Introduction

The British Parliament became increasingly involved in Indian affairs as the Crown assumed control of Indian affairs by the Act of 1858. Between 1858 and 1947, the British Parliament passed 196 Acts pertaining to the continent, frequently reviewing the administration of India. The viceroy and the chosen members of his council served as the head of the Crown’s government, which was entirely composed of British officials. 

The executive council served as a cabinet and a member of an imperial legislative council after the Indian Councils Act was passed in 1861. In addition to similar provincial legislative councils made up of appointed officials, each of the eleven provinces in British India had its own governor. A small number of Indian council members who were chosen solely for consultation purposes also belonged to the local elite.

The outbreak of 1857, called by V D Savarkar and Dr Pattabhi Sitaramayya the First War Of Independence shocked the British government and its bureaucracy. Economic exploitation, social deprivation, and political unrest made the 1857 outburst inevitable.

The British rulers had to revise their policy of conquest and annexations and adopt a cautious and calculated policy of association and cooperation.

The acts and regulations under the Crown are:

Government of India Act, 1858

The Revolt of 1857 gave a severe jolt to the British administration in India and made its reorganisation inevitable.

• Administration: The Government of India passed from the hands of the English East India Company to the Crown.
• Viceroy: The Governor-General came to be known as the viceroy.
• Forces: The Military and Naval forces of the company were transferred to the crown.
• Institutions abolished: The Board of Control and the Court of Directors were abolished.
  • Their powers were transferred to the Secretary of State for India and his India Council.
  • The secretary of state was given the power to superintend, control and direct Indian affairs.
  • He was a cabinet minister of England.
• Indian Council: The Act created the Indian Council of fifteen members.
  • Seven were to be elected by the court of directors, and the remaining were to be appointed by the Crown.
  • The Secretary of State for India was to be the president of the Indian Council.
    • He was given a vote and a casting vote in the case of a tie.
  • The council met twice a week.
  • Control over civil and military servants of the crown was given to the India Council.
• The Secretary of State for India was declared by the Act to be a corporate entity that could be sued in both England and India.

The Indian Councils Act of 1861

The reason for the initiation of this policy was to know what the Indians thought about British rule.

• Imperial Legislative Council: The Act enlarged the Governor-General’s Council for the purpose of making laws.
  • In that capacity, it was known as the Imperial Legislative Council.
• Members of Council: The Governor-General was authorised to add to his Executive Council between six and twelve members, of whom at least half had to be non-officials who could be Indian or English.
• The Imperial Legislative Council:
  • It possessed no real powers
  • It was merely an advisory body
  • It could not discuss any important measure, and no financial measures at all, without the previous approval of the Government.
  • It had no control over the budget
  • It could not discuss the motions of the administration
  • It had no control over the executive
  • No bill passed by it could become an act till it was approved by the Governor-General.
• Provincial Executive Council: The authority to nominate the Attorney General was granted to the governments of Bombay and Madras.
  • Additionally, it was to propose no less than 4 and no more than 8 additional Executive Council members for legislative purposes.
• Additional powers: The Governor-General was given the power to create new provinces for legislative purposes and to appoint Lieutenant Governors for them.
  • He was also authorised to divide or alter the limits of any presidency, province or territory.
• Decentralisation: The tide of centralisation began to turn after the Act of 1861.
  • It outlined the establishment of legislative councils resembling those in the centre first in Bengal, Bombay, and Madras before moving on to other provinces.

Indian Council Act of 1892

The early nationalists wanted a larger share in the government of their own country and made an appeal to the principle of democracy. Their protests forced the British government to enact the Indian Councils Act of 1892.

• Council members: By this Act, the number of members of the Imperial Legislative Council as well as of the provincial councils, was increased.
  • Although some of these representatives might be indirectly chosen by Indians, the official majority remained.
• Budget: The councils were also given the right to discuss the annual budgets though they could not vote on them.

Indian Council Act of 1909 (Morley-Minto Reforms)

It was meant to divide the moderate nationalists

• Elected members: The MorIey-Minto Reforms increased the number of elected members in the Imperial Legislative Council and the provincial councils.
• Indirect election: Most of the elected members were elected indirectly
  • by the provincial councils in the case of the Imperial Council and
  • by municipal committees and district boards in the case of provincial councils.
• Reserve seats: Some of the elected seats were reserved for landlords and British capitalists in India.
• No power to Council: Moreover, the reformed councils still enjoyed no real power, being merely advisory body.
• Separate electorate: It introduced a separate electorate for Muslims.
• Official majority: The official majorities were abolished from the provincial legislature.
  • It was done on the advice of Gokhale, who was deeply involved in the preparation of Reforms.
• Executive control: The reformed legislature did not have control over the executive.
• Powers given to members of Council:
  • The right to ask questions and supplementary questions for the purpose of further elucidating any point.
  •  To move resolutions in the councils.
• Public interest matters: Rules were also framed under the Act for the discussion of matters of general public interest in the legislative councils.

Government of India Act, 1919 (Montagu-Chelmsford Reforms)

The reforms were meant for the increasing association of Indians in every branch of the Indian administration.

• Provincial Council: The Provincial Legislative Councils were enlarged, and the majority of their members were to be elected.
• Dyarchy: The provincial governments were given more powers under the system of Dyarchy. Subjects were classified into two categories.
  • Reserved subjects: Subjects, such as finance and law and order, were called reserved subjects 
    • These remained under the direct control of the Governor.
  • Transferred subjects: Subjects such as education, public health, and local self-government were called transferred subjects
    • These were to be controlled by ministers responsible to the legislatures.
• Extension of the separate electorate: Separate electorate was extended to Sikhs, Indian Christians, Anglo-Indians and Europeans.
• Bicameralism: Introduced at the central level.
  • The lower House was called the Legislative Assembly.
  • The Upper House was called the Council of States.
• Civil Services: It provided that the ICS exam would be held in India.
• Federal Public Service Commission: The Act had recommended its establishment.
  • It was meant to realise the Indianisation of Services.
• Chamber of Princes: Its recommendations resulted in the creation of the Chamber of Princes.
  • It was merely an advisory body.
  • It had no concern with the internal affairs of individual states, nor could it discuss any other matter.
• Electorate: The electorate was enlarged.

Government of India Act of 1935

The discussions of the third round table conference eventually led to the passing of the Government of India Act of 1935.

• All India Federation: The Act provided for the establishment of an All India Federation.
  • The federation was to be based on a union of the provinces of British India and the Princely States.
• Provincial administration: A new system of government for the provinces on the basis of provincial autonomy was introduced.
• Dyarchy: Dyarchy was replaced from provinces to the central level.
  • Now Viceroy would control important subjects like defence and foreign affairs.
• Financial control: The Act transferred the financial control from the Secretary of State to the Government of India headed by the Viceroy.
• Public Service Commissions:
  • Federal Public Service Commission for the services in the centre.
  • Provincial Public Service Commission for the services in the Provinces.
  • Joint Public Service Commission for the joint services in two or more provinces.
• Reserve Bank of India (RBI): The Act provided for the establishment of an RBI to control the currency and credit of the country.
• Federal Court: The Act established the Federal Court to interpret the provisions of the Act and also to deal with inter-province conflicts.
• Council of India: The Act abolished the Council of India established by the Act of 1858.
• Electorate: The electorate was enlarged from 6.5 million to 30 million.
• Reservation of seats: In the central legislature, 30-40 percent of seats would be filled by the nominees of the rulers.
  • It was done to deprive the Congress to enjoy the majority.
• Burma: Act separated Burma from India.

Indian Independence Act of 1947

The Act was based on the Mountbatten Plan.

• Dominions: It provided for two independent dominions, India and Pakistan.
• Radcliffe Committee: For demarcating the boundaries, Boundary Commission was formed with Sir Cyril Radcliffe as the Chairman.
• Loss of powers:
  • The Crown was no longer the source of authority.
  • The Governor General and Provincial Governors lost extraordinary powers to legislate.
  • The office of the Secretary of State was abolished.

Source of power: Until the new Constitution was framed, the Act of 1935 would govern the Centre and the Provinces with necessary modifications.

Introduction

The Constitution of India is a very dynamic creation of our lawmakers. The Constitution of India as we all know is a supreme law of the country and every citizen of our country has to abide by the constitution.

Lengthiest written Constitution

The Constitution of India is the longest written Constitution. The following factors have contributed to the bulk of the Constitution: 

• It incorporates the experience of all leading Constitutions.
• It prescribes a constitution for the union as well as for the states.
• It incorporates detailed provisions regarding Centre and State Relations 
• It includes justifiable and non – justifiable rights in the form of Fundamental Rights and DPSPs
• It contains special provisions to meet regional problems.

Sovereignty 

• The preamble of the constitution declares that the constitution of India was adopted and enacted by the people of India.
• People are the custodians of the republic in India. 
• The ultimate source of power and authority in India is the people, not the government or any other entity.

A mix of rigidity and flexibility

• Certain provisions of the Indian Constitution are difficult to change (rigid), while others can be easily amended (flexible).
• The rigid provisions, such as the federal distribution of power, can only be amended with a special procedure that requires a two-thirds majority vote in both houses of Parliament and ratification by half of the state legislatures.
• The flexible provisions, such as the administrative and economic provisions, can be easily amended by a simple majority vote in Parliament.

Various Sources

• The Indian Constitution is a compilation of various sources and influences, reflecting the diverse experiences and aspirations of the Indian people.
• The Constitution of India is drafted by borrowing provisions from various sources like the Constitutions of various other Countries, the Government of India Act of 1935, etc. For example,
  • From the American Constitution: Written Constitution, Fundamental Rights, Supreme Court, Judicial Review. 
  • From Australian Constitution: Concurrent List, Co-operative Federalism

Uniformity in Basic Administration

• There is uniformity in most important administrative matters. 
• This uniformity helps to promote national integration, equal distribution of resources and opportunities, and equal protection under the law for all citizens.
• Examples: single integrated judicial system, uniformity in civil and criminal laws, All India services.

Revolutionary in nature

• The Indian Constitution is considered revolutionary in nature, as it introduced a number of reforms and changes that broke with India’s colonial past and established a new, democratic, and secular system of government.
• It has abolished several unjust practices and, at the same time, has provided special opportunities for the upliftment of the weaker sections.

Affirmative action

• Affirmative action, also known as positive discrimination, is a feature of the Indian Constitution that provides special provisions and protections for historically marginalized and disadvantaged groups, such as scheduled castes and tribes (Dalits) and other backward classes (OBCs).
• Some of the affirmative actions include Reservations in Educational Institutions and in Public Employment.
• These are meant to ensure the development and welfare of the weaker sections of society and bring them on par with the Indian mainstream.

Our Constitution is termed as a Lawyer’s paradise

• The phrase “Lawyer’s paradise” is often used to refer to the Indian Constitution as a result of its comprehensive and complex legal framework.
• The constitution of India is very complex for the common man to understand. 
• The complexity gave rise to litigation and constitutional amendments.

What are the significant provisions of the Indian Constitution?

At present, it contains 448 articles in 25 parts, 12 schedules, and 105 amendments (out of 127 Constitution Amendment Bills). The following are the significant provisions- 

The Preamble

• The preamble sets the stage for the Constitution. It clearly communicates the intentions of the framers and the purpose of the document. According to the Preamble, India is a Sovereign Socialist Secular Democratic Republic. 
• Sovereign – India is no more dependent upon any outside authority.
• Socialist – State has significant ownership of the means of production and distribution.
• Secularism – No religion is recognized as the religion of the state. All religions are treated equally. 
• Democratic – Form of government that gets authority from the people’s will. 
• Republic – There shall be an elected head of the state who will be the Chief Executive Head. 

Fundamental Rights

• The Constitution, in its Part Ill, provides 6 fundamental rights – 
  • Right to equality (Articles 14-18)
  • Right to Freedom (Articles 19-22)
  • Right against exploitation (Articles 23-24)
  • Right to freedom of religion (Articles 25-28)
  • Cultural and Educational Rights (Articles 29-30)
  • Right to constitutional remedies (Article 32)
• The fundamental rights are meant for promoting the idea of Political Democracy. They operate as limitations on the state’s power. However, they are not absolute in nature and are subject to reasonable restrictions. 

Fundamental Duties

• The Constitution (42nd Amendment Act, 1976) has introduced a Code of “Fundamental Duties” for Citizens forming Part IV-A of the Constitution, containing Article 51-A. 
• The fundamental duties require the citizens to observe certain basic norms of democratic conduct and democratic behaviors. 
• Like the Directive Principles of State Policy, these duties cannot be judicially enforced.

Directive Principles of State Policy

• Part IV of the constitution deals with social and economic Rights. 
• They are not justifiable in a court of law. The principles laid down are fundamental in the governance of the country
• They aim at establishing a welfare state in India.

Single Citizenship

• Though the Constitution envisaged a dual polity i.e. Center and States, it provides for single citizenship for the whole of India. 
• This is unlike the United States of America, where there is the system of double citizenship, i.e., the U.S.A’s citizen and a State citizen. 
• Every Indian has citizenship throughout the country with the same rights. This provision in the Indian Constitution reinforces the values of equality, unity and integrity.

