Salient Features - 3 - UPSC PDF Download

Parliamentary System & Amendment Procedure

1. Familiarity with the parliamentary system: India had prior experience of running the parliamentary system under the Acts of 1919 and 1935. This familiarity made it easier for the makers of the Indian Constitution to adopt the parliamentary system.
2. Sensitivity to public expectations: The parliamentary system ensures that the government would be responsible and accountable to the people, as the executive is effectively controlled by the representatives of the people.
3. Avoiding personality cults: The presidential system places significant emphasis on the president as the chief executive and source of all executive power. The makers of the Indian Constitution wanted to avoid the dangers of personality cults associated with the presidential system.
4. Answerability to the legislature: The parliamentary system provides mechanisms that ensure the executive is answerable to and controlled by the legislature or people’s representatives.

Constitution Amendment Procedure:
The Indian Constitution is a blend of rigidity and flexibility. Article 368 outlines the amendment process, which varies depending on the subject matter:

• Simple majority: Some articles of the Constitution can be amended by a simple majority of the Parliament.
• Special majority: Certain amendments require the special majority of both houses of Parliament.
• Special majority and consent of states: Some subjects need a special majority of Parliament and the consent of half of the state legislatures.

This combination of rigidity and flexibility, along with the foresight of the Constitution makers and the maturity of political practice and judicial rulings, has made the Indian Constitution a living document that continues to function effectively even after 70 years.

Judicial Review & Basic Structure Doctrine

1. Introduction: Judicial review is the power of the judiciary to review acts of Parliament and the executive to ensure the rule of law, constitutionalism, checks and balances, and protection of fundamental rights. The concept of judicial review originated in the United States and is enshrined in Article 13 of the Indian Constitution. The doctrine of basic structure is a unique invention of the Indian judiciary, which allows it to review constitutional amendments.
2. Judicial Review in India: Judicial review in India is guided by several principles or doctrines, including the presumption in favor of constitutionality, the doctrine of liberal interpretation, the doctrine of literal interpretation, the doctrine of reading down, the doctrine of ab-initio, the doctrine of eclipse, the doctrine of severability, the doctrine of colorable legislation, the doctrine of pith and substance, the doctrine of prospective overruling, and the doctrine of basic structure.
3. Basic Structure Doctrine: The doctrine of basic structure allows the Indian judiciary to review constitutional amendments based on the unwritten principles that form the foundation of the Constitution. This makes the Indian Supreme Court the strongest in the world, as no other country's judiciary has the power to review constitutional amendments.
4. Comparison with Britain and the USA: Britain follows the principle of parliamentary supremacy, where the judiciary does not have the power to review acts of Parliament. This is because there is no written constitution in Britain, and there is no distinction between constitutional and ordinary law. In the USA, due to the existence of a written constitution, legislative supremacy does not exist, and the judiciary can review acts of Congress.
5. Doctrine of Waiver: The doctrine of waiver is not accepted in India, as it is believed that the poverty and vulnerabilities of the population make it unsuitable. In contrast, the doctrine of waiver is accepted in the USA, where the rights of individuals are considered absolute, and individuals can voluntarily waive their rights in the wider interest of society.

The Doctrine of Basic Structure: A Judicial Review in India

The Doctrine of Basic Structure is a judicial review applied by the higher judiciary in India to examine the validity of constitutional amendments. This doctrine emerged from the conflict between fundamental rights (Part 3) and directive principles (Part 4) of the Indian Constitution. It was first introduced in the landmark Keshavanand Bharati case in 1973.

Reasons for Emergence of Doctrine

• Contradictory Philosophies: Part 3 of the Constitution is based on liberalism, giving primacy to individual rights, while Part 4 is based on socialism, prioritizing the interest of society over individuals.
• Fundamental Rights vs. Directive Principles: Fundamental rights are constitutionally guaranteed, whereas directive principles are not enforceable by courts.
• Harmonious Construction: The judiciary aims to keep all parts of the Constitution relevant by applying the doctrine of harmonious construction.

Important Events

1. Champakam Dorairajan vs State of Madras (1950): The first case involving the dispute between directive principles and fundamental rights. This case led to the First Amendment Act, which introduced clause 4 in Article 15.
2. Shankari Prasad vs Union of India (1951): The first case on the subject of the amending power of Parliament. The Supreme Court upheld the validity of the First Amendment Act, implying that there are no limitations on the power of Parliament to amend the Constitution.
3. Golakhnath vs State of Punjab (1967): The case that laid the foundation of the doctrine of basic structure. The judiciary held that fundamental rights are sacrosanct and cannot be diluted even by amendment.
4. Government's Response: The government brought the 24th and 25th Amendment Acts in 1971, amending Article 368 and introducing Article 31C.
5. Keshavanand Bharati vs State of Kerala (1973): The landmark case that established the doctrine of basic structure. The judiciary upheld the validity of the 24th and 25th Amendment Acts but put a limitation on the amending power of Parliament – it cannot amend the basic structure of the Constitution.
6. Government's Response to Keshavanand Bharati: The government brought the 42nd Amendment Act in 1976, which changed Article 31C and added clauses (4) and (5) in Article 368.
7. Minerva Mills case (1980): The judiciary declared the amendments made by the 42nd Amendment Act null and void, restoring the status under the 25th Amendment Act.
8. IR Coelho vs State of Tamil Nadu (2005): The Supreme Court held that the doctrine of basic structure is applicable to laws placed under the 9th Schedule, but only for cases placed after the Keshavanand Bharati judgment.

