Introduction
This chapter of your module is quite unique - rather than focusing on Legal Reasoning purely, there's also a huge chunk of Legal Knowledge that's part of this module. The Constitution is one area that is very heavily tested across both areas, that is. Legal Reasoning as well as Legal Knowledge, so it's important that you're proficient in both these fields as far as the Constitution is concerned. Keep in mind that the Constitution is the prime law of the land. It even stands above the three power heads: the Executive, the Judiciary, and Parliament, about which you might have studied in your civics classes. We’ll take the Legal Knowledge component first, and then move on to Legal Reasoning.
Fundamental Rights (‘FRs’)
Six Fundamental Rights
➢ The Right to Equality
- Equality and Equal Protection before law (Article 14)
- No discrimination on the basis of religion, race, sex, or place of birth (Article 15)
- Equal opportunities in case of employment (Article 16)
- Social Equality-banning untouchability (Article 17)
- Abolition of royal titles (Article 18)
Question for Constitutional Law
Try yourself:Facts: Ranjit Singh, a resident of the State of Punjab, is denied admission in a premier government institute located in Maharashtra on the basis that he is a non-resident of Maharashtra State. Ranjit Singh has decided to challenge the constitutional validity of this rule.
Principle: The State shall not discriminate against any citizen on grounds only of place of birth.
Explanation
Option (c) is the correct choice because the rule incorporates only a residence requirement. It cannot be said to be discriminating based on place of birth, because a person bom in Punjab, but residing in Maharashtra would still be eligible for admission in the institute.
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Question for Constitutional Law
Try yourself:Facts: A new tax law is imposed in India, the effect of which is to make all individuals who have evaded tax in the past six months pay a higher interest as a fine to the tax authorities. Some individuals challenge this law as being violative of their fundamental rights.
Principle: No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
Explanation
Option (b) is the correct answer choice since the imposition of a tax liability is equivalent to imposing a civil liability and not a criminal penalty and therefore this action of the State is not covered . by the specified principle
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Question for Constitutional Law
Try yourself:Facts: The Parliament enacts a law, which states that all persons who are above the height of 5 feet, are liable to pay a higher amount of tax. The object of this law is to increase the government’s tax revenues. A few persons who are above 5 feet in height, get together and file a writ challenging this law, stating that it is violative of Article 14
Principle: Article 14 states that the State shall not deny to any person equality before the law.
Explanation
Article 14 allows persons to be treated differently if the different treatment is based on a reasonable classification which has a rational relation with the object that the law seeks to achieve.
Here, though there is a reasonable basis for the classification, there is absolutely no connection between the basis of classification (height above 5 feet) and the object of the law, i.e. increasing tax revenues. Thus, the law is violative of Article 14.
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Question for Constitutional Law
Try yourself:Facts: A student of a prestigious engineering college run by the Rotary is rusticated from the college because the College fears that his religious affiliations will set a bad example for the other students and create an atmosphere of unrest The student files a writ challenging the College's action as being violative of his fundamental right.
Principle : Article 15 - The State shall not discriminate against any citizen on the grounds only of religion
Explanation
Fundamental rights are guaranteed to us by the State, therefore any action for violation of a fundamental right only lies against the State and not against a private entity/person. The engineering college run by the Rotary is exempt from the prohibitions of the fundamental rights as long as it does not violate any laws.
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Question for Constitutional Law
Try yourself:Facts: The Municipal Corporation of a particular city continuously dumps garbage in front of X’s house since X belongs to another religion, which is dominantly practised in the neighbouring country. Despite repeated complaints, not only does the situation persist but the Municipal Corporation also begins to ensure that he is restrained from entering the offices of the Corporation to even give complaints. Hence, X is compelled to approach the courts seeking to challenge the actions of the Municipal Corporation as being violative of his fundamental rights.
Principle: The State shall not discriminate against any citizen on the grounds only of his religion.
Explanation
The Municipal Corporation is a local authority, a body set up by the State, and as such, is part of the 'State' machinery As such, citizens can enforce their fundamental rights against it. In the present case, the Municipal Corporation is discriminating against X because of his religious faith, and therefore, its action can be struck down.
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➢ Right to Freedom
- Six core Freedoms
(a) of Speech and Expression,
(b) of free Assembly,
(c) of Association,
(d) of Movement,
(e) of Settlement and
(g) of Profession, occupation, trade and business (Article 19(1)), and
(f) to hold, acquire, dispose property (this last freedom was omitted through the 44th amendment to the Constitution in 1978) - Freedom against Ex-post Facto Laws, double jeopardy and protection against self-incrimination (Article 20).
