2020 UPSC LAW OPTIONAL MAINS QUESTION SOLVED – CONSTITUTIONAL LAW | COMPULSARY QUESTION
QUESTION 1 (a) | The goals specified in the preamble contain the basic structure of the Constitution, which cannot be amended under Article 368 of the Constitution. Analyse this statement in the light of the leading decision cases.
IMPORTANCE OF THIS QUESTION | Concept of this question has been asked several times in UPSC LAW OPTIONAL MAINS, most important concept to be covered.
Preamble is an introductory statement and contains various basic features and objectives of the Constitution. The following objectives of Constitution are laid in the Preamble-
a)Declaring India as- Sovereign, Secular, Socialist, Democratic and Republic
b)Promises to provide to all citizens of India-
Justice- social, economical and political
Liberty- of thought, expression, belief, faith and worship
Equality of status and opportunity
Fraternity assuring the dignity of individual and
Unity and integrity of the nation
PREAMBLE FROM WEAK TO MIGHTY | In Berubari Union & v. Unknown, 1960, The Supreme Court stated that, “the preamble shows the general purposes behind the several provisions but, nevertheless, it is not a part of the Constitution and is never regarded as a source of any substantive power.”
Then in Kesavananda Bharti v. State of Kerala, (1973) it was argued that even Preamble can be amended by virtue of Article 368 as it was held as part of the Constitution.
KEY POINT TO NOTE | The court held that preamble consists of basic features of the Constitution but amending power under Article 368 cannot be used to destroy it. It was held that amendment power under Article 368 is not absolute and basic structure of the Constitution cannot be destroyed by amendment.
In this case, the judges stated the basic features of Constitution which are contained in the Preamble. C.J. Sikri observed “It seems to me that the Preamble to our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.”
According to him, the concept of ‘basic structure’ includes-
Supremacy of the Constitution
Republican and democratic form of the government
Secular nature
Federal character of the Constitution
Separation of power between different organs of the government
J. Shelat and J. Gover stated that following two are also ‘basic structure’ of the Constitution-
Welfare state principle contained in Directive principles of state policy
Unity and integrity of the nation
J. Hedge and J. Mukherjee held the following as ‘basic structure’
Sovereignty of India
Democratic character
Unity of the nation
Individual freedoms provided to citizens
Mandate to establish a welfare state
J. Jaganmhan Reddy stated that following features of Preamble are considered as ‘basic structure’ of the Constitution-
Sovereign democratic republic
Parliamentary democracy
Organs of the government
In S.R. Bommai v. Union of India,(1994) also the Supreme Court had held that ‘Secularism’ is considered as ‘basic structure’ of the Constitution.
In Minerva Mills v. Union of India,1980 the Supreme Court had struck down Article 368 Clauses (4), (5) which destroyed basic structure of the Constitution because these provisions gave absolute power to the Parliament to amend the Constitution while Kesavananda judgment provided for limited amending power.
Therefore our preamble is quite important and cannot be swayed upon by legislature. This features brings in required rigidity to our constitution, thereby true aim of our constitution remains.
QUESTION 1 (b) Make a distinction between judicial review and judicial power. Explain the scope of judicial review with reference to the cases arising under the Xth Schedule of the Constitution.
POINTS TO NOTE ABOUT THIS QUESTION :
This is a complex question having 2 parts
Part 1 | Regarding distinction between Judicial review and Judicial power
Part 2 | Scope of judicial review only concerned with X Schedule.
Most aspirants concentrate only on one part make sure to answer both parts.
Usually judicial review is asked under IX schedule but here X schedule is asked, we have to note the same.
ANSWER FOR THE QUESTION :
CONCEPTUAL DIFFERENCE BETWEEN JUDICIAL REVIEW AND JUDICIAL POWER| Judicial review means power of the judiciary to examine the actions of legislature, acts of the executive or judicial decisions whereas judicial power means the power of the court to decide the matter and pronounce a judgment.
HOW JUDICIAL POWER AND JUDICIAL REVIEW HAS DIFFERENT SOURCES | Article 13 provides for judicial review for the protection of fundamental rights under Part III of the Constitution. It provides that any law which is inconsistent with fundamental rights shall be declared as void. Article 226 and 32 also deals with judicial review by High Court and Supreme Court respectively. On the other hand, constitution provides appellate , original, criminal and civil jurisdiction to both High Court and Supreme Court which is nothing but vesting of judicial power on these institutions. In, fact Supreme Court is given a super power called special leave petition which increases its judicial power.
HOW JUDICIAL REVIEW AND JUDICIAL POWER HAS DIFFERENT NATURE | Article 50 of the Constitution talks about separation of powers but judicial review is an exception to this doctrine, whereas judicial power in essence the core duty of Courts.
