Indian Constitution (DAMP)
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Contents
- Describe the procedure of amendment of the Constitution of India under Article 368. Why has this amendment procedure been often criticized?
- Fundamental Duties are not enforceable in the same manner as Fundamental Rights, but they are still essential for the welfare and betterment of both individuals and society. Discuss
- Highlight the constitutional significance of the directive principles of state policy in the Indian polity.
- The Directive Principles, which play a crucial role in the governance of a country, are inherently interconnected with Fundamental Rights, and cannot be viewed independently. Examine
- Explain the significance of Article 32 of the Indian Constitution in ensuring the fundamental rights of citizens. How has this article been interpreted by the courts over the years?
- What are the Rights within the ambit of Article 21 of the Indian Constitution ?
- “Freedom of speech and expression is a cornerstone of a democratic society.” Discuss the significance of this right in the context of Indian democracy.
- “To what extent do Fundamental Rights contribute to the preservation of individual freedoms and democratic values in India? Discuss with reference to landmark judicial decisions.”
- Discuss the meaning of the adjectives “Sovereign, Socialist, Secular, Democratic, Republic” used in the Preamble of the Indian Constitution.
- The Indian Constitution is based on the principle of federalism. Highlight the salient features of the federal systemof government in India.
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Explain the salient features of fundamental rights as enshrined in the Indian Constitution.
- Examine how the balance between Fundamental Rights and Directive Principles of State Policy has been shifted through judicial rulings and constitutional amendments since the inception of the constitution.
- Mention different kinds of writs mentioned in the Indian Constitution and highlight the significance of writs.
- Discuss how the Indian Constitution strikes a balance between flexibility and rigidity through Article 368.
- Examine how the balance between Fundamental Rights and Directive Principles of State Policy has been shifted through judicial rulings and constitutional amendments since the inception of the constitution.
20-04-2023
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Answer :
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Approach to the answer: Introduction: Briefly mention the Constitutional provisions regarding amendment of the Constitution Body: Explain the procedure of amendment of the Constitution of India under Article 368. Give reasons as to why this procedure has been criticized often. Conclusion: Summarizes and concludes on a positive note. |
Answer: The Constitution of India provides for its amendment to adjust itself to the changing conditions and needs. Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure.
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The procedure for the amendment of the Constitution as laid down under Article 368 is as follows: |
- An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in any House of Parliament and not in the state legislatures.
- The bill can be introduced either by a minister or by a private member and does not require 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. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
- If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority.
- After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the President for assent.
- The President must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill to the Parliament for reconsideration.
- After the President’s assent, the bill becomes an Act (i.e., a Constitutional Amendment Act) and the Constitution stands amended in accordance with the terms of the Act.
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Criticism of the Amendment Procedure |
- The power to initiate an amendment to the Constitution lies with the Parliament. The state legislatures cannot initiate any bill or proposal for amending the Constitution except in one case, that is, passing a resolution requesting the Parliament for the creation or abolition of legislative councils in the states.
- A major part of the Constitution can be amended by the Parliament alone either by a special majority or by a simple majority. Only in a few cases, the consent of the state legislatures is required and that too, only half of them.
- The Constitution does not prescribe the time frame within which the state legislatures should ratify or reject an amendment submitted to them. It is also silent on the issue of whether the states can withdraw their approval after the same.
- There is no provision for holding a joint sitting of both the Houses of Parliament if there is a deadlock over the passage of a constitutional amendment bill.
- State ratification is not time bound in nature, thus delaying the passage of the bill.
- The provisions relating to the amendment procedure are too sketchy. Hence, they leave a wide scope for taking matters to the judiciary.
Despite these defects, it cannot be denied that the process has proved to be simple and easy and has succeeded in meeting the changing needs and conditions of society. We have done more than 100 amendments in the constitution to reflect changing social, economic, and political circumstances. That’s why Indian constitution is called as ‘living document’.