- Freedom of life and personal liberty (Article 21).
- Freedom against arrest / detention in selected cases (Article 22).
Question for Constitutional Law
Try yourself:Facts: Giridhar goes for a walk every morning, but is lately finding that traffic is increasing. So, he decides to go for his morning walk inside the Air Force Station campus in the vicinity of his residence. When he gets there, the guards at the gate refuse to allow him through, stating that the area is restricted / prohibited and he cannot enter. Giridhar challenges this action under Article 19(1)(d).
Principle: Article 19(1)(d) guarantees that every citizen shall, subject to reasonable restrictions, if any, have the right to move freely throughout the territory of India.
Explanation
It is impossible for the government to question every person closely before deciding whether or not they are a security threat. Considering that the area is a part of the State's defence organisation, it is justified in the interests of state security (consequently, public interest) to restrict entry of unauthorised persons into this area.
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Question for Constitutional Law
Try yourself:Facts: Dr. Been is a social activist. He believed the masses were being exploited by capitalist demons and started a mass awareness campaign. He gave a speech in which he denounced the capitalist policies of the State Government and asked all people to devote themselves to socialist way of life. Seth Jamna Das Bansal requests the Chief Minister arrest Dr. Been for creating a dangerous situation that might result in a violent uprising Accordingly Dr. Been is banned from publishing anything and is placed in house arrest. Are the actions of Chief Minister correct?
Principle: Every citizen has the freedom of speech and expression. Reasonable restrictions can be imposed on this freedom in order to maintain public order.
Explanation
The CM imposed the restriction not because there was a public order situation. Rather ho imposed it because he was urged to by the Seth and as such there was no reason to believe that a public order situation would arise. In the absence of any such circumstances, the restriction was wholly uncalled for.
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Question for Constitutional Law
Try yourself:Facts: Ramu Singh was convicted of killing his brother and sister-in-law by beheading in relation to a property dispute He was sentenced to be executed by the court. Government of India passed the Executions Act wherein it was laid down that every person who is to be executed should be executed by dissection of an arm whereupon such person shall bleed to his death Ramu Singh challenged the validity of this law on the ground that this law provides for an unreasonably brutal way of execution.
Principle: No person shall be deprived of his life and personal liberty except according to procedure established by law
Explanation: Procedure established by law means-
(a) there should be a law
(b) it should establish a procedure
(c) such procedure must be just fair and reasonable
Explanation
Reason As per the principle there are three requirements - a law, a procedure laid down under the law, the procedure being just fair and reasonable. The method of execution provided by the Executions Act is clearly brutal and therefore unreasonable. Therefore Ramu Singh shall succeed.
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Question for Constitutional Law
Try yourself:Facts: Deepali was a daily wage labourer in New Delhi. She and her husband Ram Sarup were working on a construction project in Gurgaon when she got pregnant. As a result she was not able to go to work. When she was in labour, Ram Sarup took her to Sri Ram Government Hospital in New Delhi for delivery of their child. In the hospital, Deepali was not given proper treatment and she as a result her child was still born. It turned out that the Government doctors who were supposed to deliver the child were busy having tea while Deepali was in labour. Arun Mishra is a social worker and when he got to know of this tragedy, he filed a writ petition before the Delhi High Court, alleging violation of life and personal liberty of Deepali by Sn Ram Government Hospital and sought compensation on their behalf. Can he succeed?
Principle: No person shall be deprived of his life and personal liberty except according to procedure established by law.
Explanation: Life and personal liberty are protected against violation by State. State includes Government or Governmental Authorities or authorities and bodies that are directly or indirectly under the control of Government. In case of such violation, the aggrieved person has the right to claim compensation from the State Procedure established by law means -
1. there should be a law
2. it should establish a procedure
3. such procedure must be just, fair and reasonable
Explanation
Right to medical attendance is a part of life and personal liberty. Doctors in Government Hospital are a part of State. Violation of this right is protected against the State. Failure of the doctors to provide timely medical attention to Deepali that resulted in her miscarriage is a violation of this right. Therefore she is allowed to claim compensation from the State through social activist Arun Mishra.
