges:

While making recommendation, CJI shall consult four senior most Judges of Supreme Court. This led to the emergence of present Collegium System.
The opinion of all members of collegium regarding their recommendation shall be in writing.
The views of the senior-most Supreme Court Judge who hails from the High Court from where the person recommended comes must be obtained in writing for Collegium’s consideration.
If majority of the Collegium is against the appointment of a particular person, that person shall not be appointed.
Even if two of the judges have reservation against appointment of a particular Judge, CJI would not press for such appointment.
A High Court Judge of outstanding merit can be appointed as Supreme Court Judge regardless of his standing in the seniority list.
Supreme Court opined that in case of the appointment of high court judges, the chief justice of India should consult a collegium of two senior-most judges of the Supreme Court.

Merits of Collegium System	Demerits Of Collegium System
* Ensures Independence of Judiciary as mandated in Article 50 – from interference of the Executive.	* Lack of transparency and Accountability in the appointment process – The decisions of the Collegium is published on website of Supreme Court but does not reveal:
* Views of SC & HC Judges taken in writing.	* methodology or reasons provided for transfer or promotion of judges;
* Prevalence Majority favours process appointment.	* ground to select senior lawyers for appointment as Judges of SC or HC.
* Reservations of even two Judges of Collegium taken seriously and halts appointment process for doubtful candidates.	* Lack of Consensus among members of Collegium results in delay or even reversal of decisions at times.
* Allows talented lawyers from the bar to be appointed as Judges of HC/SC.	* Nepotism – Accusations of favouritism and preferential treatment to members from judicial fraternity.
	* Nepotism impacting Quality of Judgment - especially in High Courts.
	* Politicization of judiciary: Lack of transparency in selection criteria especially for High Courts leads to politically motivated appointments.
	* Absence of Permanent Commission: Law Commission’s 121st Report proposed to set up a National Judicial Service Commission for appointment of Judges. Even NCRWC in its 2002 Report highlighted the need for National Judicial Commission for the purpose of appointments to higher judiciary.
	* SC declaring NJAC Act and Constitution 99th Amendment as unconstitutional.

NJAC Act declared as unconstitutional
- Violation of Basic Structure - Five Judge Bench of Supreme Court [4:1] declared the Constitution 99th Amendment Act and the National Judicial Appointment Commission Act, 2014 as unconstitutional as it violated the Basic Structure of the Indian Constitution.
- Inclusion of Members of Executive - Constitution 99th Amendment introduced Article 124A which provided for the constitution and composition of the National Judicial Appointments Commission (NJAC) which apart from members of Judiciary also included Union Minister of Law & Justice and two Eminent Persons to be appointed by the Central Government.
- Violation of Independence of Judiciary - SC held that Article 124A was insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary as inclusion of members of executed violated independence of judiciary and the aspect of separation of powers. Accordingly, Article 124A (a) to (d) was set aside by the Constitution Bench as being ultra vires.
- Collegium System to Continue - The judgment officially allowed Collegium System for appointment and transfer to continue.

Way forward

Till the time government comes up with legislation for National Judicial Appointment Commission, appointment through Collegium system must be reformed by providing criteria for appointment of judges in the public domain. This will help to improve transparency and accountability in the system of Collegium based appointment for Judges.

Undertrial prisoners to get remission for good conduct

Context: Undertrial prisoners lodged in the Delhi’s prisons will now be granted remission based on good conduct. Earlier, only convicts were granted remission based on their conduct.

Facts related to Undertrial prisoners in India

According to the 2021National Crime Records Bureau (NCRB) data, undertrial prisoners (UTPs) comprised nearly 77% of the total prison population in the country.Undertrial prisoners’ population in India is estimated to be the 18th highest in the world and the third highest in Asia. Undertrials such as Muslims, Dalits and Adivasis are in disproportionate number. About 53% of undertrial prisoners are from these communities. Around 29% of undertrial prisoners are not formally literate, while 42% had not completed their secondary education.

Undertrial Prisoners

Definition - According to 78th Report of the Law Commission of India (1979), Undertrial is a person who is in a judicial custody or remand during investigation. An undertrial prisoner is the one who has been detained in prison during the period of investigation, inquiry or trial for the offence they are accused to have committed.
Reason behind such large number
- Poverty and illiteracy are the main reason behind such huge number of undertrials in India. Majority of them are either unable to furnish the bonds for release or are not aware about the judicial remedy to seek bail.
Impact on rights of Individual
- Prolonged detention and delay in trial of cases not only violates the right to liberty guaranteed to every citizen, but also amounts to denial of human rights of the undertrials.
- The overuse of undertrial detention effectively ends up in punishing the people before they are convicted, and makes a mockery of their right to be presumed innocent until proven guilty.
- This can often increase the risk of ill-treatment and torture inside the prisons.