19-04-2023
Answer :
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Approach to the answer: Introduction: Write a brief introduction about Fundamental duties. Body: Address the demand by highlighting how FDs are essential for welfare and betterment even after being non-justiciable in nature. Conclusion: Summarizes and concludes on a positive note. |
Answer: Fundamental duties were added to the Constitution through the 42nd Amendment in 1976 and are contained in Article 51A of the Constitution. Fundamental duties are non-justiciable, meaning that they cannot be enforced through the courts. Fundamental duties are an essential component of the Indian Constitution, as they outline the responsibilities that citizens have towards the nation and society.
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Fundamental duties still essential for the welfare and betterment of both individuals and society |
- Though Fundamental duties are not enforceable, it complements fundamental rights and helps in ensuring in their implementation.
- Article 51A (a) mandates every citizen to respect the Constitution and its ideals. By fulfilling this duty, citizens can help to create an environment in which fundamental rights are respected and upheld.
- Article 51A (b) mandates every citizen to cherish and follow the noble ideals that inspired the national struggle for freedom. This includes ideals such as liberty, equality, and fraternity, which are enshrined in the Constitution as fundamental rights.
- Article 51A (e) mandates to promote harmony and the spirit of common brotherhood amongst all the people of India, transcending religious, linguistic, and regional or sectional diversities. This duty is closely related to the fundamental right to equality and non-discrimination under Article 14 of the
- Article 51A(g) of the Constitution mandates that it is the duty of every citizen to protect and preserve the natural environment including forests, lakes, rivers, and wildlife. It contributes to the protection of Article 21, which includes the right to a clean and healthy environment.
Fundamental duties play a crucial role in the implementation of fundamental rights under the Indian Constitution. By promoting a culture of civic responsibility and social harmony, citizens can contribute to the protection and promotion of individual liberties and freedoms, which are essential for a just and democratic society.
18-04-2023
Answer :
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Approach to the answer: Introduction: Write a brief introduction about DPSP. Body: Address the demand by highlighting the significance with the help of relevant articles of the DPSP. Conclusion: Summarizes and concludes on a positive note. |
Answer: The Directive Principles of State Policy (DPSP) are guidelines or principles that are enshrined in Part IV of the Indian Constitution. The DPSPs lay down the socio-economic and political objectives that the Indian state should strive to achieve to promote the welfare of its citizens. The DPSPs are not enforceable by the courts of law, but they are fundamental in guiding the state policies and the governance of the country.
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The constitutional significance of the DPSP in the Indian polity can be analyzed as follows: |
- Social justice: The DPSP lays down several provisions for ensuring social justice in the country, such as providing equal opportunities and facilities for all citizens, promoting the welfare of weaker sections of society, and protecting the rights of minorities. Articles 38, 39, and 46 of the DPSP deal with issues related to social justice.
- Economic welfare: The DPSP also lays down provisions for promoting economic welfare in the country, such as ensuring equitable distribution of resources, preventing concentration of wealth and means of production, and promoting agriculture and rural development. Articles 39, 40, and 43 of the DPSP deal with issues related to economic welfare.
- Governance: The DPSP also contains provisions related to governance, such as ensuring transparency and accountability in public administration, promoting a decentralized system of governance, and promoting the integrity and sovereignty of the nation. Articles 50, 51, and 51A of the DPSP deal with issues related to governance.
- International relations: The DPSP also lays down provisions related to India’s international relations, such as promoting peaceful relations with other countries, promoting international law and justice, and promoting the ideals of the United Nations. Article 51 of the DPSP deals with issues related to international relations.
The Directive Principles of State Policy serve as a guiding force for the government in shaping policies and legislation that promote the welfare and development of the citizens of India. Although they are not enforceable by any court of law, they are fundamental in the governance of the country and provide a framework for achieving the ideals of a just, equitable and inclusive society.
17-04-2023
Answer :
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Approach: Introduction: Give a short description of Fundamental rights and Directive principles. Body: Write arguments with the help of cases to show how they are interconnected. Examine how both are inter-related to each other and one cannot be isolated from the other. Conclusion: Conclude with striking balance between two by highlighting its importance. |
Answer: The Fundamental right represents the civil and political rights, and the directive principles embody social and economic rights. Fundamental rights are called negative rights as they impose obligations on the state not to encroach on individual liberty. Directive Principles of the constitution are positive rights and impose positive obligations on the state.
