Philosophy of the Indian

Constitution

Past year’s paper analysis and guide

DU, SOL, IGNOU BA HONS. POLITICAL SCIENCE EXAM HELP
Philosophy, Preamble, and features of
Indian Constitution

• 2017
• The Preamble of Indian Constitution is a reflection of its Philosophy,
Comment.
• 2016
• Elucidate and discuss the features of Indian Constitution. To what extent does
preamble reflect these features.
• 2015
• Explain the philosophy of the Indian Constitution.
What do we mean by philosophy of
constitution?
• Political Philosophy behind the constitution

• Conceptual structure of the constitution

• what are the possible meanings of terms used in the constitution such as ‘rights’, ‘justice’,
‘minority’ or ‘democracy’?

• Vision of the constitution

• set of ideals embedded in the constitution.

• Moral and ethical underpinnings of the constitution

• use it to arbitrate between varying interpretations of the many core values in our polity.
Why do we need to understand philosophy
of the constitution?

• To understand the actual meaning of constitutional legal texts/words

• Evaluate the current political practices

• Unearth underlying theme, thought process, real point behind several

of our legal and political practices.
Factors shaping the philosophy
• National Independence movement- anti-colonial movement

• Movements for liberty, equality, justice in other parts of world

• French Revolution
• American Revolution
• Bolshevik Revolution
• Constitution making in other nation states

• Partition, blood bath, communal tension and other socio-economic

contexts during framing of the constitution

• Debate, deliberations of the constituent assembly

How do we know the philosophy of the
constitution?
• Objective resolution

• Preamble

• Debates of constituent assembly

• Reflections of scholars and constitutional experts

• Interpretations of constitution by Judiciary

 Philosophy of the Constitution
• Synthesis of liberalist ideology with communitarian and socialist ideology
• Individual liberty vs socio-economic justice
• Acknowledging group identity- equal status and Freedom to both individual and community

• Political and social transformation

• Universal adult suffrage- political equality
• Directive principle of state policy
• Equality of status, opportunity, equal protection of law, rule of law
• Vision of caste and class less society

• Non-western conception of secularism

• Principled distance but State may intervene both ways in religious matter
• Article 25, and 26 : freedom of religion to individual and community

• Asymmetric Federalism to maintain unity and integrity of nation and to accommodate aspirations
of diversity of federating units
• Deep commitment to protection of rights of minority, and marginalized communities
• Article 26, 29, 30, 46, 6th schedule
Other Features of the Constitution
• Parliamentary form of Government

• Independence of Judiciary

• Division and balance of power

• Detailed procedure and institutional design

References

• Introduction to the Constitution of India : D.D. Basu

• Constitutional Democracy and Government in India: Ruchi Tyagi
• Recommended reading list of DU syllabus for this paper
• Materials available on WWW and you tube videos
 THANK YOU!

GOOD LUCK !
Fundamental Rights
As contained in Indian Constitution

Discussion focussed on CBSE Class 11 syllabus of Political science

What are Fundamental Rights?
• Bill of rights to citizens
• Specifically enshrined in the constitution
• Guaranteed by constitutional provisions
• Can not be taken away easily
• Ensures fundamental human rights i.e. Liberty, freedom, equality, and
dignity
From Where the Concept Came In
• Emantes from the Preamble, which resolves to secure Justice,
equality, and liberty to all Indian Citizen
• England's Bill of Rights,
• United States Bill of Rights,
• France's Declaration of the Rights of Man
Fundamental Rights in Indian Constitution
• Contained in part III of the constitution
• From article 14 to 32
• Right to equality : article 14 to 18
• Right to Freedom : article 19 to 22
• Right against exploitation : article 23 to 24
• Right to freedom of Religion: article 25 to 28
• Cultural & Educational Rights: article 29 to 30
• Rights to constitutional remedies : article 32
Right to Equality
• Article 14 : Equality before law
• Equality before the Law
• Equal Protection of Law

• Article 15 : No discrimination on grounds of religion, race, caste, sex or place of birth

• Article 16 : Equality of opportunity in matters of public employment

• Article 17 : Abolition of Untouchability

• Article 18 : Abolition of titles

Right to Freedom
• Article 19
• Freedom of speech & Expression
• Freedom to assemble, associate, move and reside within India, to practise any profession
• Article 20
• Protection in respect of conviction for offences
• Article 21
• Protection of life and personal liberty
• Article 21 A : Right to Education
• Article 22
• Protection against arrest and detention in certain cases
Right against Exploitation

