Gujral Doctrine

What is Gujral Doctrine?

Former Prime Minister, Late Mr. I.K. Gujral propounded the Gujral Doctrine when he was the Union Minister of External Affairs in 1996-1997 in the H.D. Deve Gowda Government. The Gujral doctrine was a five-point roadmap which sought to build trust between India and neighbours, of solution to bilateral issues through bilateral talks and to remove immediate quid pro quos in diplomatic relationship between India and her neighbours. The ‘Doctrine’ emphasized on the importance of unilateral accommodation for friendly and warm relations with India’s neighbours.

The five principles are:

1. With neighbours like Bangladesh, Bhutan, Maldives, Nepal and Sri Lanka, India does not ask for reciprocity, but gives and accommodates what it can in good faith and trust.
2. No South Asian country should allow its territory to be used against the interest of another country of the region.
3. No country should interfere in the internal affairs of another.
4. All South Asian countries must respect each other’s territorial integrity and sovereignty.
5. They should settle all their disputes through peaceful bilateral negotiations.

The essence of Gujral Doctrine has been that being the largest country in South Asia, India can extend unilateral concessions to neighbours in the sub-continent.

Application of the Doctrine

• Sharing of Ganga Water with Bangladesh: It is in pursuance of this policy that late in 1996 India concluded an agreement with Bangladesh on sharing of Ganga Waters. This agreement enabled Bangladesh to draw in lean season slightly more water than even the 1977 Agreement had provided.
• Freezing of Border Dispute with PRC: The confidence building measures agreed upon by India and China in November 1996 were also a part of efforts made by the two countries to improve bilateral relations, and freeze, for the time being, the border dispute.
• Increasing People to People Contact with Pakistan: This doctrine advocated people to people contacts, particularly between India and Pakistan, to create an atmosphere that would enable the countries concerned to sort out their differences amicably. India unilaterally announced in 1997 several concessions to Pakistan tourists, particularly the elder citizens and cultural groups, in regard to visa fees and police reporting.
• “Confidence Building Measures” Talks with Pakistan: The Gujral Doctrine assumed significance when at Foreign Secretary level talks between India and Pakistan in June 1997, the two countries identified eight areas for negotiation so as to build confidence and seek friendly resolution of all disputes.

Positive aspects of the Doctrine

The logic behind the Gujral Doctrine was that since India had to face two hostile neighbours in the north and the west, it had to be at total peace with all other immediate neighbours in order to contain Pakistan’s and China’s influence in the region. Its significance lies in the insight that for India to become a global power in sync with its stature, it needs a peaceful neighbourhood.

The positive aspects of the Gujral Doctrine can be enumerated as follows.

1. It recognised the supreme importance of friendly, cordial relations with neighbours.
2. It helped achieve a fundamental recasting of South Asia’s regional relationships, including the difficult relationship between India and Pakistan.
3. Further, the implementation of these principles generated an atmosphere of understanding and cooperation between India and these countries.
4. The Gujral Doctrine was accepted not only within the country, but also by most of the neighbours and major powers.
5. In the context of changed international environment in post-cold war world Gujral Doctrine became a new and important principle of India’s foreign policy.
6. It was implemented by different regional powers like USA, Russia, People Republic of China, Iran, Saudi Arabia, Brazil, Germany etc.

Continued relevance of the Gujral Doctrine

The Gujral doctrine postulates that reciprocity among asymmetrical partners in South Asia needs to ensure equity rather than absolute equality in terms of any quid pro quo. India’s sheer physical size and weight of numbers and its economic and military power in relation to its smaller SAARC neighbours, not excluding Pakistan, can be intimidating. Hence, it may not pay to insist on strict parity on all things and at all times. The smaller partner must feel emboldened to accept a fuller relationship at a pace and level at comfort that it may be allowed to determine.

If India follows such a path, it will be serving, not abandoning, its best interests. What matters is the end result. Confidence-building may take a while but is worth the political investment. One can give today to get tomorrow or trade a ‘concession’ in one sector to make a gain in another area. The process is as important as the event and, at the start, perhaps even more important to get things moving.

