1. What are the distinct features of a Constitution?
2. The President & his Funct- ions
3. How can the constitution be amended?
4. Anti-Defection Law
5. What are the major commitments of the Constitution of India as incorporated in its Preamble? 6. “Indian Constitution is drawn from different sources.” Establish the point. 7. Identify the nature and methods of Parliamentary control over the Executive in Indian Polity.
8. Explain the concept of Minorities in the Indian Constitution and mention the safeguards provided there in for their protection.
9. Discuss the power privileges and immunities of the Indian Parliament.
10. Explain the relevance of Rajya Sabha in the federal set up of the Indian Parliamentary System.
11. Highlight the significance of the 73rd Amendment to the Constitution of India. 12. Indian Judiciary 13. Supreme Court
14. Jurisdiction of the Supreme court
15. 42nd Amendment
16. Relation between the Union and the States
17. Fundamental Duties 18. Powers of the Governor 19. Sarkaria Commission 20. Public Service Commission 21. Election Commission 22. Finance Commission 23. Contingency Fund
24. Eighth Schedule of the Constitution
25. Family Courts 26. CAT
27. Lok Adalats (LAs) 28. High Court
29. Discuss about the constitutional provision of the ‘no-confidence motion’. 30. 93rd amendment Bill
Answers
1. An analysis of the various definitions of a constitution shows that the constitution has the following distinct features:
Firstly, it refers to a collection of those basic laws which are more sacrosanct than the ordinary laws.
Secondly, the constitution is not entirely written. Though a major part of the constitution is generally available in the form of a written document, certain laws are also based on customs, usages and conventions and form part of the constitution.
Thirdly, the constitution may be created by a special body set up for the purpose or evolved in course of time. Fourthly, the constitution determines the structure of the main organs of government, the distribution of sovereign power between various authorities and the relations between the citizens and various organs of the government.
Fifthly, it contains procedures for its own change which is generally quite different from the procedure for the enactment of ordinary laws. Sixthly, the constitution generally contains a statement of its objectives. Finally, the constitution not only lays down the rights of the citizens, but also specifies the limitations on the authority of the government.
2. The President of India is the head of the Union Executive. The President is elected by indirect election by an electoral college, in accordance with the system of proportional representation of single transferable vote. The electoral college shall consist of elected members of both houses of Parliament, the elected members of the Legislative Assemblies of the States and the elected members of the Legislative Assemblies of the Union Territories of Delhi and Pondicherry.
Qualification for a presid- ential candidate are :
Must be a citizen of India. Must have completed 35
years of age.
Must be qualified to be a member of the Lok Sabha. Must not hold any office
of profit.
The following appointm- ents are made by the President,
The Prime Minister and on his advice other ministers.
Attorney General of India. Comptroller and Auditor-
General of India.
Judges of the Supreme Court and High Courts including the Chief Justice. Governors of States. Lieutenant Governors and Commissioners of Union Territories. Members of Finance Commission.
Members of the Union Public Service Commi- ssion.
Chief Election Commissi- oner and other members of the Election Commiss- ion.
Special officers for the scheduled castes and other tribal areas. The President of India
who is the Supreme Commander of the armed forces has the following powers:
Right to declare war and peace.
Legislative powers which include nomination of 12 members to the Rajya Sabha and 2 Anglo- Indian members to the Lok Sabha.
Right to address the Parliament.
The tenure of the President is five years. The President takes the oath of office before the Chief Justice of India but his letter of resignation should be addressed to the Vice-President of India. The President shall be removed only through impeachment, applicable only for the violation of the Constitution. In case of a dispute related to the Presidential election, only the Supreme Court of India has jurisdiction over it. With regard to vacancy a new President should be elected within six months.
3. Three methods of amendment of different provision of constitution are prescribed in the Article 368 of the constitution. First method of amendment is by a simple majority. Certain other
provisions to be amended requires a majority of not less than two third of the members present and voting in each house. In some other cases besides two third members of both the house present and voting, it must be ratified by the legislatives of the one-half of the states.
4. Anti Defection Law was passed in 1985 as the 52nd Constitutional Amendment with the aim to political defections in India. A member of Parliament or state legislature belonging to a political party shall be disqualified if he voluntarily gives up the membership of his party or vote against the party directive or abstain from voting.
Anti-defection law is added as the 10th schedule of Indian Constitution. The speaker considers the question of disqualification under anti- defection law. The decision of the speaker in anti-defection law is now open to judicial review.
5. The Preamble of the Constitution of India embodies the ideals, aspirations and objectives of the social and political order to which the people of India are committed. The Preamble rests the sovereignty in the people of India which is a socialist, secular and democratic republic. Thus, the head of the nation will be elected, all religions will be respected and the State of India would be a welfare state committed to the ideals of socio-economic justice to be obtained in a democratic way by the rule of law. Commit-
ment is made to political, social and economic justice. And to ensure social, economic and political justice, the Preamble emphasises the need for securing liberty, equality and fraternity for the Indian people. The liberty, would be of thought, expression, beliefs and faith, signifying political freedom and secularism. Equality is sought to be ensured on political, social and economic level thus besides adult franchise there would be equality of status and opportunity. Indivi- dual’s self expression would be allowed freedom but within the limits of the overall objective of national unity and progress.
