Constitutionalism PDF

INDIAN POLITY FOR UPSC CSE PRELIMS + MAINS 2018 by Jatin Verma@Unacademy Verma@Unacademy

1. Introduction to the Constitution of India Constitution is the supreme legal document for governing the country. It has the special legal sanctity, for the source of its authority is the people of the country themselves. It contains the skeletal framework on on the basis of which the fundamental organs of the State are created. The Constitution also outlines the basic principles governing their operations, lays down their structure, composition and jurisdiction. It defines inter-realtionship between different organs of State and between the Citizen and the State. For examples: 2. Article 50 of the Constitution talks about separation of Judiciary from the Executive (Basic Principle) 3. Article 124(2) states that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand & seal after consultation with such of the Judges of Supreme Court [Inter-relationship] 4. Article 74(1): 74(1): The head of the executive is the president, but a closer look shows that he is only a nominal head and the real power rests with the Prime Minister and his Cabinet of ministers as in Article 74(1). 5. Article 77: Conduct of business of the Government of India 77(1) 77(1) All All executive executive action of the Government Government of India India shall be expressed to be taken in the name of the President.

Purposes served by the Constitution: (1) Expression of Ideology of a Nation: The Nation: The Constitution is the mirror-image of the ideology and the philosophy behind the creation of a nation-state. For instance, instance , the Indian Constitution is inspired to a great extent by the the Freedom StruggleStruggle- Organisation of Village Panchayats(Art. 40). Similarly, the ideology behind incorporation incorporation of Socialism Socialism into the Constitution Constitution was the tyrannies tyrannies faced during the capitalist oriented British Raj. Secularism is an articulation of Dharma Sambahva Sambahva. age old tradition of Sarva Dharma (2) Basic Legal Document: The Document: The Constitution sets the broad contours for the Governance of Governance of a Country. While judging the validity of laws enacted subsequently by the legislative organ of the State, the Judicial organ of the State checks for the constitutional validity of the laws and rules. If any law does not stand the test of the Constitution, it is declared ultra vires the Constitution For eg. NJAC Act judgement; Right to Privacy judgement. (3) Distribution of Powers between different organs of the State: Constitution delineates the area of operation of different organs of the State. In the Indian scheme of things, the task of legislature is to enact laws and to hold the executive responsible for implementation of the laws so enacted. The

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INDIAN POLITY FOR UPSC CSE PRELIMS + MAINS 2018 by Jatin Verma@Unacademy

task allocated to Judiciary is to check for Constitutional validity of the Laws. Lastly, the task of Executive is to implement the laws enacted by the Legislative organ.[Cricket Match example: Executive is the batting team] (4) Defines the relationship between Citizen and State: Constitution articulates not only the rights of the citizens but also the reasonable expectations of the citizen from the State in the form of Directive Principles of State Policy as enumerated in Part-IV of the Constitution. Certain Provisions in the Constitution are ill-suited and are so draconian that they reverse the relationship between the Citizen(the master) and the State(Servant) eg. Article 105 (Parliamentary Priviliges, meaning Contempt of Legislature) and the Contempt of Court, Emergency. (Is the Constitution of India “Citizen Centric”  The answer is: Not entirely, Colonial remnants) (5) Levels of the Government: In most of the cases, a Constitution delineates the levels of Government and their respective areas of operation as well. For example: the Indian Constitution, vide Article 246, has clearly delineated the areas of operation of the Union Government and the State Governments. (6) Minimises the Scope of conflicts and Deadlocks: Last but not the least, Constitution, by performing all the above functions, at-least minimizes the scope of conflict between- Union and State(s); States inter-se; different organs of State and between the Citizen and the State. [Article 262: Inter-State water disputes] [Article 263: Inter- State Council] 6. Doctrine of Constitutional Supremacy: The salient feature of

Indian Sovereignty is that Constitution is the supreme law of the land and the Legislature, the Executive and the Judiciary are bound by it. They must act within the limits laid down by the Constitution. This is called Doctrine of Constitutional Supremacy. Eg. CJI Deepak Mishra recalled the judgement of 2-Judge bench on Memorandum of Procedure[observing this Doctrine only] There are several pre-requisites for the Doctrine of Constitutional Supremacy to be institutionalised: (1) The Constitution must be written and somewhat rigid. If there is no rigidity in the constitution, the parliament of the day would amend it easily and may even dissolve the ideals, a nation stands for. Eg. Japan under Shinzo Abe has done away with an important Constitutional ideal- Non militarization and Nuclear Disarmament. (2) Constitutional law must be different from the ordinary law : This implies that there has to be a different set of laws for day to day

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governance of the Country. Examples: (1) Article 324 casts the duty on ECI to ensure Free & Fair Conduct of elections. Despite that, ECI has recommended to Law Ministry for enactment of a separate law for Electoral offences like Paid news. (2) Article 21: S.C. in its Right to Privacy judgement read Privacy as a Fundamental right implicit in Article 21, S.C. went on to direct the Centre to enact a separate law on Privacy of citizens. (3) Article 21-A: Fundamental Right to Elementary Education. Synchronically, we also have Right to Education Act, 2010 Thus, Constitutional Law serves as a “common trunk” of all these branches. (4)Supremacy of Constitutional law over other laws : If there is any contradiction between the constitutional law and ordinary law; the constitutional law will prevail. Every other law, rule, order, bylaw, ordinance etc. have to be in line with the constitution [Article 13(3)].