The Gujral doctrine implies a process, not an objective. It aims at confidence-building, changing mindsets, placing procedures and even issues against a larger and longer perspective of national interest.

Criticism of the Gujral Doctrine

The Gujral Doctrine had a debilitating impact on R&AW’s ability to conduct intelligence operations in Pakistan. Strategic affairs specialists point out that on Mr. Gujral’s directions, the Pakistan special operations desk of R&AW was shut down, leading to a major gap in India’s intelligence capabilities. Analysts blame this as one of the key factors that led to the intelligence failure before the Kargil war commenced

Over the years, particularly after a series of terrorist attacks, the Gujral Doctrine came to be criticised particularly IK Gujral’s decision to dismantle India’s military ability to launch covert strikes against groups like the Lashkar-e-Taiba.

Related Posts:
Main Recommendations of Punchhi Commission
Amendment process under Indian Constitution
Punchhi Commission
Motions in Indian Parliament
Writs in Indian Constitution
Non-cooperation- Khilafat Movement
Himalayan River System
NATIONAL POLICY FOR THE EMPOWERMENT OF WOMEN
Centre State Relations
The Drain of Wealth Theory

Relates Topics:
Indian Polity
Central Government Schemes and Plans
Science and Technology
Health and Diseases
Current Affairs
International Affairs
Environment and Bio-Diversity
India and World History
Geography

Right to Education

The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of India to provide free and compulsory education of all children in the age group of six to fourteen years as a Fundamental Right in such a manner as the State may, by law, determine. The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the consequential legislation envisaged under Article 21-A, means that every child has a right to full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

Article 21-A and the RTE Act came into effect on 1 April 2010. The title of the RTE Act incorporates the words ‘free and compulsory’. ‘Free education’ means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. ‘Compulsory education’ casts an obligation on the appropriate Government and local authorities to provide and ensure admission, attendance and completion of elementary education by all children in the 6-14 age group. With this, India has moved forward to a rights based framework that casts a legal obligation on the Central and State Governments to implement this fundamental child right as enshrined in the Article 21A of the Constitution, in accordance with the provisions of the RTE Act.

The RTE Act provides for the:

1. Right of children to free and compulsory education till completion of elementary education in a neighbourhood school.
2. It clarifies that ‘compulsory education’ means obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen age group. ‘Free’ means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education.
3. It makes provisions for a non-admitted child to be admitted to an age appropriate class.
4. It specifies the duties and responsibilities of appropriate Governments, local authority and parents in providing free and compulsory education, and sharing of financial and other responsibilities between the Central and State Governments.
5. It lays down the norms and standards relating inter alia to Pupil Teacher Ratios (PTRs), buildings and infrastructure, school-working days, teacher-working hours.
6. It provides for rational deployment of teachers by ensuring that the specified pupil teacher ratio is maintained for each school, rather than just as an average for the State or District or Block, thus ensuring that there is no urban-rural imbalance in teacher postings. It also provides for prohibition of deployment of teachers for non-educational work, other than decennial census, elections to local authority, state legislatures and parliament, and disaster relief.
7. It provides for appointment of appropriately trained teachers, i.e. teachers with the requisite entry and academic qualifications.
8. It prohibits (a) physical punishment and mental harassment; (b) screening procedures for admission of children; (c) capitation fee; (d) private tuition by teachers and (e) running of schools without recognition,

• It provides for development of curriculum in consonance with the values enshrined in the Constitution, and which would ensure the all-round development of the child, building on the child’s knowledge, potentiality and talent and making the child free of fear, trauma and anxiety through a system of child friendly and child centred learning.

Differences between Articles 358 and 359

Art 358

While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, govt may make laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art 19.

It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the end of emergency. 

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not suspended during emergency but only their operation is suspended. This means that as soon as emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.

Art 359

This article provides additional power to the president while proclamation of emergency is in operation, using which the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.

In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358 and 359 as shown below:

Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok Sabha by one year each time up to a period not ex

ceeding beyond 6 months after proclamation ceases to expire.

