Size of the Constitution:
- It is the lengthiest Constitution, Very Comprehensive document and includes many matters which could be subject matter of ordinary legislation or administrative action.
- Also, the Constitution makers didn’t want to leave certain matters Subject to doubts, difficulties and Controversies to be handled by future legislation.
- Unlike the United States where in addition to the federal Constitution, each state had its own separate Constitution ·
- The size, diversities and Complexities of Indian Situation also necessitated several special temporary Provisions.
- Not only “Constitution Contain a very Comprehensive Charter of justifiable fundamental rights, it also delineates the limitations under which these must necessarily operate unlike us, where limitation had to be read by the court decisions.
|395 articles||470 articles|
|22 parts||25 parts|
|8 schedule||12 schedules|
Rigidity & Flexibility:
- The Constitution is neither a frozen document nor merely a lengthy legal document but a charter of values and principles, basically a dream of a free, just, and equal society. A dream which is not static or unvarying but is subject to constant renewal as each generation discovers its new founding principles. Almost like a living being, the constitution keeps responding to various situations, circumstances and experiences arising from time to time.
- Our Constitution accepts the necessity of modifications according to changing needs of the society. Secondly, in the actual working of the Constitution, there has been enough flexibility of interpretations. Both political practice and judicial rulings have shown maturity and flexibility in implementing the Constitution. These factors have made our Constitution a living document rather than a closed and static rulebook.
Process of Amendment:
- Article 368 in Part XX of the Indian Constitution deals with the power of the Parliament to amend the constitution and its procedure if requires.
- So, the Parliament is empowered to amend or repeal any provision of the constitution in accordance with the procedure laid down for this purpose.
- However, it was ruled by the Supreme Court in Kesavananda Bharati Case 1973 that the parliament cannot amend those provisions which form the “basic structure” of the Constitution.
Types of Amendment
Article 368 of the Indian Constitution has provided for two types of amendments, that is by a special majority of Parliament and the special majority of parliament along with the ratification of half of the state’s legislatures by a simple majority.
Certain provisions of the Constitution require amendment by a simple majority of each house, that is, a majority of members of each house present and voting (similar to ordinary legislation). These amendments are not considered to be amendments under Article 368.
It clearly means that the amendment of Indian Constitution is possible in three ways:
- Amendment by a simple majority of the Parliament,
- Amendment by a special majority of the Parliament, and
- Amendment by a special majority of the Parliament, and the ratification of half of the state legislatures
This refers to the majority of more than 50% of the members present and voting and it is outside the ambit of Article 368. This is also known as the functional majority or working majority. The simple majority is the most frequently used form of majority in Parliamentary business. When the constitution or the laws do not specify the type of majority needed, the simple majority is considered for voting.
To understand the simple majority, let us consider a situation in Lok Sabha. On a particular day, out of the total strength of 545, 45 were absent and 100 abstained from voting on an issue. So only 400 members were present and voting. Then the simple majority is 50% of 400 plus 1, i.e., 201.
A number of provisions in the Constitution cane be amended by a simple majority of the two houses of Parliament outside the scope of Article 368. These provisions include:
- Admission or establishment of new states.
- Formation of new states and alteration of areas, boundaries or names of existing states.
- Abolition or creation of legislative councils in states.
- Second schedule – emoluments, allowances, privileges and so on of the president, the governors, the speakers, judges etc.
- Quorum in Parliament.
- Salaries and allowances of the members of Parliament
- Rules of procedure in Parliament
- Privileges of the Parliament, its members and its committees.
- use of English language in Parliament
- Number of puisine judges in the Supreme Court.
- Conferment of more jurisdiction on the Supreme Court
- Use of official language
- Citizenship – acquisition and termination
- Elections to Parliament and state legislatures.
- Delimitation of Constituencies
- Union Territories
- Fifth schedule – administration of scheduled areas and scheduled tribes.
- Sixth schedule – administration of tribal areas.
All types of majorities other than the absolute, effective or simple majority are known as the special majority. A special majority are of 4 types, with different clauses.
The two most significant provisions that can be changed by a special majority are the Fundamental Rights and Directive Principles of State Policy (DPSP), however, any changes must stay within the constraints of the Basic Structure of the Constitution.
- Type 1 – Special Majority as Per Article 249.
- Type 2 – Special Majority as per Article 368.
- Type 3 – Special Majority as per Article 368 + 50 per cent state ratification by a simple majority.