• Article 23
• Prohibition of traffic in human beings and forced labour

• Article 24
• Prohibition of children in hazardous job
Right to Freedom of Religion
• Article 25
• Freedom of conscience and free profession, practice and propagation of religion
• Article 26
• Freedom to manage religious affairs
• Article 27
• Freedom as to payment of taxes for promotion of any particular religion
• Article 28
• Freedom as to attendance at religious instruction or religious worship in certain educational
institutions
Educational & Cultural Rights
• Article 29
• Rights to Minorities to protect their language, Script, culture, etc
• Article 30
• Right of minorities to establish and administer educational institutions
Right to Constitutional Remedy
• Article 32 :
• right to approach Supreme Court for the enforcement of the rights
• Writs: HC, article 226 and SC-article 32, can issue writs to protect the rights
• habeas corpus
• mandamus
• prohibition
• quo warranto
• certiorari
 Do we have too much or too less of rights?
• Modern constitution such as of South Africa provides extensive array of rights
such as right to dignity, privacy, housing, children’s right, etc
• In that comparison our guaranteed rights are limited
• Some may feel that almost all rights are further limited by multiple conditions put
as proviso attached to each article in part III
• However, SC by its power of Judicial Review, has increased the scope of right to
life under – now right to Education, clean air, shelter, privacy, etc
 Directive Principles of State Policy
• Contained in part IV – article 36 to 51
• Inspired by Irish constitution
• Policy guidelines and aspirational statements set as guidance
• Some directives
• Establishment of welfare state: 38,39,42,43,46,47
• Obligation of state on educational and cultural matter: 45, 49
• Distributive Justice, social control of production: 39
• Right to work ,Living wages for workers: 43
• Uniform civil code : 44
• Nutrition &health: 47
• Educational and economic interests of SC, ST, weaker sections: 46
• Environmental protection: 48A
FR Vs. DPSP
Fundamental Rights Directive Principles

Negative rights: Limits the authority of Positive rights: exhort the government
the state to become ideal welfare state

Protects individual liberty Ensures Socio-economic justice

Conforms to Liberalism Guided by socialist, communitarian,

societarian ideologies

Justiciable – Article 32 and 226 Non-Justiciable

part of ‘Basic Structure 'of the Not Considered as part of ‘Basic

Constitution Structure’

No law required to implement rights Law required to implement Directives

Courts can struck laws contravening FR Court can validate the sanctity of any
law enacted to implement DPSP
FR Vs DPSP: Traversing the legal interpretations
• Champakam Dorairajan case- 1951
• DPSP subordinate/subsidiary to FR
• FR can be amended by parliament
• Golaknath case: 1967
• FR unalterable, sacrosanct
• Amendment Act ‘law’ under 13(2)
• 24th , 25th amendment : 1971
• Parliament had amending power to FR
• Any law to give effect to DPSP contained in 39(b) and 39(c)- distributive justice and social
control of means of production shall be out of judicial review on the ground that it
contravened FR under 14 and 19
FR VS DPSP
• Keshavnanda Bharti case- 1973
• Amendment act within the purview of Judicial Review
• Basic structure doctrine
• Parliament has limited power to amendment
• 42nd amendment- 1976- expanded scope of 31(c)- instead of 39(b) and
39(c) all of part IV –DPSP came in its preview
• But this extension was struck down by Minerva Mill Case-1980
So Where It Finally Lands To?
• FR can be amended by due process of law
• But basic structure of constitution can not be altered by
such amendments
• DPSP 39(b) and 39(c) prevails over FR 14 and 19
• FR and DPSP complements each other, go hand in hand

• By citing DPSP, Judiciary has expanded the scope of FR

• Right to Education: DPSP 45
• Right to pollution free environment : DPSP 47 , 48(A)
• Right to shelter: DPSP 39, 46
• Right to health: DPSP 38,39,41,42,43
• Right to Food: DPSP 47
 RIGHTS
Vs
DIRECTIVE PRINCIPLE
OF STATE POLICY
in
HINGLISH!

Guide on how to approach the probable questions

BA Hons. Pol. Science
Constitutional Govt. and Democracy in India
What is in store?

• Previous year’s questions.

