SHIKHAR Mains Day 6 Model Answer English

Q1. "भारतीय संविधान तत्वों और मूल भावना में अद्वितीय है।" दिए गए कथन के आलोक में भारतीय संविधान की मुख्य विशेषताओं पर चर्चा कीजिए?

"Indian Constitution is unique in elements and basic spirit." Discuss the main features of the Indian Constitution in the light of the given statement?

approach-

·       Begin your answer by writing 2-3 lines about the uniqueness of the Indian Constitution.

·       Discuss various main features of the constitution.

·       Conclude the answer with a positive outlook towards constitution.

Answer -

                    The uniqueness of the Indian Constitution rests on the fact that it is the largest written constitution in the world and provision has been made in it for it’s flexibility and rigidity, asymmetric federal system etc.

Salient Features of the Indian Constitution:

·       Synthesis of Parliamentary Sovereignty and Judicial Supremacy- The framers of the Indian Constitution have preferred a proper synthesis between the principle of parliamentary sovereignty of the British and the principle of judicial supremacy of America. The Supreme Court, on the one hand, through its power of judicial review can declare parliamentary laws unconstitutional and on the other hand, the Parliament can amend a large part of the constitution through its constitutional power.

·       Integrated and independent judiciary - The Supreme Court is at the apex of the integrated judicial system in the country. Below this are the High Courts at the state level. Under a High Court, there is a hierarchy system of subordinate courts i.e. district courts and other lower courts. This integrated system of courts enforces the central as well as the state laws.

·       The Indian Constitution is the most detailed, and comprehensively written document in the world. Although the Indian Constitution has been made by taking progressive elements out of different constitutions of the world. Dr. BR Ambedkar praised that the Constitution of India has been made 'out of all the known constitutions of the world'.

·       Mixture of rigidity and flexibility - Some provisions of the constitution can be amended by special majority, such as constitutional amendment, provisions related to the election of the President, provisions related to federal structure, etc. and some provisions of the constitution in the Parliament through ordinary legislative process, such as change in the names of the states.

·       Federalism - The word 'Federation' is not used anywhere in the Constitution. However, Article 1 declares India to be a 'Union of States', which means-

o   The Indian Union is not the result of an agreement of the States;

o   No state has the right to secede from the federation. Due to these reasons Indian federalism is also known as quasi-federalism.

·       Parliamentary Form of Government - Features of Parliamentary Government in India are:

o   Nominal and real executive,

o   Majority party rule,

o   Collective responsibility of the executive towards the legislature,

o   Membership of ministers in the legislature

o   Headed by the prime minister or chief minister,

o   Dissolution of the lower house (Lok Sabha or Vidhan Sabha).

·       Secular State - The word secularism in the Preamble and Articles 14, 15, 16, 25 reveal the secular character of the Indian state.

·       Single Citizenship - Unlike the United States of America, India has a provision for single citizenship, irrespective of the state in which he/she is born or reside.

                      Thus the Constitution of India stands as a form of democracy, fundamental rights and decentralization of power at the grassroots level.

Q2. भारतीय संविधान की आधारभूत संरचना (मूल ढाँचे) के सिद्धांत के क्रमिक विकास पर चर्चा कीजिये।

Discuss the evolution of the principle of basic structure of the Indian Constitution.

Approach

·       Explain the principle of infrastructure in role.

·       In the main part, explain the evolution of the theory in detail.

·       Lastly, conclude the answer by explaining the present position.

Answer -

                The principle of basic structure is related to the jurisdiction of the Parliament with respect to amending the Indian Constitution. Some elements of the Indian Constitution and polity are so important in the context of the system and constitutional position that they cannot be amended. The court believes that if amendments are made to the basic elements of the constitution and polity, it will negatively affect the system. The principle of basic structure is a theory developed for the conflict between the Indian legislature and the judiciary. The principle of Basic Structure is the result of long constitutional development. The development of the theory of Basic Structure can be understood through the following analysis. It is noteworthy that in 1964, while hearing the Sajjan Singh case, Justice Mudholkar had mentioned the basic structure for the first time.