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➢ Right against Exploitation
- Prohibition of traffic in human beings and forced labour (Article 23)
- Prohibition of employment of children in hazardous employment (Article 24)
Question for Constitutional Law
Try yourself:Facts: Natha was 13 years old when he joined a glass factory as a water boy. His job primarily was to serve tea and water to all employees and visitors at the factory. Prem Chand, a social worker, filed a case against the glass factory owners on the ground that Natha is being exploited by the glass factory by employing him in a hazardous industry.
Principle: No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Explanation: Hazardous Employment - Any employment that presents a potential threat to the body and/or health of the child is a hazardous employment.
Explanation
First part of the principle says that a child is not to be employed in any employment in a factory and second part of the principle says that a child is not to be employed in a hazardous employment anywhere. The first and second are two independent parts of the principle. The first part is clearly being violated.
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Question for Constitutional Law
Try yourself:Facts: Ronny was a member of a criminal gang that was notorious for kidnapping and ransom. One day the police laid down a trap and Ronny was arrested In the police station Inspector Chulbul Pande beated him black and blue left, right and centre. To save his life Ronny confessed to all the crimes that he had committed and even to those that he had not committed. Based on the confession the court convicted Ronny Now, he challenged his conviction before the State High Court on the ground that his confession was forced. Will he succeed?
Principle: No person accused of any offence shall be compelled to be a witness against himself.
Explanation: Any person who is accused of an offence cannot be induced or forced to confess a crime and if he or she is indeed forced to confess, such confession is of no value in the eyes of law.
Explanation
Confession is clearly a result of police torture. Furthermore, the confession was given to make the police torture stop and was not voluntary. As per the principle, such a confession has no value in eyes of law. Therefore Ronny's conviction has to be quashed.
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Question for Constitutional Law
Try yourself:Principle: No person shall be prosecuted or punished for the same offence more than once.
Facts: Mr. Natwarlal, the Treasurer of Sikandar Cargo Handling Company Pvt. Ltd. was charged with misappropriating large sums of money from the office funds. Besides a case of theft, departmental proceedings were also instituted against him for grave professional misconduct and other similar charges. He was convicted by the Court of the Metropolitan Magistrate, Mumbai and sentenced to three years' Rl along with fine. The Departmental Proceedings had been stayed till the disposal of Mr. Natwarlal’s Appeal to the High Court against the Order of the Magistrate. The High Court affirmed the decision of the Magistrate. After he had served his sentence, the Departmental Proceedings, which had been kept in abeyance till that time, were started again.
Mr. Natwarlal challenges the fresh institution of Departmental Proceedings in the High Court byway of a Writ Petition.
Explanation
Also, it must be noticed that the Departmental Proceedings were instituted not only for misappropriation of funds, but also for grave professional misconduct and other charges.
This is a classic example of a single act giving rise to a number of offences. The principle of double jeopardy speaks about ‘offences’ and not ‘acts', so it would not be applicable here.
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➢ Right to Freedom of Religion
- Freedom of Conscience and free profession (Article 25)
- Freedom to manage religious affairs (Article 26)
- Freedom as to payment of taxes for promotion of any particular religion (Article 27)
- Freedom as to attendance at religious instructions in certain educational institutions (Article 28)
Question for Constitutional Law
Try yourself:Facts: A religious sect had the practice of offering prayers five times in a day - early morning, late morning, early afternoon, early evening and late evening. In their temple they used loudspeakers at the time of offering prayers which used to disturb the people who were residing in the nearby area. Several residents of the area were facing problems with the loud noise coming from the loudspeaker in the early hours of the day and late in the evening. A resident of that area filed a complaint before the District Administration against the priest of the temple. The priest justified the practice by invoking freedom of religious practice. The State passed a law restricting the use of loudspeakers during prayers offered early mornings and late evenings. This law was challenged as unconstitutional by the priest as unreasonable.
Principle: Every citizen has the freedom of conscience and the right freely to profess, practice and propagate religion. State may pass a law to restrict any unreasonable religious practice.
Explanation
What is being restricted is the method of practicing religion and not the practice of religion itself. This restriction is in accordance with the principle as the practice of using loudspeakers was causing unreasonable interference to the residents of the locality.
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Question for Constitutional Law
Try yourself:Facts: Father Jose Santiago was living in tribal areas of Madhya Pradesh for last 10 years He came across several tribals who were living in abject poverty. He started preaching to them the tenets of Christianity and slowly the tribals started converting to Christianity. It was discovered that Father Santiago was offering the tribals inducements to get converted, for example, he would give cash and kind to a poor tribal to marry off his daughter, or will buy agricultural equipments for poor farmers who could not afford them. Government passed a law banning such conversations. Father Santiago challenged this law on the ground that he is being denied the right to propagate his religion.