• FR and DPSP as contained in our constitution

• FR vs DPSP

• How conflict between FR and DPSP were interpreted and harmonized by

Judiciary
 Previous year’s questions

• 2017
• Write an Essay on the importance of fundamental rights with special reference to
article 19.
• Notes : right to equality
• 2016
• Do you agree that Directive principles of state policy complements the fundamental
rights ? Give Reasons.
• 2015
• Explain relation between fundamental rights and Directive principles of state policy.
What are Fundamental Rights?
• Bill of rights to citizens
• Specifically enshrined in the constitution
• Guaranteed by constitutional provisions
• Can not be taken away easily
• Ensures fundamental or natural human rights i.e. Liberty, freedom,
equality, and dignity
From Where the Concept Came In
• Emanates from the Preamble, which resolves to secure Justice,
equality, and liberty to all Indian Citizen
• England's Bill of Rights,
• United States Bill of Rights,
• France's Declaration of the Rights of Man
Fundamental Rights in Indian Constitution
• Contained in part III of the constitution
• From article 14 to 32
• Right to equality : article 14 to 18
• Right to Freedom : article 19 to 22
• Right against exploitation : article 23 to 24
• Right to freedom of Religion: article 25 to 28
• Cultural & Educational Rights: article 29 to 30
• Rights to constitutional remedies : article 32
Right to Equality
• Article 14 : Equality before law
• Equality before the Law
• Equal Protection of Law

• Article 15 : No discrimination on grounds of religion, race, caste, sex or place of birth

• Article 16 : Equality of opportunity in matters of public employment

• Article 17 : Abolition of Untouchability

• Article 18 : Abolition of titles

Right to Freedom
• Article 19
• Freedom of speech & Expression
• Freedom to assemble, associate, move and reside within India, to
practise any profession
• Article 20
• Protection in respect of conviction for offences
• Article 21
• Protection of life and personal liberty
• No person shall be deprived of his life or personal liberty except according
to procedure established by law
• Article 21 A : Right to Education
• Article 22
• Protection against arrest and detention in certain cases
Right against Exploitation

• Article 23
• Prohibition of traffic in human beings and forced labour

• Article 24
• Prohibition of children in hazardous job
Right to Freedom of Religion
• Article 25
• Freedom of conscience and free profession, practice and propagation of religion
• Article 26
• Freedom to manage religious affairs
• Article 27
• Freedom as to payment of taxes for promotion of any particular religion
• Article 28
• Freedom as to attendance at religious instruction or religious worship in certain educational
institutions
Educational & Cultural Rights
• Article 29
• Rights to Minorities to protect their language, Script, culture, etc
• Article 30
• Right of minorities to establish and administer educational institutions
Right to Constitutional Remedy
• Article 32 :
• right to approach Supreme Court for the enforcement of the rights
• Writs: HC, article 226 and SC-article 32, can issue writs to protect the rights
• habeas corpus
• mandamus
• prohibition
• quo warranto
• certiorari
 Do we have too much or too less of rights?
• Modern constitution such as of South Africa provides extensive array of rights
such as right to dignity, privacy, housing, children’s right, etc
• In that comparison our guaranteed rights are limited
• Some may feel that almost all rights are further limited by multiple conditions put
as proviso attached to each article in part III
• However, SC by its power of Judicial Review, has increased the scope of right to
life under – now right to Education, clean air, shelter, privacy, etc
 Directive Principles of State Policy
• Contained in part IV – article 36 to 51
• Inspired by Irish constitution
• Policy guidelines and aspirational statements set as guidance
• Some directives
• Establishment of welfare state: 38,39,42,43,46,47
• Obligation of state on educational and cultural matter: 45, 49
• Distributive Justice, social control of production: 39
• Right to work ,Living wages for workers: 43
• Uniform civil code : 44
• Nutrition &health: 47
• Educational and economic interests of SC, ST, weaker sections: 46
• Environmental protection: 48A
FR Vs. DPSP
Fundamental Rights Directive Principles

Negative rights: Limits the authority of Positive rights: exhort the government
the state to become ideal welfare state

Protects individual liberty Ensures Socio-economic justice

Conforms to Liberalism Guided by socialist, communitarian,

societarian ideologies

Justiciable – Article 32 and 226 Non-Justiciable

part of ‘Basic Structure 'of the Not Considered as part of ‘Basic

Constitution Structure’