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Directive principles and fundamental rights are interconnected: |
- Kerala Education Bill 1958, the SC while affirming the primacy of fundamental rights over the directive principles, qualified complementary nature by pleading for a harmonious interpretation of the two.
- Kesavananda Bharti v. State of Kerala: The fundamental rights and directive principles constitute the “conscience of the constitution” there is no antithesis between the fundamental rights and directive principles, and one supplements the other.
- Integrated scheme: Supreme Court in Golak Nath case emphasized that the fundamental rights and directive principles formed an “integrated scheme” which was elastic enough to respond to the changing needs of society.
- Harmonious relation: The Supreme Court said in State of Kerala v. N.M Thomas, that the Directive Principles and Fundamental rights should be construed in harmony with each other, and every attempt should be made by the court to resolve any apparent inconsistency between them.
- To achieve broader socio-economic goals: In Pathumma v. State of Kerala, the Supreme Court has emphasized that the purpose of the directive principles is to fix certain socio-economic goals for immediate attainment by bringing about a non-violent social revolution.
- SC in Minerva Mills case said that the fundamental rights “are not an end in themselves but are the means to an end.” The end is specified in the directive principles.
- A middle path: In R. Coelho v. state of T.N. SC said that it is the responsibility of the government to adopt a middle path between individual liberty (Fundamental Rights) and public good (Directive Principles).
There should be harmony between fundamental rights and Directive Principles since maintenance of harmony between them is a basic feature to the constitution.
13-04-2023
Answer :
Introduction: Write a brief introduction about Article 32 or write importance of Article 32 in brief.
Body: Address the demand under two headings: 1) Key significance of article 32 and 2) Famous judicial cases related to Article 32.
Conclusion: Summarizes and concludes on a positive note.
Answer: Article 32 of the Indian Constitution provides for the right to constitutional remedies for the enforcement of fundamental rights. It is often referred to as the “heart and soul” of the Constitution because it guarantees citizens the right to approach the Supreme Court directly if their fundamental rights have been violated. The article empowers the Supreme Court to issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari, to any person or authority within the territory of India for the enforcement of such rights.
Key significance of Article 32:
- Protection of Fundamental Rights: Article 32 ensures that citizens have a mechanism to protect their fundamental rights against infringement by the state or its agencies.
- Accessibility of Justice: Citizens can approach the Supreme Court directly through Article 32, which ensures the accessibility of justice, especially for marginalized and vulnerable communities.
- Independence of Judiciary: Article 32 upholds the independence of the judiciary by enabling the Supreme Court to act as a check against the state and its actions.
- Public Interest Litigation (PIL): The interpretation of Article 32 by the Supreme Court has expanded its scope to include the protection of public interest. This has led to the development of PILs as a powerful tool for citizens to seek justice and bring about social change.
- Accountability of the State: Article 32 empowers citizens to hold the state accountable for any violation of their fundamental rights.
- Protection of Democracy: Article 32 ensures the protection of democratic values by enabling citizens to seek legal remedies for any infringement of their fundamental rights.
Famous judicial cases related to Article 32: - Maneka Gandhi vs. Union of India: The Supreme Court held that the right to life and personal liberty under Article 21 cannot be restricted by laws that are arbitrary, unreasonable, or violative of natural justice principles. This case expanded the scope of Article 32.
- ADM Jabalpur v. Shivkant Shukla (1976): This case is also known as the Habeas Corpus case. The Supreme Court held that during the Emergency period, the right to life and personal liberty, which are protected under Article 21 of the Constitution, could be suspended.
- Indira Nehru Gandhi v. Raj Narain (1975): In this case, the Supreme Court held that the right to vote was a fundamental right and that it could be enforced under Article 32 of the Constitution.