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Important Doctrines derived from Various Constitutional Provisions: 

Doctrine of Parliamentary Supremacy: It makes Parliament the Supreme Legal entity, by the virtue of which Parliament can pass any kind of Law and can even override the Constitutional Provisions . It is a principle of Britain. This is not followed in India because it contradicts with: [i] Doctrine of Separation of Powers: in our Constitution emanates from following articles: (a)Article 50: Separation of Judiciary from the Executive (b)Articles 121 and 211: Restriction on discussion in Parliament No discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties (c)Articles 122 and 212: Courts not to inquire into proceedings of Parliament. (d)Article 361(1): The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court . [ii] The Doctrine of Constitutional Supremacy [seen through Basic Structure, Rigidity of amendment procedure] [iii] Doctrine of Judicial Review : emanates from Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void. [Contrary to the perception, there are 3 sources of law: J,E ,L] Judicial review in India has got three aspects: (1) Judicial review of legislations, (2) Judicial review of administrative action,[Cow Slaughter rules] (3) Judicial review of judicial decisions.[Justice Lalit judgement on MoP]. Doctrine of Checks & Balances: Legislature, executive and judiciary under the Constitution are to exercise powers with checks and balances, but not in water-tight rigid mould. In India, by basis of Arts. 32 and 136, the Supreme Court can exercise the power of judicial review. Similarly, under Art. 226 and 227 High Courts have a power of judicial review. In Keshavanand Bharti case (1973), the Supreme Court held that the amending power of the Parliament is subject to the basic features of the constitution.

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Analysis: Is Doctrine of Checks & Balances being implemented properly. Yes, but it is lop-sided i.e. it has been tilted in favour of Judiciary by none other than Judiciary itself Points in Favour: [i]Basic Structure Doctrine was not there in the Original Constitution: A tool for Checks & Balances [Many Constitutional Amendments were declared unconstitutional. Eg. NJAC] [ii] Concept of PIL [Populism in Judiciary- Messiah of the poor]: A tool for check over the Executive [Manual Scavenging should be completely banned] [iii] Separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. [iv] In order to increase the salaries of judges, Parliamantary approval is needed but reverse is not true i.e. MPs increase their own salaries Points against the statement: No, when its own turn comes, judiciary snubs the other two organs. Eg- NJAC, MoP. [i] It does not even shy away from using judicial side to avoid Doctrine of Checks & Balances eg. Scrapping of duly passed NJAC Act [ii]To some extent, Doctrine of Separation of Powers comes in the way

Question. Judges and Courts have re-interpreted their statutory authority and expanded their own power vis-a vis Legislature and executive. Critically Comment. [Public Administration Paper-2; 2010] [email protected]

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Constitution and Constitutionalism [G.S. Mains Paper-2: Polity & Gov.: Separation of powers between various organs]

The difference between Constitutionalism and Constitution is that of letter and spirit. Constitution acts as a surveillance mechanism over the State power. Citizen vests the sovereign power in the State through the supreme document called Constitution. At times, State machinery may be functioning in accordance with the letter of the Constitution but not in accordance with the spirit of Constitution. (Constitutionalism is basically about Good Governance) Constitutionalism implies that exercise of the State power shall be bound be checks and limitations. Examples: 1. P.J. Thomas Vs. Union of India case: No person, against whom a corruption case is pending, shall be appointed as the Chief Vigilance Commissioner. 2. No person shall act as a Judge in a case relating to his/her kith and kin 3. In D.C. Wadhwa Case, S.C. stated that Re-promulgation of Ordinance is a fraud on Constitution: Ordinance is to be accompanied by Statement of Objects and Reasons. 4. Right to Information Act, 2005 was enacted to implement the Fundamental Right to information but by not filling up the vacancies as and when these arise t, the Govt. has effectively obfuscated the operationalization of this essential fundamental right to information which was held to be the oxygen of democracy. According to K.C. Wheare, Constitutionalism means: (i) Non- Dictatorial leadership or Accountable leadership (ii) Division of Powers (Non-concentration of power in anyone organisation) (iii) Minimal restrictions on Individual freedoms (iv) Recognition of Plural interests in the Society. 

Extent of Constitutionalism in India: This could be gauged with the help of following features of Indian Polity: 1. Written Constitution 2. Fundamental Rights esp. Art 32 3. Rule of Law (Art. 14) 124 4. Independent Judiciary-IB

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5. Rigid yet Flexible Constitution(The fact that Constitution has been amended so many times………This point could be used both ways) 6. Federal form of Government in so far as it decentralizes power away from Union Govt. This feature when reinforced by provisions like Article 280 (Finance Commission) 7. Multi-party Democracy ensures better accountability (Compare this with China’s One Party Rule; This feature also represents diverse colours of Political opinion in Parliament- Communist Parties, Regional parties). 8. Separation of Powers and Doctrine of Checks & Balances: assisted by CAG 9. There has been no Coup attempt in India so far Vs. Emergency ok! What is missing in the Indian Polity is: - Informed Public Discourse which is an essential characteristic of U.K and U.S. eg. Jan Lokpal - Effective Media: Indian media is rather rabble rouser (stirring up passions) - Continuous and Periodic check on Governmental power: through devices like- Referendum, Right to Recall. Civil society: Kailash Satyatrthi,

Q. Does India’s Constitution clearly demarcate the powers of and relations between different Organs of Govt? Answer. At some places, there is a lot of ambiguity. For instance: - Control of Judiciary. - Ordinance making power of President and Governor - Recall of Governor by the President- His Discretionary Power? MP Vyapam Scam - Powers of Election Commission: (Expenditure of Election Commission is not charged on the Consolidated Fund of India. It is strange that expenditure of Selection Commission, meaning UPSC, is charged but that of Election Commission is not charged. That is why, ECI has to beg before Law Ministry even for VVPAT machines. Article 324 is clear- ensure Free & Fair electionDuty: Madras HC

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Structure of Indian Polity

State

Legislature

Executive

Judiciary

Figure 1: Organs of State

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Constitutionalism PDF

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