No law required to implement rights Law required to implement Directives

Courts can struck laws contravening FR Court can validate the sanctity of any
law enacted to implement DPSP
FR Vs DPSP: Traversing The Legal
Interpretations
• Champakam Dorairajan case- 1951
• DPSP subordinate/subsidiary to FR
• FR can be amended by parliament
• Golaknath case: 1967
• FR unalterable, sacrosanct
• Amendment Act ‘law’ under 13(2)
• 24th , 25th amendment : 1971
• Parliament had amending power to FR
• Any law to give effect to DPSP contained in 39(b) and 39(c)- distributive justice and social
control of means of production shall be out of judicial review on the ground that it
contravened FR under 14 and 19
FR VS DPSP
• Keshavnanda Bharti case- 1973
• Amendment act within the purview of Judicial Review
• Basic structure doctrine
• Parliament has limited power to amendment
• 42nd amendment- 1976- expanded scope of 31(c)- instead of 39(b) and
39(c) all of part IV –DPSP- came in its preview
• But this extension was struck down by Minerva Mill Case-1980
So Where It Finally Lands To?
• FR can be amended by due process of law
• But basic structure of constitution can not be altered by
such amendments
• DPSP 39(b) and 39(c) prevails over FR 14 and 19
• FR and DPSP complements each other, go hand in hand

• By citing DPSP, Judiciary has expanded the scope of FR

• Right to Education: DPSP 45
• Right to pollution free environment : DPSP 47 , 48(A)
• Right to shelter: DPSP 39, 46
• Right to health: DPSP 38,39,41,42,43
• Right to Food: DPSP 47
Sources: you may also refer
• Introduction to the Constitution of India : D.D. Basu
• Constitution of India : M. Laxmikanth
• Constitutional Democracy and Government in India: Ruchi Tyagi
• Recommended reading list of DU syllabus for this paper
• Materials available on WWW and you tube videos
 THANK YOU!

GOOD LUCK !
 Changing Nature of
Indian Federalism
भारत के
संघीय ढााँचे का बदलता स्वरूप

इस टॉपिक िर कै से पिखे बेस्ट उत्तर ?

DU, SOL, IGNOU BA HONS. POLITICAL SCIENCE GUIDE
WHAT IS IN STORE
• Analysis of past year’s questions
• Background-constitutional debate
• Asymmetric nature of Indian Federalism
• Changes post 1991
• Answer writing guide
Federalism: Division of Power,
Emergency provisions, 5th & 6th Schedule
• 2017
• How the centre state relation evolved in post 1991 era? Discuss.
• 2016
• Critically examine the strong centre federalism in India.
• Notes: Emergency provisions
• : 5th & 6th schedule
• 2015
• Discuss the asymmetric elements in India’s federal design.
Historical Background
• Demand for provincial autonomy
• Colonial administration was highly centralised
• Persistent demand for provincial autonomy by Congress
• 1919- Montegue Chelmsford Reform – Duarchy
• Govt. of India Act- 1935- federal structure
• Intense debate in constitutional assembly on power to state
• K. Santhanam from Madras said that states are so much dependent on centre and crippled that provinces
would rise in “revolt against the Centre”

• A member from Orissa warned that “the Centre is likely to break” since powers had been excessively
centralised under the Constitution.

• But Nehruji and Ambedkarji strongly supported strong centre

• They and many of the members reasoned at length that only a strong centre could maintain law & order, plan
for the well-being of the country, mobilise the available economic resources, establish a proper
administration, and defend the country against foreign aggression
Asymmetric Nature of Indian Federalism
• More items on union lists
• Parliament much more powerful than state legislature
• Amending power- Art 368
• Can legislate on state subjects – Art. 249, 250,252, 253
• Can change name, boarder, and area of state –Art 3
• Overriding power on concurrent list- Art 246
• Residual power –Art 248
• Emergency provisions- Art 352, 356, 360
• Single constitution, Integrated Judiciary, Election commission, and Audit
Machinery
• Governor
Asymmetric Nature of Indian Federalism..contd
• All India Service
• Appointment of HC Judges, Members Public service commission,
Governor
• More financial resources to centre
• More administrative powers to centre
• Power to direct state –Art 255, 257, 355, 365
• Absolute veto power to President on state legislation- Art 200, 201
• Extra constitutional institutions
• Planning commission/Niti Aayog, NDC, CBI
• Centrally sponsored schemes
Changes Post 1991
• Factors behind the changing trend:
• Rise and importance of Regional/state parties
• Judicial Intervention
• Bommai case- 1994
• Federalism- basic feature of constitution
• Use of article 356 under Judicial Review