Emergency Provisions in Indian Constitution

Black law’s dictionary defines emergency “as a failure of social system to deliver reasonable conditions of life”. The term emergency may be defined as “circumstances arising suddenly that calls for immediate action by the public authorities under the powers especially granted to them”. Dr. B.R Ambedkar claimed that the Indian Federation was unique as during the times of emergency it could convert itself into an entirely unitary system. In India, the emergency provisions are such that the constitution itself enables the federal government acquire the strength of unitary government whenever the situation demands. During such urgent needs all the pacific methods should be exhausted and emergency should also be the last weapon to use as it affects India’s federal feature of government.

There are three types of emergencies under the Indian Constitution namely-

· National Emergency

· Failure of constitutional machinery in states

· Financial Emergency

National Emergency

Article 352 of the Indian Constitution talks about the national emergency. National emergency is imposed whereby there is a grave threat to the security of India or any of its territory due to war, external aggression or armed rebellion. Such emergency shall be imposed by the president on the basis of written request by the council of ministers headed by the Prime Minister. When they are satisfied that they are satisfied that there is an eminent danger thereof.

Every proclamation is required to be laid before each House of Parliament, it will cease to operate after one month from the date of its issue unless in the meantime it is approved by the parliament, the proclamation may continue for a period of 6 months unless revoked by the president. For further continuance of emergency the resolution has to be passed by either house of parliament by a majority of not less than two-third members of the houses.

During the times of such emergency the executive, legislative and financial power rests with the centre whereas the state legislature is not suspended. The union government under Art.250 of the constitution gets the power to legislate in regards to subjects enumerated in the state list. Except Art20 and 21 all the fundamental rights are suspended. Under Art.359 the president may suspend the right to move to the courts for enforcement of fundamental rights during the time of emergency.

National emergency has been imposed thrice in the country- in 1962 at time of Chinese aggression, in 1971 during the indo-pak war, in 1975 on the grounds of internal disturbances.

Art 352 says that if the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened due to outside aggression or armed rebellion, he may make a proclamation to that effect regarding whole of India or a part thereof.

However, sub clause 3 says that President can make such a proclamation only upon the written advise of the Union Cabinet.  Such a proclamation must be placed before each house of the parliament and must be approved by each house with in one month otherwise the proclamation will expire.

An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has actually happened to proclaim emergency. It can be proclaimed even if there is a possibility of such thing happening. 

In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under 352(1). However, court's power is limited only to examining whether the limitations conferred by the constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.

Prior to 44th amendment, duration of emergency was two months initially and then after approval by the houses, it would continue indefinitely until ended by another proclamation. However after 44th amendment, the period is reduced to 1 month and then 6 months after approval.

Failure Of Constitutional Machinery In State

Article 356 talks about the failure of constitutional machinery in state also known as the President’s rule. If the president on Governor’s report or otherwise is satisfied that the situation has arisen that the government can’t be carried in accordance with the constitutional provisions then, he may issue State emergency.

President can declare emergency either by the report of Governor or he himself is satisfied that the situation is such that the emergency has to be imposed. But at times, President may declare emergency when a report is not received from the governor. This was done by President Venkataraman in 1991 in the state of Tamil Nadu even though he didn’t receive a report from the governor.

After the 42th Amendment of the constitution the state emergency was made immune from judicial review. But later in the 44th Amendment the legality of President’s rule could be challenged

The proclamation relating to state emergency shall be laid before each House of Parliament unless both Houses approve it, the emergency shall cease to have effect after the expiry of a period of two months. Further the duration of proclamation can be extended to 6 months each time by both Houses of Parliament passing resolution approving its continuance. Beyond the period of an year the proclamation can only be continued if the Election Commission certifies that it is not possible to hold election in the state or that territory. The consequences of state emergency are- 

• The president assumes all the executive power of the state himself. The state administration runs by him or any person appointed by him generally the Governor.
• During such proclamation, the state assembly is either dissolved or suspended. But the MLA’s do not lose their membership of the Assembly.
• Parliament makes laws regarding the state list. The parliament only passes the budget for the state.
• The High court of the state functions independently.
• President also proclaims ordinances in the state.