Principle: Every person is entitled to freedom of conscience and the right to freely profess, practice and propagate religion. Activities that are not an essential part of religion can be reasonably restricted.
Explanation: Right to propagate one's religion includes the right to transmit or spread one’s religion by an exposition of its tenets but does not include a right to convert other people into one’s religion.
Explanation
Freedom to propagate religion is protected but only to the extent of the freedom to be able to transmit one's religious ideas without restriction to people. There is no intrinsic right to be able to convert people by any and all means within the ambit of freedom of religion.
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Question for Constitutional Law
Try yourself:Facts: Tees Maar Khan was a Muslim priest. He was convinced that the only reason Allah has sent him to earth is to spread the word of Prophet Muhammad He was convinced that the only true word was that of Islam and every other religion was a fagade. He started preaching that all Muslims must slaughter everyone who does not believe in Islam as that is the only road to redemption. Government ordered the arrest of Mr. Khan which he challenged as violative of his fundamental freedom to profess and propagate his religion.
Principle: Every person is entitled to freedom of conscience and the right to freely profess, practice and propagate religion. Activities that are not an essential part of religion can be reasonably restricted.
Explanation: Right to propagate one's religion includes the right to transmit or spread one's religion by an exposition of its tenets in such a way that religious harmony is maintained.
Explanation
One is allowed to spread the word of one's religion and is allowed to convince other people by peaceful means. However, one is not allowed to spread religious hatred in exercise of the right to freely profess and/or propagate one's religion.
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Question for Constitutional Law
Try yourself:Facts: The Al Salami mosque was a very old mosque and it was widely believed Prophet Muhammad himself came to the mosque and preached from there and had cooked food for several people and fed them by his own holy hands. The Government was considering a project to extend the underground local railway network and in order for that to be done, land on which Al Salami mosque was situated was to be acquired, and the mosque demolished. A law was accordingly passed, which was challenged on the grounds of freedom of religion.
Principle: Every person is entitled to freedom of conscience and the right to freely profess, practice and propagate religion Activities that are not an essential part of religion can be reasonably restricted.
Explanation: Right to worship is an integral part of freedom to religion but right to worship at a particular place is not unless the place has a particular religious significance.
Explanation
Al Salami Mosque is not just a mosque. It is the mosque where Muslims believe Prophet Muhammad had come to preach and help people. This religious belief is the basis of special significance that the mosque holds and therefore Muslims get a right to offer prayers at that mosque. It cannot therefore be demolished.
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Question for Constitutional Law
Try yourself:Facts: Binny was a student of Saint Peters High School in Shimla studying in class 12th. Saint Peters High School was under the direct control of the District Administration as 70% of the funding of the school was provided by the State Government and the District Administration was responsible for appointing Principal of the school who was in turn responsible for appointment of all teachers. Binny refused to sing prayers in the school assembly though he attended the assembly. Father Benson, the principal, cancelled the admission of Binny on the ground that his refusal of singing of prayers was a violation of school rules. Binny challenged his cancellation by way of a writ petition before the State High Court. Will Binny succeed?
Principle: No person attending any educational institution receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution.
Explanation: State means State Government or any body directly or indirectly in complete control of the State Government.
Explanation
Clearly, this is a State run school. Singing of religious prayers amounts to religious instruction that is not allowed to be done in this school. Binny cannot be thrown out of the school for not following a rule that itself is against the principle.
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➢ Cultural and Educational Rights
- Right of Minorities to protect their language, script or culture (Article 29)
- Right of Minorities to establish and maintain their Educational Institutions (Article 30)
➢ Right to Constitutional Remedies
- Obviously, it is all very well to talk about the various rights that the Constitution affords us - however, we must have a means of enforcing them! This section discusses the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto as remedies for the enforcement (DIKM?) of the FRs stated in Part III of the Constitution.
- The term ‘prerogative writs comes from English law. since these writs originated as a part of the King's unquestionable authority of superintendence to ensure the observance of the mles of law by the King's officers and tribunals.