Parliamentary form of government

• The core principle of a parliamentary government is the responsibility of the Executive to the Legislature consisting of the representatives of the people. (Article 75)
• Also, the separation of powers between the Executive and the Legislature is not watertight, but it makes the Executive more responsible and accountable to the Legislature. 

The federal structure of government

The nature of the Indian state is federal, in the sense that the powers are distributed between the Union and the state. 

• However, The Constitution also has Unitary features making it a unique Quasi-Federal Setup. 

• It is federal because:
  • The Constitution of India is written and supreme. 
  • It has two sets of government.
  • There is a division of powers between the Centre and the States.
  • There is an independent judiciary.

• It is unitary because:
  • Indian State is described as a “union of states”.
  • There is single citizenship.
  • There is a single integrated judicial and administrative system.
  • There is integrated machinery for elections, and audits.
  • State Governors are appointed and removed by the President,
  • States depend upon the union’s grant–in–aid.
  • During an emergency, the system acts like a unitary system.

Systems of local self-government

• Local Self Governments have been considered as instruments of socio economic transformation at the gross root level. Panchayati Raj is identified as the institutional expression of democratic decentralization in India.
• The idea for organizing village Panchayats as self-government units was provided by the Constitution makers under Article 40 of Part IV. 
• Accordingly, The 73rd and 74th Amendment Act, 1992 has inserted Part IX, Part IX-A, and the Eleventh and Twelfth Schedule in the Constitution.

An independent and Integrated Judiciary

• An independent Judiciary is necessary to secure the philosophical foundations of the rule of law and democracy. 
• The Constitution has ensured the complete independence of the Judiciary in matters of appointment administration and finances. 
• Although the Supreme Court is at the national level, High Courts at the state level and subordinate courts at the district and lower levels, there is a single hierarchy of Courts. At the top of the hierarchy is the Supreme Court. 
• The unified judicial system aims to promote and ensure justice to all the citizens in a uniform manner.

Universal adult franchise

• Article 326 defines a universal adult franchise as the basis for elections to all levels of the elected government.
• Every eligible citizen above 18 years of age has been given the right to elect representatives for the legislatures without discrimination or prescribing any qualification based on religion, race, caste, sex, descent, and place of birth or residence alone. 

Special attention to Scheduled Areas and Scheduled Tribes

• The Vth and VIth Schedule to the Constitution give special attention to the needs of the States in North-eastern and Central parts of India. 
• The people residing in these areas have a distinct culture that needs to be protected and promoted. 
• Therefore, provisions have been made to allow them to manage their local regions.

Emergency provisions

• Part XVIll of the Constitution contains emergency provisions (Articles 352 to 360) which were envisaged to deal with unforeseen circumstances that may threaten the unity and integrity of our country. 
• When the Government employs the Emergency provisions, the politico-administrative system undergoes structural changes. 
• The federal structure acquires unitary character during the time of emergency. 

What is meant by the Basic Structure Doctrine?

The doctrine of Basic Structure was propounded by the Indian Judiciary on 24th April 1973 in the famous Keshavananda Bharati case to put a limitation on the amending powers of the Parliament so that the ‘Basic Structure of the Constitution’ cannot be amended in the exercise of its ‘constituent power’ under Article 368 of the Indian constitution. 

• It is a judicial creation whereby certain features of the Indian Constitution are deemed to be beyond the limits of amending powers of parliament of the constitution.
• The word “Basic Structure” is not mentioned in the constitution but was recognized for the first time in the Kesavananda Bharati case of 1973.

History of the genesis of the Doctrine of Basic Structure?

The Supreme Court, since independence, has time and again reformed and revised its stance on parliament’s power to amend the constitution. 

The evolution of the Basic Structure doctrine can be traced from the issue of the right to property and the first constitutional amendment act of 1951.

• Shankari Prasad vs. Union of India (1951):
  • The Supreme Court held that the Parliament, under Article 368, has the power to amend any part of the constitution, including the Fundamental Rights 
• Sajjan Singh vs. State of Rajasthan (1965):
  • The Supreme Court agreed with its judgment in the Shankari Prasad case 1951 and held that under Article 368, Parliament could amend any part of the constitution.
  • However, the concurring opinion by Justice Hidyatullah and Justice Mudholkar raised doubts over the unrestricted power of the Parliament to amend the Constitution and limit the fundamental rights of citizens.
• Golak Nath vs. State Of Punjab Case (1967):
  • In the Golaknath case (1967), the Supreme Court overturned Shankari Prasad judgment and ruled that Article 368 only lays down the procedure to amend the constitution and does not give absolute powers to the Parliament to amend any part of the constitution.
• 24^th Constitution Amendment Act (1971):
  • To surpass the Golaknath judgment constraints, the government enacted the 24th amendment act, which introduced a provision to Article 368 of the Constitution, which stated that the Parliament has the power to take away any of the fundamental rights.
  • It also made it obligatory for the President to give his assent on all the Constitution Amendment bills sent to him.
• Kesavananda Bharati vs. State of Kerala (1973):
  • The Supreme Court, in this case, upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in the Golaknath case. 
  • However, the Supreme Court held that the Parliament has the power to amend any provision of the constitution, but in doing so, the Basic Structure of the constitution is to be maintained.
  • The Court propounded what has come to be known as the “Basic Structure of the Constitution”.
  • Thus, this landmark judgment meant that every provision of the Constitution could be amended, but these amendments can be subjected to judicial review to ascertain that the Basic Structure of the Constitution remains intact.
• 42nd Amendment Act (1976):
  • The government in 1976 enacted the 42nd Amendment Act that declared no limitation to the constituent power of Parliament under article 368.
  • The amendment, also called the “Mini-constitution” for introducing wide-ranging constitutional changes, barred the courts from questioning constitutional amendments.
• Minerva Mills vs. Union of India (1980):
  • In this case, the Supreme Court invalidated provisions of the 42nd CAA and ruled that the Parliament cannot take away the power of ‘judicial review’ as it is a part of the ‘Basic Structure’.
• Waman Rao vs. Union of India (1981):
  • Also known as the ‘Doctrine of Prospective Overruling’, the court decided that all the laws placed under Ninth Schedule before the Kesavananda judgment cannot be called into question for violating Fundamental Rights. However, the laws post the judgment can be raised before a court of law.
  • The Supreme Court again reiterated the Basic Structure doctrine in this case.
• Indra Sawhney & Others vs. Union of India(1992):
  • Also known as the Mandal case, the Supreme Court declared the Rule of Law as a Basic Structure of the constitution.
• Kihoto Hollohan Case (1993):
  • Popularly known as the Defection case, the Supreme Court added Free and fair elections, Sovereign, Democratic and Republican structure to the Basic Structure of the Constitution.
• S.R. Bommai vs. Union of India (1994):
  • The Supreme Court declared Federalism, Secularism, and Democracy as the Basic Structure of the Constitution.

Which features of the constitution constitute the Basic Structure?

The components of the Basic Structure provided in the constitution have been recognized by the judiciary in various cases to date. 

Some of these components are

• Supremacy of the Constitution
• Sovereign, democratic and republican nature of the Indian
• Polity
• Secular character of the Constitution
• Separation of powers between the legislature, the executive, and the judiciary
• Federal character of the Constitution 
• Unity and integrity of the nation
• Welfare state (socio-economic justice) 
• Judicial review
• Freedom and dignity of the individual
• Parliamentary system
• The rule of law
• Harmony and balance between Fundamental Rights and Directive Principles
• Principle of equality
• Free and fair elections
• Independence of Judiciary
• Limited power of Parliament to amend the Constitution
• Principles (or essence) underlying fundamental rights
• Powers of the Supreme Court under Articles 32, 136, 141 and 142.
• Powers of the High Courts under Articles 226 and 227.

What are some of the criticisms of the Doctrine of Basic Structure?

Some grounds for the criticism of Basic Structure doctrine are

• Inconsistent with the principle of separation of powers: A system of checks and balances is healthy only when the duties of one branch are not usurped by another. A court may have the power to review but not rewrite a constitutional amendment.
• Vagueness and elusiveness of the Basic features of the Constitution: There is no definite elucidation on what exactly constitutes Basic Structure, thereby making the doctrine ambiguous.
• Translates judiciary into the third decisive chamber of parliament: By invoking the Basic Structure doctrine, the Judiciary acts as the third house and thereby renders the work done by the Parliament meaningless.
• Judicial Overreach:  Recently, the doctrine has been invoked in cases regarded as examples of judicial overreach. Ex: National Judicial Appointment Commission Act, 2014 was declared null and void by the Supreme Court by relying on this doctrine.

What is the significance of the Basic Structure Doctrine?

• Promotes Constitutional Ideals: Basic Structure Seeks to preserve constitutional principles and Basic ideals envisioned by the founding fathers.
• Maintains Supremacy of the Constitution: The doctrine has helped to maintain the supremacy of the Constitution and has prevented its destruction by a temporary majority in Parliament.
• Seperation of Powers: Basic Structure strengthens our democracy by delineating a true separation of power where the Judiciary is independent of the other two organs.
  • Granville Austin argues that with Basic Structure Doctrine, a balance has been reached between the responsibilities of Parliament and the Supreme Court for protecting the seamless web of the Indian Constitution.
• Protects Fundamental Rights: Basic Structure protects the fundamental rights of the citizens against arbitrariness and authoritarianism of the legislature.
• Constitution as a living document: Being dynamic in nature, it is more progressive and open to changes in time, making the constitution a living document 

Mains Questions

Q. Give the historical genesis of the Basic Structure Doctrine? (250 Words) 15 Marks.

Q. In the backdrop of the debate relating to the implementation of the “One nation one election”, discuss how the basic structure doctrine can be a big hindrance? (250 Words) 15 Marks 

Q. Don’t you feel the basic structure doctrine is against the spirit of true representation of the present generation. Do you agree, it imposes a restriction on the present generation to accept the choice of previous generation? Discuss (250 Words) 15 Marks 

Amending the Constitution of India 

It is the process of making changes to the nation’s fundamental law or supreme law. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India. 

• However, the Parliament cannot amend those provisions which form the ‘basic structure’ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case (1973).

What is a Constitutional Amendment?

The process of making changes to the nation’s fundamental law i.e. the Constitution is called a Constitutional Amendment. 

The amendment procedure laid down for the amendment of India’s Constitution is neither flexible as Britain’s nor as rigid as the USA’s but a synthesis of both.

• This constitutional amendment procedure reflects the desire of the constituent legislative assembly to put in place a dynamic document. 
• Under Article 368 of the Indian Constitution, the Parliament can amend it and its procedures.
• Further, Parliament cannot amend those provisions which form the Basic Structure of the Constitution as ruled by the Supreme Court in the Kesavananda Bharati case (1973).

What are the different ways to amend Indian Constitution?

Different ways in which Constitution can be amended are

• By a simple majority of the Parliament: This refers to the majority of more than 50% of the members present and voting. Many articles in the Constitution mention that these articles can be amended by a simple law of the Parliament. No special procedure for amendment is required in such cases. Some examples are
  • Article 2 – Admission or establishment of new states.
  • Fifth Schedule- Provisions as to the Administration and Control of Scheduled Areas and Scheduled Tribes.
  • Citizenship–acquisition, and termination.
  • Elections to Parliament and state legislatures.
• Under Article 368
  • By a special majority of the Parliament: Majority of the total membership of each House and a majority of two-thirds of the members of each House present and voting. Examples include Fundamental Rights and DPSPs etc. 
  • By a special majority of the Parliament and the ratification of half of the state legislatures: States’ ratification is through a simple majority. Provisions related to Federal structure are amended by this method. Examples are the election of the President and its manner, any of the lists in the Seventh Schedule, representation of states in Parliament, Article 368, etc.

What is the procedure to amend the Indian Constitution?

The amendment procedure to amend the Constitution is as follows:

• Amendments can be initiated only by introducing a bill in either house of the Parliament.
• The bill can be introduced either by a minister or by a private member and does not require the prior permission of the President.
• The bill must be passed in each house by a special majority, that is, a majority of the total membership of the house and a majority of two-thirds of the members of the house present and voting.
• Each house must pass the bill separately. If there is any disagreement, there is no provision for a joint sitting of the houses.
• If the bill seeks to amend the provisions of the constitution, it must be ratified by the legislatures of half of the states by a simple majority.
• After the passage of the bill by both houses, it is presented to the President for his assent.
• The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration by the Parliament.
• After the President’s assent, the bill becomes a constitutional amendment act.

What are some of the major constitutional amendments?

Due to its flexibility and rigid nature, the Indian Constitution has been amended from time to time. Some major amendments are as follows

Recent Amendments to the Constitution

• 99th Constitutional Amendments:
  • Replaced the collegium system of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Appointments Commission (NJAC).
  • However, in 2015, the Supreme Court declared this Amendment Act as unconstitutional and void. Consequently, the earlier collegium system became operative again
• 101st Constitutional Amendments:
  • Introduction of the Goods and Services Tax
  • Goods and Services Tax (GST) is an indirect tax (or consumption tax) used in India on the supply of goods and services. It is a comprehensive, multistage, destination-based tax: comprehensive because it has subsumed almost all the indirect taxes except a few state taxes.
• 103rd Constitutional Amendments:
  • It introduced reservations for Economic Weaker Section for the first time in independent India
  • Amendment in Article 16 allows a 10% reservation to EWS in public employment.