Constitutional Provisions

Article 22 (1) - Provides the arrested person the right to consult and to be defended by a legal practitioner of his choice.

Article 22 (2) - Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours (Excluding time of journey)

Article 21 - Speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution.

Challenges faced by Undertrials in India

Exposure to hardened criminals - Despite The Model prison manual recommending separate jail for undertrials, it is seldom done. Such clubbing and exposure increases the risk of turning undertrial into criminal.
Subject to group violence - Prisons are often a dangerous place for the first-time offenders who are subjected to group violence and mishandling by the police.
Health and safety - Overcrowded jails and lack of adequate infrastructure results into health and safety hazards for the undertrials. Most of the undertrials belong to poor socio economic background and thus exhibit poor health indices. When such people are cramped in with each other in unhealthy conditions, infectious and communicable diseases spread easily among them.
Homosexual Abuse - Undertrial prisoners also face homosexual abuse as prisons are places where same-sex people are lodged. Resistance showed by them leads to aggravated violence on them. Sometimes they are subjected to massive homosexual gang rapes. This leads to trauma forcing them to commit suicide.
Social Stigma against family - Due to long absence of the main bread winner, family of the under-trial prisoner many a time is forced into destitution and also faces social stigmatization. In many cases this may result into children turning towards delinquency and exploitation by others.

Stand of Higher Judiciary

The Supreme Court in the case of Sharifbai v. Abdul Razak (1960) held that if the accused person in not produced before the magistrate within the stipulated time, then such detention will be wrongful.
In State of Rajasthan V. Balchand alias Baliay (1977), the Supreme Court has ruled that it is not necessary to detain the accused person in court if the appearance of the accused can be secured by other means. The court also stated that bail and not jail should be the norm.
The Supreme Court held in M.H. Hoskot v. State of Maharashtra (1978) and Hussainara Khatoon v. State of Bihar (1979) that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would have to go through the trial without legal assistance cannot be regarded as reasonable, fair and just under Article 21 of the Constitution of India. It also said that a prisoner who is seeing his liberation through the court process should have legal services made available to him.

To conclude

The number of undertrials in prison can be reduced only by speeding up the trial, simplifying of the bail procedure and by periodic review of the cases of undertrials. Moreover, there should a separate prison for undertrial prisoners.

Thirty years of 73rd Amendment Act

This year marks 30th anniversary of the 73rd Constitutional Amendment Act (CAA), salient for constitutionally establishing the third layer of India’s federal structure, Panchayats. These amendments were emblems for decentralisation of political, economic and administrative powers.

Article 40 of Constitution called for organising village panchayats and endowing them with necessary powers and authority to enable them to function as units of self-government. Despite this, it took four decades for the Indian state to formally recognise local bodies as essential pillars of our polity and mainstream political decentralisation.

This ambiguity stems from two perspectives on the scope of democracy in villages. While Mahatma Gandhi called for restoration of self-reliant 'village republics,’ on the other hand, Ambedkar considered Indian villages as sinks of localism, den of ignorance, narrow-mindedness and communalism which was ill-suited for democracy in which equal citizens would deliberate and make decisions on an equal footing.

Deep social inequality based on status and income in rural areas convinced early leaders of Independent India that local communities in rural areas were not ready for democracy.

There was thus a belief that power was to be centralised in the hands of national and state-level elites who would break the power of local elites and carry democratisation of local power structures.

However, changes such as second democratic upsurge leading to demand for greater representation among plebians, increasing education and demand for decentralisation, decline of Congress, addressing issue of corruption and increasing accountability of governance structures, set the context of parliament to enact the 73rd CAA.

This formally set in motion the wheel of decentralisation and operationalised institutions of local governments in all states.

Achievements Of 73rd Amendment Act

Institutionalisation of local bodies in rural areas: Most states have formed institutions of urban and local bodies with regular elections, and other constitutional institutions such as State Election Commission, State Finance Commissions etc.
Electoral Legitimisation: Turnout panchayats elections is on average higher than in national and state elections. Poor migrants often travel from cities to villages to cast their votes in local elections, as often, they personally know the candidates for whom they are voting.
Transformation of authority in rural areas and decline of old social order: These constitutional amendments provided extensive quotas for historically marginalised groups and women which ensured better descriptive representation of these communities than ever before. These groups gained a share of political power and were marked by the emergence of new pattern of leadership – Naya netas (new leaders) – independent of traditional power structures.
Women’s Empowerment: There was initial concern that women’s reservation in PRI will be ineffective as men would act on behalf of women as ‘Sarpanchpatis’. However, these reservations have made women proximate and encouraged them to engage with local bodies and politics.