The courts have played a significant role in expanding the scope of Article 32 by incorporating new rights such as the right to education, the right to a clean environment, and the right to livelihood under the ambit of fundamental rights. Its broad interpretation by the courts has helped in strengthening the protection of fundamental rights in India.
12-04-2023
Q: What are the Rights within the ambit of Article 21 of the Indian Constitution ?
Answer :
Introduction: Write a brief introduction about Article 21
Body: Highlight various Rights which falls within the ambit of Article 21 of the constitution.
Conclusion: Summarizes and concludes on a positive note.
Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This article ensures the protection of certain fundamental rights to every person in India.
The rights that fall within the ambit of Article 21 include:
- Right to Life: This includes the right to live with dignity, the right to livelihood, the right to shelter, the right to basic amenities, and the right to a healthy environment.
- Right to Personal Liberty: This includes the right to freedom of movement, the right to privacy, the right to a fair trial, the right against unlawful detention, and the right against torture or cruel, inhuman or degrading treatment.
- Right to Education: Although education is not explicitly mentioned in Article 21, the Supreme Court of India has held that the right to education is a fundamental right that flows from Article 21.
- Right to Health: This includes the right to basic medical facilities, the right to emergency medical treatment, and the right to a clean and hygienic environment.
- Right to a Fair Trial: This includes the right to legal aid, the right to a speedy trial, the right to be heard, and the right to a fair and impartial judge.
- Right to privacy: This right protects an individual’s privacy and personal autonomy, including their right to be free from surveillance and intrusion into their personal life.
- Right against torture and inhuman treatment: This right protects individuals from torture, cruel, inhuman, or degrading treatment or punishment.
- Right to livelihood: This right protects an individual’s right to earn a livelihood, including the right to work and the right to fair wages.
- Right to clean environment: This right includes the right to a clean and healthy environment, free from pollution and other environmental hazards.
Article 21 of the Indian Constitution protects the basic rights and freedoms of every individual and ensures that they are not deprived of their life or personal liberty except according to the procedure established by law. The rights enshrined under Article 21 of the Indian Constitution represent a strong commitment to the protection and promotion of fundamental human rights.
11-04-2023
Answer :
Introduction: Write a brief introduction about Article 19.
Body: Highlight contribution of Freedom of speech and expression in Indian democracy.
Conclusion: Summarizes and concludes on a positive note.
The right to freedom of speech and expression is an essential component of Indian democracy. It is enshrined in Article 19(1)(a) of the Indian Constitution, which guarantees to every citizen the right to freedom of speech and expression subject to certain reasonable restrictions.
Significance of this right in the context of Indian democracy:
- Facilitates informed decision-making: Freedom of speech and expression facilitates informed decision-making in a democratic society. It allows citizens to express their opinions and views freely, which is necessary for healthy debate and discussion.
- Promotes accountability: Freedom of speech and expression allows citizens to hold their elected representatives accountable for their actions and decisions.
- Promotes diversity of opinions: Freedom of speech and expression also promotes diversity of opinions and ideas to facilitate healthy debate and discussion.
- Facilitates social change: Freedom of speech and expression allows individuals and groups to raise their voices against social injustices and inequalities.
- Protects dissent: Freedom of speech and expression allows individuals to express their disagreement with the government without fear of retaliation or repression.
- Encouraging innovation and creativity: The freedom of speech and expression enables individuals to express their ideas and thoughts freely, which can lead to new and innovative solutions to societal challenges.
- Reasonable restrictions: While freedom of speech and expression is a fundamental right, it is not absolute and can be subject to reasonable restrictions in the interest of national security, public order, and the protection of other fundamental rights. The Indian Constitution provides for such restrictions under Article 19(2).
The right to freedom of speech and expression is an essential component of Indian democracy. It plays a critical role in promoting accountability, facilitating informed decision-making, promoting diversity of opinions, facilitating social change, and protecting dissent. Thus, freedom of speech and expression is indeed a cornerstone of a democratic society.
10-04-2023
Answer :
Introduction: Write a brief introduction about Fundamental Right.
