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1. Federalism While in a unitary State, all power is vested in a single Central Government, without imposing any constitutional limitations upon its authority, and the local authorities operate as administrative agencies of the Central government, exercising such powers as the Central government might delegate to the latter. While in a unitary State, all power is vested in a single Central Government, without imposing any constitutional limitations upon its authority, and the local authorities operate as administrative agencies of the Central government, exercising such powers as the Central government might delegate to the latter Federalism with Special Reference to the Distribution of Legislative Powers Under U.S.A. & Indian Constitutions Historically speaking, the earliest form of political organisation was not federal but unitary. But it is the pressure of economic, political and social circumstances which impelled unitary States (generally monarchical) to enter into alliance with other States for meeting common problems, - which initially related to defence. Features Of Federalism Political Science classified Constitutions as unitary and federal, from the organizational standpoint, i.e; from the standpoint of distribution of governmental powers. In this context, Dicey observed that “Unitarianism... means the concentration of the strength of the state in the hands of one visible sovereign power…Federalism means the distribution of the force of the state among a number of coordinate bodies each originating in and controlled by the Constitution'' Broadly speaking, while in a unitary State, all power is vested in a single Central Government, without imposing any constitutional limitations upon its authority, and the local authorities operate as administrative agencies of the Central government, exercising such powers as the Central government might delegate to the latter. On the other hand, in the federal State, the Constitution divides the powers between the central and regional governments, each deriving its powers from the provisions of written Constitution, so that there is a sphere of autonomy
belonging to the territorial organizations called States, which cannot be withdrawn or curtailed at the will of the central organization, called the Federal Government. Federalism is thus a system of government of a country under which there exist simultaneously a federal or Central Government (legislature and executive) and several State or provincial legislatures and governments as contrasted with a unitary State. Both federal and State governments derive their powers from the federal Constitution, both are supreme in particular spheres and both operate directly on the people; the State governments accordingly are not exercising powers delegated by the federal governments, nor they are subordinate to it (though they may deal with less important matters). The foregoing legal test of federalism, when analysed, leads to the following broad features of a federal Constitution.
- Written Constitution – A federal state derives its existence from the Constitution, just as a corporation derives its existence from the grant or statute by which it is created. Every power – executive, legislative or judicial- whether it belongs to the federation, or to the component States, is subordinated to and controlled by the Constitution. Therefore, a federal State requires a written Constitution for the obvious reason that in order to be workable and stable and the limitations upon them to be enforceable, must be precisely defined by a written instrument. Thus, even though Australia adopted the system of responsible government (or the Cabinet system) from the unwritten Constitution of the U.K., it had to be embodied in a written Constitution. When a federal polity possesses two constitutions as in the case of U.S.A. and Australia (one for the federation and another relating to the internal structure and administration of each State) and if there is a conflict between the two, then the Federal Constitution shall prevail.
- Dual Government – The Constitution sets up a dual government – one government having authority over the whole territory of the country or nation which adopts that Constitution (i.e; the Units of the federation) and a Government for each of the regional units of which the federation is composed (i.e; the Units of the federation)
- Distribution of Powers - The most essential feature of a federal system is the distribution of powers between two governmental units – national and regional. However, even in unitary
principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of the constitutional system. All these features exist in the Constitutions of the U.S.A., Australia, West Germany on the one hand, and also in the Constitutions of Canada and India (subject to variations in matters of details), on the other hand, even though the latter two are strongly characterised by a central bias or balance in favour of the centripetal factors. Distribution Of Legislative Powers In USA & India Distribution of powers between the Union and the States is perhaps the most important feature of the federal Constitutions, so that chaos and conflict between the two competing jurisdictions can be avoided. Though the federal principle has been adopted by other countries from the American precedent, each country has introduced variations of its own, as a result of which the world of federalism today consists of different types of federal Constitutions, - none being an exact replica of the other. Even in the United States, owing to activist judicial interpretation as well as constitutional practice, federalism has assumed a shape which the founding fathers could little envisage. Nevertheless, the essentials of American federalism are the same after two centuries, namely, a legally enforceable division of powers between two governments, - federal and regional – by the written Constitution and the authority of the Courts to interpret, apply and enforce that constitutional distribution of powers. As in other matters, the pattern of distribution of legislative powers is not the same under the different Federal Constitutions. But there is a general test which is broadly adopted by the different constitutions, namely, those matters of national concern must be handed over to the Union, while the States should have jurisdiction over matters of regional concern. The patterns of distribution in U.S.A. and India are as follows: U.S.A. In the USA, there is a single enumeration of powers, which signifies that the Constitution simply enumerates the powers specially assigned to the Federal Legislature and leaves the entire unremunerated residue to the State Legislatures. Woodrow Wilson stated that “the State
