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Subject: Political Science Honours

Semester: One
Paper Title: Constitutional Government and Democracy in India
Core paper II, Paper Code: HPSCR 1021T
MODULE I
Taught by: Prothoma Rai Chaudhuri (PR mam)
Total number of classes allotted: 30
End-semester marks: 40

Course content---
I. The Constituent Assembly and the Constitution (5 classes)
a) Role of the Constituent Assembly in framing the Constitution
b) Philosophy of the Constitution
c) The Preamble
d) Features of the Constitution
II. Organs of Government
a) The Legislature: Parliament---structure and functions, Speaker,
Privileges, Committee system (7 classes)
b) The Executive: President and Prime Minister---powers, position,
inter-relation; Emergency provisions (10 classes)
c) The Judiciary: Supreme Court and High Courts, powers, functions
and jurisdictions; judicial activism (8 classes)
Learning to summarize:---
Page 129, paragraph 1
The decline of the Parliament in India has been accompanied by a
parallel ascendancy of other institutions one of which is the Supreme
Court which because of its ‘organic roots’ has shown, what Bidyut
Chakrabarty and Rajendra Kumar Pandey in their book Indian
Government and Politics have termed as, a ‘remarkable resilience’ in
upholding values of the Indian political system.
Pages 129-130, paragraph 2
As a ‘compromise’ or a ‘halfway mark’ (Chakrabarty and Pandey)
between parliamentary and federal principles a federal court in the
form of the Supreme Court was established in January 1950 as an
apex court, but it was ‘conditioned’ by the ‘functional dynamics’ of
parliamentary sovereignty. Page 131, paragraph 1 Therefore its ability
to protect the Fundamental Rights of the citizens was always subject
to the ‘fetters’ on its power of judicial review.
How to conclude:---
The power of judicial review, although not explicitly mentioned in the
Constitution (Page 142, line 4), is one of vital importance and has in a
way been invented by the courts to preserve the supremacy of the
Constitution as the fundamental law of the land (Page 141, new
section, lines 3, 6, 7). Despite more than half a century of
accommodation and conflict between the principles of parliamentary
sovereignty and judicial review the issue remains unsettled and
continues to evolve in the Indian political system.
Introduction and conclusion interchangeable.
Scope of the power of judicial review not as extensive as in the US
(page 142, second paragraph).
Excessive negation of the power of the Parliament would not bear
well.
Thus instead of ‘due process of law’, more lenient ‘procedure
established by law’.
The amendment debate: law or not???
Article 368(3)---An amendment is not to be regarded as a law under
Article 13.
Article 13(4)---Nothing in this Article shall apply to any amendment
made under Article 368.
Implications?? Article 13(2)---Contentious Right to Property (Article
31 and Article 19[1][f]; need for effecting a ‘social revolution’---
reference to Granville Austin
Shankari Prasad versus Union of India case (1951) [page 143, first
full paragraph]---Challenge to the First Amendment Act of 1951
‘Confinist approach’---modification suggested
Sajjan Singh versus State of Rajasthan case (1965)---Challenge to the
Seventeenth Amendment Act---‘mistakenly noted’ clarification by the
Court
‘Turning point’ (page 143, second paragraph)
GolakNath versus State of Punjab case (1967)---‘highly conservative
position on the amending power’---‘putting a blanket ban on the
amendability of Fundamental Rights’ (page 144, first continuity
paragraph)
Twenty fourth and Twenty Fifth Amendment Acts of 1971
Constitutional validity of these Acts challenged by
Keshavananda Bharathi versus State of Kerala case (1973)---the
Supreme Court trying to find ‘middle ground’ (page 144, first full
paragraph)
‘Innovative’ construction of a ‘fortress’ called the BSD---‘win-win
situation’ in judicial review
Forty second Amendment Act of 1976---its ‘unsavoury provisions’
(page 144, second last line)
Minerva Mills versus Union of India case (1980)---BSD ‘consecrated’
(page 145, first continuity paragraph)
Constitutional validity of the Ninth Schedule questioned in 2005

Explaining Indian Democracy: A Fifty-Year Perspective, 1956-2006


(2008 publication) **See footnote for original publication
Authors: Lloyd I Rudolph and Susanne Hoeber Rudolph
Chapter 8 (name)
The actual struggle between the Supreme Court speaking for a liberal
state and the executive speaking for a more…authoritarian state had
begun…in 1950….One of the principal substantive grounds on which
the battle was fought was the meaning of and limitations on the Right
to Property. The principal formal arena was the amending power of
the Parliament (page 192).
The issue of the scope of Parliament’s authority to amend the
Constitution and its relationship to judicial review and Fundamental
Rights was most seriously joined in the momentous Golak Nath case
decided in 1967 (page 193).
Keshavananda may prove to be India’s Marbury vs Madison by
establishing an acceptable ground for judicial review (page 193).
It legitimized constrained versions of both principles, Parliamentary
sovereignty in the service of state purposes and interests, and judicial
review in the service of fundamental law and a government of laws. It
provided a framework for accommodating a hard and/ or socialist
state with a liberal one…It conceded that legislation and amendments
giving effect to state purposes and interests may take precedence over
Fundamental Rights and a government of laws, provided that the
Court has an opportunity to review their bonafides and compatibility
with the Constitution’s essential features.
The Court continued to resist property being made nominal by
reopening the question of meaningful compensation for property
compulsorily acquired by the state. The twenty-fifth Amendment’s
substitution of the word ‘amount’ for ‘compensation’ did not,
according to Keshavananda, open the way for legislatures to fix
‘arbitrary or illusory’ sums, or lay down irrelevant criteria. Although
Keshavananda represented a retreat from Golak Nath, it clearly
limited Parliament’s amending authority by re-establishing firm
grounds for judicial review (pages 194-195).