Body: Highlight various judicial cases which helped in preserving and protecting fundamental Rights.
Conclusion: Summarizes and concludes on a positive note.
Fundamental Rights protecting the individual freedoms and democratic values in the country. They are enshrined in the Indian Constitution and act as a safeguard against any arbitrary actions of the government. These rights ensure that every citizen of India has the right to equality, freedom of speech and expression, the right to life and personal liberty, freedom of religion, and the right to education, among others.
Landmark judicial cases which safeguarded and preserved Fundamental Rights:
- Right to Equality: The Constitution of India guarantees equality before the law and prohibits discrimination on the grounds of religion, race, caste, sex, and place of birth.
- State of Kerala v. N. M. Thomas (1976): Right to equality is not merely a negative right but also a positive right that includes the right to equal opportunities in public employment.
- Navtej Singh Johar v. Union of India (2018): It criminalized consensual sexual acts between adults of the same sex. It recognized the importance of the right to equality and non-discrimination based on sexual orientation.
- Right to Freedom: This category includes freedom of speech and expression, freedom of assembly, freedom of association, freedom of movement, etc.
- Maneka Gandhi v. Union of India (1978): Right to life and personal liberty under Article 21 of the Constitution includes the right to travel abroad.
- Right to livelihood: The right to livelihood is an integral part of the right to life under Article 21 of the Constitution.
- Olga Tellis v. Bombay Municipal Corporation (1985): The court held that the state cannot deprive a person of their means of livelihood without due process of law.
- Right to Education: Right to education is a fundamental right under Article 21 of the Constitution.
- Mohini Jain vs. State of Karnataka: The court held that the state cannot deny admission to a student in an educational institution solely on the grounds that the student is unable to pay the fees.
- Right Against Exploitation: This category includes the prohibition of trafficking, forced labor, and child labor.
- People’s Union for Democratic Rights v. Union of India (1982): Right to livelihood is a fundamental right under Article 21 and that the government has a constitutional obligation to provide work to every able-bodied citizen.
- Bandhua Mukti Morcha vs. Union of India: The court also held that the state has a duty to provide rehabilitation and relief to bonded laborers.
- Right to Freedom of Religion: This category includes the freedom to profess, practice, and propagate any religion.
- S. R. Bommai v. Union of India (1994): Secularism is a basic feature of the Constitution of India, and any action or law that goes against the principles of secularism is unconstitutional.
- Cultural and Educational Rights: This category includes the right of minorities to establish and administer educational institutions of their choice.
- T. M. A. Pai Foundation v. State of Karnataka (2002): State has a duty to protect the rights of minorities to establish and administer educational institutions.
The judiciary’s role in interpreting and enforcing these rights is crucial to ensuring that citizens of India can exercise their rights without fear or prejudice. These landmark judgments demonstrate how the Fundamental Rights enshrined in the Indian Constitution contribute to the preservation of individual freedoms and democratic values in India.
06-04-2023
Answer :
Introduction: Define preamble or give a brief background of preamble.
Body: Highlight the features of each value in brief, highlight qualitative points.
Conclusion: Summarizes the importance of preamble.
The Preamble of the Indian Constitution highlights the fundamental principles and values. It begins with the words “We, the people of India,” and proceeds to outline the nature of the Indian state as a “Sovereign, Socialist, Secular, Democratic, Republic.” Each of these words represents a key concept that has significant implications for the nature of the Indian state and the rights and freedoms of its citizens.
Meaning of adjectives attached to preamble:
- Sovereign: India is a sovereign nation, which means that it is free from external control and can govern itself without interference from other nations. It signifies that it has its own independent government and can make decisions on matters concerning its citizens without any external intervention. “Sovereign” signifies India’s independence and autonomy in domestic and international affairs.
- Socialist: India is a socialist country, which means that it seeks to promote social and economic equality among its citizens. The state has to work towards eliminating inequality and promoting the welfare of all its citizens. “Socialist” reflects India’s commitment to social justice and equitable distribution of resources.
