Journal of Constitutional and Parliamentary Studies

Published in Association with Institute of Constitutional and Parliamentary Studies

Current Volume: 56 (2022 )

ISSN: 0022-0043

Periodicity: Quarterly

Month(s) of Publication: March, June, September & December

Subject: Political Science

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Journal of Constitutional & Parliamentary Studies is a peer-reviewed and refereed journal; contributions received for consideration for publication are reviewed by domain experts nominated on the Board of Reviewers.
The Journal is intended to serve as an international forum to discuss the problems, processes and prospects of parliamentary democracy and legislative institutions in India and abroad and become a vehicle of advanced and specialized studies in comparative constitutional law and parliamentary procedures. The Journal is not committed to any particular political ideology or party. It provides an objective and independent forum for expression of diverse viewpoints and perspectives.
Contributions for the Journal are invited from persons belonging to different walks for life: legislators, jurists, political scientists, academicians and lawyers. Contributions should be sent through e-mail at 'journals-icps@sansad.nic.in". A uniform pattern of footnotes as per Chicago style of referencing should be followed. Contributions simultaneously sent for publication elsewhere will not be entertained.

President
Shri Om Birla

Hon'ble Speaker, Lok Sabha


Vice President
Shri Pinaki Misra

Member of Parliament, Lok Sabha


Treasurer
Shri Kunwar Anand Singh

Advocate


Members
Dr. Sikander Kumar

Member of Parliament, Rajya Sabha


Shri P. C. Mody

Secretary-General, Rajya Sabha


Shri Utpal Kumar Singh

Secretary- General, Lok Sabha


Ms. Nirupama Kotru

JS & FA, Ministry of Coal


Dr. Rajiv Mani

AS & LA, Min of Law & Justice


Shri D. S. Mathur

Advocate


Dr. Surender Singh Rana

Associate Professor, Delhi University


Shri Jitender Parasar

Advocate


Professor Sushma Yadav

Member, UGC and Pro Vice Chancellor,
Central University of Haryana, Mahendragarh, Haryana


Professor Shri Prakash Singh

Professor of Political Science and Director, South Campus,
University of Delhi, Delhi


Professor Amarpal Singh

Professor and Former Dean,
University of School of Law and Legal Studies,
Guru Gobind Singh Indraprastha University, New Delhi


Chairman
Shri Prasenjit Singh

Director- General


Editor
Dr. Ravindra Singh

Volume 56 Issue 3-4 , (Jul-2022 to Dec-2022)

Editor's Note

By: ..

Page No : i

Price: 101

Proposed National Commission on Higher Education and Research

By: N.R. Madhava Menon

Page No : 219-226

Abstract
In this article,# the author dwells on the recommendations of the National Knowledge Commission (NKC) and the Committee to Advise on Renovation and Rejuvenation of Higher Education (known as Yash Pal Committee) to bring about drastic changes to the prevailing regulatory structure of higher education. The author explains different components of the proposed legislations, on the basis of different announcements of the then Union minister of Human Resource Development. The author relates the broad contours of the then proposed ‘National Commission for Higher Education and Research Bill’ on which views and comments from different stakeholders were being solicited. The author also explains how the then proposed National Commission on Higher Education and Research (NCHER) was contemplated to subsume all regulatory bodies in the field of education including the University Grants Commission (UGC), All India Council for Technical Education (AICTE), National Council for Teacher Education (NCTE), Distance Education Council (DEC) apart from the academic aspects of the professional councils. It is also explicated how the proposed reforms in higher education sought to bring it at par with international standards.

Author :
N.R. Madhava Menon : Former member of Law Commission of India and was a member of the Committee to Advise on Renovation and Rejuvenation of Higher Education (Yash Pal Committee).
 

Price: 101

Changing Role of Judiciary in a Modern Democarcy

By: Mool Chand Sharma

Page No : 227-242

Abstract
In this article,# the author explains how democracy is a web of ‘paradoxes, dilemmas and even contradictions’, how it demands ‘internalisation of values of democracy and constitutional culture’, and ‘how this paradox is a safe path for building a secure and developed society. The author examines role of judiciary in Indian democracy in the light of the fact that every institution including the common public has an obligation to contribute to make democracy a success. The author navigates through the journey of expanding role of judiciary: starting from ‘positivism’ (when judges were confined to ‘resolution of disputes’), to traversing in the domain of policy-making including socialpolicy (of which articulation of Basic Structure doctrine is the supreme example), and now venturing into issues of ‘social justice’ and ‘public-goods’ (which are mainly the preserve of legislative and the executive wings of the State). The author discusses why the judiciary, while handling ‘social justice’ and ‘public-goods’, needs to exercise restraint and be impartial and how this concept of ‘objectivity’ in judiciary is distinct from that in the legislative and executive. The author also discusses the concept of ‘public confidence’ in the judges and relates how it is essential condition realising judicial role especially while dealing with social policy issues.