THERE DIFFERENCE IN EXISTENCE | Judicial review is available to only High Court and Supreme Court, whereas every court had judicial power. A small causes court or Judicial magistrate court indisputably enjoy judicial power but cannot say whether executive or legislature has acted against constitution.
OUT COME OF BOTH | By all observation we can say judicial review makes High Courts and Supreme Court the interpreters who safeguard our constitution, whereas judicial power makes the judiciary in itself., i.e., any court can exist without the power of judicial review but no court can exist without the judicial power.
EXAMPLE TO DIFFERENTIATE JUDICIAL POWER AND JUDICIAL REVIEW | If Supreme Court passes its order on constitutionality of recent controversial Agricultural laws 2020, then it has exercised its power of judicial review, whereas when Supreme Court confirmed the sentence of Late Chief Minister of Tamil Nadu Selvi. Jayalalitha it exercised its judicial power.
SCOPE OF JUDICIAL REVIEW IN XTH SCHEDULE
WHAT IS THIS SCHEDULE ALL ABOUT ? Xth Schedule to the Constitution was added in the year 1985 by 52nd Amendment Act. It provides for anti-defection law in India. This Schedule provides for disqualifications on the ground of defection and situations where these disqualifications do not apply.
Rule 7 to the 10th Schedule provides bar of jurisdiction of courts in matters related to disqualification of the member of a house under 10th Schedule. But this provision has been challenged numerous times, and in the court held in Kihoto Hollohon case that such barring power is valid except in case of judicial review.
In Kihoto Hollohon v. Zachillhu & ors (1992), the court held upheld the constitutional validity of 52nd Amendment and observed that the law of anti- defection recognizes the practical need to place the properties of political and personal conduct. It also held that final decision regarding defection is made by presiding officer and his decision would be final and subject to judicial review once the decision becomes effective. There cannot be judicial review before the Speaker’s decision.
The bench said, “the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequences.”
RATIONALE | The Rajasthan High Court held that the reason for limiting the court’s jurisdiction in cases falling under 10th Schedule is that the ‘office of the Speaker is held in the highest respect and esteem in parliamentary traditions.
In Dr. Kashinath G Jalmi and anr. v. The Speaker and ors. the court again held that Speaker or Chairman of the house does not have review power under 10th Schedule and his order is final subject to judicial review.
Although judicial power is the lifeline of judiciary we can call the power of judicial review to be a super power which operates where judiciary is not expected to intervene as per strict rules of separation of powers, this super power is given so our constitution is saved.
QUESTION 1 (c) | Enumerate the list of Fundamental Duties as provided in the Constitution of India. What is the rationale of incorporation of Fundamental Duties under the Indian Constitution through the Constitutional (Forty-second Amendment) Act, 1976?
THE HISTORY | Originally, there were no fundamental rights under the Constitution. Swaran Singh Committee recommended for adding a list of fundamental duties under the Constitution and therefore, based on such recommendations 42nd Amendment Act, 1976 inserted Part IVA consisting of Article 51A providing for ‘Fundamental duties’.
Article 51A provides for the following fundamental duties to every citizen of India:
a)To abide by the Constitution and respect its ideals and institutions, the National flag and National Anthem.
b)To cherish and follow the noble ideals which inspired our national struggle for freedom.
c)To uphold and protect the sovereignty, unity and integrity of India.
d)To defend the country and render national service when called upon to do so.
e)To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, to renounce practices derogatory to the dignity of women.
f)To value and preserve the rich heritage and composite culture.
g)To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
h)To develop the scientific temper, humanism and the spirit of inquiry and reform.
i)To safeguard public property and to abjure violence.
j)To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
Clause (k) was added o this Article with the 86th Amendment Act which provides that it shall be the duty of parent or guardian to provide education opportunities to his child who is between the age group of six and fourteen years.
THE NEED | The need for fundamental duties was felt when National emergency was imposed in 1975. Subsequently Swaran Committee recommended for certain fundamental duties out of that list some duties were not inserted in the Constitution like imposing penalty on non compliance with the duties and duty to pay taxes.
Part IV A has brought out Constitution in line with Article 29(1) of the Universal Declaration of Human Rights, 1948 which states, ‘Everyone has duties to the community in which alone the free and full development of his personality is possible.’
The fundamental duties serve as a constant reminder to every citizen while the Constitution specifically conferred on them certain fundamental rights. Certain basic norms of democratic conduct and democratic behavior must be observed by the citizens. These are not enforceable but court can take them into account while adjudicating a matter.
Important judicial pronouncements
1)Shyam Narayan Chouksey v. Union of India 2018 SC [National Anthem case]
The court held that playing or singing the National Anthem in cinema is mandatory and everyone present in the cinema should respect it being a fundamental duty.