During the state emergency the Union government has absolute control over the state except the judiciary. 

If one looks at the past instances of state emergency in the country, three common grounds emerge that have been invoked under Art.356- breakdown of law and order, political instability, corruption and maladministration. 

In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held that the presidential proclamation dissolving state assembly in Bihar under Art.356 was unconstitutional on extraneous and irrelevant ground. The court said that the state governor misled the centre in recommending dissolution of state assembly.

In the historic case of S.R Bommai V. UOI, a full bench of the Karnataka High court produced different opinion about the imposition of the President’s rule in Karnataka, while in other states the court held that it was in violation of the constitution and would have restored the original position.

S. R. Bommai v. Union of India

1. The SC laid down certain guidelines so as to prevent the misuse of Art-356 of the constitution.
2. The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
3. Centre should give a warning to the state and a time period of one week to reply.
4. The court cannot question the advice tendered by the CoMs to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only: a. Is there any material behind the proclamation, b. Is the material relevant. c. Was there any mala fide use of power.
5. If there is improper use of A356 then the court will provide remedy.
6. Under Article 356(3) it is the limitation on the powers of the President. Hence, the president shall not take any irreversible action until the proclamation is approved by the Parliament i.e. he shall not dissolve the assembly.
7. Art-356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery
8. Art-356 shall be used sparingly by the centre, otherwise it is likely to destroy the constitutional structure between the centre and the states. Even Dr. Ambedkar envisaged it to remain a 'dead letter' in the constitution.

Financial Emergency

The president under Article 360 of the constitution has the power to declare financial emergency if he is satisfied that the financial stability or the credit of India or any part of its territory is threatened. It has to be laid before both the Houses of Parliament and ceases to operate at the expiration of two months unless meanwhile approved by the resolution of Houses.

During the operation of financial emergency, the executive authority of the union extends to the giving of directions to any state to observe certain specified canons or financial propriety and such other directions that the President may find necessary. The directions may include reduction of salaries or allowance of those serving a state, of all those in connection with the affairs of union including judges of high court and Supreme Court. There has been no occasion of financial emergency in India.

Effects of Proclamation of emergency 

The following are the effects arising out of proclamation of emergency in art 352.

Art 353

• executive power of the Union shall extend to giving directions to any state.
• parliament will get power to make laws on subjects that are not in Union list.
• if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part if that is also threatened.

Art 354

• Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by the president. Every law such made shall be laid before each house of the parliament.
• Art 355 says that it is the duty of the Union to protect States against external aggression.

Art 358

While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, govt may make laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art 19.

It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the end of emergency. 

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not suspended during emergency but only their operation is suspended. This means that as soon as emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.

Art 359

This article provides additional power to the president while proclamation of emergency is in operation, using which the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.

Distinction Between Articles 358 and 359

The differences between Articles 358 and 359 can be summarised as follows:

1. Article 358 is confined to Fundamental Rights under Article 19 only whereas Article 359 extends to all those Fundamental Rights whose enforcement is suspended by the Presidential Order.
2. Article 358 automatically suspends the fundamental rights under Article 19 as soon as the emergency is declared. On the other hand, Article 359 does not automatically suspend any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights.
3. Article 358 operates only in case of External Emergency (that is, when the emergency is declared on the grounds of war or external aggression) and not in the case of Internal Emergency (i.e., when the Emergency is declared on the ground of armed rebellion). Article 359, on the other hand, operates in case of both External Emergency as well as Internal Emergency.
4. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of Emergency while Article 359 suspends the enforcement of Fundamental Rights for a period specified by the president which may either be the entire duration of Emergency or a shorter period.
5. Article 358 extends to the entire country whereas Article 359 may extend to the entire country or a part of it.
6. Article 358 suspends Article 19 completely while Article 359 does not empower the suspension of the enforcement of Articles 20 and 21.
7. Article 358 enables the State to make any law or take any executive action inconsistent with Fundamental Rights under Article 19 while Article 359 enables the State to make any law or take any executive action inconsistent with those Fundamental Rights whose enforcement is suspended by the Presidential Order.