What are the limitations on the amending power of the Parliament?

The amending power of the Parliament is limited by the doctrine of Basic Structure, propounded by the Indian Judiciary on 24th April 1973 in the Keshavananda Bharati case so that the ‘Basic Structure of the Constitution’ cannot be amended.

Thus,  amendments under Article 368 are valid as long as they do not violate the basic structure of the Constitution. Further, the Supreme Court also held Article 368 as part of the Basic Structure.

Some of the significant judgments regarding the limitations of amending power of the Parliament are

• Minerva Mills vs. Union of India (1980): The Supreme Court invalidated provisions of the 42nd Constitutional Amendment Act, 1976 that declared no limitation to the constituent power of Parliament under article 368. The Supreme Court ruled that the Parliament cannot take away the power of ‘judicial review’ as it is a part of the ‘Basic Structure’.
• L. Chandra Kumar v. Union of India (1997): The Supreme Court held that Tribunals (Article 323A and 323B) are not a substitute for the power of judicial review that the Constitution has bestowed upon the High Courts.
• I.R. Coelho v State of Tamil Nadu (2007): The Supreme Court held that Parliament cannot increase the amending power by amendment of Article 368 and destroy and damage the fundamentals of the Constitution.
• The Constitution (99th Amendment) Act, 2014: provided for a National Judicial Appointments Commission (NJAC), was struck down by the Supreme Court on the grounds that it violated the “independence of the judiciary”, which is a part of Basic Structure.

What are the criticisms of the amendment procedure under the Indian Constitution?

The amendment procedure of the Constitution has been criticized on the following grounds:

• States have no power to initiate amendments: The power to initiate an amendment to the Constitution lies with the Parliament. The state legislatures cannot initiate any bill.
  • Exception: States can pass a resolution requesting the Parliament for the creation or abolition of legislative councils in the states.
• Parliament has powers to amend major parts: The major part of the Constitution can be amended by the Parliament alone. Only in a few cases the consent of half of the state legislatures is required.
• No time frame for ratification: The Constitution does not prescribe the time frame within which the state legislatures should ratify or reject an amendment submitted to them. 
• No provision for joint sitting: There is no provision for holding a joint sitting of both Houses of Parliament if there is a deadlock over the passage of a constitutional amendment bill.
• The process of amendment is similar to that of a legislative process. Except for the special majority, the constitutional amendment bills are to be passed by the Parliament in the same way as ordinary bills.

Although having provisions to amend the constitution was progressive to the fathers of our nation, it is important that such provisions are not misused. Misuse could lead to undue legislative or executive authority that could rip apart the fabric of our society. An appropriate balance is thus needed to be maintained to ensure the living nature of our constitution.

Mains Questions

Q. Give your opinion on the Amendability of the Indian Constitution. It is said that obtaining the concurrence of the 50% of the states in important matters of policy intervention kills the spirit of urgency? Discuss (250 Words) 15 Marks.

Q. Throw light on the limitations of the Parliament in amending the Constitution? (150 Words) 10 Marks.

Q. It is said that the power the amend the Constitution keeps the spirit of its acceptability across generations. Give your views on the same (250 Words) 15 Marks

An Introduction

Secularism in India means the separation of religion from state.  The attempt to have a Uniform Civil Code has long been discussed as a means to realize a secular Indian state. The overlap between religion and state has created tension between supporters of Indian form of secularism and the supporters of Hindu nationalism. Hindu nationalists use the Uniform Civil Code platform to agitate their base, even though there has been no actual implementation. 

• A secular person is one who does not owe his moral values to any religion. His values are the product of his rational and scientific thinking.
• Secularism means separation of religion from political, economic, social and cultural aspects of life, religion being treated as a purely personal matter.
• It emphasized dissociation of the state from religion and full freedom to all religions and tolerance of all religions.
• It also stands for equal opportunities for followers of all religions, and no discrimination and partiality on grounds of religion.

What is Secularism?

Secularism is an ideology that emphasizes the separation of religion and the state and the neutrality of the government with respect to religious beliefs..

• It has broadly two meanings:
  • Separation of religion from the state i.e. Dharm Nirpekshta.
  • Equal respect to all religions by state i.e. Sarva Dharma Samabhava.  
• The Indian constitution aims for a secular state where all religions are treated equally

History of Secularism in India

• Secular traditions are very deep rooted in the history of India. Indian culture is based on the blending of various spiritual traditions and social movements.
• In ancient India, the Santam Dharma (Hinduism) was basically allowed to develop as a holistic religion by welcoming different spiritual traditions and trying to integrate them into a common mainstream.
• The development of four Vedas and the various interpretations of the Upanishads and the Puranas clearly highlight the religious plurality of Hinduism.
• Emperor Ashoka was the first great emperor to announce, as early as third century B.C. that, the state would not prosecute any religious sect.
  • In his 12^th Rock Edict, Ashoka made an appeal not only for the toleration of all religion sects but also to develop a spirit of great respect toward them.
• Even after the advent of Jainism, Buddhism and later Islam and Christianity on the Indian soil, the quest for religious toleration and coexistence of different faiths continued.
• In medieval India, the Sufi and Bhakti movements bond the people of various communities together with love and peace.
• The leading lights of these movements were Khwaja Moinuddin Chisti, Baba Farid, Sant Kabir Das, Guru Nanak Dev, Saint Tukaram and Mira Bai etc.
• In medieval India, religious toleration and freedom of worship marked the State under Akbar. He had a number of Hindus as his ministers, forbade forcible conversions and abolished Jizya.
  • The most prominent evidence of his tolerance policy was his promulgation of ‘Din-i-Ilahi’ or the Divine Faith, which had elements of both Hindu and Muslim faith.
  • That this was not imposed upon the subjects is obvious from the fact that there were few adherents to it. Along with this he emphasized the concept of ‘sulh-i-kul’ or peace and harmony among religions.
  • He even sponsored a series of religious debates which were held in the ‘Ibadat Khana’ of the Hall of Worship, and the participants in these debates included theologians from amongst Brahmins, Jains and Zoroastrians.
• Even before Akbar, Babar had advised Humayun to “shed religious prejudice, protect temples, preserve cows, and administer justice properly in this tradition.”
• The spirit of secularism was strengthened and enriched through the Indian freedom movement too, though the British have pursued the policy of divide and rule.
  • In accordance with this policy, the British partitioned Bengal in 1905.
  • Separate electorates were provided for Muslims through the Indian Councils Act of 1909, a provision which was extended to Sikhs, Indian Christians, Europeans and Anglo-Indians in certain provinces by the Government of India Act, 1919.
  • Ramsay MacDonald Communal Award of 1932, provided for separate electorates as well as reservation of seats for minorities, even for the depressed classes became the basis for representation under the Government of India Act, 1935.

Secularism during the National Movement

• • In the initial part of the Indian freedom movement, the liberals like Sir Feroz Shah Mehta, Govind Ranade, Gopal Krishna Gokhale by and large pursued a secular approach to politics.
  • The constitution drafted by Pandit Moti Lal Nehru as the chairman of the historic Nehru Committee in 1928, had many provision on secularism as: ‘There shall be no state religion for the commonwealth of India or for any province in the commonwealth, nor shall the state, either directly or indirectly, endow any religion any preference or impose any disability on account of religious beliefs or religious status’.
  • Gandhiji’s secularism was based on a commitment to the brotherhood of religious communities based on their respect for and pursuit of truth, whereas, J. L. Nehru’s secularism was based on a commitment to scientific humanism tinged with a progressive view of historical change.
• At present scenario, in the context of Indian, the separation of religion from the state constitutes the core of the philosophy of secularism.

What are the constitutional provisions pertaining to Secularism in India?

At the outset of the making of the Constitution, the concept of secularism was not expressly mentioned in the Indian Constitution. However, the Indian Constitution has spelled out several provisions in Part III(Fundamental Rights), Part IV(Directive Principles of State Policy), and Part IVA(Fundamental Duties) that reflect the existence of secularism. 

Apart from the Constitution, Judiciary has also helped shape Secularism in India.

• Kesavananda Bharati v. State of Kerala (1973): The Supreme Court held that secularism was a part of the basic structure of the Constitution. 
• Bommai v Union of India (1994): The Supreme Court elaborated on the meaning of secularism. The Court said that secularism means equal treatment of all religions.

How is Indian Secularism different from Western Secularism?

Some major differences between the Indian and Western models of Secularism are

What are the criticisms of the Indian model of Secularism?

Indian secularism has been subjected to various criticisms. Some of these are:

• Anti-religious: It has been argued by some that secularism threatens religious identity. 
  • However, secularism is against institutionalized religious domination. This is not the same as being anti-religious.
• Western import: Another criticism is that secularism is linked to Christianity, that it is western and, therefore, unsuited to Indian conditions. 
  • However, the mutual exclusion of religion and state, which is supposed to be the ideal of western secular societies, is not the defining feature of all secular states.
• Minoritism: It is argued that Indian secularism advocates minority rights.
  • However, the constitution protects the most fundamental interest of minorities
• Interventionist: It is claimed that secularism is coercive and that it interferes excessively with the religious freedom of communities. 
  • However, Indian secularism follows the concept of principled distance, which also allows for non-interference.
• Vote Bank Politics: There is the argument that secularism encourages the politics of vote banks. 

What are the factors that threaten India’s secular fabric?

• Political interference in religion: Increasing interference of religion in politics is a major challenge facing the secular state. 
  • Candidates for elections are selected based on religious considerations, and votes are cast based on religious sentiments.
• Non-separation of religion from politics: Events in the past like the demolition of the Babri Masjid, anti-Sikh riots in 1984, Mumbai riots in 1992 and 1993, Godhra riots in 2002, etc., have shown the well-established problem of communalism raising its head now, and then.
• Exclusion of minorities: There are feelings of insecurity in religious minorities still today. This makes it difficult to create a secular society. 
  • Sachar Committee had reported, “while Muslims constitute 14 percent of the Indian population, they comprise only 2.5 percent of the Indian bureaucracy”.
• Growing radicalization: In recent years, there have been stray incidences of youth being inspired and radicalized by groups like ISIS, posing a threat to the secular fabric of the nation.
• Religious intolerance: Religious intolerance is also on the rise recently. 
  • Example: Delhi riots 2020.

What measures can help India become a truly secular state?

The Indian constitution aims for a secular state. To strengthen its ideas further following steps can be taken:

• Education as a tool:  Education is a means to effect change in the mindset of people. Individual examples of sharing and mutual help could reduce prejudice and suspicion between communities.
• Social Reforms: Movements for social reform, like Uniform Civil Code, will have to be organized and public opinion mobilized. Also, Minorities should be encouraged to participate in the mainstream of national life.
• Move towards secular politics: Communal politics and vote bank politics need to be replaced by secular politics to ensure religious tolerance.
• Combating religious extremism: Strong measures need to be taken to combat religious extremism and promote a culture of tolerance and mutual respect.
• Protecting minority rights: It includes ensuring equal access to education, employment, and other opportunities, as well as protecting minority communities from violence and hate crimes.

Conclusion

• In a pluralistic society, the best approach to nurture secularism is to expand religious freedom rather than strictly practicing state neutrality.
• It is incumbent on us to ensure value-education that makes the younger generation understands and appreciates not only its own religious traditions but also those of the other religions in the country.
• There is also a need to identify a common framework or a shared set of values which allows the diverse groups to live together.
• The prerequisites to implement the social reform initiative like Uniform Civil Code are to create a conducive environment and forging socio-political consensus.

India has come a long way since independence to make a secular society. However, steps like social reforms, religious tolerance, etc., need to be further strengthened to achieve the goal of Constitution makers.

Mains Questions

Q. Can India ever attain the title of a True Secular State? (150 Words) 10 Marks 

Q. Describe the factors that threaten India’s Secular Fabric? (150 Words) 10 Marks 

Q. Differentiate Indian Secularism from the Western Secularism? (150 Words) 10 Marks 

Introduction

The making of the Indian Constitution was a long and complex process. It was a time of great political and social change in India. The framers of the Constitution had to balance the competing demands of different groups and interests. They also had to take into account the country’s unique history and culture.

The result was a Constitution that is considered to be one of the most progressive and democratic constitutions in the world.

What is a Constituent Assembly? 

• The Constituent Assembly is an institution specifically conceived for the creation or modification of a Constitution. The Constituent Assembly has the power to dictate or change the norms that will govern the functioning of the political and social system of a territory. 
• The Constituent Assembly’s objective was drafting and formulating the Constitution of India because that was the only way the self-determination concept could be implemented in India. 

What is the historical background of the Constituent Assembly in India?

What was the composition of the Constituent Assembly? 

