BLS LLB 5 Years Sem 3 Political Science 2 2022-23 Question Paper with Solutions

Political obligation is the duty of the citizen to obey the state, its government and its laws, and to accept its authority. It is the central question of political theory, which is not "who has power?" but "why ought I to obey?"

The sanction according to the divine right theory is religious: the fear of God and of divine punishment. The theory holds that the king derives his authority directly from God and is God's deputy on earth, so disobedience is not merely a crime against the state but a sin against God, punishable hereafter. The sanction is therefore supernatural rather than legal, and it operates on conscience where no policeman can reach.

It follows that the obligation is absolute and unconditional: the king is answerable to God alone, his title does not depend on his governing well, and there is no right of resistance. Its exponents were Filmer, James I and Bossuet.

Marx's own summary: Hegel's dialectic "is standing on its head. It must be turned right side up again."

Satyagraha is a Sanskrit compound, satya (truth) and agraha (firmness or insistence), meaning "holding firmly to truth" or truth-force. It is Gandhi's technique of non-violent resistance to injustice, in which the resister openly refuses to comply with an unjust law or an unjust order, does so non-violently, and willingly accepts the legal penalty, so as to convert the opponent by self-suffering rather than to defeat him by force.

Gandhi coined the word in South Africa in 1908 to replace "passive resistance", which he thought suggested a weapon of the weak; satyagraha is a weapon of the strong.

The two pillars are:

1. Satya (Truth), which is the end. For Gandhi "Truth is God", and the search for it is the purpose of life.
2. Ahimsa (Non-violence), which is the means. Since no one's grasp of truth is complete, no one is entitled to impose his version of it by force.

Two differences:

1. Whom the doctrine covers. Utilitarianism aims at the greatest happiness of the greatest number, so a minority may be sacrificed whenever the aggregate rises. Sarvodaya, from sarva (all) and udaya (rise), aims at the welfare of all without exception, and holds that no one may be sacrificed, however large the gain to others. Gandhi's test is his talisman: will the step help the poorest and weakest person you have seen?
2. The standard of value, and the treatment of means. Utilitarianism is quantitative and material, measuring pleasure and pain by the felicific calculus, and it accepts that the end justifies the means. Sarvodaya is moral and spiritual, resting on truth and non-violence, and insists that means and ends are inseparable: the means are the seed and the end the tree, so an immoral means can never produce a moral end.

Two criticisms:

1. It is monocausal, explaining everything by economics. Marx holds that the economic base determines the political, legal and intellectual superstructure, but religion, nationalism, language, race and, in India, caste have moved history at least as powerfully as class. The two world wars were not class wars, and Indian voting behaviour is not primarily class behaviour. Ambedkar's version of this objection is decisive in the Indian context: caste divides the working class against itself, so the unified proletariat Marx assumed does not exist here.
2. Its central predictions have been falsified. Class did not polarise into two camps; a large middle class of professionals and managers grew instead. Real wages rose rather than falling to subsistence, so the immiseration thesis failed. Revolutions came in agrarian Russia and China rather than in the advanced industrial societies the theory identified. And the state has withered nowhere: where communist parties took power it became larger and more coercive, and a new party elite replaced the old ruling class.

The right to education in India is a Fundamental Right. Article 21A, inserted by the 86th Constitutional Amendment Act, 2002, provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may by law determine.

It is implemented by the Right of Children to Free and Compulsory Education Act, 2009, in force from 1 April 2010, which provides for free and compulsory elementary education, a 25 per cent reservation for children from disadvantaged and weaker sections in private unaided schools, a bar on capitation fees, screening and expulsion, and norms for schools and teachers.

The same amendment altered Article 45, which now directs the State to provide early childhood care and education for children below six, and added Article 51A(k), a Fundamental Duty on parents to provide educational opportunities to a child between six and fourteen.

Article 19(1) guarantees six freedoms to citizens. Two of them, with their permitted restrictions:

1. Article 19(1)(a): freedom of speech and expression. Under Article 19(2) the State may impose reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
2. Article 19(1)(b): freedom to assemble peaceably and without arms. Under Article 19(3) the State may impose reasonable restrictions in the interests of the sovereignty and integrity of India or public order.

The remaining four are (c) association or unions, restricted under 19(4); (d) free movement throughout India, restricted under 19(5); (e) residence and settlement, also under 19(5); and (g) profession, occupation, trade or business, restricted under 19(6).