Concept of Constitutional Powers of Parliament:

·       The provisions in the Constitution in which amendments are possible by the Parliament have been mentioned in that provision itself. e.g. "within the scope of law by Parliament", "according to the conditions laid down by Parliament", etc.

·       The Supreme Court does not consider that right to be constitutional, about which the powers of Parliament are not mentioned in the prescribed provision.

·       Such a right is considered as an outside/accidental/incidental right (right obtained from outside).

Shankari Prasad Case (1951) 

·       In this case, the SC contended that the Parliament’s power of amending the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed in Part III as well.

Sajjan Singh case (1965)

·       In this case also, the SC held that the Parliament can amend any part of the Constitution including the Fundamental Rights. 

·       It is noteworthy to point out that two dissenting judges, in this case, remarked whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.

Golaknath case (1967)

·       In this case, the court reversed its earlier stance that the Fundamental Rights can be amended. 

·       It said that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required.

·       Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution. This case conferred upon Fundamental Rights a ‘transcendental position’. 

·       The majority judgement called upon the concept of implied limitations on the power of the Parliament to amend the Constitution. As per this view, the Constitution gives a place of permanence to the fundamental freedoms of the citizens.

24th and 25th Constitutional Amendment Act- 

·       The Parliament reacted to the Supreme Court’s judgement in the Golaknath Case (1967) by enacting the 24th Amendment Act (1971) and the 25th Amendment Act (1971). The 24th Amendment Act declared that the Parliament has the power to abridge or take away any of the Fundamental Rights by enacting Constitutional Amendment Acts.

·       The 25th Amendment Act inserted a new Article 31C which contained the following two provisions:

·       No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b)22 and (c)23 shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14 (equality before law and equal protection of laws), Article 19 (protection of six rights in respect of speech, assembly, movement, etc) or Article 31 (right to property).

·       No law containing a declaration for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy.

Kesavananda Bharati case (1973)

·       This was a landmark case in defining the concept of the basic structure doctrine.

·       The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” 

·       The judgement implied that the parliament can only amend the constitution and not rewrite it. The power to amend is not a power to destroy.

·       This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.

Indira Nehru Gandhi v. Raj Narain case (1975)

·       Here, the SC applied the theory of basic structure and struck down Clause(4) of Article 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features.

·       The 39th Amendment Act was passed by the Parliament during the Emergency Period. This Act placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.

·       This was done by the government in order to suppress Indira Gandhi’s prosecution by the Allahabad High Court for corrupt electoral practices.

Minerva Mills case (1980)

·       the 42nd Amendment Act accorded the position of legal primacy and supremacy to the Directive Principles over the Fundamental Rights conferred by Articles 14, 19 and 31.

·       However, this extension was declared as unconstitutional and invalid by the Supreme Court in this case. 

·       The judgement makes it clear that the Constitution, and not the Parliament is supreme.

·       In this case, the Court added two features to the list of basic structure features. They were: judicial review and balance between Fundamental Rights and DPSP.

·       The judges ruled that a limited amending power itself is a basic feature of the Constitution.

Expansion of Basic Structure Theory:

However, in 1973, Justice Hansraj Khanna, the lead author of the Kesavananda Bharati case, propounded the theory of basic structure. But at that time it was not told which features of the constitution would be included in it, rather it would be decided on case to case basis in future.

·       In the Minerva Mills ​​case 1980, the SC described judicial review as a basic structure of the constitution.

·       The SC reiterated the same point in Maruram case 1980 and Wamanrao case 1981.

·       In Kihoto Holo Han v Jachilhu and others case 1991 and L Chander Kumar case 1997, SC once again reiterated that the Judicial Review as a basic structure of the constitution.

·       In the second judge case 1993, third judge case 1998 and Advocates on Records case 2017, the SC said to keep the judiciary separate from the executive as a basic structure.

·       Thus, in the SR Bommai case 1993, the SC described democracy as a fundamental structure.

                    Thus let us see that the Supreme Court in its various judgments has declared different elements of the constitution as basic structure. Presently secularism, rule of law, democratic system, federal structure, public sovereignty, electoral system, unity and integrity of the nation, socio-economic justice, parliamentary system etc. are declared as basic structure of the constitution. The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.