- Secular: India is a secular country, which means that the state does not promote any religion and treats all religions equally. The Indian Constitution guarantees religious freedom to all its citizens and prohibits discrimination based on religion. “Secular” emphasizes the importance of religious freedom and equality before the law for all citizens.
- Democratic: The Indian Constitution provides for universal adult suffrage and ensures that all citizens have an equal voice in the government through free and fair elections. “Democratic” highlights India’s commitment to the democratic principles of popular sovereignty, freedom of expression, and participation in governance.
- Republic: India is a republic, which means that it has an elected head of state rather than a hereditary monarch. “Republic” signifies India’s commitment to a system of government that is based on elected representatives and the rule of law.
The adjectives attached to preamble represent the fundamental principles that guide India’s governance and provide a framework for promoting the welfare and equality of all its citizens. The Preamble serves as a guiding beacon, inspiring generations of Indians to strive towards a more perfect union.
04-04-2023
Answer :
Introduction: Either define federalism or write about principle of federalism in Indian context.
Body: Highlight salient features of federal system of Government of India.
Conclusion: Summarizes with importance of federalism or else with contribution of federalism in India.
The Indian Constitution is based on the principle of federalism, which means the power to govern is divided between the central government and state governments. The Constitution provides for a clear distribution of powers under schedule 7 between the central government and the state governments, with each having its own set of responsibilities and duties. This ensures a balance of power and helps maintain the integrity and unity of the country while also promoting regional autonomy and diversity.
Salient features of Federal system of Government of India:
- Distribution of powers: The Indian Constitution provides for a clear distribution of powers between the central government and state governments. The central government has exclusive powers in certain areas, such as defense, foreign affairs, and currency, while the state governments have powers over subjects like health, education, and agriculture.
- Dual Government: The federal system of government in India is characterized by a dual government, with both the central government and state governments functioning independently of each other. This allows for greater autonomy and flexibility in decision-making, while also promoting regional diversity and cultural identity.
- Written Constitution: The Indian Constitution is a written document that serves as the supreme law of the land. It lays down the framework for the federal system of government and defines the powers and responsibilities of the central government and state governments.
- Bicameral Legislature: The Indian Parliament consists of two houses – the Rajya Sabha (Council of States) and the Lok Sabha (House of the People). This bicameral legislature ensures that both the central government and state governments have a voice in the legislative process.
- Rigidity of constitution: Special procedures are needed for constitutions amendments. The Constitution is rigid to the point where those provisions dealing with the federal structure (i.e., Centre-state relations and judicial organization) can only be amended by joint action of the Central and state governments.
- Independent Judiciary: The Indian Constitution provides for an independent judiciary, which is essential to uphold the federal structure of the country. The Supreme Court has the power to interpret the Constitution and resolve disputes between the central government and state governments. The federal system of government in India is characterized by a clear distribution of powers, a written Constitution, a bicameral legislature, an independent judiciary, a dual government, and financial autonomy for state governments. These features ensure the efficient administration of the country while maintaining a balance of power between the
central government and state governments.
28-04-2023
Answer :
Fundamental Rights are a set of basic rights that are enshrined in the Constitution of India. These rights are guaranteed to every citizen of India, and they form the cornerstone of a democratic society.
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Salient features of fundamental rights as enshrined in the Indian Constitution: |
- Claim of Citizens against state: Citizens can claim their rights from the state, and the state is obligated to protect and respect those rights.
- Fundamental Rights can be limited by the state for social control within the grounds mentioned in the Constitution. Courts balance individual and societal rights.
- Restriction upon state: Fundamental Rights limit legislative and executive power. Any law or action that violates them is invalid, protecting an area of individual freedom from government interference.
- They are enforceable by court: Constitution under Articles 32 and 226 provides machinery for enforcing Fundamental Rights. Judiciary ensures their speedy and effective enforcement for these rights to be useful.
- Balance between freedom and social control: Fundamental Rights aim for a balance between individual freedom and social control. They are based on a liberal spirit.
- Rights are corelative with duties: Rights and duties are correlative, meaning that the enjoyment of rights comes with corresponding duties towards society and fellow citizens.