- Type 4 – Special Majority as per Article 61.
Special Majority as Per Article 249
Special majority as per article 249 requires a majority of 2/3rd members present and voting. For example, if out of the 245 members in Rajya Sabha, only 150 are present and voting, then the special majority required as per article 249 would be 101.
Cases where special majority as per article 249 is used:
- To pass the Rajya Sabha resolution to empower the parliament to make laws in the state list. (Valid up to 1 year but can be extended any number of times).
Special majority as per article 368
It requires a majority of 2/3rd members present and voting supported by more than 50% of the total strength of the house. This type of majority is used for most of the Constitutional amendment bills. To pass a constitution amendment bill in Rajya Sabha, in addition to getting the support of 123 members, the bill should be favoured by more than 2/3rd of the members present and voting.
Cases where special majority as per article 368 is used:
- To pass a constitutional amendment bill which does not affect federalism.
- Removal of judges of SC/HC.
- Removal of CEC/CAG.
- Approval of a national emergency requires a special majority as per Article 368 in both houses.
Special Majority as Per Article 368 Plus State Ratification
This type of special majority is required when a constitutional amendment bill tries to change the federal structure. Special majority as per article 368 plus state ratification requires a majority of 2/3rd members present and voting supported by more than 50% of the state legislatures by a simple majority.
Cases where special majority as per article 368 plus state ratification is used: To pass a constitutional amendment bill which affects federalism like the position of High Court Judges.
Special majority as per article 61 requires a majority of 2/3rd members of the total strength of the house. In Lok Sabha, the special majority as per article 61 is 364 while in Rajya Sabha, the special majority as per article 61 is 164.
Cases where special majority as per article 61 is used: For the impeachment of the President
Procedure for Amendment:
- An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament and not in the state legislature.
- The bill does not require the prior permission of the President for introduction in the Parliament.
- The bill shall be presented by a minister or a private member.
- The bill must be passed in each house by a special majority i.e., the majority of the total membership of the house and the majority of two third of members of the house present and voting.
- Each house must have to pass the bill separately and there is no provision for joint sitting if any case of disagreement arises between the two houses.
- If the bill seeks to amend the federal feature of the constitution, it must also be ratified by half of the state legislature with a simple majority.
- After duly passed by both houses and ratified by the states (if required), the bill is presented to the president for his assent.
- The President can neither withhold nor return the bill for the reconsideration purpose of the parliament. Hence, the President must have to give his assent to the bill.
- After the assent of the President, the bill will become an Act.
Indian Constitution is called a living Document:
- The earliest mention of the Constitution as “living document” comes from Wilson’s book Constitutional Government in the United States in which he wrote: ‘Living political constitutions must be Darwinian in structure and in practice.’ Therefore, the Constitution should be viewed not merely as law but also as a source of foundational concepts for the governing of society.
- Role of Judiciary: Judiciary has played an important role in not only saving the essence of the Constitution but also in its evolution.
- Basic structure Doctrine: Propounded in the famous Kesavananda Bharati Case, 1973 it restricts the Parliament from altering the essential features of the Constitution or what the Supreme Court termed as the Basic Structure. Basic structure includes various Constitutional ideals such as secularism, rule of law, federalism etc.
- Transformative nature of the Constitution: The courts, at various point of time, have brought transformative changes through a broad reading of our Constitution. Courts have regularly included various rights under the existing Fundamental Rights to suit the changing times. For example, the Supreme Court in its landmark judgment in Justice Puttaswamy Case recognised Right to Privacy as a part of Fundamental Rights under Article 21.
Criticism of Amendment Procedure in India:
- No Special Body: There is no provision for a special body to change the Constitution, such as a Constitutional Convention (as in the United States) or a Constitutional Assembly.
- Exclusive to Parliament: The Parliament has the authority to propose a constitutional modification. Except in one situation, when passing a resolution seeking the creation or elimination of legislative councils in the states, state legislatures are unable to introduce any bill or proposal to modify the Constitution.
- States have no power to ratify or reject amendments: The Constitution makes no provision for the state legislatures to ratify or reject an amendment that is presented to them. It is also silent on the question of whether nations can revoke their permission after giving it.
- No joint Sitting: If there is a deadlock over the passage of a constitutional change bill, there is no provision for a joint sitting of both Houses of Parliament.