6. The constitution of India may be said to be a ‘borrowed’ Constitution as its framers have gathered the best features liberally from various sources. The single most important source is the Government of India Act of 1935: the federal scheme, office of the Governor, power of federal judiciary, emergency powers were drawn from this Act. The British practice influenced the law- making procedure, rule of law, single citizenship, besides, of course, basically giving the mode of Parliamentary Government. The U.S. Constitution inspired in independence of judiciary, judicial, funda- mental rights, removal of Supreme and High Court judges.
The Irish Constitution was the source for the Directive Principles, method of
presided elections, nomin- ation of members of Rajya Sabha by the President. From the Canadian Constitution was taken the idea of a federation with a strong Centre, and placing residuary powers with the Centre. The Weimer Constitution of Germany was the source of provisions concerning the suspension of fundamental rights during emergency, while the idea of a Concurrent List was taken from the Australian Constitution. 7. Indian Parliament is vested
with the power to control over the Executive. The Executive is collectively responsible to the Lok Sabha. Thus it is assumed that the working of the Union Government is effectively controlled by the Parliament. However, in practice this control is exercised only in the form of question on adminstration raised during the question hour in the houses of Parliament. Parliament also has control over the revenue and expenditure of the Government. The Executive, cannot impose any tax without legislative sanction. If any tax is imposed without legislative authority, the aggrieved person can obtain his relief from the courts of India. As for expenditure, the pivot of parliamentary control is the Consolidated Fund of India. No money can be issued out of the Consolidated Fund of India unless the expenditure is authorised by an Appropriation Act. In fact, Executive cannot spend the public revenue without parliamentary sanction. The
Policy Resolution of the Parliament are meant as supreme guidelines for the functioning of the executive Government. Parliament also specifies the manner in which certain specific powers constitutionally granted to different authorities is to be exercised.
8. According to the Constitution of India, the concept of Minorities incorporates the groups of people differing from the other in religion, culture and language numerically the majority. Thus there are religious, linguistic and cultural minorities. Religious, cultural and educational safeguards are incorporated in the Constitution to protect all minority groups (religious, cultural and linguistic.) The safeguards are:
i. Right to maintain religious and charitable institutions and manage religious affairs without state interference. ii. Religious and linguistic
minorities may establish and administer their own institutions and avail of state grants without discrimination.
iii. A minority language may be recognised as one of the official language in a State.
iv. Special officer for linguistic minorities to report on their status. Besides these, the state does not discriminate on the basis of religion, culture etc, in manners of public appointment and employment.
9. The Parliament can claim a privilege if (i) the Constitution grants it specifically or (ii) it has been created by a law of the Parliament (iii) it was enjoyed by the lower house on January 26, 1950. More specifically the Parliament enjoys freedom of speech, immunity from court proceeding, freedom from arrest in civil cases within 40 days before and after the session of the Parliament and immunity from liability in respect of Parliamentary papers. The Parliament can punish a person for contempt, can legislate and control the executive. The basic financial function of the parliament relates to the imposition of taxes and expenditure from consolidated funds of India. The Parliament can amend the Constitution but cannot alter its basic structure. The Parliament has internal autonomy to regulate its proceedings and act independently in internal matters.
10. The Rajya Sabha is an indirectly elected body of 250 members under Article 80 of the Constitution, can offer expert opinion on many issues as it consists of more experienced men. It has many legislative and watch dog functions to perform. It provides for additional debating forum and can reduce the legislative time problems faced by the Lok Sabha. It has exclusive power to transfer state legislative powers to the Centre. It can impose emergency in case the Lok Sabha stands dissolved.
It can revise bills, control passing of hasty legislation and interpose reasonable delay on arbitrary functioning of the Lok Sabha. 11. In the year 1994, our parliament enacted a very important constitutional amendment. This amendment was concerned with the Panchayati Raj Institutions (PRIs). As India opted for the planned development of the country, a proper role for the Panchayati Raj Institutions was prepared. This amendment is concerned with the last tier of the three- tier PRI system. In the long- drawn debate of the democratic decentralisation, a major part had been concerned with the financial resources of the Gram Panchayat. The other important factor was the suitable role of the Gram Panchayat in planning process of the area. The present constitutional amendment went for major power delegation to the Gram Panchayat. The Gram Sabha was given full autonomy in the matters of planning as well as some extent of financial self-reliance. One- third of the elected seats in the Gram Panchayat were reserved for the women. The most important fact concerning the Gram Panchayat had been concerning the financial powers. The eleventh Finance Commission has been asked by the President to devise the methods through which the Gram Panchayats could raise their fund as well as the devolution of revenue
resources to them. The other important part of the Amendment is concerned with the constitutionality of the Plan, the Gram Panchayat passes for their local development. As per political scientists, the 73rd Constitutional Amendment is a milestone in the adminis- trative development of the country.