• Symptoms of change
• Lesser use of Article 356
• Lesser use of veto on state legislators by President
• Abolition of centralised planning
• More say of states in signing of international treaties
• States allowed to seek FDI directly, make industrial and economic policy
• End of centralised industrial licensing
• State specific welfare schemes
SUMMARY
• Nationalists demanded provincial autonomy, but framed very strong centre
federal structure

• Legislative, administrative, and financial powers are heavily tilted towards

centre

• Till 1980s, because of single party dominance and aspiration for strong
state, Indian state functioned as virtual unitary state.

• But post 1991,in the coalition era and rising importance of regional parties
in central politics, greater political federalism is evident
How to write essay type answers on Federalism?
• Introduction
• Introduce the concept of federalism, uniqueness of Indian federalism- start with historical background
• Centre heavy or asymmetric Indian federal structure: just introduce, no details
• Give a glimpse of your conclusion- finally what you want to say – strong centre federal structure is as per
constitutional design. single party dominance till 1980s made it look even more asymmetric but coalition era
since 1991 allowed regional/state party to be more assertive and demand autonomy for states. This led to
politically greater federal nature of Indian polity

• Body : substance of the answer

• State and explain strong centre features of constitution
• State and explain changing nature of Indian federalism post 1991
• Analysis and Discussion
• Analyse the reasons/factors behind more assertiveness of states and more federal nature of Indian polity in
the coalition era
• Provide your own view – crux of your answer – is current trend good or bad for the country

• Conclusion
• Paraphrase introduction
• State your final view and concluding remarks – more federalist nature of Indian polity post 1991 may be
lauded by many on the ground that it fulfils federal spirit of constitution but weather it is greater federalism or
regionalism or fragmentation of Indian polity is matter of interpretation.
References
• Introduction to the Constitution of India : D.D. Basu
• Constitution of India : M. Laxmikanth
• Constitutional Democracy and Government in India: Ruchi Tyagi
• Recommended reading list of DU syllabus for this paper
• Materials available on WWW and you tube videos
 THANK YOU!

GOOD LUCK !
 Parliament vs Judiciary
Judicial Review Vs. Parliamentary
Sovereignty

इस टॉपिक िर कै से पिखे बेस्ट उत्तर ?

DU, SOL, IGNOU BA HONS. POLITICAL SCIENCE GUIDE
Bone of Contentions
• Judicial Review
• Constitutional Amendments
• Fundamental Rights Vs Directive Principles
• Decisions of speakers
• Due process doctrine

• Appointment of Judges
• 124(2) : Judge of the Supreme Court shall be appointed by the President consultation with such of the Judges
of the Supreme Court and of the High Courts in the States as the President may deem necessary
• Striking down the NJAC Act 2015 by SC

• Emergency under article 356

• Bommai case : 1994 : use of article 356 under Judicial Review

• Autonomy of speakers
• Speaker's decisions were brought under Judicial Review
Constitutional Amendments

• Judicial interpretation of article 13(2), 245, 368

• 13(2): any law which takes away or abridges the fundamental rights shall be void
• 245 : Parliament may make laws for the whole or any part of the territory of India
• 368 : Power of Parliament to amend the Constitution and procedure therefor
• Golaknath case-1967
• Constitutional amendment Act was also ‘’law’’ within purview of 13(2)
• 24th Amendment-1971
• Constitutional Amendments acts passed under article 368 were not ‘’law’’ and hence out of judicial review under 13(2)
• Keshavnanda Bharti case-1973
• Constitutional amendment Act was not ‘’law’’ within purview of 13(2)
• Parliament can amend fundamental rights any other part of constitution provided ‘’basic features’’ of the constitution are
not altered.
• 42nd Amendment -1976
• 368( clause 4,5)- there shall be no limitation of the constituent power of parliament to amend and amendment acts shall be
out of Judicial Review
• Minerva Mill Case-1980
• Struck down article 368 (clause 4,5) – parliament’s amendment power limited by doctrine of ‘’basic features’’
Fundamental Rights Vs Directive Principles