Reasons For Lack Of Substantial Decentralisation To Panchayats

However, some scholars have argued that Panchayati Raj in India is a performative success and has not radically or substantially decentralised, for following reasons:

Varying performance across states: Local bodies come under state subjects under Schedule VII. Experience of local governments vary across states like Kerala has institutionalised structure, but, other states have a lesser commitment to decentralisation.
Lack of fiscal resources: India has the lowest spending on local governments as a proportion of GDP. Also, most of the resources routed to local bodies are directed through centrally sponsored schemes where local bodies lack autonomy to devise their plans to tackle issues. Despite being enabled by the constitution to impose taxes like professional or property tax, local bodies' mobilisation of their own revenues as a share of their total budget has been falling.
Lack of functional decentralisation: Despite 11th Schedule of Constitution devolving 29 subjects to panchayats, most states barring a few have failed to devolve all these functions to Panchayats. Parastatal bodies often undertake functions in the realm of panchayats. Local bureaucracy often sees panchayat officials are corrupt and do not trust them with functions.
Lack of functionaries: Despite being the first point of contact for most villagers and prominent functions in scheme administration, panchayats often lack permanent officials. Many states where the population per panchayat is small do not have panchayat secretary. Also, existing panchayat functionaries often lack technical skills and computer knowledge.
Absence of fraternity at local level: People in Indian villages/towns do not have a shared sense of civic community. Politics at local level is devoted to managing intense intergroup competition for resources, status, and power and is poorly equipped to manage common resources or deliver public goods. Markers of caste and community around which local political mobilisation takes place have further lessened fraternity at local levels.
Disconnect between better governance & elections: Indian electorate does not connect its electoral decisions with delivery of better public services or economic development. Populism, corruption, caste & communal mobilisation are far more effective to win elections in India.
Lack of political pathways for successful panchayat performers to rise in their political parties. There have been very few signs of political pipeline from panchayats to parliament or state legislatures. It is still rare for scheduled caste candidates to win non-reserved seats. While lakhs of women were politically empowered by local bodies, however, they continue to receive peanut nominations in State legislatures, Parliament or even within the party.
Abuse of Money-power in local elections: There has been a blatant deployment of money-power in the elections of panchayats. If one calculates average money spent by a panchayat election candidate, the expenditure incurred per voter is likely to be higher than in Lok Sabha or State elections.
Lack of demand for decentralisation: Empowerment of local bodies and effective decentralisation has not become political issue in India. Local people do not pay taxes for empowered local bodies and national and state parties also do not make it their primary agenda.

Effective Decentralisation Demands Following Reforms:

Clear devolution and activity mapping: States should be incentivised to devolve functions to the local bodies. State governments should empower and make panchayats lynchpin of their governance plans. Functions should be mapped for different levels of panchayats.
Dedicated Human resources for local bodies:
- Every Gram Panchayat should have full-time Panchayat Secretary, who is a regular employee and functions as the Chief Executive of the Panchayat. Larger panchayats should have technical member as well.
- Career path of permanent recruits should be clearly defined with possibilities of them being absorbed in appropriate State cadres.
Financial Empowerment of Panchayats: State governments should form State Finance Commissions to give panchayats their due financial devolution. Also, the present restriction on professional tax should be removed and local bodies should be empowered to tax properties.
Relationship with SHGs: Self Help groups have emerged as an important pool of empowered local-level organisations. Members of SHGs are often poor females who can be made parties in services rendered by Panchayats.
Clustering of panchayats: Panchayats with small populations should be clustered with other smaller panchayats around them leading to larger panchayats with more resources. E.g., Kerala.
Removing distinction between 73rd & 74th Amendment Act: There is a case for unified district-level local government rather than distinction between urban and rural. Much of the incipient urbanisation in India takes place in rural areas. Urban and rural should not be considered separate entities but a continuum.

In the end, real decentralisation demands a political social contract in which national and state-level elites are ready to share their powers with local people.

An effective Panchayati Raj is essential for empowering people to make governance accountable and let them be true masters of their destiny, which will see the dawn of democracy in its substantive way in India.

A Judgement that upholds the Constitution

Context: The Supreme Court’s judgment in the Media One case is a landmark decision on freedom of expression and a warning against the misuse of national security rhetoric to cover up state arbitrariness.