Author :
Mool Chand Sharma : The then Vice-Chancellor, Central University of Haryana, Mahendragarh (Haryana)
 

Price: 101

The Women, The Constitution and The Law

By: P.D. Kudal

Page No : 243-259

Abstract
In this article,# the author examines the condition of women both in India and in some other countries and concludes that the women are accorded equality neither in India nor in most of the other countries and finds the customary laws as a major challenge in this regard. The author explains that there exist various provisions in the Constitution of India which afford equality to women in every sphere of life but the ground reality is far from it. The author discusses various legislative efforts to ameliorate the conditions of women in India. The author also explains how prevalence of personal laws in India have been proving a major roadblock in ensuring equal rights to the women in matters of ancestral property and maintenance in case of divorce and highlighted the need for and urgency of creation of uniform civil code in this context. The author also discusses some of the important judicial pronouncements that have resulted in securing equality to the women and contributed to improve the conditions of women in the country. The author concludes with an optimistic note that the time is not far off when women in India will enjoy real equal status with men.

Author :
P.D. Kudal : Former Judge, Rajasthan High Court.
 

Price: 101

Legislative Process : Ideals and Reality

By: P. M. Bakshi

Page No : 260-289

Abstract
In this article,# discussing the process of legislation in ancient and medieval times, the author emphasizes that laws made by a representative assembly are considered higher laws than those enacted by an executive authority. The author then explains how a legislative proposal is conceptualised before taking a concrete shape in the executive; some of the technicalities involved in drafting legislations, and the challenges faced by private members in proposing legislations are also explained. Discussing the journey of laws in legislatures, the author explains how the role of parliamentary committees can be made more effective. Underlining the need of simple language of laws, the author explains how and why it is not achieved due to the challenges/compulsions of the draftsmen and the technical requirements. Explaining the perpetual nature of reformation of laws, the author highlights the role of legislatures, law reforms commissions/law commissions and the judiciary, in this regard. The author stresses the need and importance of putting greater information in public domain at various stages of legislation.

Author :
P. M. Bakshi : Honorary Professor, Indian Law Institute, New Delhi and the then former Member-Secretary, Law Commission of India.
 

Price: 101

Decentralisation and People's Participations

By: Rabi Ray

Page No : 290-297

Abstract
In this article,# the author, exploring ancient Indian texts/sources, traces the existence of village panchayats in ancient India and explains that the panchayats performed administrative and judicial functions in different parts of the country and concludes that the institution survived till the advent of the British rule in India. The author explains how the adoption of zamindari and ryotwari land tenure systems by the British in India destroyed the self-contained and selfsustaining nature of the ‘ancient republics’. The author highlights the efforts towards revival of these institutions in pre-independence times as also in the post-independence era and explains how all such efforts have proved to be short of requirements. Elucidating as to how the centralised model of development has resulted into lopsided and skewed development in India, the author emphasises the necessity of devolution of power to the people at the grassroots level in a diverse and large country like India and explains the importance and necessity of village panchayats in this context. The author also attempts to allay the fears and skepticism regarding the inability and lack of competence of the village panchayats.

Author :
Rabi Ray : The then Speaker, Lok Sabha.
 

Price: 101

Disaster Management in India : Lessons From Himalayan Tsunami

By: M. Shashidhar Reddy

Page No : 298-311

Abstract
In this article,# the author briefly discusses the progressive journey of combating natural disasters in India since the creation of National Disaster Management Authority in 2005. The author explicates that meticulous planning involving different agencies and coordinated efforts in implementation thereof have progressively resulted in improved and quicker response to natural disasters in India and the resultant decline in loss of life and property over the years. Through the natural disaster that struck the Himalayan state of Uttarakhand in the middle of June 2013 in the form of excessive rainfall, also referred as Himalayan Tsunami, the author emphasizes the significance of public awareness, syntheses of the efforts of various governmental agencies, and harmonization of efforts of government and the public in preventing and combating natural disasters. The author emphasizes how post-disaster work and measures are as important as ‘relief and rescue’ operations in case some disaster strikes. The critical role of technology advancement and robust communication network in effective handling of natural disasters also been highlighted.

Author :
M. Shashidhar Reddy : The then Vice Chairman, National Disaster Management Authority, New Delhi
 

Price: 101

Democracy of Defections in India

By: Yogendra Narain

Page No : 312-323

Abstract
In this article,# the author discusses the issue of political defections in India and some of the advanced countries. After briefly tracing the history of defections in India, the author concludes that the phenomenon has been in existence since the pre-independence period. The author explains the circumstances leading to the enactment of Anti-Defection Act in India; narrates its weaknesses in containing the challenge of defections and the consequent amendments effected in the law to address these challenges over the years. The author analyses various provisions of the anti-defection law in juxtaposition with some of the fundamental democratic tenets and concludes that the law militates against the democratic spirit and is also antithetical to the accountability of the peoples’ representatives to their electorates. The author argues that anti-defection legislation is usually characteristic of less mature democracies. The author contends that in view of the undemocratic nature of the law, the absence of such legislation in about four-fifths of the countries of the world, and also given the fact that now India has come of age (with more than 65 years when she attained independence), the continuance of this law on the rule book needs to be reviewed.