- Similar process as Ordinary law making: The procedure for amending a document is comparable to the procedure for enacting legislation. The constitutional amendment legislation must be carried by Parliament in the same way as other laws, with the exception of the special majority requirement.
- Room for judicial intervention: They give a lot of room for the courts to intervene.
BR Ambedkar: “The Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution by denying the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and conditions as in America or Australia but has provided for a facile procedure for amending the constitution.
KC Where: Indian constitution ‘strikes a good balance between flexibility and rigidities.
Pandit Nehru: While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in a constitution. There should be certain flexibility. If you make any Constitution rigid and permanent, you stop the nation’s growth, the growth of a living, vital, organic people’.
Parliamentary VS Presidential system:
A parliamentary system, also known as parliamentarianism (and parliamentarism in U.S. English), is distinguished by the executive branch of government being dependent on the direct or indirect support of the parliament, often expressed through a vote of confidence.
Federal or Unitary:
- In Unitary Constitution, all powers are vested in the Central government to which the authorities in the units are Subordinate and function and function as the agents of the govt at the Centre and exercise authority by delegation from the Centre.
- In a federal polity, usually there is a rigid, written Constitution, it must be supreme, and it must specifically divide powers between the federal govt and government of limits. In fact, in Classical federation, the federal government only those powers that are by agreement surrendered to it by the units. Also, there must be an Independent SC as the arbiter of Union and States.” any dispute between the union and states.
Indian Constitution is called Quasi-Federal
- Not Unitary: because of distribution of power between Union and State.
- Not Federal: because Power Vest in Union, such as emergency provisions, enactment of laws in state list by the center article 249
Reason for Unique Unitary Federal mix:
- Constitutional history
- Sheer size
- Complex Diversities
In the Constituent assembly, BR-Ambedkar tried to explain the significance of using the term Union of States rather than Federation of States.
- Indestructible Federation: Though Country and people may be divided into different States for Convenience of Administration, the Country is One integral Whole.
- Federation is not the result of Agreement between the States and no states have right to Secede.
The text of the Constitution does not use the term “Federation” or Federal. The Supreme Court has spoken of the Indian Union as Federal, Amphibian, and quasi-Federal, sometimes Unitary.
Features of Parliamentary System:
- Nominal and real executive: Presidential is nominal executive while Prime Minister is real executive.
- Majority party rule: The Political party which secures majority seat in Lok Sabha forms the government.
- Collective responsibility: The ministers are collectively responsible to the Parliament in general and Lok Sabha in particular (article 75).
- Political Homogeneity: Usually council of ministers belong to the same political party , and hence share same political ideology.
- Double membership: ministers are both members of legislature and the executive.
- Leadership of the Prime Minister: prime minister is the leader of council of ministers, leader of political party and leader of Parliament.
- Dissolution of Lower House: Lower House can be dissolved by the President on recommendations of Prime Minister.
- Secrecy: ministers work on principle of secrecy and cannot divulge information.
Though, Indian Parliamentary system has been borrowed from Westminster system. However, it would be wrong to say that we have British Parliamentary System in toto.
Differences between Indian and British models
- India has a republican system while British has a monarchial system.
- British system is based on sovereignty of Parliament while Indian system is based on supremacy of Constitution.
- In Britain, prime minister must be member of lower house, in India he may be member of any house.
- In Britain members of parliament are appointed as minister, in India even non member can be appointed as minister, but for a maximum period of 6 months.
- Britain has the system of legal responsibility of minister while India has no such system.
- ‘Shadow cabinet’ is prevalent in Britain, which is formed by opposition party to balance the ruling cabinet, and prepare members for future ministerial office.
- President is both head of state and head of government.
- President governs through cabinet which is an advisory body selected and appointed by him.
- President and his secretaries do not have membership of Parliament.
- President cannot dissolve the house.
- Doctrine of separation of powers is followed strictly.
Parliamentary VS Presidential Debate
Arguments in favour of Presidential system
Stability: It establishes a stable executive which does not depend upon the fluctuating will of the legislature.
More democratic: The US model is decentralized, and the chief executive is elected directly by the people. This enables local expression and real self-governance. The Parliamentary system, on the other hand, is inherently unitary, with the Central government controlling the entire country.
Better administration: President can appoint anyone as secretaries (minister equivalent). The top administrators are therefore experts in the field of administration to which they are assigned.
Stricter separation of powers: In Parliamentary system there is overlap in legislature and Executive, thus weakening the prospect of legislature holding executive accountable.