About Media one case

(Madhyamam Broadcasting Ltd Media One Headquarters v. Union of India and Others)

It was a judgement passed by Supreme Court on freedom of expression and a blow against sealed cover malpractice. It distinguishes the government from the nation and allows citizens to question the state, admonishing the misuse of national security rhetoric to cover up state arbitrariness.

Sealed cover jurisprudence

In the context of court proceedings, sealed covers refer to envelopes containing confidential or sensitive information that are submitted by government agencies or other individuals upon request by the Supreme Court or lower courts.

Only judges are allowed to access the contents of these sealed covers, and they are not accessible to other parties involved in the case. This practice of requesting evidence in sealed covers and making decisions based on such evidence is commonly referred to as sealed cover jurisprudence. This practice has been in vogue in cases like Rafale fighter jet deal, NRC issue, 2014 BCCI reforms case etc.

Cases in which this jurisprudence is practiced

Issues of national security
Violation of public order
Cases of Money Laundering
Cases of Sedition
Ban on freedom of speech by media houses
Trade involving two nations
Issues of privacy - cases involving sexual assaults or child abuse
Documents part of ongoing investigation

Criticism of sealed cover jurisprudence

It violates the principles of transparency and accountability for Indian Judiciary.
It stands in contrast to the idea of an open court where decisions can be subjected to public scrutiny.
It impacts the rights of the accused to know the grounds on which its fundamental right - freedom of speech and expression is curtailed.
Against Fair Trial and Adjudication - not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.
It impacts judicial review - as state need not show to the accused why security of the state is threatened.
Violates Principles of Natural Justice - as it creates bias against the accused and the accused is kept in dark on the charges framed against him.
Results in arbitrariness in judicial decisions – because the judge is taking decisions based only on the information provided by the government agencies.
Judgments in such instances cannot be said to be Reasoned Order.
Questions State Practice as in-camera hearing is a possible alternative.

Delay in Bills: Pinarayi, Stalin to fight together

Context: The “inordinate” gubernatorial delay in giving assent to Bills passed by their respective State legislatures has accorded Kerala Chief Minister Pinarayi Vijayan and his Tamil Nadu counterpart M.K. Stalin a consequential opportunity to make a common political cause in addressing a vola tile issue that has roiled both administrations and strained their relations with the BJP led Central government.

Office of Governor

Powers and functions of the Governor can be categorised under the following categories

Executive powers
Legislative Powers
Judicial Powers
Financial Powers

Now power and function of the Governor pertaining to giving assent to a bill falls under category of legislative powers.

Constitutional Provisions

Article 200 - When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall have following options
- He may give his assents to the Bill , thus the bill becomes an Act.
- He may withholds assent , the bill thus ends and does not becomes an Act.
- He may return the bill for the reconsideration of House or houses. If the bill is passed again with or without amendments and presented to Governor for his assent, the governor must give his assent to the bill.
- He may reserves the Bill for the consideration of the President.
There is an exception to this rule and that is related to the case of Money bill. If a money bill is presented to the Governor then:
- He may give assent to the bill.
- He may withhold the assent.
- He may reserve the Bill for the consideration of the President.
Thus Governor cannot return a money bill for the reconsideration of the House, or as the case may be. However, Governor normally gives his assent to the Money bill as it is introduced in the state legislature with the prior permission of the Governor.
Article 200 also makes it mandatory for the Governor to reserve a bill for the consideration of the President , if in the Opinion of the Governor provisions of bill derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.
Article 201 - When a Bill is reserved by a Governor for the consideration of the President, the President shall have following options
- He may give his Assent.
- He may withhold his Assent.
- He may direct the Governor to return the bill to the House or, as the case may be.
When the governor reserves a bill (ordinary or money) for the consideration of the President, he will not have any further role in the enactment of the bill. If the President gives his assent to the bill, it becomes an Act. This means that the assent of the governor is no longer required.
In case of a Money Bill, The President may give his assent or withhold his assent, but cannot return it for reconsideration.
When a Bill is returned for the reconsideration, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of the Bill and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration. President is not bound to give his assent to such reconsidered bill.

Nagaland’s municipal tightrope

Context: Recently the Neiphiu Rio-led Nagaland repealed the Nagaland Municipal Act of 2001. This led to the cancellation of the State Election Commission’s March 9 notification for holding elections to Nagaland’s 39 urban local bodies (ULBs) with 33% of the seats reserved for women. The apex court has, however, stayed the notification cancelling the civic body polls.

Why is there opposition to ULB polls?