Governments are the ordinary governments of the country; the federal government is its instrument only for the particular purposes”[6]. The Constitution of the USA makes the division of powers between the Federation and the States by the following four provisions:
- Powers of the Union - The Federal Congress has no general power to make laws for the people; it has got only enumerated powers. These powers are enumerated in Article. I, Section 8 to declare war, raise armies, coin money, regulate foreign commerce etc. As to the powers of the national government, Marshall, C.J. said in the case of Gibbons v. Ogden that “the genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the national Government”
- Powers of the States – The powers of the States are not enumerated by the Constitution. However, according to the Tenth Amendment, the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people. Thus, the residuary powers are given to the States. The reserved rights of the States inter alia includes the right to pass laws, to give effect to laws through executive action, to administer justice through the Courts, and to employ all necessary agencies for legitimate purposes of State Government.
- Limitations on Union Powers – Congress is prohibited from taxing exports or giving preference to particular States in the exercise of its ‘Commerce’ powers, namely; “No Tax or Duty shall be laid on Articles exported from any State and no preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another, nor shall Vessels bound to or from, one State, be obliged to enter, clear or pay Duties in another” by Clauses. (5) and (6) of Article I, Section 9 respectively.
- Limitation on States Powers – Though all powers not expressly given to the Union were reserved to the States (10th Amendment), the Constitution at the same time imposed certain
b) List II or the State List – It comprises of 66 items or entries over which the State Legislature shall have exclusive power of legislation, such as public order and police, local Government, public health and sanitation, agriculture, forests and fisheries, education, State taxes and duties, and the like. c) List III or the Concurrent List – It gives concurrent powers to the Union and the State Legislatures over 47 items, such as Criminal Law and procedure, Civil Procedure, marriage, contracts, torts, trusts, welfare of labour, social insurance, economic and social planning. Thus the framers of the Indian Constitution attempted to exhaust the whole field of legislation as they could comprehend, into numerous items, thus narrowing down the scope for filling up the details by the judicial process of amplifying the given items. Besides, wherever any conflict could be anticipated, the Constitution has given predominance to the Union jurisdiction, so as to give the federal system a strong central bias. Similarly, in all the cases which have come up to the Supreme Court, the Court has upheld the jurisdiction of the Union Parliament. Thus, in case of overlapping, the power of the State Legislature to legislate with respect to matters enumerated in the State List has been made subject to the power of the Union Parliament to legislate in respect of matters enumerated in the Union and Concurrent Lists, and the entries in the State List have to be interpreted accordingly. Similarly, in the concurrent sphere, in case of repugnancy between a Union and a State law relating to the same subject, the former prevails. If, however, the State law was reserved for the assent of the President and has received such assent, the State law may prevail notwithstanding such repugnancy, but it would still be competent for Parliament to override such State law by subsequent legislation {Article 254(2)}[15] These apart, the vesting of residual power under the Constitution follows the precedent of Canada, for it is given to the Union instead of the States as in USA and Australia. The Constitution of India vests the residuary power i.e; the power to legislate with respect to any matter not enumerated in any of the three Lists,- in the Union Legislature (Article 248). However, the final determination as to whether a particular matter falls under the residuary power or not is that of the Courts.
Moreover, even apart from the central bias in the normal distribution of powers, there are certain extraordinary provisions in the Indian Constitution which provide for expansion of the federal power in cases of emergency or other predominating national interests, instead of leaving it to the judicial interpretation as in USA, Australia or Canada, as we have noticed. These provisions therefore constitute additional limitations upon the powers of the State Legislatures. These exceptional circumstances are:
- National Interest – In the national interest, Parliament shall have the power to make laws with respect to any matter included in the state List, for the temporary period, if the Council of States declares by the resolution of 2/3 of its members present and voting, that it is necessary in the national interest that parliament shall have power to legislate over such matters. Each such resolution will give rise a leases of one year to ten law in question. A law made by Parliament, which Parliament would not but for the passing of such resolution have been competent to make, shall, to the extent of the inconsistency, seas to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period (Article 249). The resolution of the council of states may be renewed for a period of one year at a time.