There is also a similarity between Article 358 and Article 359. Both provide immunity from challenge to only those laws which are related with the Emergency and not other laws. Also, the executive action taken only under such a law is protected by both.

Central government schemes for women and girls

Vishaka Guidelines

Guidelines and norms laid down by the Hon’ble Supreme Court in Vishaka and Others Vs. State of Rajasthan and Others(JT 1997 (7) SC 384)

HAVING REGARD to the definition of ‘human rights’ in Section 2 (d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women.

Duty of the Employer or other responsible persons in work places and other institutions

It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps

required.

Definition

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) Physical contact and advances;

b) A demand or request for sexual favours;

c) Sexually coloured remarks;

d) Showing pornography;

e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Where any of these acts is committed in circumstances where-under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim

does not consent to the conduct in question or raises any objection thereto.

Preventive Steps

All employers or persons in charge of work place whether in public or private

sector should take appropriate steps to prevent sexual harassment. Without

prejudice to the generality of this obligation they should take the following

steps:

A. Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

B. The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

C. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

D. Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Criminal Proceedings

Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

Disciplinary Action

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

Complaint Mechanism

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

Complaints Committee

The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

Worker’s Initiative

Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

Awareness

Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

Third Party Harassment

Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993. 

Main Recommendations of Punchhi Commission

Related Article:
Centre State Relations
Inter-State Council

There should be an amendment in Articles 355 and 356 to enable the Centre to bring specific trouble- torn areas under its rule for a limited period.

I. The commission has proposed "localizing emergency provisions" under Articles 355 and 356, contending that localized areas-either a district or parts of a district - be brought under Governor's rule instead of the whole state. Such an emergency provision should however not be of duration of more than three months.

II. The commission however supports their right to give sanction for the prosecution of ministers against the advice of the state government.

III. To make an amendment in the Communal Violence Bill to allow deployment of Central forces without the state's consent for a short period. It has proposed that state consent should not become a hurdle in deployment of central forces in a communal conflagration. However, such deployment should only be for a week and post-facto consent should be taken from the state.

IV. Among the significant suggestions made by the Commission is, lying down of clear guidelines for the appointment of chief ministers. Upholding the view that a pre-poll alliance should be treated as one political party, it lays down the order of precedence that ought to be followed by the governor in case of a hung house:

• Call the group with the largest prepoll alliance commanding the largest number;
• The single largest party with support of others;
• The post-electoral coalition with all parties joining the government; and last
• The post electoral alliance with some parties joining the government and remaining including Independents supporting from outside.

V. The panel also feels that governors should have the right to sanction prosecution of a minister against the advice of the council of ministers. However, it wants the convention of making them chancellors of universities done away with.

VI. As for qualifications for a governor, the Punchhi commission suggests that the nominee not have participated in active politics at even local level for at least a couple of years before his appointment. It also agrees with the Sarkaria recommendation that a governor be an eminent person and not belongs to the state where he is to be posted.

VII. The commission also criticizes arbitrary dismissal of governors, saying, "the practice of treating gov­ernors as political football must stop".

VIII. There should be critical changes in the role of the governor - including fixed five-year tenure as well as their removal only through impeachment by the state Assembly. It has also recommended that the state chief minister have a say in the appointment of governor.

IX. Underlining that removal of a governor be for a reason related to his discharge of functions, it has proposed provisions for impeachment by the state legislature along the same lines as that of Presi­dent by Parliament. This, significantly, goes against the doctrine of pleasure upheld by the recent Supreme Court judgment.

X. Endorsing an NCRWC recommendation, it says appointment of governor should be entrusted to a committee comprising the Prime Minister, Home Minister, Speaker of the Lok Sabha and chief min­ister of the concerned state. The Vice-President can also be involved in the process.

XI. Unlike the Sarkaria report, the Punchhi report is categorical that a governor be given fixed five-year tenure. The Punchhi Commission report also recommends that a constitutional amendment be brought about to limit the scope of discretionary powers of the governor under Article 163 (2). Governors should not sit on decisions and must decide matters within a four-month period.

XII. The creation of an overriding structure to maintain internal security along the lines of the US Home­land Security department, giving more teeth to the National Integration Council.