• The Constituent Assembly comprised members who were partly elected and partly nominated. The elected members were indirectly elected by members of the provincial legislative Assembly, who were elected on the limited franchise. 

What were the developments during the making of the Indian Constitution?

The Indian Constitution was made by the Constituent Assembly, which came into existence as per the provisions of the Cabinet Mission of May 1946. Its task was to formulate a Constitution for facilitating the appropriate transfer of sovereign power from British authorities to Indian hands. 

• 9 December 1946: The Constituent Assembly sat for the first time.
• 11 December 1946: Rajendra Prasad as President, Harendra Coomar Mookerjee and V.T. Krishnamachari as the Vice Presidents were elected, and B. N. Rau as Constitutional legal advisor was appointed.
• 13 December 1946:  Jawaharlal Nehru introduced the famous “Objective Resolution” in the Assembly, which laid down the philosophy of the Constitution of India.
  • It is geared toward fostering economic and political security in India through a written Constitution and declaring India a Sovereign, Democratic Republic.
  • It fostered the formulation of a federal with the even-handed distribution of powers between the Centre and the states.
  • It strives to secure equality, justice, and freedom of thought, expression, belief, faith, association, and associated action for each subject of the country.
  • It is geared toward providing necessary protection to the minority and backward section of society.
  • It strives to secure the integrity of the territory of the Indian republic and follow the law of any civilized nation to secure rights on land, sea, and air.
• 22 January 1947: The Resolution was unanimously adopted by the Assembly. 

July 1947- Indian Independence Act, 1947:  The Act made the following changes in the position of the Constituent Assembly:

• The Assembly was given complete autonomy and the power to draft any Constitution it chose. 
• The Act gave the Assembly the authority to annul or amend any law passed by the British Parliament regarding India.
• The Assembly was also given legislative authority. As a result, the Assembly was elected as India’s first free Parliament (Dominion Legislature). Dr. Rajendra Prasad presided over meetings of the Assembly as the Constituent body, and G.V. Mavlankar presided over those of the Assembly as the Legislative body.
• July – October 1947: Preparation of the first draft by the Constitutional advisor, Constitutional Advisor started putting together the first draft of the Constitution by aligning the reports already discussed and adopted.
•  22 July 1947: The Constituent Assembly adopted the National flag.
• October 1947- February 1948: Deliberations in Drafting Committee and resultant draft Constitution, Drafting committee produced the draft Constitution by February 21, 1948, which contained 315 Articles and 8 Schedules. 
• 4 November 1948 – 9 November 1948 (First reading): Drafting committee published the draft Constitution of India in February 1948. The draft was introduced in the Assembly in November 1948. 
• 15 November 1948 – 17 October 1949 (Second reading): Clause-by-clause draft discussion was conducted in the Assembly.
• May 1949: The Constituent Assembly accepted and approved India’s membership of the British Commonwealth. 
• 14 November 1949 – 26 November 1949 (Third reading): The Assembly finished the third reading.
• 26 November 1949: The Constituent Assembly passed and adopted the Constitution of India. 
• 24 January 1950: The Constituent Assembly elected Dr. Rajendra Prasad as the first President of India and, adopted the National anthem and National song. 

When did the Constitution come into force?

• As per the provisions in the Constitution, it formally commenced on January 1950, bringing it into force in its entirety. This date was chosen to commemorate the declaration of ‘Poorna Swaraj’ by J.L. Nehru at an annual session of the Congress in Lahore in 1929. 
• Some of the Constitution’s provisions, included in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392, and 393, relating to citizenship, elections, a provisional parliament, temporary and transitional laws, and short titles, came into effect on November 26, 1949.
• The remaining provisions of the Constitution took effect on January 26, 1950, and the entire Constitution was enforced. This day is celebrated as Republic Day.

What were the various committees of the Constituent Assembly?

The Constituent Assembly, at various points during the Constitution-making process, appointed several committees on different aspects of the Constitution to conduct preliminary research and deliberations within smaller groups. 

Organizational Committee

Principal Committees and their sub-committees                

Other Sectoral Committees

What are the criticisms of the Constituent Assembly? 

Several scholars and Constitutional experts have criticized the Constituent Assembly on various grounds. These are as follows: 

• Not a representative Body: Its members were not directly elected based on the universal adult franchise.
• Not a Sovereign Body: It was created by the British proposals, and its sessions were held with the permission of the British Government.
• Time-Consuming: It took an unduly long time to frame the Constitution, on the other hand the American Constitution was formed in 4 months. 
• Dominated by Congress: Granville Austin commented that “The Constituent Assembly was one party body in an essentially one-party country. The Assembly was the Congress, and the Congress was India”.
• Lawyer- Politician Domination: Scholars maintain that they dominated the Constituent Assembly and are not representative of other sections. 
• Dominated by Hindus: Winston Churchill commented that the Constituent Assembly represents “Only one major community in India”.

Women and the Constituent Assembly

Women also had a vital part in creating the Indian Constitution, which was a prominent element of the Constituent Assembly.

Several women members of the Constituent Assembly contributed to creating an independent Indian constitution in their own unique way.

The noteworthy contributions of each of these women are noted below;

Rajkumari Amrit Kaur

Rajkumari Amrit Kaur was the first woman in independent India to be appointed to the Cabinet as Health Minister. She established the All India Institute of Medical Sciences (AIIMS) and Lady Irwin College in Delhi after founding the Indian Council for Child Welfare.

Ammu Swaminathan

The Fundamental Rights and the Directive Principles of State Policy, according to Shrimati Ammu Swaminathan, are the two sturdy foundations on which the Indian Constitution relies. Ammu Swaminathan said that many minute elements contained in the Indian Constitution should have been left to the Government and the Legislature since the Constitution was too long and cumbersome.

Shrimati Leela Ray

She was an important figure in both pre- and post-independence India. Founded the Jatiya Mahila Sanghati and the Dacca Mahila Satyagraha Sangha, both of which advocated for women’s empowerment and the anti-salt tax movement.

Shrimati Dakshayani Velayudan

She was a member of the Madras Constituency, and expressed her concern for the Harijan community in the Assembly by voting against the construction of a separate electorate for them, forced labor, and the practice of untouchability.

Shrimati G. Durgabai

Shrimati G. Durgabai has expressed her views on appointing Provincial High Court Judges, arguing that the Governor and his Cabinet should be fully responsible for this. Her opinions on the abolition of the Devadasi system, the protection of minors from exploitation, and the constraints on the liberties granted to individuals were equally noteworthy.

Begum Aizaz Rasul

Begum Aizaz Rasul believed that the Ministry, as a stable entity, should not be subject to the whims and fancies of any single party or legislative to whom the Ministry was accountable. Furthermore, her admiration for Dr. B. R. Ambedkar’s outstanding work defending minority rights while creating the Indian Constitution cannot be overstated.

Shrimati Hansa Mehta

She emphasized the importance of social, economic, and political justice for women in India, given the country’s long history of oppression.

Time it took to complete the Constitution

It required 2 years 11 months and 18 days to complete the Indian Constitution. There were eleven sessions held by the constituent assembly to complete the constitution.

Conclusion

Despite these criticisms, we may assert that our founding parliament was a collection of India’s finest, who helped make the Indian Constitution the most dependable and wisest among all national Constitutions.

Mains Questions

Q. Throw light on the contribution of Women in crafting the Constitution of India. Give specific contributions of at least 4 women in our Constitution? (150 Words) 10 Marks 

Q. It is often said that the members of the Constituent Assembly were not directly elected and didn’t represent the true will of the people. Critically Comment on this statement. (250 Words) 10 Marks 

Introduction

Are the same sex marriages immoral? Why is racism wrong? Should the law permit surrogacy? Is adultery a wrong? Moral questions routinely tug at the sleeve of our legal, political and cultural practices. Their persistence is perhaps one of the hallmarks of a democratic, or at least an open society.

Moral questions invade the law at every turn. A rigid separation between morality and law is highly improbable. In 2018 the Supreme Court of India has passed historical judgments (i.e. Judgment on Right to Privacy, Decriminalization of consensual relationship under section 377 and section 497 of IPC, Triple Talaq, Sabarimala temple case on the basis of Constitutional Morality. Constitutional Morality means adherence to or being faithful to bottom line principles of constitutional values.

What is Constitutional Morality?

Constitutional morality refers to the principles and values that underlie the constitution and guide the actions of government and citizens. 

• It encompasses the idea that the constitution is not just a legal document but also a moral one that reflects the shared values and aspirations of a society. 
• It also encompasses the idea that the constitution should be interpreted and implemented consistently with these fundamental principles and values rather than simply as a technical document to be followed literally.
• The term Constitutional Morality is not mentioned anywhere in the constitution. 

B.R. Ambedkar on Constitutional Morality

Constitutional Morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic Dr. B.R. Ambedkar

What are some of the elements of Constitutional Morality?

Some of the elements of Constitutional Morality are:

• Rule of Law
• Right to Equality
• Social Justice
• Due Process of Law
• Individual Liberty
• Freedom of Expression

How has the concept of Constitutional Morality evolved?

• Origin: The doctrine of Constitutional morality traces its origin back to the work of English Historian George Grote. 
  • He used ‘constitutional morality’ to describe popular sovereignty, governed based on ‘freedom’ and self-restraint.
  • Constitutional morality, for Grote, also meant citizens’ right to criticize public officials. Therefore, highlighting the limitation to the power of public officials and their duty to respect the Constitution.
• Constituent Assembly:  In the Indian context, this word was first used by Dr. Bhim Rao Ambedkar during the Constituent Assembly debate to justify the inclusion of administrative details in the Constitution itself.
  • According to him, constitutional morality was the solution to the existing inequality in society. It primarily meant respect among parties in a republic for constitutional democracy as the preferred form of governance and administration.
• Post Independence: Post Independence, Constitutional Morality has been mentioned by the Supreme Court in some of the judgments like
  • Kesavananda Bharati Case(1973): It was subtly indicated by the Supreme Court when it propounded the conception of the basic structure of the Constitution. 
  • Other cases: Constitutional Morality was also mentioned in the First Judges case(1982). Thereafter, it was mentioned in Naz Foundation v. Government of NCT of Delhi(2010), where it was used antithetically to popular acceptance and social morality.

What are some significant Supreme Court judgments relating to Constitutional Morality?

Constitutional morality has been invoked in several cases by the Supreme Court. Some of these cases are

• SP Gupta Case/First Judge Case (1982): The Supreme Court described constitutional violation as ‘a serious breach of constitutional morality’.
• Naz Foundation vs. Government of NCT of Delhi (2010): The Supreme Court took into cognizance the idea of upholding the constitutional principles rather than society’s perception with regard to the legitimacy of same-sex relationships.
• Manoj Narula vs. Union of India (2014): Chief Justice of India(CJI)  described constitutional morality as a means to bow down to the norms of the Constitution and not to act in a manner that would become violative of the rule of law or reflectible of action in an arbitrary manner. 
• NCT of Delhi vs. Union of India (2018): The Supreme Court equated constitutional morality with the spirit of the Constitution itself.
  • It held that Constitutional morality, in its strictest sense, implies a strict and complete adherence to the constitutional principles as enshrined in the various segments of the document.
• Navtej Singh Johar vs. Union of India (2018): The Supreme Court made a distinction between constitutional and public morality.
  • It held that constitutional morality reflects the ideal of justice as an overriding factor in the struggle for existence over any notion of social acceptance.
  • The court thus struck down section 377 of IPC, which made homosexuality a criminal offense.
• Joseph Shine vs. Union of India (2019): Upholding the right of gender equality and right to equality, the Supreme court struck down Section 497 of IPC, which made adultery a crime.
  • The Supreme Court noted that constitutional morality must guide the law and not the common morality of the State at any time in history.
• Indian Young Lawyers Association & Ors vs. The State of Kerala & Ors., (2019) (Sabarimala Case): The Supreme Court ruled that the exclusion of women between the ages of 10-50 years from the Sabarimala temple violates four key principles of constitutional morality: Justice, Liberty, Equality, and Fraternity.
  • The court observed that the term “morality” in Articles 25 & 26 of the Constitution refers to constitutional morality rather than popular morality.

What is the significance of Constitutional Morality?

Constitutional morality is significant for the functioning of a democratic society due to the following reasons:

• Protects rights of citizens: It helps to protect the rights and freedoms of citizens by ensuring that the government is held accountable to the rule of law and the principles of democracy, justice, liberty, and equality.
• Promoting Democratic ideals: It helps to maintain the integrity of democratic institutions by ensuring that the government is constrained by the will of the people and the principles of the constitution.
• Bring positive change in society: It can be used to interpret laws or statutes no longer consistent with recent times, thus bringing positive societal change.
• Creates Inclusive Society: It helps to promote social cohesion and respect for diversity by recognizing and protecting the rights of all citizens, regardless of their background or identity.

What are some of the issues pertaining to Constitutional Morality in India?