The Indian Constitution guarantees six Fundamental Rights to protect individual liberties against arbitrary state actions, promote democracy, and enable citizens to hold the state accountable, with judicial enforcement.
03-10-2023
Answer :
The tension between justiciable Fundamental Rights and non-justiciable Directive Principles of State Policy has sparked conflicts since the Constitution’s inception. Judicial decisions and constitutional amendments have shaped their relationship:
- Champakam Dorairajan Case (1952): Fundamental Rights supreme but amendable. The Supreme Court ruled that if conflicts arise, Fundamental Rights prevail. However, Parliament can amend Fundamental Rights to implement Directives.
- Golaknath Case (1967): Fundamental Rights sacrosanct. The Supreme Court held that Parliament can’t abridge Fundamental Rights for Directive Principles’ implementation.
- 24th and 25th Amendments (1971): Fundamental Rights amendable, laws implementing directives immune. The 24th amendment empowered Parliament to amend any part, including Fundamental Rights. The 25th amendment provided immunity to laws implementing Article 39(b) and 39(c) from challenges under Article 14, 19, and 31, with no judicial review.
- Kesavananda Bharati Case (1973): Acceptance of two directives’ supremacy over certain Fundamental Rights, but preserving judicial review. The undermining of judicial review was deemed unconstitutional.
- 42nd Constitutional Amendment (1976): Supremacy of Directive Principles. Article 31C was amended to give primacy to all Directives over Fundamental Rights under Article 14, 19, and 31.
- Minerva Mills Case (1980): Balanced relationship reinstated. The Supreme Court invalidated the broad supremacy of all Directives, restoring Article 31C’s original form. The balance between Part III and Part IV was deemed integral for the Constitution’s core commitment to social revolution.
Presently, Fundamental Rights hold supremacy over Directive Principles, but Parliament can amend Fundamental Rights to implement Directives without affecting the Constitution’s basic structure.
05-10-2023
Answer :
A writ is an instrument or order of the court using which it directs an individual or official or an authority to do or abstain from doing an act. Articles 32 and 226 of the Indian Constitution provide for the right to constitutional remedies, for the enforcement of fundamental rights. This right is enforced by the higher judiciary through five kinds of writs.
Writs are as followed:
- Habeas Corpus: It means to ‘have the body’. It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of the detention. The writ is considered to be the bulwark of individual liberty against illegal and unjustifiable detention.
• Mandamus: It means ‘we command’ and is a judicial remedy which is in the form of an order from a superior court to any governmental agency, court or public authority to do or forbear from doing any specific act which that body is obliged to do under the law.
• Prohibition: It means ‘to forbid’ and is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. It is an extraordinary prerogative writ of a preventive nature.
• Certiorari: It means to ‘to certify or to be informed’ and is issued by a higher court to a lower court or tribunal to transfer a case pending with the latter to itself or to squash the order of the in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
• Quo Warranto: It literally means ’by what authority or warrant’ and is issued by the court to enquire into the legality of claim of a person to a public office, thereby preventing illegal usurpation of public office by a person.
Significance of the writs can be summarized across the following points:
• Wherever there is a right, there must be a remedy for it. In the absence of the provisions of writs, no one can enforce the fundamental rights granted by the Constitution or guarantee the judicial review of administrative action.
• They are powerful checks against the excesses committed by the State under article 12 of the Constitution. For example, the Supreme Court exercised Certiorari in the case of A.K Kraipak v. U.O.I, in which the selection process was quashed on the ground of bias.
• Using writs, the Judiciary has interpreted many other rights as inseparable adjuncts to fundamental rights. For example, it extended the scope of right to life in Maneka Gandhi v Union of India, 1978.
• Powers of the Supreme Court under Article 32 of the Constitution are limited only to the enforcement of fundamental rights, whereas under Article 226, High Courts can exercise such powers for any other purpose apart from the enforcement of fundamental rights. Thus, legal rights are protected through the enforcement of such writs.