XIII. For the National Integration Council (NIC), the commission has proposed that it should meet at least once a year. In case of any communal incident, it has said that a delegation of five members of the Council, who would be eminent persons, should visit the affected area within two days National debate and submit a fact-finding report.

XIV. The commission, however, rejects a suggestion from some stakeholders as well as the Liberhan Commission that the NIC be accorded constitutional status.

XV. The commission has also studied new set-ups like the National Investigation Agency, and recommended procedures to ensure smooth co-operation of the states in terror investigations entrusted to NIA. One can say that the extreme politicization of the post of Governor must be decried and certain specific norms for the appointment and removal have to be evolved.

XVI. The recent ruling of the Supreme Court has indicated that the sanctity of this constitutional post should be preserved. In democracy, nobody can have absolute power in the name of smooth administration and good governance. The administrative apparatus has to be in the line of the constitution, which was prepared by the people of the country and amended by the elected representative of the people of India. The 'doctrine of pleasure' has to be understood in this light.

Inter-State Council

Related Article: Centre State Relations

Fulfilling its commitment of Common Minimum Programme, the Government set up a Commission on Centre-State Relations on FRIDAY, 27th APRIL 2007/VAISAKHA 7, 1929 to look into the new issues of Centre-State relations keeping in view the changes that have been taken place in the polity and economy of India since the Sarkaria Commission had last looked at the issue of Centre-State relations over two decades ago. 

The Commission was chaired by Justice Madan Mohan Punchhi, former Chief Justice of India. Shri Dhirendra Singh and Shri Vinod Kumar Duggal, both former Secretary to the Government of India, Prof. (Dr.) N.R. Madhava Menon, former Director, National Judicial Academy, Bhopal and National Law School of India, Bangalore and Dr. Amaresh Bagchi, Emeritus Professor, National Institute of Public Finance and Policy, New Delhi were the other members of the Commission. Secretary, Inter-State Council served as the Secretary of the Commission.

The Commission examined and reviewed the working of the existing arrangements between the Union and States, various pronouncements of the Courts in regard to powers, functions and responsibilities in all spheres including legislative relations, administrative relations, role of governors, emergency provisions, financial relations, economic and social planning, Panchayati Raj institutions, sharing of resources including inter-state river water etc. The Commission made a number recommendations in its seven volume report presented to Government on 30 March 2010. 

The main recommendations of the Commission regarding the Inter-State Council and its secretariat were as under: 

1. The Inter-State Council need to be substantially strengthened and activised as the key player in intergovernmental resolutions. It must meet at least thrice in a year on an agenda evolved after proper consultation with States.
2. The ISC must be empowered to follow up the implementation of its decisions for which appropriate statutory provisions should be made. The Government will be well advised to evolve an appropriate scheme to utilize the full potential of ISC in harmonizing Centre-State relations which has become urgent in the changed circumstances. Issues of governance must as far as possible be sorted out through the political and administrative processes rather than pushed to long drawn adjudication in the Court.
3. Inter-State Council appears to be the most viable, promising, Constitutional mechanism to be developed for the purpose provided it is properly restructured and duly empowered. Once ISC is made a vibrant, negotiating forum for policy development and conflict resolution, the Government may consider the functions for the National Development also being transferred to the ISC. 
4. The Council should have functional independence with a professional Secretariat constituted with experts on relevant fields of knowledge supported by Central and State officials on deputation for limited periods. 
5. ISC should have an organizational and management structure which different from the Government departments and flexible enough to accommodate management practices involving multidisciplinary skills conducive to federal governance under the Constitution.
6. Given the Constitutional and quasi-judicial tasks, the Council should have experts in its organizational set up drawn from the disciplines of Law, Management and Political Science besides the All India Services.
7. The Secretary of ISC should be designated ex-officio Secretary of the Department of States reporting directly to the Union Home Minister who is to be ex-officio Deputy Chairman of the Council. 