Some of the issues pertaining to Constitutional Morality in India are

• Lack of clarity: Some argue that the concept of constitutional morality is not clearly defined and that it can be used to justify a wide range of actions and decisions, which undermines the principle of predictability and the rule of law.
• Can lead to judicial overreach: If this doctrine is used without limits or restrictions, it could amount to judicial overreach. This can lead to a violation of the separation of powers.
• Subjectivity: Some argue that the concept of constitutional morality is highly subjective and that it can be used to justify different actions and decisions depending on the perspective of the person or institution interpreting it.
• Lack of popular legitimacy: Some argue that constitutional morality is not based on popular consent and is imposed on society in opposition to public morality.
• Selective application: There have been instances where constitutional morality has been selectively applied to certain groups or issues, undermining the principle of impartiality and the rule of law.

What steps can guide towards the effective realization of Constitutional morality?

Some of the steps that can be taken are:

• Providing holistic definition: Defining the meaning of ‘constitutional morality’ could make this a standard, especially in cases where the rights and liberties of individuals are pitted against religious or cultural practices.
• Increasing Objectivity: By setting certain objective standards, the principle of constitutional morality could develop into a more holistic doctrine, such as the ‘Basic Structure Doctrine’.
• Balanced Application: Constitutional morality should be applied in a manner that is consistent with the principles and values of the constitution and that takes into account the specific context and circumstances of a particular situation.
• Active citizenry: Citizens should be encouraged to actively participate in the political process and hold their elected officials accountable.
• Strong oversight institutions: Strong and independent institutions, such as the judiciary and the press, play a vital role in upholding constitutional morality.

What should be the Way Forward for upholding the Constitutional Morality?

• Clear Definition and Understanding:
  • Efforts should be made to establish a clear and comprehensive definition of constitutional morality, providing a solid foundation for interpretation and application.
• Public Awareness and Education:
  • Promoting public awareness and education about constitutional morality is crucial.
  • This includes enhancing civic education, conducting public discussions, and engaging with various stakeholders to foster a deeper understanding of its principles.
• Judicial Restraint and Respect for Separation of Powers:
  • To address concerns about judicial supremacy, there should be a focus on judicial restraint and a respect for the separation of powers.
  • The judiciary should exercise caution in intervening in legislative matters and maintain a balance between upholding constitutional values and respecting the roles of other branches of government.
• Evolving and Adaptive Approach:
  • Constitutional morality should be flexible and adaptive to evolving societal norms, values, and challenges.
  • Courts and institutions responsible for interpreting the constitution should embrace a dynamic approach that considers contemporary issues and developments.

Conclusion

The place and function of morals in the law has always been a focal concern of legal and political philosophers. Morality upheld right over wrong but because of the lack of correct interpretation it differs from person to person.

There may be a tussle between the social morality and constitutional morality as because the social morality upheld and validate the things which are valid from the very long time and on the other hand oppose the other like same sex marriage, adultery etc. but as a wise judge thinks that the society grows with the time and Law should be change and adaptable according to modern needs of the people. It is necessary to differentiate between constitutional morality and social morality.

The concept of constitutional morality was used in an important case of Navtej Singh Johar which employed this concept in an innovative manner to strike down section 377 of the Indian Penal Code and decriminalize homosexuality.

However, this concept appears to have come under severe criticism with Sabarimala Temple Case. There appears to be an agreement among the legal scholars that the concept of constitutional morality remained to be understudied and there is need for a consensus to be reached for defining and applying this concept.

The source of understanding this concept could be the text of the constitution, constituent assembly debates and history of events that took place during the framing of the Indian Constitution.

Mains Questions

Q. Define Constitutional Morality. Describe how it is difficult to maintain the sanctity of Constitutional Morality in ever evolving social order? (250 Words) 15 Marks

Introduction

The primary function of every legislature is to make laws for the citizens of the country. The law making-process always follows a definite procedure, some of them are mentioned in the constitution while others have evolved gradually from conventions. The process of law-making is technical and systematic.

Why Is Law Needed In Any Country?

In Country, law is needed for major reasons: Maintaining order, resolving disputes, protecting rights and liberties and so on. Laws are rules that bind all people living in a country. Law protect our general safety, and ensure our rights as citizens against abuses by other people, by organizations, and by the government itself.

In India, it seems like we have laws, rules, and regulations to oversee just about everything. We don’t always like these rules, since they often mean that someone is telling us what to do, or keeping us from doing what we want. Yet to live in a civil society, we must have some laws to follow.
Where These Laws Come From?

The constitution of India is the supreme law in India. The primary source of law is our constitution and every law either it was central act or state act or any other local act is made according to this important source of law. The constitution lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental rights, directive principle, and the duties of citizens.

The constitution declares India as a secular, sovereign, socialist and democratic republic and ensures its citizens Justice, liberty, equality and promote fraternity. No one, even parliament of India cannot override the constitution.

Every government body either it is Indian parliament or a local government body they have to strictly stick with the constitution and make laws or rules conforming to it. Not a minor infringement is allowed or overlook.

What is the law-making function of the Parliament?

• The Parliament of India, comprising the President, the Rajya Sabha (Council of States) and the Lok Sabha (House of the People), is the supreme legislative body of the country. One of the main functions of the Parliament is to make laws for the country’s governance.
• The law-making process in the Parliament begins with the introduction of a bill and ends with the assent of the President. The Parliament also has the power to amend or repeal any existing law, as well as to delegate its law-making powers to other bodies such as state legislatures or local authorities.

What are the different types of bills that can be introduced in parliament?

Several bills can be introduced in the Indian Parliament:

• Ordinary bills: These are bills that relate to any matter other than financial or constitutional matters. 
  • They can be introduced in the Rajya Sabha or the Lok Sabha, and they follow a prescribed process to become law. (Articles: 107, 108, and 111)
• Financial bills: These are bills that relate to the imposition, abolition, alteration, or regulation of taxes, the borrowing of money, or the appropriation of money from the Consolidated Fund of India. 
  • They can only be introduced in the Lok Sabha, and they follow a prescribed process to become law. (Article: 117)
• Constitutional amendment bills: These are bills that seek to alter the provisions of the Constitution of India. 
  • They must be passed by a special majority in both houses of the Parliament and the legislatures of at least half of the states. (Article: 368)
• Money bills: These are bills that contain only provisions dealing with all or any of the matters specified in the definition of a financial bill. 
  • They can only be introduced in the Lok Sabha and must be passed by it. 
  • The Rajya Sabha can only make recommendations on a money bill, and the Lok Sabha is not bound to accept any of these recommendations. (Articles: 109 and 110).

Table: Classification of Bills (based on the individual who introduces)

What are the stages that an ordinary Bill has to pass through in Parliament to become a law?

Here is a summary of the stages that an ordinary bill has to pass through in the Indian Parliament to become law:

Publication in the Official Gazette
After the assent of the president, the Ministry of Law & Justice will:

1. Publish the Act in Gazette of India Extraordinary.
2. Forward the copies to the all-state government for publication in their official gazette.
3. Get copies of the act in printed form for sale to the General Public.

What is joint sitting, and what are the conditions that call for joint sitting?

A joint sitting of Parliament in India is a session of both houses of Parliament (the Lok Sabha and the Rajya Sabha) sitting together as a single body. 

As per Article 108 of the Constitution, a Joint session of Parliament can be summoned in the following situation:

• When a bill has been passed by one house of Parliament (either the Lok Sabha or the Rajya Sabha) but has been rejected or not returned by the other house within a specified time period. In this case, a joint sitting may be called to resolve the deadlock and allow the bill to be passed.
• When a bill has been passed by both houses of Parliament, but the President has returned it to Parliament for reconsideration. In this case, a joint sitting may be called to reconsider the bill and pass it again, if necessary.

Some of the provisions in joint sitting are:

• Joint sittings are chaired by the Speaker of the Lok Sabha.
• The rules of procedure for a joint sitting are the same as those for the Lok Sabha.
• Quorum for joint sitting is one-tenth of the total members of both houses.
• Joint sittings are typically called only as a last resort when other methods of resolving differences between the two houses of Parliament have failed. 
• They are meant to ensure that important legislation can be passed and that the will of the majority is respected.

Bills so far passed in joint sitting

Since 1950, the provision regarding the joint sitting of the two Houses has been invoked only thrice. The bills passed at joint sittings are

• Dowry Prohibition Bill, 1960.
• Banking Service Commission (Repeal) Bill, 1977.
• Prevention of Terrorism Bill, 2002.

Conclusion

In this Democratic Country, every law which is made is for the benefit of the people and for welfare of the state. In modern era government is trying to be transparent and consultative with the stake holders in law making process. In a Parliamentary form of Government, it is necessary that government should have a clear knowledge, understanding and well written form of the manual procedure for smoothing the process.

Mains Questions

Q. Discuss the importance of law making in a democracy like India? (150 Words) 10 Marks 

Q. Describe how prudence in law making can drastically reduce the work load of judiciary? (150 Words) 10 Marks 

Q. Critically comment on the law making procedure of the Indian Constitution? (150 Words) 10 Marks 

Introduction

The appointment of judges is an important aspect of judicial independence which requires that in administering justice judges should be free from all sorts of direct or indirect influence of political or non political bodies.

The independence for judiciary is very important so that the judges can be impartial and perform their duties effectively and without any sort of fear and favour.

What is the collegium system in the Indian judiciary?

The Collegium system is a system for the appointment and transfer of judges in the Supreme Court and High Court.

• It is not rooted in the Constitution. Instead, it has evolved through judgments of the Supreme Court.
• Under the system, the Chief Justice of India (CJI), along with four senior-most Supreme Court judges, recommends the appointment and transfer of judges.
• A High Court Collegium, meanwhile, is led by the incumbent Chief Justice and the two seniormost judges of that court.
• The government can also raise objections and seek clarifications regarding the Collegium’s choices, but if the Collegium reiterates the same names, the government is bound to appoint them to the post.

Constitutional Provisions for Judicial Appointments

What is the evolution of the collegium system in India? 

The collegium system has its genesis in a series of Supreme Court Judgements:

• S P Gupta Vs Union of India, 1981 (First Judge Case): Supreme Court held that consultation in the process of appointing judges does not require concurrence, and instead only involves the exchange of views.
• Supreme Court Advocates-on-Record Association Vs Union of India, 1993 (Second Judge Case): The Supreme Court reversed it’s previous and altered the definition of consultation to mean concurrence. 
  • It was decided that the advice tendered by the CJI in regard to the appointment of judges to the Supreme Court is binding on the President. 
  • Further, the CJI is required to consult with two of his most senior colleagues before tendering such advice.
• Third Judge Case,1998: Supreme court stated that the consultation process to be adopted by the CJI requires ‘consultation of plurality judges’.
  • The CJI should consult a collegium of four senior most judges of the Supreme Court. Even if two judges give an adverse opinion, they should not send the recommendation to the government.
• National Judicial Appointments Commission (NJAC) Act, 2014: It was brought to replace the existing collegium system for appointing judges.
  • However, a five-judge Constitution Bench declared it as unconstitutional and nullified it, stating that it posed a threat to the independence of the judiciary.

Who heads the Collegium System?

• The SC collegium is headed by the CJI (Chief Justice of India) and comprises four other senior most judges of the court.
• A High Court collegium is led by the incumbent Chief Justice and two other senior most judges of that court.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.

Why is the collegium system criticized?

Some of the criticism against the collegium system are

• Lack of transparency: The collegium system is often criticized for its lack of transparency, as the reasons for the collegium’s decisions are not disclosed to the public. 
• Judicial vacancies: It has struggled to keep up with the stagnant vacancies in the judiciary leading to the pendency of cases.
  • As of August 2022, there are still 3 vacancies in the Supreme Court and 380 vacancies in the High courts.

• Charges of nepotism: There have been allegations of nepotism and favouritism in the collegium system. 
  • The Law Commission in 2009 also noted that nepotism and political privilege was rife in the workings of the collegium system.
• Against the system of checks and balances: The collegium system violates the principle of checks and balances as it ensures the complete exclusion of the executive from the judicial appointment process, which leads to a lack of accountability.
• Lack of representation of women: The collegium system does not ensure adequate representation of women in the judiciary.
  • Example: In the Supreme Court, there are currently four women justices out of the sitting 33. Whereas in High Courts, women judges constitute 11.5%.
• Transfer of judges: Currently, the Supreme Court and the government do not disclose the reason for a transfer of judges. There is a possible threat to judicial independence.

What steps have been taken to improve the process of judicial appointments?

• 99th Constitutional Amendment Act, 2014: It provided for the National Judicial Commission (NJAC) to replace the collegium system for the appointment of judges.
  • However, it was struck down by the Constitutional bench for being violative of the independence of the judiciary.
• Memorandum of Procedure (MoP): The MoP is the list of rules and procedures for the appointment of judges to the Supreme Court and the high courts. It is a document framed by the government and the judiciary together.
  • The Union government framed an MoP on 30 June 1999.
  • The current MoP gives out the detailed procedure for the appointment of Supreme Court and high court judges. 
  • It states that all appointments of judges to the Supreme Court must be recommended by the Collegium, composed of the Chief Justice of India and the four senior-most judges of the Supreme Court. This recommendation is then sent to the central government. The law minister will forward it to the prime minister, who is to advise the President on the appointment.
• Revised MoP: In 2015, the Supreme Court instructed the central government to develop a new MoP to ensure transparency in the collegium’s proceedings. In 2017, although the MoP was finalized, the government did not adopt it, citing a need to reconsider the matter.