• The writs also uphold the rights of foreigners/foreign companies. In Hongkong & Shanghai Banking Corporation Ltd. V/s Union of India, it was observed that, “Article 226 does not lay down any eligibility criteria based on citizenship of the seeker of the constitutional remedy”.
The importance of writs lies in creating permissible areas of exercise of power, authority and jurisdiction over administrative actions enforced by the State. Thus, writs as Constitutional remedies operate as a check and keep the administration of government within the bounds of law.
06-10-2023
Answer :
Constitutions across the world can be categorized as rigid or flexible. A rigid Constitution is one that requires a special procedure for its amendment, as for example, the American Constitution. A flexible constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution.
The Constitution of India strikes a balance between flexibility and rigidity by providing for different types of amendment procedures, such as:
• Under Article 368, some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each House present and voting, and a majority (that is, more than 50 per cent), of the total membership of each House. E.g. fundamental rights.
• Article 368 also provides for amendment of some other provisions by a special majority of the Parliament and with the ratification by half of the total states. E.g. extent of the executive power of the Union and the states.
• At the same time, some provisions of the Constitution (not U/A 368) can be amended by a simple majority of the Parliament in the manner of ordinary legislative process. E.g. establishment of new states.
Reasons for synthesis of flexibility and rigidity in the Indian Constitution:
• The makers of the Constitution knew there may be some faults or mistakes in the Constitution; they also knew that the Constitution would need modifications according to changing needs of the society. Whenever such mistakes or requirements for modification came to light, they wanted the Constitution to be easily amended. E.g. bringing in Schedule 9 through 1st Constitutional Amendment Act to allow some laws to prevail even if they were contrary to some fundamental rights.
• Further, there were some provisions in the Constitution that were of temporary nature, and it was decided that these could be altered later on once the new Parliament was elected. E.g. abolition of privy purse through 26th Constitutional Amendment Act.
• However, at the same time, the Constitution was framing a federal polity and therefore, the rights and powers of the States could not be changed without the consent of the States.
Some other features such as sovereignty, secularism, unity & integrity etc. were so central to the spirit of the Constitution that the Constitution makers were anxious to protect these from change. These provisions had to be made rigid. These considerations led to different ways of amending the Constitution.
Such a balance makes the Indian Constitution a living document that responds to changing times and ensures an evolving and thriving Indian democracy.
06-10-2023
Answer :
The tension between justiciable Fundamental Rights and non-justiciable Directive Principles of State Policy has sparked conflicts since the Constitution’s inception.
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Judicial decisions and constitutional amendments have shaped their relationship: |
- Champakam Dorairajan Case (1952): Fundamental Rights supreme but amendable. The Supreme Court ruled that if conflicts arise, Fundamental Rights prevail. However, Parliament can amend Fundamental Rights to implement Directives.
- Golaknath Case (1967): Fundamental Rights sacrosanct. The Supreme Court held that Parliament can’t abridge Fundamental Rights for Directive Principles’ implementation.
- 24th and 25th Amendments (1971): Fundamental Rights amendable, laws implementing directives immune. The 24th amendment empowered Parliament to amend any part, including Fundamental Rights. The 25th amendment provided immunity to laws implementing Article 39(b) and 39(c) from challenges under Article 14, 19, and 31, with no judicial review.
- Kesavananda Bharati Case (1973): Acceptance of two directives’ supremacy over certain Fundamental Rights but preserving judicial review. The undermining of judicial review was deemed unconstitutional.
- 42nd Constitutional Amendment (1976): Supremacy of Directive Principles. Article 31C was amended to give primacy to all Directives over Fundamental Rights under Article 14, 19, and 31.
- Minerva Mills Case (1980): Balanced relationship reinstated. The Supreme Court invalidated the broad supremacy of all Directives, restoring Article 31C’s original form. The balance between Part III and Part IV was deemed integral for the Constitution’s core commitment to social revolution.
Presently, Fundamental Rights hold supremacy over Directive Principles, but Parliament can amend Fundamental Rights to implement Directives without affecting the Constitution’s basic structure.