Question for Constitutional Law
Try yourself:Facts: To curb the growing crime situation the State Government passed a law that made it necessary that if one files a petition for enforcement of fundamental rights before the Supreme Court one must file a court fee of Rs. 2.00,000/- for every petition and without payment of this court fee no petition for enforcement of fundamental rights can be entertained. As a result several poor people, aggrieved by arbitrary State action were prevented from filing writ petitions before the Supreme Court. Ranbir. a social activist decided to challenge this law as unconstitutional as it imposed an unreasonable and restrictive burden on the right to get fundamental rights enforced through Supreme Court by way of a writ petition What should be the decision?
Principle: In case a fundamental right is violated the aggrieved person has the right to file a petition before the Supreme Court and the Court is empowered to issue a writ in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of such right.
Explanation: If a person's fundamental rights are violated he may approach the Supreme Court in order to obtain an appropriate order to enforce his or her rights and this right to approach the Supreme Court is itself a fundamental right.
Explanation
It is not the case that no court fee can be imposed on writ petitions before the Supreme Court. Rather it is the case that the burden of court fee cannot be prohibitive or restrictive in such a way that it actually amounts to taking away of the right to file the case before the court at all. In these facts, hefty court fee actually retards the exercise of this fundamental right as it imposes an unreasonable financial obligation the failure of discharge of which effectively results in a violation of two fundamental rights - one the violation of which is alleged in the petition and two the right to file petition itself.
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Question for Constitutional Law
Try yourself:Facts: A robbery took place in Panipat, Haryana and Ganpat was suspected of being the mastermind and executor of the robbery. Intelligence agencies informed that Ganpat is hiding in Lucknow and would be going to meet his girlfriend Sheela very soon. The location of the meeting was also intimated. The UP Police laid a trap and arrested Ganpat and after a week's trial of Ganpat for a robbery committed in Pampat began before the Sessions Court of Lucknow and the same sentenced him to 20 years in prison. Ganpat approached the Supreme Court praying for a certiorari on the ground that the Sessions Court of Lucknow had no jurisdiction to try him as the crime was allegedly committed in Haryana and prayed for quashing of the sentence. What should be the decision?
Principle: In case a fundamental right is violated the aggrieved person has the right to file a petition before the Supreme Court and the Court is empowered to issue a writ in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of such right.
Explanation: The writ of certiorari is for quashing an order or executive action of lower authorities or courts that violates any fundamental right(s) or is otherwise illegal. Criminal jurisdiction is vested always with criminal courts where the crime has been committed.
Explanation
The crime was committed in Panipat, Haryana and therefore the courts of Panipat will have jurisdiction. Lucknow court's order suffered from this basic infirmity and therefore will be quashed by ordering a certiorari.
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Question for Constitutional Law
Try yourself:Facts: Jamal Harris is a resident of Nigeria who was arrested by Delhi Police as he did not possess legal papers to stay in India It was found that while he had his passport with him he had no visa or any equivalent document that would evidence the fact that he has been allowed to stay in India. The Illegal Immigrants Act provided that any such person who is arrested must be immediately handed over to the Indian Immigration Service that was empowered, amongst other things, to deport such people out of India. Instead the Delhi Police itself initiated deportation proceedings against Jamal. Jamal got in touch with his lawyer who filed a writ petition in the Supreme Court praying for a prohibition on the ground that Delhi Police had no power to deport Jamal. What should be the decision?
Principle: In case a fundamental right is violated the aggrieved person has the right to file a petition before the Supreme Court and the Court is empowered to issue a writ in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of such right.
Explanation: The writ of prohibition is for prohibiting executive action of lower authorities or courts that violates any fundamental right(s) or is otherwise illegal.
Explanation
For approaching the Supreme Court, one is not required to be a citizen of India; it is sufficient if one is a person within the territory of India. For granting a writ of prohibition it is necessary that the authority against whom prohibition is to be granted must be acting outside the scope of its power which is clearly the case in these facts. Thus prohibition can be granted and Delhi Police can be stopped from deporting Jamal.
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Emergency Provisions
Question for Constitutional Law
Try yourself:Facts: President Bartlet received a report from the Governor of State of Texas that the State Government might not be able to function in accordance with the Constitution. Subsequently, the President received some other sensitive reports on the issue that also concluded that the State Government is not in a position to work in accordance with the Constitution Finally he got to know that the Governor of the State and the Chief Minister do not enjoy good relations and are in fact extremely bitter of each other. The President decided to impose emergency and dissolve the State Legislature and Government. Decide whether this imposition is in accordance with the principle.