Amendment process under Indian Constitution

The procedure of amendment makes the Constitution of India neither totally rigid nor totally flexible, rather a curious mixture of both. Some provisions can be easily changed and for some others, special procedures are to be followed. Despite the fact that India is a federal state, the proposal for amending the constitution can be initiated only in the House of the Union Legislature and the State Legislatures have no such power.

In case of ordinary legislation, if both houses of the Parliament disagree, a joint session is convened. But in case of amendment of bills, unless both the houses agree, it cannot materialize, as in such cases there is no provision for convening the joint session of both the Houses of the Parliament.

In fact, there are three methods of amending the Constitution. But Article 368 of the constitution which lays down the procedure for amendment mentions two methods.

1. An amendment of the constitution may be initiated only by the introduction of a Bill for the purpose in either house of Parliament and when a bill is passed in each house.

• by a majority of total membership of that house.
• by a majority of not less than two-thirds of the members of that house present and voting, it shall be presented to the President who shall give his assent to the Bill and there upon the Constitution shall stand amended in accordance with the term of the Bill.
• Most of the provisions of the constitution can be amended by this procedure.

2. For amending certain provisions a special procedure to be followed,

• a Bill for the purpose must be passed in each house of Parliament by a majority of total membership of the house,
• by a majority of not less than two-thirds of the members of that house present and voting and
• it should be notified by the legislatures of not less than one-half of the states before the Bill is presented to the President for assent.
• The provisions requiring this special procedure to be followed include- (a) manner of the election of the President, (b) matters relating to the executive power of the union and of the state, (c) representation of the states in Parliament (d) matters relating to the Union Judiciary and High Courts in the states (e) distribution of legislative powers between the union and the states (f) any of the list in the seventh schedule (g) provisions of Article 368 relating to the procedure for amendment of the constitution etc.

3. There are certain provisions which require simple majority for amend­ments. They can be amended by the ordinary law making process. They include (a) formation of new states and alteration of areas, boundaries or names of existing ones (b) creation or abolition of Legislative Councils in the states (c) administration and control of scheduled areas and sched­uled Tribes (d) the salaries and allowances of the Supreme Court and High Court Judges (e) laws regarding citizenship etc. It is significant that the laws passed by Parliament to change the above provisions would not be deemed to be amendments of the Constitution for the purpose of Article 368.

Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994

Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 is an Act of the Parliament of India enacted to stop female foeticides and arrest the declining sex ratio in India. The act banned prenatal sex determination.

Female foeticide in India

This process began in the early 1990s when ultrasound techniques gained widespread use in India. There was a tendency for families to continuously produce children until a male child was born. Foetal sex determination and sex selective abortion by medical professionals has today grown into a Rs. 1,000 crore industry (US$ 244 million). Social discrimination against women and a preference for sons have promoted. According to the decennial Indian census, the sex ratio in the 0-6 age group in India went from 104.0 males per 100 females in 1981, to 105.8 in 1991, to 107.8 in 2001, to 109.4 in 2011. The ratio is significantly higher in certain states such as Punjab and Haryana (126.1 and 122.0, as of 2001).

Objectives

The main purpose of enacting the act is to ban the use of sex selection techniques before or after conception and prevent the misuse of prenatal diagnostic technique for sex selective abortion.

Definitions

Sex selection is any act of identifying the sex of the foetus and elimination of the foetus if it is of the unwanted sex.

Salient features

Offences under this act include conducting or helping in the conduct of prenatal diagnostic technique in the unregistered units, sex selection on a man or woman, conducting PND test for any purpose other than the one mentioned in the act, sale, distribution, supply, renting etc. of any ultra sound machine or any other equipment capable of detecting sex of the foetus. Main provisions in the act are

The Act provides for the prohibition of sex selection, before or after conception.

It regulates the use of pre-natal diagnostic techniques, like ultrasound and amniocentesis by allowing them their use only to detect :

• genetic abnormalities
• metabolic disorders
• chromosomal abnormalities
• certain congenital malformations
• haemoglobinopathies
• sex linked disorders.

No laboratory or centre or clinic will conduct any test including ultrasonography for the purpose of determining the sex of the foetus.

No person, including the one who is conducting the procedure as per the law, will communicate the sex of the foetus to the pregnant woman or her relatives by words, signs or any other method.