Nagaland is arguably the only State where ULB seats are not reserved for women as mandated by clause IV of the 74th Amendment to the Constitution of India.
Most of the traditional tribal and urban organisations oppose the 33% reservation of seats for women as they argue that such reservation would violate the special provisions granted by Article 371A of the Constitution to Nagaland.
The hohos (apex tribal bodies) point out that women have traditionally not been part of decision-making bodies.

Article 371A

The Article states that no Act of Parliament would apply to the religious or social practices of the Nagas, Naga customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law, and ownership and transfer of land and its resources.

Have such polls ever been held in Nagaland?

The first and only civic body election in Nagaland was held in 2004 without any reservation of seats for women.
The State government amended the 2001 Municipal Act in 2006 to include 33% reservation for women in line with the 74th Amendment.
This triggered widespread opposition forcing the government to indefinitely postpone the ULB polls in 2009.
Efforts to hold the elections in March 2012 met with strong protests and in September 2012, the State Assembly passed a resolution to exempt Nagaland from Article 243T of the Constitution which is related to the reservation for women.
This resolution was revoked in November 2016 and elections to the civic bodies with 33% reservation were notified a month later.
The notification led to widespread mayhem in which two people were killed in large-scale violence and arson.
This made the government declare the process to conduct an election null and void in February 2017.

Why did the government decide on ULB polls this time?

Under pressure from the Supreme Court, the Rio government laid the ground for holding ULB polls after consultations with various stakeholders, including churches, NGOs, and tribal bodies in March 2022.
The State Election Commission on March 9 notified that the polls would take place on May 16.
The tribal bodies and civil society organisations threatened to boycott the polls until the “borrowed” Municipal Act of 2001 factoring in women’s reservation is “reviewed and rewritten in complete consonance of the voice of the Naga people” so that it does not infringe upon Article 371A.
The government succumbed to public pressure and repealed the Municipal Act with immediate effect as the people “cannot be compelled” to participate in the elections.

What is the way forward?

The groups against reservation for women want a “guarantee” that the 33% quota would not violate the provisions of Article 371A.
Before “rushing to conduct” the ULB elections, they suggested that the duration of the reservation should be capped at two tenures and demanded that the post of chairperson should not be reserved for women.
The Naga Mothers’ Association (NMA) said that the State government erred in not listening to or consulting with women’s organisations before taking the decision to repeal the Municipal Act.
The Supreme Court pulled up the Nagaland government for adopting an “ingenious method” of repealing the Municipal Act to evade the undertaking given to the court for holding the polls.
The apex court also noted, “Nothing has so far emerged (with respect to Article 371A) to advance a plea that religious or social practices of Nagas or Naga customary law and procedure denies the right of equality to women insofar as the participatory process is concerned in such elections”.

Justice Joseph recuses from hearing plea against Goel’s appointment as EC

Context: Supreme Court judge Jus tice K.M. Joseph on Mon day recused from hearing a petition challenging the appointment of Arun Goel as the Election Commissioner.

Election commissioners to be appointed by a committee

SC In Anoop Baranwal v. Union of India, Constitution Bench of Supreme Court has held that Election Commissioners (ECs) including the Chief Election Commissioner (CEC) will be appointed by the President on the advice of a committee consisting of the Prime Minister, leader of opposition in Lok Sabha and the CJI till a specific law is framed by the Parliament. However, if the Leader of Opposition (LoP) has not been recognised by the Speaker, then the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength will be in the committee to appoint the ECs and CEC.

Conduct of elections - article 324(1)

Election Commission shall be responsible for Superintendence, Direction and Control of the preparation of the Electoral Rolls for and the conduct of all elections to -

Parliament
Legislature of every State
Offices of President and Vice-President

Law Can be Made for Appointments - The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.

Constitution of election commission - article 324(2)

The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix. ∙ When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.

Appointment of election commissioners - article 324(2)

Appointment of Election Commissioners - the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.

It is here where the Supreme Court’s judgment will have an impact. This is because the President has to go according to the advice tendered by the Committee comprising PM, LoP & CJI. This in a way takes away power from the central government to appoint ECs or CEC as per their choice.

∙ Appointment of Regional Commissioners - The President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of its functions.

Removal- article 324(5)

The CEC shall be removed from his office in like manner and on the like grounds as a Judge of the Supreme Court.
Conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.
Any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
Thus, the process of removal of CEC and other Election or Regional Commissioners is different as provided in the Constitution.

The Constitution Bench has asked to ensure parity for other Election Commissioners and suggested that Removal of Other Election Commissioners to be same as that of CEC.