Principle: If the President is satisfied on the basis of a report received by the Governor of a State or otherwise that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution, the same may proclaim emergency and assume all legislative and executive powers of the State Government.
Explanation: If the President is satisfied, with or without a report by the Governor of a given State that in such State, Government cannot function in accordance with the Constitution, he may dismiss (he State Legislative Assembly and the State Government and assume all such powers himself The President must have some material to entertain the belief that State Government cannot function in accordance with the Constitution. It is not permissible to go into correctness or adequacy of the material.
Explanation
As long as the President has some relevant material with him it cannot be concluded that his belief was based on nothing. Correctness or adequacy of material cannot be called into question; thus the only deciding criterion is presence of some relevant material which is clearly the case here.
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Question for Constitutional Law
Try yourself:Principle: In order to declare President’s Rule in a particular State, the President of India shall seek a report from the Governor, and decide on the basis of such report. The Governor shall base this report on his analysis and judgement of the situation. The report of the Governor is amenable to judicial review only if it is mala fide.
Facts: Following sporadic riots on a large scale in the state of Chaupatrashtra, the ruling party at the Centre wanted to clamp President's Rule in the State. However, the party which was in the Opposition at the Centre vehemently opposed it. The same party was also the ruling party in the State of Chaupatrashtra. The Governor of Chaupatrashtra, in his report, stated that the situation looked difficult, but there was no urgent need for President’s Rule. Still, the Centre goes ahead, and President’s Rule is declared. The ruling party in Chaupatrashtra approached the Supreme Court against the imposition of President’s Rule, claiming it was based on irrelevant, wrong, and baseless factors, and contending that the imposition of President’s Rule should be quashed. It comes out during the hearing that the Governor, for the purpose of his report, had taken inputs from his very close sources who were occupying very sensitive positions in the administration, and also some newspaper editors who reported secretly and directly to him.
Explanation
The very act of the Governor sounding out people in such positions, and having newspaper editors as spies’ directly reporting to him provides sufficient proof of the very mala fides of his actions.
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Amendment of Constitution
Question for Constitutional Law
Try yourself:Facts: Narain Raj came into power riding on the horse back of the popular opinion that we need widely change the structure of Government as provided in our Constitution. After being elected to Parliament with overwhelming majority Raj decided to change the Parliamentary system to Presidential system Accordingly his Government decided to amend the Constitution and changed the Parliamentary system to Presidential system and vested all legislative power with the President and took the same away from the Parliament. This amendment was challenged before the Supreme Court by India Gandhi on the ground of being violative of basic structure. What should be the decision? What should be the decision?
Principle: Parliament may amend any provision of the Constitution by way of addition, variation or repeal and its power to amend is absolute, except for the Basic Structure of the Constitution.
Explanation: Democratic set up is included in the Basic Structure of the Constitution.
Explanation
Democratic set up in Indian Constitution is of the Parliamentary sort and that is a part of the basic structure. It cannot be shifted to the Presidential sort by an amendment because our entire Constitution is designed on the Parliamentary system. Therefore the amendment of the Constitution that changes Parliamentary system to Presidential system is actually a drastic alteration in our democratic setup done in the gart of amendment which is not allowed as it infringes the basic structure of the Constitution.
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Question for Constitutional Law
Try yourself:Facts: Sikandra Gandhi was elected to the Parliament from Ros Bartley constituency. She was the leader of the majority party in the Parliament and thus became the Prime Minister of India. Her election from Ros Bartley was challenged by her opponent Rack Norton on the ground that she had engaged in corrupt electoral policies. Accordingly her election was declared as illegal and was quashed. She amended the Constitution and inserted a new provision that said that once a person is elected as a MP such person’s election cannot be challenged in an court of law and gave this amendment a retrospective effect so as to nullify the court order. This amendment was challenged by Rack Norton in the Supreme Court as unconstitutional. What should be the decision?
Principle: Parliament may amend any provision of the Constitution by way of addition, variation or repeal and its power to amend is absolute, except for the Basic Structure of the Constitution.
Explanation: Judicial Review i.e the power of the Constitutional Courts to examine the validity of legislative and administrative action of the Legislatures and Governments is a part of basic structure.
Explanation
Clearly the amendment’s actua purpose is to overrule an unfavourable judgment of the court but that itself does not make the amendment unconstitutional What makes it unconstitutional is that it takes away the power of judicial review of the courts.
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Six Fundamental Rights