Any person who puts an advertisement for pre-natal and pre-conception sex determination facilities in the form of a notice, circular, label, wrapper or any document, or advertises through interior or other media in electronic or print form or engages in any visible representation made by means of hoarding, wall painting, signal, light, sound, smoke or gas, can be imprisoned for up to three years and fined Rs. 10,000.

Compulsory Registration

The Act mandates compulsory registration of all diagnostic laboratories, all genetic counselling centres, genetic laboratories, genetic clinics and ultrasound clinics.

Amendment in 2003

Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), was amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act (PCPNDT Act) to improve the regulation of the technology used in sex selection.

Implications of the amendment are

Amendment of the act mainly covered bringing the technique of pre conception sex selection within the ambit of the act:

• Bringing ultrasound within its ambit
• Empowering the central supervisory board, constitution of state level supervisory board
• Provision for more stringent punishments
• Empowering appropriate authorities with the power of civil court for search, seizure and sealing the machines and equipments of the violators
• Regulating the sale of the ultrasound machines only to registered bodies

Emergency powers of President

The President can declare three types of emergencies: national, state, financial. 

National emergency

National emergency can be declared in the whole of India or a part of its territory on causes of war or armed rebellion or an external aggression. Such an emergency was declared in India in 1962 (Indo-China war), 1971 (Indo-Pakistan war), 1975 to 1977 (declared by Indira Gandhi on account of "internal disturbance").

Under Article 352 of the India Constitution, the President can declare such an emergency only on the basis of a written request by the Cabinet Ministers headed by the Prime Minister. Such a proclamation must be approved by the Parliament within one month. Such an emergency can be imposed for six months. It can be extended by six months by repeated parliamentary approval, there's no maximum duration.

In such an emergency, Fundamental Rights of Indian citizens can be suspended. The six freedoms under Right to Freedom are automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended.(Article 21)

The President can make laws on the 66 subjects of the State List (which contains subjects on which the state governments can make laws). Also, all money bills are referred to the President for its approval. The term of the Lok Sabha can be extended by a period of up to one year, but not so as to extend the term of Parliament beyond six months after the end of the declared emergency.

State emergency

If the President is satisfied, on the basis of the report of the Governor of the concerned state or from other sources that the governance in a state cannot be carried out according to the provisions in the Constitution, he/she can declare a state of emergency in the state. Such an emergency must be approved by the Parliament within a period of 2 months.

Under Article 356 of the Indian Constitution, it can be imposed from six months to a maximum period of three years with repeated parliamentary approval every six months. If the emergency needs to be extended for more than three years, this can be achieved by a constitutional amendment, as has happened in Punjab and Jammu and Kashmir.

During such an emergency, the President can take over the entire work of the executive, and the Governor administers the state in the name of the President. The Legislative Assembly can be dissolved or may remain in suspended animation. The Parliament makes laws on the 66 subjects of the state list.

A State Emergency can be imposed via the following:

1. By Article 356 – If that state failed to run constitutionally i.e. constitutional machinery has failed
2. By Article 365 – If that state is not working according to the given direction of the Union Government.

This type of emergency needs the approval of the parliament within 2 months. It can last up to a maximum of three years via extensions after each 6-month period. However, after one year it can be extended only if

1. A state of National Emergency has been declared in the country or in the particular state.
2. The Election Commission finds it difficult to organise an election in that state.

On 19 January 2013, President's rule was imposed on the Indian State of Jharkhand, making it the latest state where this kind of emergency has been imposed.

Financial emergency

If the President is satisfied that there is an economic situation in which the financial stability or credit of India is threatened, he/she can then proclaim a financial emergency, as per the Article 360. Such an emergency must be approved by the Parliament within two months. It has never been declared.

A state of financial emergency remains in force indefinitely until revoked by the President.

The President can reduce the salaries of all government officials, including judges of the Supreme Court and High Courts, in case of a financial emergency. All money bills passed by the State legislatures are submitted to the President for approval. He can direct the state to observe certain principles (economy measures) relating to financial matters.