John Locke (1632 to 1704) set out his theory in the Two Treatises of Government (1689), written to refute Filmer's divine right theory and to justify the Glorious Revolution of 1688. He is called the father of liberalism.

The state of nature

Unlike Hobbes, Locke's state of nature is not a war of all against all. It is:

1. A state of perfect freedom to order one's actions and dispose of one's possessions within the bounds of the law of nature.
2. A state of equality, since all men are creatures of the same species and rank, with the same faculties, and none is naturally subject to another.
3. A state of peace, goodwill and mutual assistance, on the whole, because men are governed by reason.
4. Governed by the law of nature, which reason teaches: "no one ought to harm another in his life, health, liberty or possessions." It is a moral condition, not a lawless one; what it lacks is not law but enforcement.

The social contract

Locke's contract has two stages, and this is the point examiners test most:

1. The social contract, or pactum unionis, by which individuals agree with one another to leave the state of nature and form a civil society, whose decisions are taken by the majority.
2. The contract of government, or pactum subjectionis, by which the community entrusts political power to a government. This is not a surrender but a trust.

The surrender is partial and conditional. Men give up only the executive power of the law of nature, that is the right to punish and to judge in their own cause. They retain their natural rights to life, liberty and property, which the government exists to protect and may not destroy.

Government is a trustee. Sovereignty remains ultimately with the community. The legislature is supreme among the organs of government but is itself a fiduciary power: it must govern by settled standing laws and known judges, may not rule arbitrarily, may not take a man's property without his consent, and may not transfer its law-making power to anyone else.

4. His theory of property justified unequal accumulation and suited the propertied class of his day, which is Macpherson's charge of "possessive individualism".
5. It is unclear who decides that the trust has been broken.

Influence

Locke founded limited constitutional government: consent, natural rights, the rule of law, separation of powers and the right of revolution. His language reappears in the American Declaration of Independence and the French Declaration of the Rights of Man, and through them in Part III of the Indian Constitution.

3. Supremacy of the Constitution, binding on Union and States alike.
4. An independent judiciary, with the Supreme Court exercising original jurisdiction under Article 131 in Union-State disputes.
5. Bicameralism, with the Rajya Sabha representing the States.
6. Constitutional status for local self-government since the 73rd and 74th Amendments, 1992.

Unitary features

1. A strong Centre: the Union List is the longest and most important, and under Article 254 Union law prevails in the Concurrent List.
2. Residuary powers with the Union under Article 248.
3. States are not indestructible: under Article 3 Parliament may by ordinary law form a new State or alter any State's area, boundaries or name, the affected legislature being consulted but not consenting. India is an indestructible Union of destructible States.
4. Single citizenship.
5. A single integrated judiciary, with no separate State court hierarchy.

Assessment

India is federal in structure and unitary in spirit, and the design was deliberate. The framers had just experienced Partition, faced the integration of over five hundred princely states, and confronted linguistic diversity and secessionist pressure, so they built a federation strong enough not to break. Ambedkar put it exactly: the Constitution can be both unitary and federal according to the requirements of time and circumstances.

1. Authority is a species of power, namely legitimate power. All authority is power; not all power is authority.
2. Authority without power is empty: a government in exile has the right and not the ability.
3. Power without authority is unstable: it must keep paying the cost of coercion and can never rely on obedience unobserved, which is why usurpers seek referendums and constitutions.
4. The process converting power into authority is legitimation; the reverse is a crisis of legitimacy.

Conclusion

Authority is power that has been tamed by rules: given a title, a limit, a term and a purpose. The distinction is not verbal. It marks the difference between a state and a gang, between taxation and extortion, and between imprisonment and kidnapping, and the whole apparatus of constitutional law exists to keep power on the authority side of that line.

2. It can amend the Constitution under Article 368, including the Fundamental Rights.
3. It can overturn a judicial decision prospectively by removing the basis of the judgment through valid legislation, or by a constitutional amendment.
4. The Ninth Schedule, added by the First Amendment, 1951, was designed to place specified laws beyond judicial scrutiny.
5. Article 31C, added by the 25th Amendment, 1971, gave laws implementing Articles 39(b) and (c) primacy over Articles 14 and 19.
6. Judges do not have a veto on policy: a law struck down can often be re-enacted in a valid form.