The Election Commission (conditions of service of election commissioners and transaction of business) act, 1991

The Act determines the conditions of service of the Chief Election Commissioner and other Election Commissioners and also provides for the procedure for transaction of business by the Election Commission.

Term of office

The Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years from the date on which he assumes his office.
Provided that where the Chief Election Commissioner or an Election Commissioner attains the age of sixty five years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age.
Provided further that the Chief Election Commissioner or an Election Commissioner may, at any time, by writing under his hand addressed to the President, resign his office.

President's Power of Pardon & Judicial Review

Context: The Supreme Court has directed States and other authorities not to delay their decision on mercy petitions filed by death row convicts, to avoid the condemned persons from gaining any advantage or benefit from the holdup.

In Pardon, it affects both the punishment prescribed for the offence and guilt of the offender. A full pardon may completely erase the guilt.

‘Reprieve’ means a temporary suspension of the punishment awarded by a court of law. For example: Putting a stay order on the death sentence of a convict for certain temporary period.

'Respite’ means postponement of the sentence of punishment or reducing the sentence due to certain special circumstances such as disability, pregnancy etc.

Commutation means changing the punishment from one category to another, such as changing the death sentence to life imprisonment.
Remission is the reduction of the amount of a sentence without changing its character. Example: A person is imprisoned for14 years in solitary confinement. In Remission, his sentence might be reduced to 10 years but the nature i.e., solitary confinement will not change.

Can Judicial Review can be applied for clemency power

In the case of Epuru Sudhakar v. Government of Andhra Pradesh, the Supreme Court laid down that judicial review under Articles 72 and 161 is available on the following grounds:

a. That the order has been passed without application of mind.

b. That the order is mala fide.

c. That the order has been passed on extraneous or wholly irrelevant considerations.

d. That the order suffers from arbitrariness.

The Court also held that pardon obtained based on manifest mistake or fraud can also be rescinded or cancelled.
The Court further elaborated that if power under Article 72 is exercised on irrational, irrelevant, discriminatory grounds or in bad faith, then in such cases Court can examine the case and intervene if necessary.

Do the President/Governor have discretion while exercising clemency powers?

Power to pardon vested in the President under Article 72 shall not be exercised independently without the aid and advice of Home minister.
In the case of Maru Ram v. Union of India, Supreme Court held that under Article 72, the President cannot take an independent decision or direct release or refuse release on his own choice.
This has been done to avoid any decision made on arbitrary grounds or on some partial grounds of religion, caste, colour or political loyalty.

Mercy Petition

Appeal beyond SC - If the Supreme Court turns down the appeal against capital punishment, a condemned prisoner can submit a mercy petition to the President of India and the Governor of the State.
Powers of the President & the Governors under Articles 72 and 161 - “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
Decision Based on Aid & Advice of CoM - The power to be exercised under Article 72 & 161 respectively by President and Governors need to be exercised in conformity with the aid and advice of the Council of Ministers under Articles 74 and 163.
Decision not constrained by time - Clemency powers of President and Governor under Articles 72 and 161 respectively can be exercised before, during or after the trial.
Final Opportunity for the Convict – It also allows both executive and judiciary to investigate the matter with compassionate ground.
USA - Indian President’s power of pardon is almost like that in America or Britain. The American President has power to grant reprieves and pardons for offences committed against United States except in cases of impeachment.
In Britain, the Crown enjoys a prerogative to grant pardon to any criminal but the prerogative is exercised on ministerial advice.

Power of Remission Under Cr.Pc Different From Constitutional Powers of Pardon

Suspend or Remit - Criminal Procedure Code (Cr.PC) under Section 432 empowers central and state government to suspend or remit a sentence, in whole or in part, with or without conditions.
Commutation - Section 433 empowers central and state governments to commute death sentence, imprisonment for life and rigorous imprisonment to a lesser degree.
State Government to Consult the Centre - Section 435 of Cr.PC states that powers of state government to suspend, remit or commute a sentence must be done in consultation with the central government if:

The case was investigated by Central Bureau of Investigation (CBI) or
The case was investigated by any other agency empowered to make an investigation into an offence under any Central Act.
The offence involved misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
The offence was committed by a person in the service of the Central Government while acting in the discharge of his official duty.

Section 433A adds a restriction on powers of remission or commutation in certain cases.
It states that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or o
where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least 14 years of imprisonment.

Article 161 overrides Section 433A of Cr.PC - Supreme Court has held that powers of Governor under Article 161 to pardon override the restrictions imposed under Section 433-A of the Criminal Procedure Code even if the prisoner has not undergone 14 years or more of actual imprisonment.
Section 433-A of Cr.PC does not in any way affect the constitutional power conferred on the President/Governor to grant pardon under Articles 72 or 161 of the Constitution.
If the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardon. Such power is in exercise of the power of the sovereign, even though the Governor is bound to act on the aid and advice of the State Government.