• Golaknath case-1967
• Constitutional amendment Act was also ‘’law’’ within purview of 13(2)
• FR sacrosanct and hence not amendable
• 25th Amendment-1971
• 31 (c ) : Acts passed to implement provisions contained in article 39(b), 39(c) shall not be void on the ground
of contravening FR under article 14, 19, 31
• Keshavnanda Bharti case-1973
• Parliament can amend fundamental rights any other part of constitution provided ‘’basic features’’ of the
constitution are not altered.
• 42nd Amendment -1976
• Acts passed to implement provisions contained in any of directive principles shall not be void on the ground of
contravening FR under article 14, 19, 31
• 44th Amendment -1978
• Abolished FR to property
• Minerva Mill Case-1980
• Struck down article 368 (clause 4,5) – parliament’s amendment power limited by doctrine of ‘’basic features’’
References
• Introduction to the Constitution of India : D.D. Basu
• Constitution of India : M. Laxmikanth
• Constitutional Democracy and Government in India: Ruchi Tyagi
• Recommended reading list of DU syllabus for this paper
• Materials available on WWW and you tube videos
SUPREME COURT OF INDIA
Judicial Review Vs.
Parliamentary Sovereignty

इस टॉपिक िर कै से पिखे उत्तर ?

DU, SOL, IGNOU BA HONS. POLITICAL SCIENCE EXAM HELP
 Analysis of previously asked questions

Constitution of the Supreme court of India

WHAT IS
Role, power, functions, and jurisdiction
IN
STORE? Judicial Review and Basic Structure
Doctrine
Public Interest Litigation and Judicial
Activism
The Judiciary: Supreme Court
• 2017
• Explain in brief power and functions of Supreme court of India with special reference
to Judicial Review.
• Notes : 1. basic structure doctrine
• 2. Judicial activism
• 2016
• How is supreme court of India constituted? Critically examine its role in protecting
basic structure of Indian Constitution.
• 2015
• What is judicial review? How has it impacted upon the relation between parliament
and supreme court.
• Notes : Public Interest Litigation
 Role of
Judiciary in • To interpret the laws made by the Legislatures

Procedural
Democracy
 Article 124 : Constitution of SCI
• 124(1): There shall be a Supreme Court of India constituting of a Chief Justice of India and, not
more than 30 other Judges

• 124(2) :Every Judge of the SCI shall be appointed by the President after consultation with such of the Judges
of the SC and HC as the President may deem necessary for the purpose and shall hold office until he attains
the age of 65 years:

• Collegium system : CJI and 4 senior most judges of SCI recommends Govt. names for
appointment and transfers of SCI and HC Judges
• Outcome of 3 Judges cases between 1981 and 1998
• National Judicial Appointment Commission (NJAC) Act 2014 – struck down by SCI

• 124(3) : Qualifications for appointment as SCI Judge:

(a) at least five years a Judge of a High Court or of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.

• 124(4) : Removal of SCI Judge on the ground of proved misbehaviour or incapacity

• Resolution to such effect passed by each house by special majority
Role and Functions
• FEDERAL COURT

• INTERPRETER AND GUARDIAN OF CONSTITUTION

• Maintain constitutional state
• Fill the gap in electoral politics

• PROTECTOR OF RIGHTS TO CITIZEN

• HIGHEST COURT OF APPEAL

• Not infallible but Final
Jurisdiction of SCI
• Original : article 131
• Federal disputes
• Transfer of cases
• Writ : article 32
• Against infringement of fundamental rights
• Appellate : article 132, 133, 134, 136
• Cases involving substantial question of law or interpretation of constitution
• Civil and criminal cases
• Advisory : article 143
• Propositions of law are binding on subordinate court
• SCI may decline to advise
 • Review by Judiciary of acts passed by
Judicial Legislatures and subordinate legislation
and orders by Executives to decide
Review whether or not those are valid under the
Constitution.
Judicial Review : Constitutional Bases
• 13(2): any law which takes away or abridges the fundamental rights
shall be void