The elements of judicial review

1. Article 13 declares void any law inconsistent with the Fundamental Rights, which is the textual foundation of judicial review.
2. Articles 32 and 226 give the Supreme Court and the High Courts power to issue writs for the enforcement of rights.
3. Articles 131 to 136 and 143 give the Court jurisdiction over federal disputes, appeals and Presidential references.

5. Indira Nehru Gandhi v Raj Narain (1975): an amendment placing the Prime Minister's election beyond judicial scrutiny struck down.
6. Minerva Mills (1980): clauses (4) and (5) of Article 368, inserted by the 42nd Amendment to make the amending power unlimited and to bar review of amendments, struck down. The Court held that the harmony and balance between Parts III and IV is itself a basic feature, and that "limited amending power is a basic feature".
7. Waman Rao (1981): laws placed in the Ninth Schedule after 24 April 1973, the date of Kesavananda, remain open to challenge on basic structure grounds, confirmed in I.R. Coelho (2007).
8. L. Chandra Kumar (1997): judicial review under Articles 32 and 226 is a basic feature and cannot be excluded.

Assessment

The balance achieved: Parliament has a wide but not unlimited amending power; the courts have review but not a veto over policy; and the Constitution, not either organ, is supreme. Each has a way of responding to the other, so neither has the last word permanently.

1. Utilitarianism. Founded by Jeremy Bentham, it holds that the rightness of any law is measured solely by its consequences, and specifically by whether it produces the greatest happiness of the greatest number. The basis of intervention is therefore straightforward arithmetic: mandatory vaccination imposes a small and temporary cost on the individual and prevents a very large aggregate of illness, death and economic loss, so the balance of pleasure over pain favours compulsion. Individual freedom has no independent weight on this view; it is one interest among others to be entered into the calculation, and Bentham dismissed natural rights as "nonsense upon stilts" precisely so that no such interest could veto the sum.

2. The harm principle, and positive liberalism. J.S. Mill in On Liberty holds that "the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." The basis of intervention here is not the unvaccinated person's own welfare, which would be paternalism and is excluded, but the fact that an unvaccinated person in a transmissible epidemic endangers other people. Refusing vaccination is therefore an other-regarding act, and falls squarely within the sphere Mill leaves open to law.

St Augustine: an unjust law is no law at all. Aquinas: a law contrary to the divine or natural law does not bind in conscience. Martin Luther King Jr, in the Letter from Birmingham Jail, gave the most usable test: a just law uplifts human personality, an unjust law degrades it; and a law is unjust when a majority imposes on a minority a rule it does not make binding on itself, or when it is enacted by a body the affected minority had no part in electing.

When the problem arises. The problem of the unjust law arises when legal duty and moral duty conflict, that is:

1. When a law is validly enacted but morally wrong, so that the citizen cannot both obey the law and act rightly. This presupposes the positivist separation of validity from merit; if every valid law were just by definition, no problem could arise.
2. When a law violates fundamental rights or human dignity.
3. When it is made by a body in which the affected group has no representation, so consent is absent.

(a) What is the difference between political party and interest groups? Give two examples of interest groups from India.

(b) What is Regionalism? Name two factors for the rise of regionalism in India?

(a) Political party and interest group distinguished, with two Indian examples

A political party is an organised body of citizens who hold broadly common views on public questions and act as a unit to capture political power through constitutional means, chiefly by contesting elections.

An interest group, or pressure group, is an organised association which seeks to influence government policy in its members' interest without seeking office itself.

1. FICCI, the Federation of Indian Chambers of Commerce and Industry, founded 1927, a business association which represents industry to government and makes annual pre-budget representations, and which the facts describe as sponsoring discussion forums and maintaining informal consultative arrangements.
2. INTUC, the Indian National Trade Union Congress, a labour federation representing workers on wages and conditions.

CII, ASSOCHAM, AITUC, BMS, the Bar Council of India and the Indian Medical Association would serve equally.

(b) Regionalism, and two factors behind its rise in India

Regionalism is the political expression of a strong attachment to one's own region, in which the interests, identity, language and culture of the region are asserted, and sometimes placed above those of the nation as a whole. It may be positive, seeking development, autonomy and cultural protection within the constitutional framework, or negative, taking the form of hostility to outsiders, demands for separate statehood or, at the extreme, secession.