Conclusion

• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, and there cannot be a time frame for it. However, it is time to think of a permanent, independent body to institutionalise the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• It should ensure independence, reflect diversity, demonstrate professional competence and integrity.

Mains Questions

Q. Critically Examine the functioning of the Collegium System and its functioning from the perspective of transparency in its functioning? (250 Words) 15 Marks 

Q. The striking down of the NJAC to support the continuation of the Collegium System was a big blow to democracy in India? Do you agree? Substantiate your view point. (250 Words) 15 Marks

History of Federalism in the World

Historically speaking, the earliest form of political organisation was not federal but unitary. But it is the pressure of economic, political and social circumstances which impelled unitary States (generally monarchical) to enter into alliance with other States for meeting common problems, – which initially related to defence. Though there were loose forms of union in the world between States prior to 1787, modern federalism started with the Constitution of the United States (1787), which is regarded as the model of Federal Constitutions.

Federalism in India

The federal scheme in the Constitution of India is adopted from the Government of India Act, 1935. The said Act made an innovation upon several precedents to make a treble enumeration of powers, in order to make it as exhaustive as possible and also to minimize judicial intervention and litigation.

The three legislative lists (I, II and III) respectively enumerated the powers vested in the Federal Legislature, the Provincial Legislature and to both of them concurrently (Section 100).

If however, a matter was not covered by any of the three Lists that would be treated as a residuary power of the Federal Parliament (Section 104) and Section 107 provided for predominance of federal law in case of inconsistency with a Provincial Law, in the concurrent sphere

What is Federalism?

Federalism refers to a system of government in which power is divided between a central authority and various constituent units, such as states or provinces. 

• In India, the constitution divides powers and responsibilities between the central government and the state governments. The division of powers is further enhanced by a third tier of government, the local self-government. 

• Federalism in India allows for both national unity and regional diversity, as it allows the central government to implement policies that apply uniformly throughout the country while also allowing the states to tailor policies to meet the specific needs of their regions.

What are the general characteristics of federalism?

The general features of federalism are

• Division of power: Federalism divides power between a central government and regional governments, with each level having its own specific responsibilities and areas of authority.
• Supremacy of Constitution: Federalism is based on a written Constitution that defines the powers and responsibilities of the central and regional governments and establishes a system of checks and balances to ensure that neither level of government becomes too powerful.
• Independent judiciary: Federalism typically includes an independent judiciary that can interpret the Constitution and resolve disputes between different levels of government.
• Bicameral legislature: Federalism often features a bicameral legislature, with one chamber representing the people and the other representing the regional governments.
• Flexibility: Federalism allows for flexibility in the sharing of powers between central and regional governments and allows for adjustments as circumstances change.

How did federalism evolve in India over time?

Federalism in pre-independent India

The current federal system in India has its roots in the Simon commission report (1930).

• The support for the federal form of government for India gained further strength during the First Round Table Conference in 1930. 
• At the close of the Conference, the British Government officially accepted the principle that the form of the new Government of India was to be an All- India Federation embracing British India and the Princely States.
• Later, the Government of India Act 1935 set forth the major outlines of the federal system of government as finally evolved by the Constituent Assembly which framed the present Constitution of the Republic of India. 
• In the end, the implementation of the provisions of the Act dealing with federalism was never achieved and did not become operative. However, the provisions dealing with the provinces were placed in operation and became effective in 1937.

• The Constituent Assembly which convened in 1946, officially endorsed the principle of federalism as the structure of the new India when it supported the Resolution offered by Pandit Nehru, which supported the idea of a strong autonomous province and relatively weak Centre. 
• Later, this concept was altered upon the recommendation of the Union Powers Committee, which recommended that the residuary powers of Government be vested in the Centre rather than in the States. 

• Therefore, at the time of independence in 1947, India was a highly centralized and unitary state, with the central government holding most powers and the states having very limited autonomy. 

Federalism in post-independent India

The federal structure in post-independent India was dynamic and evolved as per the changing circumstances. 

• In the 1960s and 1970s, federalism in India faced several challenges, including the rise of regional and linguistic identity politics, which led to the creation of new states and the emergence of powerful regional parties. 
• This period also saw the Proclamation of National Emergency and the central government’s intervention in state affairs through the imposition of the President’s rule and the use of financial incentives and sanctions to influence state policy.
• In the 1980s and 1990s, the decentralization of power and the devolution of financial resources to the states became an important policy goal, and several initiatives were undertaken to empower the states and strengthen federalism. The 73rd and 74th Constitutional amendments were an important step in this direction. 
• However, this process has not been without challenges, and there have been tensions between the central and state governments on issues such as revenue sharing and the allocation of resources.
• In recent years, federalism in India has faced additional challenges, including the COVID-19 pandemic, which has highlighted the importance of coordination between the central and state governments in responding to crises and addressing the needs of the people.

What are different Types of Federal Systems?

• Holding Together Federation: In this type, powers are shared between various constituent parts to accommodate the diversity in the whole entity. Here, powers are generally tilted towards the central authority. Example: India, Spain, Belgium.
• Coming Together Federation: In this type, independent states come together to form a larger unit. Here, states enjoy more autonomy as compared to the holding together kind of federation. Example: USA, Australia, Switzerland.
• Asymmetrical Federation: In this type, some constituent units have more powers or special status than others due to historical or cultural reasons. Example: Canada (Quebec), Russia (Chechnya), Ethiopia (Tigray).

What is the significance of Indian federalism?

Indian federalism is significant for several reasons:

• Accommodation of diversity: Federalism in India allows for the accommodation of diversity by giving autonomy to states to govern their own affairs and address their unique needs and concerns.
• Effective governance: A robust federal structure needs to be in place to deliver effective governance and to ensure that the diverse needs and interests of the states are represented in the decision-making process.
• Promotion of democracy: Federalism promotes democracy by ensuring that power is decentralized and shared between different levels of government. This allows for greater participation and representation of citizens in the decision-making process.
• Protection of rights: Federalism allows for more robust protection of individual and minority rights as state governments are better able to address the specific needs and concerns of their diverse populations and can tailor policies and legislation accordingly.

What are the federal provisions under the Indian Constitution?

Indian Constitution establishes dual polity ( Article 1 read with Part V and Part VI) and the division of powers between them ( Article 246 read with the 7th Schedule) . The states have the same authority over the state list during ordinary times as the union has over the union list. Part VI of the Indian Constitution provides for the states of the Indian Union with independent constitutional existence.

What are the unitary features of the Indian constitution?

The Constitution of India has several provisions that have a unitary bias, despite the overall federal structure of the country. Some of these provisions include: 

Why is Indian federalism considered Quasi-federal?

Indian federalism is called a quasi-federal structure because it exhibits features of both federal and unitary systems of government. 

• The Constitution of India has a federal structure as it divides powers between the central government and the state governments. 
• However, it also has certain unitary features that give the central government more power in certain situations.
• This blend of features makes the federal structure of the Indian Constitution more flexible and adaptable as per the needs.
• The Chairman of the Drafting Committee, Dr. Ambedkar, said that “Our Constitution would be both unitary as well as federal according to the requirements of time and circumstances”.

Why there is a Need to Strengthen Federalism?

• Preserving Diversity and Pluralism:
  • Federalism is needed to protect and preserve the diversity and pluralism of India’s society, culture, language, religion, etc. in the face of increasing homogenization and assimilation pressures from the Centre or dominant groups.
• Safeguarding Autonomy and Rights:
  • Federalism is needed to safeguard and enhance the autonomy and rights of the states and other sub-national units in the face of increasing centralization and interference from the Centre or other external forces.
• Improving Quality and Efficiency of Governance:
  • Federalism is needed to improve and ensure the quality and efficiency of governance and service delivery at various levels by empowering and enabling the states and other sub-national units to formulate and implement their own policies and programmes according to their needs and capacities.
• Promoting Balanced and Inclusive Development:
  • Federalism is needed to promote and achieve the balanced and inclusive development and welfare of all regions and sections of India by ensuring equitable and transparent distribution of resources and opportunities among different levels or units of government.
• Fostering Harmony and Cooperation:
  • Federalism is needed to foster and sustain the harmony and cooperation among different levels or units of government by resolving disputes and conflicts through dialogue and consultation rather than confrontation and coercion.

Which Institutions are strengthening Indian Federalism?

• The Supreme Court:
  • It is the apex judicial body of the country and acts as the guardian and interpreter of the Constitution.
  • It has the power to adjudicate disputes between the Centre and the states or among the states.
• • The Interstate Council: It is a constitutional body established under Article 263 of the Constitution to promote coordination and cooperation among the Centre and the states on matters of common interest and concern.
    • It consists of the Prime Minister, Chief Ministers of all states, Chief Ministers of union territories with legislatures and six central ministers nominated by the Prime Minister.
• The Finance Commission
  • It is a constitutional body established under Article 280 of the Constitution to recommend the distribution of revenues between the Centre and the states.
  • It also suggests measures to augment the resources of states and grants-in-aid to states in need.
  • NITI AAYOG: It was established in 2015 to replace the Planning Commission.
  • It acts as a think tank and advisory body for the Centre and the states on matters of economic and social development.
  • It also fosters cooperative federalism by involving states in policy formulation and implementation.
    • It consists of a chairperson (the Prime Minister), a vice-chairperson, a CEO, full-time members, part-time members, ex-officio members (chief ministers of all states and lieutenant governors of union territories) and special invitees.

Conclusion

Federalism originated in the experience gathered from political experiments that not merely defence but a number of other subjects, such as control of foreign affairs, inter-state and foreign commerce, export and import and the like, are matter of national interest which require to be dealt with by a national organisation whereas; other matters such as public order, public health, fire, water and electric supply services, which are the concern of the inhabitants of a particular local area and have problems of their own connected with the exigencies of that particular locality, would be best administered if entrusted to the representatives of that area

Mains Questions

Q. The challenges to Indian Federation lie at the heart of our history? Comment (150 Words) 10 Marks 

Q. Describe the role of various institutions in upholding the spirit of Federalism in India? (250 Words) 15 Marks 

History of Cooperative Federalism in India

Since the ancient period, kingdoms or empires have ruled the Indian subcontinent through a federal policy of non-intervention in local affairs. This policy of non-intervention in local affairs was a practical necessity because natural diversities of the people of the subcontinent were so great that they could only be made a part of a single empire if no or very little effort was made to impose a common set of beliefs.

Successful monarch Akbar understood diversities of the subcontinent and hence ruled through a policy of cooperative Federalism.

Further disintegration of Maurya’s and Mughals is partly attributed to centralized tendencies of monarchs like Jahangir and Aurangzeb. Moreover, after the Revolt of 1857, when the British decided to withdrew their interventionist measures like Doctrine of Lapse and banned the use of greased cartridges of animal fat, the British were simply conforming to a pattern of Government that was already ages old. [2]

Then seeds of Cooperative federalism can be traced right from the Regulating Act of 1773 which set up a system whereby the British Government supervised the work of the East India Company but did not take power for itself. The Government of India Act 1919 provided for a federal India, however superficial, by envisaging a dual form of government called ‘dyarchy.’ The same was sought to be achieved by the Government of India Act, 1935.

From 1946 to 1950, the leaders of India’s Freedom Movement and the founding fathers of the Constitution had the task of drafting the Constitution. The members of the Constituent Assembly aimed to build a united polity out of a highly fragmented and segmented society, which they attempted through strengthening the Union or federal order, by shifting residuary powers to it. 

What is cooperative federalism?

Cooperative federalism is a concept of federalism in which national, state, and local governments increasingly interact cooperatively and collectively to solve common problems.

• The Indian model of federalism is predominantly ‘cooperative’ as laid down by the Supreme Court in State of Rajasthan v. Union of India,1977.
• The most essential precondition for the effective functioning of cooperative federalism is robust institutions and mechanisms for promoting intergovernmental relations.
• The Constitution of India does not explicitly contain the phrase ‘cooperative federalism,’ but the functioning of the Constitution implicitly resulted in ‘cooperative federalism.’
• While India does not entirely mimic a pure federal system, it follows a quasi-federal system of governance. And for a smooth functioning federation, there needs to be cooperation and collaboration between the federal units.
• Sarkaria Commission Report (1988) on Centre-state relations stated that by the middle of the twentieth century, federalism had come to be understood as a dynamic process of cooperation and shared action between two or more levels of government.

What is the need for cooperative federalism in India?

India takes pride in describing itself as the world’s largest democracy, and this democracy is significantly meaningful because it is encapsulated in a federal structure. 