Raju Ramachandran (full citation awaited)


Time to bury BSD???
Democracy and constitutionalism have taken firm roots.
BSD proceeds upon a distrust of the democratic process although
democracy itself is a part of the BSD.
Perils of BSD.
Limiting amending power stifles democracy.
Stands in the way of economic and political changes.

Tutorial class exercise


Write a short note on:---(in not more than 250 words)
Significance of the Keshavananda verdict
Answer---
The Keshavananda Bharathi versus State of Kerala verdict of 1973 is,
in the unanimous opinion of all commentators on Indian politics, a
‘landmark’ judgment which turned back existing practices, set new
precedents, and laid the ground for the future course of inter-
institutional relations in India. It forms the apparent high point of the
Parliament-Supreme Court conflict over guardianship of the
Constitution by providing for an ‘untouchable-unamendable’ Basic
Structure Doctrine (Granville Austin, Working a Democratic
Constitution), yet in the opinion of some scholars like Bidyut
Chakrabarty and Rajendra Kumar Pandey in their book Indian
Government and Politics, the verdict represents a ‘middle ground’ by
allowing amendments of Part III of the Constitution, a climb-down
from the excessively rigid Golak Nath verdict of 1967.
Meant to challenge the Constitutional validity of the 24 th and the 25th
Amendment Acts of 1971, the Keshavananda verdict provided a
possibility for having an acceptable ground for judicial review (Lloyd
I Rudolph and Susanne Hoeber Rudolph in Explaining Indian
Democracy, volume 2) in Indian politics by bringing together
legitimized versions of the two conflicting principles of parliamentary
sovereignty and judicial review. However in the years to come, it
actually provoked the Parliament to negate judicial review through the
42nd Amendment Act of 1976 which added sections 4 and 5 to Article
368, and also prominently exposed the top levels of the judiciary to
political manipulations in the form of politicized promotions.
(234 words)

Write a short note on:---


The struggle over ‘stateness’ in India/ Different conceptions of
‘stateness’ in India
Sub-topic: Powers and Functions of the High Courts (pre-existing
institutions, no elaboration required in the Constitution of post-
colonial India)
Article 226---prerogative writs, comparison with analogous powers of
the Supreme Court
Article 215---court of record, and power to punish for contempt of
itself
Article 227---power of superintendence over all lower courts and
tribunals (principle at work)
Article 228---power to transfer cases before itself and settle those

Sub-topic: Jurisdictions of the Supreme Court (SC) of India


Original jurisdiction---
Article 131
Individuals may not be parties to such cases; only between and among
federating units of the Indian state
Not just original but also exclusive; difference with Article 32(2)
here; latter only original but not exclusive
Disputes
a) between the Government of India on one side and one or more
states on the other side
b) between the Government of India and one or more states on the one
side and one or more states on the other side
c) between two or more states
come to the SC under this jurisdiction.
Concentrate on the federal implications of this provision and the role
of the SC as a ‘guardian of the Constitution’.
Take examples and explain.

Appellate jurisdiction---
Several provisions.
Article 132: Constitutional appeal
When the case involves a substantial question of law as to the
interpretation of the Constitution.
Article 133: Civil appeal
When the case involves a substantial question of law of great public
importance
And
In the opinion of the High Court (HC), the said question should be
decided by the SC
Article 134: Criminal appeal
When the HC has on an appeal reversed an order of acquittal of an
accused and sentenced him to death
When the HC has withdrawn for trial before itself any case from a
lower court and has convicted the accused and sentenced him to death
When the HC certifies that the case is fit for appeal to the SC
*Death sentences*
Article 136: Special appeal
Called Special Leave Petition (SLP)
Meant to expand the scope of appeal
Not constrained by the above provisions and their technicalities
Where there has been grave injustice and to redress violation of the
natural principles of justice
Advisory jurisdiction---
Article 143
Only the President can seek such advice
Nature---Different from verdicts and judgements
Impact of this on the status of the SC
Purpose: to ascertain authoritative legal opinion on important matters
Binding on all lower courts
Not binding on government
SC free to decline
Take examples and explain

Sub-topic: Judicial Activism in India


Gradual rise in the aftermath of the Emergency (1975-1977)
Discrediting of the executive and the legislature as organs of the
government, massive violation of rights and freedoms, the infamous
ADM Jabalpur versus Shiv Kant Shukla case of 1976, the violation of
the core Fundamental Right to Life and Liberty (Article 21)
The judiciary as the repository of hope and faith of the common
people
Beginning of its rise to prominence from its initial role as a
conventional law-adjudicator and its relative insignificance as an
unrepresentative organ as distinguished from the sovereign Parliament
as the foremost representative organ of the government in democratic
India
1985 ‘postcard moment’ introducing Public Interest Litigations (PILs)
PILs as a ‘revolutionary phase’ of judicial functioning, momentous
spurt, innumerable such issues, the judiciary seeking to compensate
for the dysfunctional legislature and executive
Flipside of the growth, “pill for every ill”, regular judicial functioning
often flawed and inadequate but this opportunity for ‘excessivism’ or
‘over-activism’ strange phenomenon, critical reactions, threats to
separation of powers, need for regulation and restraint, urged upon by
several Chief Justices of India
Judicial review another aspect of judicial activism
Contest with the Parliament
Core conflict over the Fundamental Right to Property (Articles
19(1)(f) and 31)
Parliament’s legislations to usher in socio-economic transformation,
attempts to introduce land reforms
Violation of Article 13(2)
Series of Constitutional Amendment Acts to reduce the power of the
court to invalidate laws, the Ninth Schedule, height of the conflict in
the 1970s, the Basic Structure Doctrine (BSD) and the battle for
supremacy between the Parliament and the Supreme Court