2)MC Mehta v. Union of India 1983 1 SCC 471
In this case, the Supreme Court held that Article 51A(g) provides that it is duty of the Central government to introduce compulsory teaching of lessons at least for one hour in a week in relation to protection and improvement of natural environment in all educational institutions of India
3)Bijoe Emmanuel & ors. v. State of Kerala AIR 1987 748
The Supreme Court held that expulsion of children from school on the ground that they were not singing National Anthem amounts to violation of their right to freedom of expression and Article 25 because there is no law that expressly obliges individuals to sing the National Anthem. It is not considered as non- compliance with fundamental duty provided under Article 51A(a) because children stood for prayers which shows respect towards National Anthem.
QUESTION 1(d) | Analyse the relevance of doctrine of eminent domain under the Constitution of India. Explain the limitations of this doctrine with the help of case law.
ORIGIN | Doctrine of ‘eminent domain’ has its origins in India in pre-constitutional colonial British law. This doctrine states the acquisition of private land for public purpose and providing compensation for such acquisition. It is based on two maxims-
1)Salus populi supema lex which means welfare of the people is the paramount of law
2)Necessitas publica major est quam which means public necessity is greater than private necessity
RELEVANCE OF THE DOCTRINE UNDER INDIAN CONSTITUTION DISCUSSED WITH ITS LIMITATION
Limitations of doctrine of ‘Eminent Domain’ are
Private Property of a person is acquired for public use.
Compensation is to be paid for such acquisition.
Provisions related to private property are provided under Article 31A, 31B, 31C and 300A of the Constitution. Article 31A provides that any law which provides for acquisition of private property by the state shall not be void. Earlier right to property was a fundamental right under Article 19(1)(f) and 31 but both the provisions were repealed by 44th Amendment Act and it’s a legal right under Article 300A.
Article 300A provides, “No person shall be deprived of his property save by authority of law.”
For instance, The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 regulates land acquisition for public purpose and provides for rehabilitation and resettlement facilities to the individuals whose lands are acquired by the government for public purpose.
In State of Bihar v. Kameshwar Singh, the apex court defined the doctrine of ‘Eminent Domain’ as the power of a sovereign to take property for public use without the consent of owner by giving just compensation to him.
In Indian Handcrafts Emporium & ors. v. Union of India & ors,[ (1960) 2 SCR 671.] the court held that the right to acquire, hold and dispose of the property has ceased to be a fundamental right but it continues to be legal right and no person can be deprived of his property save and except by and in accordance with the law.
QUESTION 1 (e) | What are the various modes of judicial control of delegated legislation?
THE CONCEPT | Delegated legislation means subordinate legislation i.e. rules of laws made under the authority of an Act of Parliament.
The term ‘Delegated legislation’ is used in two senses-
a)to exercise the legislative power by subordinate agents, or
b)the subsidiary rules themselves which are made by the subordinate authority in pursuance of the powers conferred on it by the legislature”.
Modes of control of delegated legislation are-
Parliamentary or legislative control
Judicial control
Executive or Administrative control
Judicial control of delegated legislation
Judiciary exercises effective control over delegated legislation in India. The validity of delegated legislation can be examined by the courts on various grounds. Article 246 distributes legislative powers based on three lists, i.e. Union list, State list and Concurrent list. Court exercises its power of judicial review to consider whether the delegated or subordinate legislation is consistent with the ‘Enabling Act’. If the law is inconsistent with the constitutional provisions or parent Act, then it would be declared as ultra-vires.
The delegated legislation would become invalid on the following grounds-
a)The delegating statute or enabling Act is unconstitutional.
b)The subordinate legislation violates the provisions of Constitution.
c)The subordinate legislation is ultra vires to delegating Act.
d)Delegated legislation is mala-fide
In re Delhi Laws Act case,[ AIR 1951 SC 347.] the majority of the Judges held the exercise of delegated law-making power invalid because the enabling Act exceeded the constitutional limits in permitting the Executive to repeal a law existing in the area.
In M/s. Dwarka Pd. v. State of U.P,[ AIR 1954 SC 224.] the court held clause 3(1) of U.P. Coal Control Order, 1953 ultra vires because it gave unrestricted power to the State Controller to make exceptions and even if he acted arbitrarily there was no check over him and no redress was available against it. Therefore, the Court held that it violative of Article 19(1 )(g) of the Constitution of India.
In the case of State of Rajasthan v. Union of India,[ AIR 1977 SC 1361.] it was held that if proclamation of President under Article 356 is in effect and power is used in mala fide manner then such proclamation can be challenged. The court has jurisdiction to review such malafide exercise of power.
In Kerala State Electricity Board v. Indian Aluminium Co.,[ AIR 1976 SC 1031.] the court held that delegated legislation is invalid if it is not within the scope of the rule-making power provided in the statute.
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