- Proclamation of emergency – While a proclamation of emergency made by the parliament is in operation, parliament shall have similar power to legislate with respect to State subjects {Articles 250, 353(b)}. A law made by the parliament, which parliament would not but for the issue of such proclamation have been competent to make, shall, to the extent of in competency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period (Article 250).
- By agreement between States – If the Legislatures of two or more States resolve that it shall be lawful for Parliament to make laws with respect to any matters included in the State List relating to those States, Parliament shall have such power as regards such States. It shall also be open to any States to adopt such Union Legislation in relation to itself by a resolution passed in that
locality, would be best administered if entrusted to the representatives of that area. The basic concept of division of power is same even today in every federal structure. However, the principles of strictly separating the power between the two governments are not an easy task and disputes and differences are always there. The only golden rule seems to be that in case of conflict and doubt as to the appropriate government in relation of any matter is that the benefit should be given to the Central government. However, this rule is not always justifiable especially in the case of taxation simply because the Regional or State governments also need the finance to run the administration. Nevertheless, Federalism is appropriate to large countries like India where government from one centre would be complicated and difficult and could readily be out of touch with the needs and desires of widely separated areas and to countries, where particular parts are radical, linguistic and legal or other particularities which they desire to have safeguarded. In short, in spite of some difficulties in interpreting the legislative entries of the federal structure, federalism will stay more important because of the globalisation of the economy and the desire to achieve the “welfare state”.
2. Appointment of Judges Introduction Judiciary in our country is the main pillar of democracy which helps in the smooth functioning of democracy. Judges are the main aspects of the judiciary. It is mandatory that the judges have to be efficient in order for the judiciary to be successful. There are many famous judges in our country who have brought out a lot of changes through their judgments which led to the overall development of this country. Judges are respected in our country and people have lots of faith and hopes on them, thus it is necessary to make sure that the appointment of judges is proper and not biased. Various provisions of our Indian Constitution deals with the appointment of Judges which has to be followed in every aspect of appointment. Appointment of Judges in the District Courts Qualifications
Article 233 of the Indian Constitution deals with the appointment of District Judges. According to this article, there are certain qualifications for a person to be appointed as a District Judge, they are: ● The person has to be in practice as an advocate or pleader for seven years or more; ● The person should not be in working in any other services of the Union or the State; ● The person has to be recommended by the High Court for employment. Procedure for appointment There are various procedures to be followed before the appointment of District Judges. According to Article 233, the appointment can be done only after consulting the Governor of the State and also the Judges of the High Court that is exercising jurisdiction in the State. Article 235 of the Indian Constitution provides powers to the High Courts to have control over the persons in the judicial service in the district court and other subordinate courts. Article 233-A validates the appointment of Judges in the district court that was made before the commencement of the Constitution (Twentieth Amendment) Act, 1966 and they are held to be valid even though they are not in accordance with the provisions of Article 233 and Article 235. Appointment of Judges in the High Courts Qualifications There are certain qualifications which have to be fulfilled in order to appoint a person as a judge in the High Courts. The qualifications regarding the appointment are provided in Article 217. According to the Article, ● The person appointed must be a citizen of India; ● The person appointed should have held a judicial office in the territory of India for at least ten years; ● The person appointed should have been an advocate in the High Court for at least ten years. Procedure ● Article 217 of the Indian Constitution provides the procedure regarding the appointment of judges in the High Courts. According to this Article,