Faster decisions: US President is more powerful, than India President domestically hence faster decision making is possible in the former. Thus, in the presidential form, there is possibility of misuse of powers and the legislatures are likely to be less dominant and arrogant.
More Governance: The Presidential system provides a fixed tenure in the office for the president. This ensures the stability of the government and enables it to form medium- and long-term plans.
Arguments against Presidential system:
Abuse of office: The presidential system is vulnerable to abuse of power and at worst, dictatorship. This is due to the enormous power that exists with the President.
Friction among government offices: Separation of powers as seen in the US may cause delays in the execution of government programs, especially when the executive-legislative relations are not properly managed.
Democratic stalemate: If the legislature is dominated by the party opposed to the president’s party, there is a possibility of stalemate in governance because both the President and the legislature would have democratic legitimacy.
Lack of accountability: There is no continuous accountability of the executive to the representatives of the people in the legislature. The fixed term of office of the executive also curtails responsiveness to public opinion.
Inelastic: The biggest demerit of this system is that it is inelastic structure and uncertain in fixing up the final responsibility. It is inelastic because, once the President has been elected, the nation must continue with him, no matter whether it likes or dislikes his policies.
Deadlock on important issues: Frequent conflicts between the legislature and the executive may lead to deadlocks. A diverse country like India cannot function without consensus-building.
Professor Ramesh Thakur in a column entitled “In Parliament’s defence”, said the fault for India’s ailing democracy “lies not in the system but in politicians who have corrupted the institutions”. He calls the parliamentary system a “stabilizer” in societies with sectarian divisions because coalition governments reflect social and political diversity. And he claims that parliamentary systems offer better protection against a bad and incompetent head of government.
Parliamentary Sovereignty VS Judicial Sovereignty:
In the US System, SC with its power of judicial review and of interpreting the Constitution has assumed supremacy. In UK system, Parliament has sovereign power to make or unmake any law without the role of judiciary. In India, there is a Compromise between British Sovereignty of Parliament and American Judicial supremacy.
We are governed by the rule of law and review of administrative action is an essential part of Rule of Law. Thus the Court can determine not only the Constitutionality of the law, but also the procedural part of administrative action.
But since we have a written Constitution and Powers and functions of every organ are defined and delimited by the constitution, there is no question of any organ-not- even Parliament being sovereign. Both Parliament and Supreme Court are supreme in their respective spheres. While the SC May declare law made by Parliament being Violative of the Constitution, Parliament may within Certain restrictions amend most part of the Constitution.
Uniqueness in application of Separation of Power
The meaning of separation of power can be categorized into three features:
- A person forming a part of one organ should not form part of another organ.
- One organ should not interfere with the functioning of the other organs.
- One organ should not exercise the function belonging to another organ.
Strict separation of Power in the USA: It gives Congress, which consists of the Senate and the House of Representatives, legislative authority. The President has executive authority, and the Supreme Court and any further Federal Courts that Congress may establish have judicial authority.
Separation of Power in India
In Indira Gandhi VS Raj Narain, Justice Chandrachud: “The political purpose of the doctrine of separation of power is not widely recognized. No provision can be properly implemented without a check and balance system.
In Ram Jawaya VS State of Punjab, Justice Mukherjee: There is no provision in the Constitution which talks about the separation of powers except Article 50 which talks about the separation of the executive from the judiciary, but this doctrine is in practice in India. All three organs interfere with each other’s functions whenever necessary.
India and Watertight Strict separation of Power
- A smooth and stable government can exist only if there is cooperation among the three organs. Any attempt made to separate these organs into watertight compartments may lead to failure and inefficiency in the government.
- If this concept is adopted in its totality, then it will become impossible to take certain actions. Consequently, neither the legislature can delegate the law-making power to the executive which may have expertise in the subject matter, nor the courts can make laws related to the functioning of courts and proceedings.
- In the present scenario, a state works for the welfare and prosperity of the people. It must resolve the complex issues of society. In such circumstances, the principle of separation of power seems to be impossible.
The logic behind this doctrine is not the strict classification rather it is the avoidance of concentration of powers to a specific person or a body. This theory is not operative in its absolute sense but yes, it is very advantageous if applied correlatively.
Related Mains PYQ (2017):
Explain the salient features of the Constitution (One Hundred and First Amendment) Act, 2016. Do you think it is efficacious enough ‘to remove cascading effect of taxes and provide for common national market for goods and services’?