• Promoting social justice: While democracy represents the majority opinion, federalism accommodates and links it to the voice of the minority, lending a flavor of social justice.
• Ensuring accommodation: Cooperative Federalism, along with cultural and ethnic pluralism, has given the country’s political system great flexibility and, therefore, the capacity to withstand stress through accommodation.
• Ensuring stability and growth: In the turbulent circumstances prevailing at that time and in the wake of India’s partition, only a cooperative federal setup could ensure the needs of security, defense, urge for a welfare state, and meeting the situation of economic crisis.
• Contemporary issues: Also, the current trends ( like Covid-19) emphasize cooperation and coordination rather than the demarcation of powers between different levels of government. 

What are the constitutional provisions which uphold the spirit of cooperative federalism?

What are the recent measures to promote cooperative federalism in India?

In recent years, several measures have been taken by the Indian government to promote cooperative federalism. Here are some examples:

NITI Aayog:

• NITI Aayog has been constituted to actualize the important goal of cooperative federalism and to enable good governance in India. 
• Niti Aayog’s Governing Council comprises Chief Ministers of states and Administrators or Lieutenant Governors of Union Territories. 
• NITI Aayog acts as the quintessential platform for the Government of India by bringing States together as ‘Team India’ to work towards the national development agenda.
• It also established models and programmes for the development of infrastructure and to reignite and establish private-public partnership, such as the Centre-state partnership model Development Support Services to States and Union Territories (DSSS) and the Sustainable Action for Transforming Human Capital (SATH) programme.
• Other initiatives include Policy support and capacity development of State/UT functionaries and Launching of the Aspirational Districts Programme for development of backward districts.

Goods and Services Tax (GST): 

• The introduction of the GST in 2017 is considered one of the most significant steps towards promoting cooperative federalism in India. 
• It is a unified tax system that replaced various state-level taxes, creating a common market across the country. 
• The GST Council consisting of representatives from the central and state governments, is responsible for making decisions related to the tax system. 
• This has ensured a high degree of collaboration and cooperation between the central and state governments.

Centrally Sponsored Schemes: 

• Centrally Sponsored Schemes (CSS) are initiatives implemented by the central government in partnership with the state governments.
• Under CSS, the central government provides a significant portion of the funding for the scheme, while the state government is required to contribute the rest.
• The central government also provides guidelines and standards for the implementation of the scheme, while the state government has the flexibility to adapt the scheme to local needs and priorities.
• According to a report by the Ministry of Finance, there are currently 28 CSS in operation, covering a wide range of areas, including rural development, education, health, and skill development. 

What are the factors that hinder cooperative federalism?

• Over-centralization: The Centre enjoys more power than the states, and the most important subjects of the country are listed in the Union List. This often results in conflicts of interest between the Centre and states, as the Centre imposes rules and regulations that many states find discriminatory. For example:
  • Article 356 related to the imposition of the President’s Rule in a state which is frequently prone to misuse by the Centre. 
• Limitations of Inter-state Council: While Article 263  allows the Inter-State Council to make recommendations, It does not empower it to enforce or implement them. 
• Regionalism: A strong feeling of regionalism makes it difficult for the Government to ensure cooperation because regionalism gives rise to secessionist forces, which threaten the very existence and identity of the country.
• Uniform approach: The Centre, while framing policies, fails to take into account the heterogeneity of India. The one size fits all approach doesn’t work in a diverse country like India. This makes cooperation between the centre and the state very difficult.
• Fiscal federalism: One of the major challenges is the unequal distribution of financial resources between the Centre and states. The lack of adequate financial resources can hamper the ability of states to deliver essential services and implement development programs.
• Administrative challenges: This includes issues such as inadequate staffing and training, lack of communication and coordination, and bureaucratic red tape.

What steps could help promote cooperative federalism in India?

Sarkaria and Punchhi Commission

The Sarkaria Commission(1987) and Punchhi Commission(2010) gave several recommendations to cultivate cooperative federalism and suggested actionable steps. Some of them include 

• The office of the Governor should be apolitical, and the terms of his removal should be altered.
• Restricting the use of the President’s rule under Article 356 to prevent excessive misuse by the Centre.
• Extending the mandate of the Inter-State Council beyond advice and recommendations.
• Laying down guidelines to prevent misuse of the President’s veto of the legislation.
• Including states when the Centre enters into any international agreements.

General recommendations

• Strengthening Inter-Governmental mechanisms: Utilizing the constitutional and statutory institutions set up adequately to resolve the conflicts between the union and the state government and further the welfare of the people.
• Promoting fiscal federalism: Promoting fiscal federalism can help in promoting greater fiscal autonomy for state governments, which can in turn help in promoting greater coordination and cooperation between the central government and state governments. 
• Strengthening institutional frameworks: This can be achieved by enhancing the role of institutions such as the NITI Aayog, the Inter-State Council, and the Finance Commission. 
• Regular Inter-Governmental meetings: Regular meetings between the central government and the state governments can help in sharing information, discussing issues of mutual concern, and arriving at a consensus on policy matters.
• Avoiding the ‘One size fits all’ approach: This is crucial for promoting cooperative federalism because it recognizes the diversity of the States in terms of their socio-economic, political, and cultural contexts.
• Empowering local governments: Empowering local governments can help promote cooperative federalism by giving them greater decision-making powers and financial resources. 

How has cooperative federalism helped deal with the COVID-19-induced pandemic in India? 

Intergovernmental cooperation is key to effectively responding to any crisis or disaster like the recent Covid-19 pandemic.

• Health is a subject in the State List, and infectious disease control is a subject in the Concurrent list, and combating the Covid-19 pandemic necessitated a joint effort of the Union and the state governments. 
• The Epidemic Diseases Act 1897 and Disaster Management Act 2005 allowed joint efforts between the central and state governments to control the spread of infectious diseases. 
• The National Disaster Management Authority and State Disaster Management Authorities worked together to achieve the objectives of the DM Act. 
• The virtual conferences between the Prime Minister and the Chief ministers showed a spirit of cooperation at all levels of government. 
• The collaborative efforts towards Covid-19 vaccination have been praised by the UN and WHO. Overall, the pandemic has renewed cooperative federalism in India and promises collaborative governance in the future.

Conclusion

Together We Are More Stronger
Federalism is a concept which needs to be adopted in practice and spirit rather than a letter. In this article, we have analyzed the importance of cooperative federalism since time immemorial and to strengthen it I have some suggestions to give that are as follows:

• To make collaborative federalism work, more institutional reforms are required to eliminate the possibility of manipulation by ad hoc political bargaining or by welfare-reducing strategic behavior by the governments at different levels.
• In an era where the party system is fragmented along federal lines, the need is still felt to include State parties in federal coalitions, even when technically not necessary. The way alliance partners are treated thus becomes an important element in federal functioning.
• State bills should be taken on a priority list for the assent of the President as the speedy procedure of this will foster more cooperation among state and center.
• There should be proper enforceability of decisions in a matter related to water disputes to avoid long-lasting conflicts among states.

Mains Questions

Q. Discuss the various threats to Cooperative Federalism in India? (150 Words) 10 Marks 

Q. It feels that excessive cooperativeness leads to killing of the spirit of competitiveness among the states. Do you agree? (150 Words) 10 Marks 

Federalism In India – Concept

• • Indian federalism refers to the relationship between the state government and the union government.
  • The Indian Constitution establishes the government’s structure. The allocation of legislative, administrative, and executive functions between the union and the states of India is detailed in PART XI of the Indian constitution.
  • However, the word Federalism is absent in the constitution. The Indian government has declared it to be a “Union of States” as the Constitution of India has established the federal structure.
  • The Indian Government model is similar to that of the Canadian Model of government. Since independence, India has adopted the Quasi-Federal Structure.
• 

• Competitive Federalism

  • Following the economic changes of the 1990s, this approach gained traction.
  • When India opened its doors for globalization, there was greater competition for limited resources among the states. As a result, the states are now in a state of imbalance and inequity.
  • Competitive federalism has recently proven to be an effective technique for boosting individual states’ economic development.
  • Competitive federalism is competition between the states and the federal government for economic benefits.
  • The relationship between the federal government and state governments is vertical in competitive federalism, whereas the interaction between state governments is horizontal.
  • States compete with one another to attract finances and investment, resulting in increased administrative efficiency and development initiatives.
  • The union and the states are not required by the constitution to work together on the issues listed in Schedule VII of the constitution. Executives make the decision.
  • This entails states competing in a healthy manner on various social and development indicators.
  • Horizontal component — The “one-size-fits-all” approach is modified to allow states to develop in accordance with their goals and local conditions. Also known as Bottom-Up Methodology.
  • The Indian constitution does not include competitive federalism in its basic structure.
  • E.g.– “Vibrant Gujarat”, “Resurgent Rajasthan” and various indexes evolved by NITI

  Challenges To Competitive Federalism

  1. Despite an increase in Central Tax collection, the states are receiving less money than they expected. As a result, funds for welfare programs have decreased.
  2. The competition among states is widening the gap between developed and developing states.
  3. States like West Bengal, Assam, Bihar, and Orissa are opposed to a uniform financing mechanism because their economies are weaker than those of other states, and they are now requesting specific monies to enhance their economic growth and attract investors. These states need help from the federal government to improve their engagement in competitive federalism.
  4. India’s economic growth and development are not evenly distributed. They vary from one state to the next.
  5. Giving states financial freedom does not guarantee that they would perform as well. Some may be lagging behind in terms of literacy, employment rate, and so on, while others may be able to attract investors into their jurisdiction by using their existing well-developed skilled labour force, capital, infrastructure, and so on.
  6. To put it another way, this leads to unequal economic growth and development of the country.
  7. States with low economic development are unable to participate in competitive federalism considering the aforementioned factors.

• India needs a mix of Competitive and Cooperative federalism

  • There needs to be a mix of competitive and cooperative federalism for India to move ahead.
  • The future for India is cooperative and competitive federalism. Competitive federalism provides the dynamism that needs to be unleashed.
  • We need cooperative federalism to balance competitive federalism.
  • Constitution needed to catch up with economics to “favour integration over granting sovereignty” to promote Indian internal integration.
  • GST which seeks to introduce the concept of one nation-one tax, in order to economically unify the country for the first time, is described this as “pooled sovereignty”, which would bring a big change in the working of federalism in the country.

• NITI AAYOG AND COMPETITIVE FEDERALISM

• NITI Aayog endeavours to promote competitive federalism by facilitating improved performance of States/UTs. It encourages healthy competition among states through transparent rankings, in various sectors, along with a hand-holding approach.

• Some of the indices launched by NITI Aayog are School Education Quality Index, State Health Index, Composite Water Management Index, Sustainable Development Goals Index, India Innovation Index and Export Competitiveness Index. NITI Aayog also releases delta rankings for the performance of Aspirational Districts every month.

  The ranking of States in various social sectors based on quantitative objective criteria encourages them, and even districts, to improve their performance. NITI Aayog works closely with all stakeholders, including the State/UT Governments, concerned Ministries/Departments in developing indicator frameworks, review mechanisms and capacity-building.

• Criticism of Competitive Federalism in India

• The competition among states is widening the gap between developed and developing states. States like West Bengal, Assam, Bihar, and Orissa are opposed to a uniform financing mechanism because their economies are weaker than those of other states, and they are now requesting specific monies to enhance their economic growth and attract investors. These states need help from the federal government to improve their engagement in competitive federalism.
  • India’s economic growth and development are not evenly distributed. They vary from one state to the next.
    Giving states financial freedom does not guarantee that they would perform as well. Some may be lagging behind in terms of literacy, employment rate, and so on, while others may be able to attract investors into their jurisdiction by using their existing well-developed skilled labour force, capital, infrastructure, and so on.
  • A race towards motivated by competition might not be in the best interests of the states. It would incentivize to achieve growth at all costs as a result some negative externalities can be generated. e.g. Tribal displacement, greater level of pollution etc.
  • The ranking framework of the central government has also been put to question by some over the alleged bias towards some states.

• Way Forward

  • Cooperative and competitive federalism are not mutually exclusive. They have the same basic principle underlying i.e. development of the nation as a whole.
  • Cooperative and competitive federalism may be two sides of the same coin as the competition alone cannot give the best results, it is competition with cooperation that will drive the real change.
  • Centre’s support would be required by some states to participate in competitive federalism. Strong states make strong nation and to realize this vision, it requires a “Team India” approach to work for India’s development.
  • The passage of GST Bill does usher in a new era in cooperative fiscal federalism and a growing political consensus for economic reforms.
  • Further, the government’s structural reforms particularly for land and labour, are now widely seen as necessary for realising the potential of the economy.
  • While all policy-makers and economists believe that “true” cooperative federalism is the way forward, they underline the need for the Centre to include states more aggressively in the decision-making process.

• Conclusion

• Competitive federalism is a concept where centre competes with states and vice-versa, and states compete with each other in their joint efforts to develop India and over a broad range issues to provide citizens various services in a hassle-free manner.

  In Competitive federalism the relationship between the Central and state governments is vertical and between state governments is horizontal.

  A type of Competitive federalism is seen in India where states want more funds and perks from the state government for growth. Also states can be involved in International treaties and business deals. They are also trying to woo MNCs to get more FDI.