Role of Opposition

Context: There is a consistent effort by the opposition parties in India to build unity but has failed in past two general elections.

The topic of the role of opposition in Indian democracy holds significant relevance for the UPSC CSE (Civil Services Examination) preparation as it is directly connected to the syllabus of GS Paper II (Parliament: Issues and Challenges). Understanding the functions and challenges faced by the opposition in a democratic system is essential for aspirants to have a comprehensive understanding of the functioning of the Indian polity.

The main parts of this article will delve into the crucial role played by the opposition in a democracy, the factors that hinder the growth of a robust opposition in India. Furthermore, the article will discuss the issue of formally recognizing opposition parties and the Leader of the Opposition (LoP) in the Lok Sabha under the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977, and the implications of not recognizing the leader of the largest opposition party in the 16th Lok Sabha. The article will highlight the need to revisit this matter in the context of the 17th Lok Sabha, which witnessed a fiercely fought election and a decisive victory for the ruling alliance.

The crucial role played by the opposition in a democracy

In the context of Indian democracy, the opposition plays a crucial role as a check and balance on the ruling party or coalition. According to the principles of political science, the opposition serves as an important component of the democratic system, providing a counterforce to the government and serving as the voice of dissent and alternative policy proposals.

The opposition acts as a "loyal opposition" by holding the government accountable for its actions, policies, and decisions. This involves engaging in constructive criticism, raising questions, and demanding transparency and accountability from the ruling party. The opposition plays a vital role in scrutinizing the government's actions and policies to ensure that they are in the best interest of the people and in line with democratic norms and principles.
The opposition serves as a "watchdog" by monitoring and critiquing the performance of the government. Through parliamentary debates, discussions, and other forums, the opposition brings attention to any shortcomings, failures, or irregularities in the government's actions, policies, and implementation. This helps in maintaining transparency, integrity, and effectiveness in governance.
The opposition acts as a "representative of diverse voices" by providing a platform for marginalized or underrepresented groups to voice their concerns and opinions. The opposition often represents different ideologies, interests, and perspectives, providing a forum for deliberation and debate on various issues affecting society. This helps in promoting inclusivity, diversity, and representation in the decision-making process.
The opposition also plays a crucial role in "ensuring a competitive political environment" by offering an alternative vision and policy proposals to the ruling party. It acts as a catalyst for healthy competition, which is essential for a vibrant and dynamic democracy. The opposition also serves as a "potential alternative government" by presenting itself as a credible option to the ruling party, providing choices to the electorate during elections.

Hence we can see that the role of the opposition in Indian democracy, as per political science principles, includes holding the government accountable, acting as a watchdog, representing diverse voices, promoting competition, and offering alternative policy proposals. It serves as a crucial check and balance on the ruling party, contributing to the functioning and health of the democratic system.

Currently, we have a weak and divided opposition. Even Supreme Court Chief Justice NV Ramana recently lamented, “There used to be mutual respect between the government and Opposition. Unfortunately, the space for Opposition is now diminishing.” Some feel that the secret weapon

Factors that Hinder Growth of Robust Opposition

India is unable to produce robust Opposition parties or leaders due to several features of its system of government. At least six fundamental problems come to mind:

First, by not giving Opposition parties any power whatsoever, our system ensures that they don’t last.
- By design, and in the name of efficiency, the parliamentary system keeps the Opposition toothless. It can make speeches, ask questions in Parliament, or walk out.
- But it cannot pass legislation, affect government programmes, or influence executive officials. This makes the members of the Opposition useless to their constituents. Within a short while, they begin to lose support.
Second, our system grants power to parties, not to individual MPs. This causes fragmentation of the Opposition. Ambitious Opposition leaders must form their own outfits to bargain with the ruling party and come to power. Small local and regional parties proliferate.
Third, India’s system impairs the Opposition by driving them to vote banks and extremism. To stay relevant and avoid breakups, parties begin to represent one special interest, caste, or religion. They inflame the feelings of their constituents, make outrageous promises, and breed hatred of other groups. Since in the parliamentary system, there are no nationwide elections, parties don’t have to come together on a centrist programme.
Fourth, our system also doesn’t help Opposition parties acquire good leaders or become strong organisations. Most parties stay small due to the reasons cited above, and thus remain one-man shows.
Fifth, our system doesn’t provide Opposition parties with institutions to hone their skills. Unlike the UK, India’s Opposition is not offered a shadow Cabinet, or opportunities to pass private member bills. So the Opposition always lacks an agenda, and its members become party hacks adept only at bluster.
And last but perhaps worst, India’s system allows the ruling party to scare the Opposition into submission. The use of the CBI, tax, and other government agencies against Opposition leaders is commonplace. This harms their reputation and scares good people away from politics.