Procedure There are various procedures for the appointment of Judges in the Supreme Court. The appointment is governed by various provisions in the Indian Constitution. Article 124 of the Indian Constitution deals with the appointment of Chief Justice and Judges of the Supreme Court. The collegium system is still followed for the appointment of the Judges. Article 124 of the Constitution says only seven judges can be appointed in the Supreme Court and the appointment can be increased when the Parliament deems it to be necessary. The President has the power to appoint Judges after consulting the Chief Justice of India, the other Judges of the Supreme Court and also in certain cases other judges of the High Court. The Judges can hold office until they attain 65 years of age. Article 127 of the Indian Constitution deals with the appointment of ad-hoc judges in the Supreme Court. Qualification Article 124 of the Indian Constitution provides various qualifications which have to be satisfied for the appointment. The person who satisfies all these necessary qualifications is only recommended. They are: ● The recommended person must be a citizen of India; ● They should not be above 65 years of age; ● They must have been a judge of one or more High courts continuously for five years; ● They must have been an advocate in the high court for at least ten years; ● The recommended person must be a distinguished jurist in the opinion of the President. Salary The salaries of the Supreme Court judges are determined according to Article 125 of the Indian Constitution. The salary provided to the Supreme Court judges is high compared to the High Courts. The salary is determined by the Parliament by law and if provisions are not made clear the salary mentioned in the second schedule must be provided. Appointment of acting Chief Justice and Ad Hoc judges Article 126 of the Indian Constitution deals with the appointment of acting Chief Justice. The President can appoint other judges of this court as acting Chief Justice when the office of Chief Justice is vacant or they are unable to perform their duties due to various issues like health
issues. Article 127 deals with the appointment of Ad Hoc judges. According to this Article, Ad Hoc judges can be appointed in various situations like when the quorum of the Judges of the Supreme Court are not available to hold or continue any session of the Court, then it is the duty of the Chief Justice to appoint Ad hoc judges with the consent of the President of India. Transfer of Judges Transfer of Judges in the High Court Article 222 of the Indian Constitution provides the transfer of Judges from one High Court to another. The same procedure is also followed even for the transfer of Chief Justice. The President has the power to transfer the Judges from one High Court to another. This transfer must be made only after consulting the Chief Justice. There is also a provision for providing a compensatory allowance to the Judges who are transferred in addition to their salary. National Judicial Appointments Commission The Ninety-Ninth Constitutional Amendment and the NJAC Act, 2014, which received assent of the President in December 2014, provided that the appointment to higher judiciary would be now by way of a commission comprising of: ● The Chief Justice of India as the Chairperson, ex officio. ● Two other senior Judges of the Supreme Court next to the Chief Justice of India as Members, ex officio. ● The Union Minister in charge of Law and Justice as Member, ex officio. ● Two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then the Leader of the single largest Opposition Party in the House of the People, as members. One of the eminent persons shall be nominated from amongst those belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women. The NJAC Act, 2014, provided that if any two persons of the Commission did not agree with a nomination, the NJAC would not recommend such a candidate for appointment. Hence, judicial appointments ceased to be the primacy of either the executive or the judiciary and civil society’s participation was now included in the process of appointment.
obligations on the part of constitutional functionaries. Various methods have been used by the Judges in the case to establish that “consultation” means occurrence or primacy notably among which are” The Chief Justice of India as a ‘PaterFamilias’ would be competent enough and has the best qualities to judge and differentiating the Indian constitution with other constitutions, our constitution does not vest absolute discretion in the hands of the executive. Hence, the Chief Justice of India cannot be considered as an inferior position. In re Special Reference 1 of 1998 This is another famous case which decided various opinions regarding the appointment of Judges. The main issue that was to be decided was whether the expression “consultation with the Chief Justice of India” which are mentioned in articles 217(1) and 222(1) requires consultation with a many Judges when the opinion of the Chief Justice of India is formed or does the single individual opinion of the Chief Justice of India constitute a valid consultation that comes under the meaning of the term “consultation” which is mentioned in the above said articles. The case also decided various other issues like whether any recommendations made by the Chief Justice of India without following the rules and the process of consultation are binding upon the Government of India. It was held that the expression “consultation with the Chief justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a majority of Judges in the formation of the opinion of the Chief Justice of India. The individual and personal opinion of the Chief Justice of India do not constitute a valid “consultation” which comes under the meaning of the term in the said Articles. Conclusion Judges are the most important part of the judiciary. It is important to ensure that the Judges are competent enough to handle various issues that arise every day. The appointment of Judges must be done properly and a lot of effort must be carried out while selecting the Judges. The Judges should not be transferred unnecessarily and the transfer must be done only when there is a proper reason. Judges should not be transferred for personal and political reasons. Thus the government
and the judiciary must consider the appointment of Judges as a very important process and a lot of care must be taken.