12. One of the greatest legacies of British rule is the Judiciary and the legal set-up in India. An independent judiciary is the very heart of a republic. The foundation of a democracy, the source of its perennial vitality, the condition for its growth, and the hope for its welfare, all lie in that great institution - an independent judiciary. There is a single, integrated judicial system for the Union as well as the States for the administration of both Union and State laws. The judiciary is perhaps the most vital limb of the Government. The sanctity of any constitution rests, to a large extent, on this organ. The Constitution of India provides for an independent judiciary for the country, with the Supreme Court at the apex and High Courts at the State level. The Supreme Court of India is the highest judicial body of the land.
13. Union Parliament has been vested with the power to make laws regulating the constitution, jurisdiction, organisation and powers of the Supreme Court. It now consists of a Chief Justice and 25 other judges. The strength
of the judges of the Supreme Court was initially fixed at eight (including the Chief Justice). Every judge of the Supreme Court is appointed by the President. The judges hold office until they attain the age of 65 years. No minimum age has been prescribed for the appoint- ment as a judge of the Supreme Court of India nor any fixed period of office. In order to be qualified for appointment as a judge of the Supreme Court, a person must be
(a) a citizen of India and (b) either a distinguished
jurist, in the opinion of the President, or
(c) should have been a High Court Judge for at least five years.
An advocate on a State High Court of ten years standing also qualifies for the post. The independence of the Judges of the Supreme Court has been secured by the Constitution in a number of ways. Our Supreme Court possesses larger powers than its American counterpart, in many respects. The law declared by the Supreme Court shall, be binding on all courts within the territory of India.
14. The Supreme Court of India enjoys three types of jurisdiction:
(a) original, (b) appellate and (c) advisory
Besides, the Supreme Court has been constituted as a court of record and has the power to punish for contempt. This is an
extraordinary power which must be used sparingly, but where the public interest demands it, the Court will not shrink from exercising it and imposing punishment even by way of imprisonment in cases where a mere fine may not suffice. The Supreme Court has been conferred powers to direct the transfer of any civil/criminal case from one State High Court to another. As the final appellate court, the Supreme Court can revise the decisions of the High Courts. Likewise, substantial questions of law of general importance pending before State High courts may be taken over by the Supreme Court and disposed of. The Supreme Court enjoys numerous other powers including the power of judicial review. The apex court through its power of judicial review, has ensured that the basic structure of the constitution is in any way vitated.
15. The jurisdiction of the Supreme Court was sought to be severely curtailed by the 42nd Amendment of the Constitution effected in 1976. It is called as ‘the Mini Constitution’. The amending Act is a piece of compreh- ensive legislation containing 59 clauses and touching upon varied constitutional issues.
The drastic impact of the 42nd Amendment Act briefly was:
(a) It narrowed down and fettered the scope for judicial review of ordinary laws.
(b) It devalued the Funda- mental Rights vis-a-vis the Directive Principles. (c) It effectively obviated the
possibility of judicial review of any Act for amendment of the constitution.
(d) It virtually unsettled the original balance between the various organs of the State.
This amendment had in fact effected a mini revolution, whereby Parliament sought to overthrow the supremacy of the Constitution and made itself supreme in its stead. Some of the far-reaching changes introduced by Mrs. Gandhi through this amendment were reversed by the Janata Government, by repealing them (through the 43rd Amendment Act of 1977). Some provisions of the 42nd Amendment, however, still stick (despite the Janata Governments bid to scrap them too), as a result of opposition of the Congress Party in the Rajya Sabha. 16. Despite the unitary characte-
ristics and centralising tendencies, the Indian Constitution is yet a federal constitution of its own kind. India is a diverse society with fundamental underlining unity. The unity of India is firmly based on geography and deeply rooted in history. Criticism has become inevitable, in recent years, that the Union Government by virtue of its dominant position in the economic sphere, has left the States high and dry, and they have to constantly look to the Centre for financial assistance from
time to time. The autonomy of the States having been thus eroded, some of them (especially those ruled by opposition parties) have been fighting hard to alter the picture. They have been pressing for greater autonomy, while demanding for a radical revision of the lopsided financial relations that subsist between the Centre and the States. The welfare activities of the States involving huge expenditure, coupled with recurring natural calamities, do call for an urgent revision of the financial provisions of the Constitution, in the light of the experience of 50 long years of our sovereign existence as a modern state.
17. Fundamental Duties is incorporated as part IV A of the constitution by the 42nd Amendment Act, 1976, based on the former USSR model. Fundamental Duties include ten duties of the citizens towards the State, by which it shall be the duty of every citizen of India.
The ten duties are:
1. to abide by the Constitution and respect the National Flag and the National Anthem; 2. to cherish and follow the
noble ideas which inspired our national struggle for freedom; 3. to protect the sovereignty,
unity and integrity of India;
4. to defend the country; 5. to promote the spirit of
common brotherhood amongst all the people of India;
6. to preserve the rich heritage of our composite culture;
7. to protect and improve the natural environment; 8. to develop scientific
temper and spirit of inquiry;
9. to safeguard public property ;
10. to strive towards