Author :
Yogendra Narain : The then former Secretary-General of Rajya Sabha.
 

Price: 101

Human Rights of the Disabled : World in a Slow Motion

By: A.K. Sikri

Page No : 324-368

Abstract
In this article,# the author discusses how viewing the ‘persons with disabilities’ as abnormal humans deserving pity rather than as individuals who are entitled to enjoy same opportunities and equal rights as other members of the society has resulted into their marginalisation and exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedoms. The author emphasises that the movement from patronising and paternalistic approach towards ‘persons with disabilities’ to viewing them as members of the community with equal rights has been reflected in the evolution of universal human rights over the years. The author relates how the provisions of ‘Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995’ are an effort to assimilate the ‘persons with disabilities’ in the national mainstream. The author affirms that during the last few years a modest change in the mindset of the people and policy-makers is perceptible, which is, however, slow. Through an analysis of the verdicts of the higher judiciary in several cases relating to the rights of the ‘persons with disabilities’, the author also analyses the role which the courts have played in giving proper meaning and shape to the rights conferred upon the ‘persons with disabilities’ under the Disability Act.

Author :
A.K. Sikri : Former Judge of the Supreme Court of India.
 

Price: 101

Gandhi, Ambedkar and the Expirpation of Untouchability

By: Hirendra Nath Mukerjee

Page No : 369-390

Abstract
In this article,# the author highlights the deeply entrenched issues of caste discrimination and untouchability in the Indian society and discusses the psychological, socio-cultural, economic, and politico-constitutional nuances of the degrading practice. The author explains how the inhuman and degrading practices of caste-system and untouchability are pernicious to the cause of a democratic society. Explaining the deep caste-rigidities and prejudices and the consequent gory plight of the untouchables, the author attempts to shake the national conscience. The author discusses the perspectives of Ambedkar and Gandhi on the caste system and their respective approaches to the elimination of the curse of untouchability from the Indian society and, in the process, also highlights the points of discord between their respective approaches. The author narrates how implementation of the constitutional measure of reservation for ameliorating the plight of the Scheduled Castes and Scheduled Tribes has fallen short of the requirements and also the stance of the caste Hindus towards the untouchables leading to the exasperation of Ambedkar towards the end of his life.

Author :
Hirendra Nath Mukerjee : Former Member of Parliament, Lok Sabha.
 

Price: 101

Nehru's Conception of Equality

By: Upendra Baxi

Page No : 391-398

Abstract
In this article,# the author explains how Nehru viewed ‘equality’ as ‘real’ or ‘definite’ rather than ‘abstract’ or ‘metaphysical’ virtue. The author reveals the ‘Prime Minister’ and ‘political philosopher’ aspects of Nehru vis-à-vis the concept of ‘equality’ and, citing certain constitutional provisions, brings-out the conflict between the two facets of his personality in regard to equality. The author explains how Nehru viewed the Constitution as a means to ensure equality in the country and in the process viewed the ‘lawyerly culture’ as a potential obstacle in the task of transforming constitutional India into a radically egalitarian Indian society. The author highlights the secular aspects of Nehru and how he considered constitutional secularism as the only and the best way to realise the spirit of equality. The author elabortes the views of Nehru regarding caste-system in India and explains how caste-system militates against the concept of equality. The author also briefly narrates the views on equality of the troika of Nehru, Gandhi and Ambedkar highlighting that a comparative analysis of their conception of equality has been wanting and desired.

Author :
Upendra Baxi : Former Vice-Chancellor, University of Delhi.
 

Price: 101

The Status and Need for a Second Experience

By: A. Chakrapani

Page No : 399-405

Abstract
In this article,# the author relates the pattern of bicameral legislatures in leading countries of the world and discusses the method of election/selection of members of the upper houses and their role, powers and functions vis-à-vis the lower houses in several of the countries having bicameral legislatures. The author refers to the discussion on the necessity of second chamber in the Constituent Assembly narrates the main provisions in regard to the second chambers under the Constitution of India. The author also dwells on the differences in the status of the Council of States and the legislative councils in the states.
Relating some of the instances of abolishing second chambers in some of the states, the author relates how extra-merit and political considerations have been at work behind abolition of the second chambers in the states. Underscoring the benefits of second chambers in the states, the author explains how the second chambers can play constructive and useful role in the governance of states especially when the legislative assemblies have been dissolved or placed under suspended animation.

Author :
A. Chakrapani : Former Chairman, Andhra Pradesh Legislative Council.
 

Price: 101

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