• Article 32: guarantee of constitutional remedy

• Article 131-136: decide on substantial question of law and

interpretation of constitution

• ‘Procedure established by law’ vs ‘Due Process’ doctrine

 Basic Structure Doctrine : Milestone in the Journey of Judicial Review
• Golaknath case-1967
• Constitutional amendment Act was also ‘’law’’ within purview of 13(2)
• FR sacrosanct and hence not amendable
• 24th Amendment-1971
• Constitutional Amendments acts passed under article 368 were not ‘’law’’ and hence out of judicial review
under 13(2)
• 25th Amendment-1971
• 31 (c ) : Acts passed to implement provisions contained in article 39(b), 39(c) shall not be void on the ground
of contravening FR under article 14, 19, 31
• Keshavananda Bharti case-1973
• Constitutional amendment Act was not ‘’law’’ within purview of 13(2)
• Parliament can amend fundamental rights any other part of constitution provided ‘’basic features’’ of the
constitution are not altered.
• 42nd Amendment -1976
• 368( clause 4,5)- there shall be no limitation of the constituent power of parliament to amend and
amendment acts shall be out of Judicial Review
• Acts passed to implement provisions contained in any of directive principles shall not be void on the ground
of contravening FR under article 14, 19, 31
• Minerva Mill Case-1980
• Struck down article 368 (clause 4,5) – parliament’s amendment power limited by doctrine of ‘’Basic Features’’
• Only DPSP under 39(b), 39(c) got primacy over FR 14.19
 PIL and Judicial Activism

• Social Action Litigation or Public Interest Litigation

• Writ on behalf of worst off citizens and for social cause
• Started 1986 : justice P.N.Bhagwati and V.R. Krishna Aiyar

• Judicial Activism
• Seems to encroach upon executive domain
• More exigencies on PIL than settling disputes
• Undermine popular will as expressed by parliament
• Distort balance of power
Pros and cons of Judicial Activism
In favour
• Helped maintain constitutional
state
• Filled gap in electoral politics
• Made executive accountable
Criticism
• Distorted balance of power
• Encroached upon executive domain
• Undermined parliamentary
sovereignty
• ‘Tyranny of the un-elected’
• Created vested interest market for
PIL
• Diverted resources from conflict
resolution
References

• Introduction to the Constitution of India : D.D. Basu

• Constitutional Democracy and Government in India: Ruchi Tyagi
• Recommended reading list of DU syllabus for this paper
• Materials available on WWW and you tube videos
 THANK YOU!

GOOD LUCK !
 Is the Presidential
Assertiveness Reality of Indian
Politics?
इस टॉपिक िर कै से पिखे उत्तर ?
DU, SOL, IGNOU BA HONS. POLITICAL SCIENCE EXAM HELP
 Analysis of past year’s question

Role, position, and powers, of President

WHAT IS
Constitutional provisions allowing
IN discretion to the President
STORE? Instances of assertiveness by the President
of India
Guide on how to write answer on this topic
in university exams
 2017 Critically evaluate role and
position of the President in
the Indian political system.
Past year’s
questions
2015 Is the Presidential
assertiveness reality of
Indian Politics? Explain.
Role, Position, Powers of the President
• President as head of executives
• Article 53: executive power of state is vested in president
• Supreme commander of armed forces
• Appoints all constitutional officials- PM, ministers, Chief Justice, Governor, CAG, CVC, Election commissioners,
members of UPSC, Governors, AG
• As part of Legislature: Legislative functions
• Finally decides disqualification of MP- article 103
• Summoning, addressing, proroguing parliament
• Dissolution of house of people
• Money bill cannot be introduced without his prior sanction
• Grant, withhold assent to bills passed by parliament- Veto power
• Ordinance making power
• Right to get informed on executive and legislative matters by the PM- article 78, and has direct
access to Parliament through messages.
• Emergency powers
• Judicial powers
• Can grant pardons, reprieve, respite, remissions or can suspend, remit, or commute sentences
• Represents the federal system and federation
Presidential Assertiveness: myth or reality?
• Relevant articles:
• 53: The executive power of the Union shall be vested in the President
• 74(1) :There shall be a Council of Ministers with the Prime Minister at the head to aid
and advise the President who shall, in the exercise of his functions, act in accordance
with such advice
• 75(1) : The Prime Minister shall be appointed by the President
• Occasions when president may use his discretion:
• Appointing prime-minister when no party get majority after election
• Accepting advise of dissolution of Lok Sabha by council of minister not commanding
confidence of the house
• Keeping the passed bill pending for his assent
• Public speeches, interviews, without getting it vetted by the govt.
Instances of presidential assertiveness
• 1950s: Dr. Rajendra Prasad: differed on many issues, especially on Hindu code bill and
suggested that president is not entirely bound by advice of council of minister

• 1979- Dr. Neelam Sanjeeva Reddy appointed Charan Singh as Prime minister and accepted his
advise on dissolution of Lok Sabha

• Gaini Jail Singh in 1986 returned the postal bill without giving assent

• 1996: Shankar Dayal Sharma returned two executive orders to the cabinet

• R.K.Narayan
• Twice- in 1997 and 1998- returned proposals of cabinet for imposition of emergency in UP and Bihar
respectively
• he set a new precedent whereby it became mandatory for a person staking a claim to the Prime
Minister's office to produce letters of support from alliance partners.
• Delivered public speeches and interviews not vetted by govt.
Instances of presidential assertiveness…
• 2006: APJ Kalam returned office of profit bill to cabinet

• Pranab Mukherjee
• 2014: refused to sign ordinances on anti-corruption law
• 2017: commuted death sentences of four convicts against the advise of the
cabinet
• Disapproved suggestion to send former West Bengal governor India’s next
ambassador to Myanmar
Is the Presidential assertiveness reality of Indian Politics? Explain.
Ans. Template
• Introduction
•Introduce the constitutional position of president, uniqueness of Indian presidency
•Just state the executive, legislative, judicial, and other powers of president
•State occasions where can use his discretion
•Give a glimpse of your conclusion- finally what you want to say – As head of state president has been assigned
supreme powers in executive, legislative, judicial domain. But except few occasions most of these powers are
exercised by council of minister headed by prime minister. Despite this, successive presidents have asserted
themselves on several occasions, especially during coalition era, making the presidency somewhat enigmatic.
• Body : substance of the answer
• explain role, position, powers of president
• Explain the occasions where presidents may use his powers at his own discretion.
• Provide instances of assertiveness by presidents

• Analysis and Discussion

• Analyse the reasons/factors behind assertiveness of presidents , particularly in the coalition era
• Provide your own view – crux of your answer – is assertive president good or bad for the country

• Conclusion
• Contrary to popular image of Indian president being mere titular head or rubber stamp, presidency has been
provided with few but very significant discretionary power by the constitution. Successive presidents have used
them and other constitutional ambiguities to assert themselves. on those occasions, the Rashtrapati Bhawan
turns into ”silent volcano’” from otherwise the “the sanctuary in the storm”.
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The Indian prime minister
was never ‘first among
equals’
How to tackle this topic in university exams?
DU, SOL, IGNOU BA HONS. POLITICAL SCIENCE EXAM HELP
Is Prime Minister only ‘first among equal’?
• The term "Prime Minister" can mean "primary minister" or "first
minister". In this sense the Prime Ministers may be considered to be
"first among equals“

• But even in England, where this term was used for PM, the role and
position of Prime minister far surpassed the original role envisioned
in its constitution

• Indian PMs traditionally wielded extensive authority and never were

considered merely first among equal.
Relevant articles:

• 74(1) :There shall be a Council of Ministers with the Prime Minister at the
head to aid and advise the President who shall, in the exercise of his
functions, act in accordance with such advice

• 75(1) : The Prime Minister shall be appointed by the President and the other
Ministers shall be appointed by the President on the advice of the Prime
Minister.

• 78 : Duties of Prime Minister as respects the furnishing of information to the

President
Role, Position, Powers of the Prime Minister
• Executive functions :
• As head of union government
• Link between council of minister and president
• Master of union cabinet
• Forms it, manages it, and can dissolve it
• Direct role in appointment of constitutional officials
• Chairman of appointment committee on appointments
• Financial planning and control through budget themes and priorities
• Shapes the foreign policies and international treaties
• Can advise imposition of emergencies and excercises over arching powers during emergencies
• Role of PMO
• Legislative functions:
• As leader of Lok Sabha
• Controls govt. bills as head of cabinet
• As lynchpin between Parliament and executives
• Can advise president for dissolution of the Lok Sabha
• As coordinator of federal governance
• Chairman of inter-state council, NDC, and Niti Aayog
Dilution of Prime ministerial authority in the
coalition era

• May not remain master of council of minister

• Coalition politics may dilute collective responsibilities of council of

minister

• Dilutes the authority of PMO

References

• Introduction to the Constitution of India : D.D. Basu

• Constitutional Democracy and Government in India: Ruchi Tyagi
• Recommended reading list of DU syllabus for this paper
• Materials available on WWW and you tube videos
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