Criticism of Basic Structure doctrine

• Judicial Creativity: The doctrine has been criticized for being an extreme example of judicial creativity, as it goes beyond the written provisions of the constitution and attempts to establish 'metaphysical elements.'
• Narrow Margin of Approval: The doctrine came into existence by a single judge's vote, with six judges against and seven in favor. This raises questions about its legitimacy.
• No Exhaustive List: The judiciary has not provided an exhaustive list of what constitutes the basic structure, giving it discretionary powers.

However, some argue that there is no need for an exhaustive list, as the provision serves as a safety valve.

Logic Behind Basic Structure Doctrine

• Difference Between Amendment and Rewriting: The doctrine emphasizes the distinction between amending and rewriting the constitution. Even when amended, the original constitution should still be understandable.
• Parliament vs. Constituent Assembly: The doctrine asserts that the Parliament cannot be equated with the constituent assembly, as the latter represents the general will or popular sovereignty.

Desirability of the Doctrine: The Basic Structure Doctrine was considered necessary to protect the constitution from the executive's overreach, ensuring the survival of democracy in India.

Constitutional Morality According to Ambedkar

1. Freedom and Self-Restraint: Constitutional Morality requires adherence to constitutional methods for achieving social and economic objectives, abandoning violent methods of revolution and civil disobedience.
2. Recognition of Plurality: Resolving differences requires securing unanimity on a constitutional process that can mediate differences.
3.  No Singular Representation of Popular Sovereignty: Ambedkar was wary of any branch of government claiming to uniquely represent the will of the people, emphasizing the need for skepticism and deference to processes.

Recent Occurrences of Constitutional Morality

1. Government of NCT of Delhi vs Union of India: The Supreme Court defined constitutional morality as providing an enabling framework for societal self-renewal.
2. Navtej Singh Johar case: The court declared that constitutional morality cannot be sacrificed for social morality.
3. Sabarimala judgement: The court emphasized the evaluation of existing structures of social discrimination through the lens of constitutional morality.

Conclusion

In conclusion, the adoption of the parliamentary system in India and the evolution of the doctrine of basic structure have played a significant role in ensuring the stability and democratic nature of the Indian Constitution. The concept of constitutional morality, as introduced by Dr. Ambedkar, emphasizes the importance of self-restraint, respect for plurality, skepticism towards claims of popular sovereignty, and the need for an open culture of criticism. The recent usage of constitutional morality by the Supreme Court in various judgments highlights its relevance in assessing social and legal issues within the constitutional framework. Overall, the Indian Constitution's blend of rigidity and flexibility, along with the principles of constitutional morality, has contributed to its longevity and adaptability in the face of changing circumstances.

Frequently Asked Questions (FAQs) of Salient Features

What is the Doctrine of Basic Structure in the Indian Constitution?

The Doctrine of Basic Structure is a judicial review applied by the higher judiciary in India to examine the validity of constitutional amendments. This doctrine emerged from the conflict between fundamental rights (Part 3) and directive principles (Part 4) of the Indian Constitution and was first introduced in the landmark Keshavanand Bharati case in 1973.

What is the difference between the parliamentary and presidential systems?

The parliamentary system is characterized by the executive being accountable to and controlled by the legislature or people's representatives. In contrast, the presidential system places significant emphasis on the president as the chief executive and source of all executive power. India adopted the parliamentary system to ensure government responsibility and avoid personality cults associated with the presidential system.

How does the Indian Constitution's amendment procedure ensure flexibility and rigidity?

The Indian Constitution's amendment procedure, outlined in Article 368, varies depending on the subject matter. Some articles can be amended by a simple majority of Parliament, while others require a special majority or the consent of half of the state legislatures. This combination of rigidity and flexibility allows the Constitution to adapt to changing circumstances while maintaining stability.

What is the purpose of judicial review in India?

Judicial review is the power of the judiciary to review acts of Parliament and the executive to ensure the rule of law, constitutionalism, checks and balances, and protection of fundamental rights. The Indian judiciary, particularly the Supreme Court, plays a crucial role in maintaining constitutional integrity and safeguarding citizens' rights.

What is constitutional morality, and how has it been applied in recent Indian court cases?

Constitutional morality refers to adherence to constitutional methods for achieving social and economic objectives, recognizing plurality, and respecting processes that mediate differences. It has been applied in recent Indian court cases, such as the Government of NCT of Delhi vs Union of India, Navtej Singh Johar case, and Sabarimala judgment, to emphasize the importance of evaluating existing structures of social discrimination through the lens of constitutional morality.