3. Women Empowerment - Judiciary role - Equality of women You can tell the condition of a nation by looking at the status of its women".... Jawaharlal Nehru Women who constitute half a human population have been discriminated against, harassed and exploited irrespective of the country to which they belong, un-mind of the religion which they profess and oblivious of the timeframe in which they live. Everywhere women are confronted with many challenges. In all societies to a greater or lesser degree women and girls are subjected to physical, sexual and psychological abuse that cuts across lines of income, class and culture. Unfortunately, India is one of the few countries where offences against women have been increasing in tremendous ways. In meantime constitutional law and ordinary law through judiciary has been working as a savior of women from atrocities and also giving helping hand in numerous ways for perk up status of women in all spears of their life.The status of women in our country has risen to the present level which may not be up to the mark but still satisfactory is because of active judiciary as well as public spirited people who successfully manoeuvred the status of women of our country to the present level. The unbiased and independent judiciary has always played the role of a true Guardian of justice. Since independence many a times the judiciary has pro-actively interpreted and amplified the ambit of legislative provisions in favour of the unprivileged half of the society, i.e., the women of our country. History From the Vedic age to till today, status and position of women has been changing with the passing of time. Historical studies and the scriptures indicate that Indian women enjoyed a comparatively high status during the early Vedic period. During the medieval period, women were given a position subordinate to men. Law and religion did not recognize the equality and
● The state is empowered to make any special provision for women. In other words, this provision enables the state to make affirmative discrimination in favour of women [Article15(3)]. ● No citizen shall be discriminated against or be ineligible for any employment or office under the state on the ground of sex [Article 16(2)]. ● Traffic in human beings and forced labour are prohibited [Article 23(1)]. ● The state to secure for men and women equally the right to an adequate means of livelihood [Article 39(a)]. ● The state to secure equal pay for equal work for both Indian men and women [Article 39(d)]. ● The state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength [Article 39(e)]. ● The state shall make provision for securing just and humane conditions of work and maternity relief [Article 42]. ● The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation [Article 46]. ● The State to raise the level of nutrition and the standard of living of its people [Article 47]. ● It shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women [Article 51-A(e)]. ● One-third of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women [Article 243-D(3)]. ● One-third of the total number of offices of chairpersons in the Panchayats at each level shall be reserved for women [Article 243-D (4)]. ● One-third of the total number of seats to be filled by direct election in every Municipality shall be reserved for women [Article 243-T(3)]. ● The offices of chairpersons in the Municipalities shall be reserved for women in such manner as the State Legislature may provide [Article 243-T(4)]. Etc.
17.The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age irrespective of gender, status etc entitle to be a voter. [ Article 325[11]and 326[12]]. Role of Judiciary for empowering women All provisions of the Constitution and all laws enacted by the legislature get their real meaning and import through the process of judicial interpretation. The Constitutional mandate and the various laws providing for protective discrimination in favour of women relating to several aspects of their social, economic and political life have come up before the courts. Through various devices like judicial review, judicial activism, social action litigation and the duty of enforcement of fundamental rights the superior Courts in India have evolved a gender jurisprudence which has given substance and life to the constitutional scheme of protective discrimination in favour of women. Below is detailed overview of the judicial approach in various cases, where the Courts have successfully delivered their verdict to strengthen position of women. 1.Judicial Approach in the matters relating to Education: Education is a part of the development of the personality of all in general and woman in particular. In P. Sagar v. State of Andhra Pradesh ,The Andhra Pradesh High Court observed that Article 15(3)is an exception engrafted to clause (1) of the Article 15. Thus, in view of the Article 15(3) reservation for women cannot be denied. Similarly, the reservation for sports women does not offend the provisions of Articles 15(1) and 29(2) of the Constitution.[14] In Padmaraj Samarendra v. State of Bihar , allotment of some seats for girl students in Medical Colleges was challenged on the ground that it is solely based on sex. The Court while justifying the allotment of seats for girl students held as reasonable and it cannot be said to be discrimination on the ground of sex alone. 2.Judicial Approach in the matters of Employment:
