SUBJECT- Indian polity (GSSC)

STREAM: BA. LLB (H)

ACADEMIC YEAR: 2023-2024

SEMESTER: 5th

SUBMITTED BY: SUBMITTED TO:

ESHA SARKAR Mrs. Roshni Mitra

Discuss the nature of constitutionalism in india?

The concept of constitutionalism is a mechanism that provides legitimacy to a democratic

government. It cannot and should not be confused with the legality of the acts of the officials
in a government setup. Constitutionalism is far more important than having a written
Constitution. With some exceptions most of the countries have Constitutions but it in no way
means that they practice constitutionalism. Some of the basic principles developed over time
that embody the concept of constitutionalism are separation of powers, judicial control and
accountable government.

 In India, constitutionalism is considered to be a natural corollary to the fundamental

governance of the country.
 The Constitution of India with the aid of various legislations has developed a detailed
and robust mechanism to put into place administrative mechanisms for the smooth
functioning of the machinery of governance.
 However, due to a variety of factors, the distance between the government and the
governed has been growing with every passing year. The rich are getting richer and
the poor have resigned to their fates, areas which were backward sixty years ago
remain as such.
The concept of constitutionalism has been recognised by the Supreme Court in Rameshwar
Prasad v. Union of India. The Court stated, “The constitutionalism or constitutional system of
Government abhors absolutism – it is premised on the Rule of Law in which subjective
satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”

In IR Coehlo v. State of Tamil Nadu, the Court held that Constitutionalism is a legal principle
that requires control over the exercise of governmental power to ensure that the democratic
principles on which the government is formed shall not be destroyed. Chandrachud, CJ, in
Minerva Mills case observed, – “The Constitution is a precious heritage and, therefore, you
cannot destroy its identity”.
 SUBJECT- Indian polity (GSSC)

STREAM: BA. LLB (H)

ACADEMIC YEAR: 2023-2024

SEMESTER: 5th

SUBMITTED BY: SUBMITTED TO:

ESHA SARKAR Mrs. Roshni Mitra

Discuss the difference between human rights and fundamental rights?
BASIS FOR
FUNDAMENTAL RIGHTS HUMAN RIGHTS
COMPARISON

Meaning Fundamental Rights means the Human Rights are the basic rights that
primary rights of the citizens which all the human beings can enjoy, no
are justifiable and written in the matter where they live, what they do,
constitution. and how they behave, etc.

Includes Basic Rights Only Basic and Absolute Rights

Scope It is country specific. It is universal.

Basic Principle Right of freedom Right of life with dignity

Guarantee Constitutionally guaranteed Internationally guaranteed

Enforcement Enforceable by the court of law. Enforceable by United Nation

Organization.

Origin Originated from the views of Originated from the ideas of civilized
democratic society. nations.
 SUBJECT- Indian polity (GSSC)

STREAM: BA. LLB (H)

ACADEMIC YEAR: 2023-2024

SEMESTER: 5th

SUBMITTED BY: SUBMITTED TO:

ESHA SARKAR Mrs. Roshni Mitra

Discuss the independence of judiciary in India.

The Indian Constitution is the supreme law of the nation, upon which all other laws are based
and to which they must adhere. It is the source of all governmental powers and their various
organs, and they must be used following the criteria and limitations outlined in it. The
constitution establishes a parliamentary system of government in which the administration
and legislature are not strictly separated, but there is a clear distinction between them and the
judiciary. The Indian Constitution mandates the government to “separate the judiciary from
the executive in the state’s public services.”

In accord with both the ideas of constitutional and Parliamentary sovereignty, India’s
constitution uses a variety of mechanisms to protect the independence of the judiciary. Judges
of the Supreme Court and the High Courts have extensive provisions in place to ensure their
independence.

While entering the Supreme Court and the High Courts, judges must swear that they would
faithfully do their responsibilities without fear, favour, love, or ill-will and that they will
protect India’s constitution and laws. This pledge implicitly recognises the notion of
constitutional sovereignty.

In India, the procedure of appointing judges also protects the independence of the judiciary.
The President appoints the justices of the Supreme Court and the High Courts. The President
of India is required under the Indian constitution to make appointments in conjunction with
the highest judicial authorities. Of course, he listens to the Cabinet’s suggestions. The
constitution also specifies the criteria required for such positions.

The Tenure of Judges is guaranteed under the constitution. Judges in the Supreme Court and
the High Courts serve “during good conduct,” not at the President’s pleasure, as other high-
ranking government officials do. They are not subject to the President’s whims. They can
only be removed from office if they are impeached. On a report by both Houses of Parliament
backed by a special majority, a judge can be dismissed for proven misconduct or
incompetence.

Judges’ salaries and allowances are paid from the Indian Consolidated Fund. Furthermore,
even in a financial emergency, Judges of the Supreme Court and High Courts cannot have
their salaries and allowances lowered during their term. Supreme Court justices must retire at
65, whereas High Court judges must retire at 62. Judges with such long tenure can work
impartially and independently.
 SUBJECT- Indian polity (GSSC)

STREAM: BA. LLB (H)

ACADEMIC YEAR: 2023-2024

SEMESTER: 5th

SUBMITTED BY: SUBMITTED TO:

ESHA SARKAR Mrs. Roshni Mitra

Discuss the doctrine of basic structure in india.
The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of
India's constitutional history during the last decade of the 20th century, has reappeared in the
public realm.While setting up the National Commission to Review the Working of the
Constitution (the Commission), the National Democratic Alliance government (formed by a
coalition of 24 national and regional level parties) stated that the basic structure of the
Constitution would not be tampered with. Justice M.N. Venkatachalaiah, Chairman of the
Commission, has emphasised on several occasions that an inquiry into the basic structure of
the Constitution lay beyond the scope of the Commission's work.

According to the Constitution, Parliament and the state legislatures in India have the power to
make laws within their respective jurisdictions. This power is not absolute in nature. The
Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of
all laws. If a law made by Parliament or the state legislatures violates any provision of the
Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires.
This check notwithstanding, the founding fathers wanted the Constitution to be an adaptable
document rather than a rigid framework for governance. Hence Parliament was invested with
the power to amend the Constitution.

Article 368 of the Constitution gives the impression that Parliament's amending powers are
absolute and encompass all parts of the document. But the Supreme Court has acted as a
brake to the legislative enthusiasm of Parliament ever since independence. With the intention
of preserving the original ideals envisioned by the constitution-makers, the apex court
pronounced that Parliament could not distort, damage or alter the basic features of the
Constitution under the pretext of amending it. The phrase 'basic structure' itself cannot be
found in the Constitution. The Supreme Court recognised this concept for the first time in the
historic Kesavananda Bharati case in 1973.[1] Ever since the Supreme Court has been the
interpreter of the Constitution and the arbiter of all amendments made by Parliament.