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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