Lok Sabha under the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977

After the election of the Lok Sabha Speaker, the question of a formally recognised Opposition party and Leader of the Opposition (LoP) of the Lok Sabha under the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977, will arise.
The Act extends to LoPs in the Lok Sabha and the Rajya Sabha the same official status, allowances and perks that are admissible to Cabinet Ministers. In the case of the Lok Sabha, however, this is subject to recognition of the leader by the Speaker. In the 16th Lok Sabha, the largest party in the Opposition, the Congress, had 44 seats. After careful consideration, it was decided not to recognize the party’s leader as LoP. Now, the matter needs to be revisited in the context of the 17th Lok Sabha.
The election to the 17th Lok Sabha was the most fiercely and bitterly fought one in the history of the Republic. The decisive victory of the ruling alliance and its leadership has been widely welcomed as being in the best interests of the polity and the people. Above everything, the nation needs a stable government and a strong leader capable of taking firm decisions to ensure security, development and good governance within the rule of law.
However, for the success and survival of democracy, an effective Opposition is also a categorical imperative. It is said that if no Opposition exists, one may have to be created. Also, if there is no Opposition outside, there is every danger that it may grow within.

Leaders of Opposition over time

The 1977 Act defines LoP as that member of the House who is the “Leader in that House of the party in opposition to the Government having the greatest numerical strength and recognised as such by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.”
The Speaker’s decisions in this regard have so far been determined by Direction 121(c) which laid down one of the conditions for recognition of party or group as having “at least a strength equal to the quorum fixed to constitute a sitting of the House, that is one-tenth of the total number of members of the House”.
The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998 also refers to a recognised party in the Lok Sabha as a party that has not less than 55 members.

In the recently concluded election to the Lok Sabha, the Opposition was decimated, but thankfully not obliterated. In fact, the largest party in Opposition, the Congress, has improved its position from 44 in 2014 to 52 now. It is short of only three members to reach the magical number of 55. Given the level at which ground-level politics has been operating in recent decades, it should not be difficult for the Congress leadership to augment its party strength by three members. At the same time, the ruling dispensation is expected to show magnanimity at this hour of its splendid victory, and the new occupant of the office of Speaker, realising the importance of an effective and respected Opposition in a democracy, may reconsider the content of Direction 121(c) suitably.

The Speaker’s discretion

Since there is no constitutional provision, the 1977 law does not provide for the requirement of 55 members as an essential pre-requisite. As it all depends on the Speaker’s directions and discretion, it may be hoped that rightful action will be taken. The simple way out is to substitute ‘pre-poll alliance’ for ‘party’ or say ‘party or pre-poll alliance’. In any case, pre-poll alliances are a fact of our political life and are already being extended credibility and legitimacy in the matter of the President and Governors deciding on who to call first for forming the government in cases where no party secures a clear majority support in the House.
Incidentally, what is decided in the matter of recognition of the LoP, and in treating pre-poll alliances at par with parties, may hold tremendous potential for the growth of a sound two- or three-party (or alliance) system. It could end the present system, a preposterous one, of more than 2,000 parties being registered with the Election Commission. If and when the much-awaited law for political parties is enacted, it may provide for candidates of an alliance contesting on a common symbol and an agreed common minimum programme with only national alliances or parties contesting for the Lok Sabha. These aspects, however, call for separate in-depth analysis, consideration and debate.

In conclusion, the role of the opposition in Indian democracy is of paramount importance in ensuring a healthy and functioning democratic system. The opposition acts as a check and balance on the ruling party, holding the government accountable, acting as a watchdog, representing diverse voices, promoting competition, and offering alternative policy proposals. However, there are several factors that hinder the growth of a robust opposition in India, including the lack of power, fragmentation, reliance on vote banks, absence of strong leaders and institutions, and the use of government agencies against the opposition.

The issue of formally recognizing opposition parties and the Leader of the Opposition in the Lok Sabha under the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977 is a matter of significance. The absence of a recognized leader of the opposition can weaken the functioning of the parliamentary system and diminish the space for dissent and accountability. In light of the challenges faced by the opposition in India, there is a need to revisit this matter in the context of the 17th Lok Sabha, which has witnessed a fiercely fought election and a decisive victory for the ruling alliance.