Mains Questions

Q. Competition among states is okay, but uncontrolled competition can be disastrous as it may give rise to many law and order situations. Elucidate (250 Words) 15 Marks 

Q. In a welfare oriented governance structure, presence of competitive federalism is how far justified? Comment (150 Words) 10 Marks

Introduction

A judiciary is an independent body that is evenhanded, unbiased, and unprejudiced. It functions within the framework of the constitution, defined under the concept of the separation of powers. It interprets the constitution which is supreme and at times needed, supports the rule of law and the standards laid down in the constitution. The Supreme Court of India is considered the sentinel qui vie and protects the fundamental and constitutional rights of the people.

Judicial Activism means the rulings of the court based on political and personal rational and prudence of the Judges presiding over the issue. It is a legal term referring to court rulings based, in part or in full, on the political or personal factors of the Judge, rather than current or existing legislation.

According to Black’s Law Dictionary judicial activism is a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.

Judicial activism in India implies the authority of the Supreme Court and the high courts, but not the subordinate courts, to declare the regulations unconstitutional and void if they breach or if the legislation is incompatible with one or more of the constitutional clauses.

According to SP Sathe , a court giving a new meaning to the provision to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an activist court.

What is meant by Judicial Activism and Judicial Overreach?

• Judicial Activism: Judicial activism refers to the idea that judges should actively interpret and shape the law rather than simply applying it as it is written. 
  • This can involve interpreting the law in a way that expands or limits certain rights or protections or that resolves legal disputes in ways that are not explicitly provided for by the law.

• Judicial overreach: It refers to the situation where a court or judicial body exceeds its legal authority or jurisdiction, typically by making decisions that should properly be made by other branches of government.
  • Judicial overreach can be controversial, as it can lead to conflicts between the different branches of government and can undermine the separation of powers which is an important principle in many democratic systems. 

What are some cases relating to Judicial activism and Judicial Overreach in India?

Examples of Judicial Activism:

• Kesavananda Bharati v. State of Kerala (1973): 
  • In this case, the Supreme Court held that the power of the government to amend the constitution was not unlimited and that there were certain “basic features” of the constitution that could not be amended. This decision established the concept of the “basic structure“.
• Maneka Gandhi v. Union of India (1978): In this case, the Supreme Court held that the right to personal liberty guaranteed by the constitution included the right to travel abroad. 
  • The court also held that the government could not restrict this right without following due process of law.
• Vishaka v. State of Rajasthan (1997): In this case, the Supreme Court issued guidelines for the prevention of sexual harassment at the workplace in the absence of any specific legislation on the issue. 
• National Legal Services Authority v. Union of India (2014): In this case, the Supreme Court recognized the right to self-identify one’s gender and held that transgender persons have the right to be treated as their self-identified gender rather than their assigned gender at birth. 

Examples of Judicial Overreach:

• Shyam Narayan Chouksey v. Union of India (2016): The Supreme Court, in this case, made it mandatory that all the cinema halls in India shall play before the feature film starts.
  • It was argued that this direction goes beyond the Prevention of Insults to National Honour Act 1971, which says that no film, drama or show of any sort can have the National Anthem as part of the show.
• Liquor ban (2017): The Supreme Court, ruling on a Public Interest Litigation(PIL) which was about road safety in 2017 had banned the sale of liquor at retail outlets, as also in hotels, restaurants, and bars, that are within 500m of any national or state highway.
  • These orders were felt to be against the spirit of the separation of powers given by our constitution. It was argued that it was an administrative matter where the decision rested with state governments.
• Arun Gopal v. Union of India (2017): The Supreme Court had fixed timings for setting off fireworks during Diwali and had banned the use of fireworks that are not environmentally friendly, despite there being no legal basis for these restrictions.
• M.C. Mehta v. Union of India (2018): The court declared invalid Rule 115(21) of the Central Motor Vehicle Rules, 1989, by mandating that no BS-4 vehicles can be sold after March 30, 2020, and only BS-6 vehicles can be sold after that date.

What is the significance of Judicial Activism?

Some of the potential merits of judicial activism in India include:

• Protecting individual rights: Judicial activism can help to protect the rights of individuals and minority groups by challenging laws and actions that discriminate against or oppress these groups.
  • Example: The Supreme Court ruling in the Vishakha case(1997) led to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
• Promoting the rule of law: By reviewing and potentially invalidating laws and actions that are deemed to be unlawful or unconstitutional, judicial activism helps to ensure that the government operates within the bounds of the law.
• Strengthening democracy: Judicial activism can help to prevent the abuse of power by the government and promote accountability and transparency in the decision-making process.
• Promoting social change: Judicial activism can help to bring about social change by ruling on cases that address important social issues and by setting legal precedents that shape the direction of future laws and policies.
  • Example: In National Legal Services Authority v. Union of India (2014) the Supreme Court recognized the right to self-identify one’s gender. It led to enacting the Transgender Persons (Protection of Rights) Act, 2019.
• Interpreting the Constitution: Judicial activism can also involve judges interpreting the Constitution and applying it to new situations and issues that were not addressed when it was written. This can help ensure the Constitution remains relevant and responsive to changing circumstances.
• Providing a check on the other branches of government: Judicial activism can serve as a check on the power of the legislative and executive branches, ensuring that they do not exceed their constitutional authority or violate the rights of individuals.
  • Example: In the Keshavananda Bharati case, the Supreme Court held that the power of the government to amend the constitution was not unlimited and that there were certain “basic features” of the constitution that could not be amended.

Why is Judicial Overreach under criticism?

When judicial overreach occurs, it can have the following impacts on the functioning of the state machinery:

• Undermines separation of power: Judicial overreach can undermine the separation of powers and the balance of power among the branches of government. This can lead to a breakdown of the checks and balances essential to maintaining a healthy democracy.
• Delays in the justice delivery system: As the judiciary takes on more responsibilities, it can lead to a backlog of cases and delays in the justice delivery system.
• Overburden on the judiciary: When the judiciary takes on more responsibilities, it can lead to overburden on the judiciary and burnout of judges.
• Lack of accountability: Some argue that when the judiciary takes on more responsibilities, it can lead to a lack of accountability. There may be no clear mechanism for holding the judiciary accountable for its actions.
• Lack of expertise: Judges may not have the necessary expertise or knowledge to make informed decisions on complex policy issues. This can lead to decisions that are not well-informed or that do not take into account all of the relevant factors.
• Can lead to an unstable justice delivery system: Judicial overreach can also create confusion and uncertainty about the law and the role of the courts. 
• Lack of certainty and predictability: When the judiciary makes laws and policy decisions, it can lead to a lack of certainty and predictability in the legal system, making it difficult for individuals and businesses to plan for the future.
• Hampers public trust: Judicial overreach can lead to public mistrust of the courts and the legal system. If the courts are perceived as overstepping their authority or acting in a partisan or biased manner, it can erode public confidence.

What is Judicial Restraint and why is it important?   

Divisional Manager, Aravali Golf v. Chander Hass & Anr. (2007): In this case, the Supreme Court asked the subordinate courts to exercise judicial restraint. It was held that each organ must respect other organs as per the doctrine of separation of powers. The Court also laid down two crucial functions of judicial restraint:

1. To encourage equality among the three branches by minimizing inter-branch interference by the judiciary. 
2. To protect the independence of the judiciary. 

To achieve judicial restraint following steps can be taken:

• Ensuring accountability:  Ensuring that judges are held accountable for their decisions and that they are transparent in their reasoning and methodology. This can be achieved through judicial review.
• Following code of conduct: Judicial codes of conduct and ethics can help to ensure that judges act impartially and adhere to principles of judicial independence and integrity.
• Increasing diversity in the judiciary: Promoting diversity and inclusivity within the judicial system. This can involve ensuring that the makeup of the judiciary reflects the diversity of the community it serves and that judges are selected through a more transparent process.

Conclusion

The concept of judicial activism has both positives and negatives. If the judiciary intervenes too much in the working of other organs of the government and tries to overreach the constitutional powers then this concept of judicial activism loses its importance and essence. Sometimes in the name of activism, the judiciary often rewrites personal views in the name of activism, power separation theory is being overthrown.

Mains Questions

Q. The concept of Judicial Activism has both positives and negatives. Comment (150 Words) 10 Marks 

Q. Define Judicial Overreach. Explain how Judicial Overreach undermines the functioning of the state machinery? (150 Words) 10 Marks 

Introduction

It is the basic postulate under the Indian Constitution that the legal sovereign power has been distributed between the legislature to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.

What is the doctrine of separation of powers? 

Separation of powers is the division of the legislative, executive, and judicial functions of government among separate and independent bodies. 

• The Legislature makes laws, the Executive puts those laws into effect, and the Judiciary administers justice by interpreting the law and ensuring that the law is upheld.
• The purpose of separation is to limit the possibility of arbitrary excesses by the government.
• Separation of powers also prevents misuse of power or accumulation of power in a few hands, which thereby safeguards the society from arbitrary and irrational power of the state.

What is the origin and evolution of the doctrine of separation of powers? 

• The first modern formulation of the doctrine of separation of power was given by the French political philosopher Montesquieu in The Spirit of Laws, 1748. Inspired by the English constitution, Montesquieu argued that liberty is most effectively safeguarded by the separation of powers.
• Later, The United States Constitution gave the doctrine of separation of powers in substance for the very first time where its provisions
  • Article I granted powers to the legislature.
  • Article II gave executive power to the President
  • Article III created an independent judiciary.
• In this spirit, the Constituent Assembly, while drafting the Indian Constitution, debated on inserting the provision ‘There shall be complete separation of powers as between the principal organs of the State-the Legislative, the Executive, and the Judiciary’ as one of the Directive Principles of the State Policies. 
• Finally, Article 50 was inserted, which gave for the State to take steps to separate the Judiciary from the Executive in the public services of the State.

What are the provisions pertaining to the separation of powers between the three organs of state in India? 

The Constitution of India has various implicit provisions for the separation of powers among the legislature, the executive, and the judiciary. However, in most cases, the separation is not water-tight, and there are instances of overlap in functions to ensure checks and balances

Legislature and Executive

            Table on separation of powers between Legislature and Executive

Judiciary and Executive

Table on separation of powers between Judiciary and Executive

Judiciary and Legislature

Table on separation of powers between Judiciary and Legislature

What are the various judicial pronouncements on the doctrine of separation of powers in India?

• Ram Jawaya Kapoor vs State of Punjab (1955): It was held that the Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity, but the functions of the different parts or branches of the government have been sufficiently differentiated. 
• Golak Nath vs State of Punjab (1967): In this case, the judges observed that the three organs of the government are expected to exercise their functions within their limits and keeping in mind certain encroachments assigned by the Constitution.
• Indira Gandhi vs Raj Narain (1975): The Supreme court invalidated a clause of Article 329A inserted to immunize the election dispute to the Office of the Prime Minister from any kind of judicial review. In this case, It is held that the separation of powers is a part of the Basic structure. 
• Kartar Singh vs State of Punjab (1994): It was stated that the function of the legislature is to make the law, the executive is to implement the law, and the judiciary to interpret the law within limits set down by the Constitution.

What are the issues associated with judicial legislation in India?

The term “judicial legislation” refers to the law pronounced, proclaimed, and declared by the judiciary, specifically the Supreme Court. This type of law is sometimes called “judicial law” or “Judge-made law.”

• The Supreme Court in Rattan Chand Hira Chand v. Askar Nawaz Jung (1991) stated, “The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna”.
• Some of the instances of judicial legislation include-
  • The collegium system out of The Second Judges case (1993) and the Third Judges case (1998).
  • Legalizing passive euthanasia in Aruna Shanbaug v. Union of India, (2011). 
  • ‘None Of The Above’ (NOTA) in elections as a Right in People’s Union for Civil Liberties (PUCL) case 2013.
• The Indian Constitution does not strictly follow the doctrine of separation of powers, but the functions of different parts of the government have been differentiated. 
• The judiciary is not supposed to indulge in lawmaking, but there are instances where judicial legislation is justified. 
• Judicial creativity can be justified in certain situations, such as when there is a peculiar issue at hand or when laws enacted need to fulfill the needs of the people. 
• Judges make the law when there is a legal vacuum or no express principles of law. The impact of judge-made law can create credibility and reliability, but it can also create a sense of uncertainty and unwanted strife between the organs of the State. 

Conclusion:

It has been well said by Lord Action:- Power corrupts and absolute power tends to corrupt absolutely. Conferment of power in a single body leads to absolutism. But, even after distinguishing the functions, when an authority wields public power, then providing absolute and sole discretion to the body in the matters regarding its sphere of influence may also cause abuse of such power.

Therefore, the doctrine of separation of powers is a theoretical concept and is impracticable to follow it absolutely. The status of modern state is a lot more different than what is used to be.

It has evolved a great deal from a minimal, non “ interventionist state to an welfare state, wherein it has multifarious roles to play, like that of protector arbiter, controller, provider.

This omnipresence of that state has rendered its functions becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. 

Mains Question

Q. Judicial Legislation goes against the Doctrine of Separation of Powers. Discuss (150 Words) 10 Marks 

Q. What is meant by Doctrine of Separation of Powers? What are the various judgements passed in promoting this doctrine? (250 Words) 15 Marks