Directive Principles

National and state minority commission

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National and state minority commission

Constitution of India doesn’t define the word ‘Minority’ but has used the word minorities considering two attributes religion or language of a person. For minorities Constitution of India has envisaged a number of rights and safeguards. To provide enough equality and to dwindled the discrimination, makers have spelt out various things in Fundamental Rights (PartIII); Directive Principles of State policy (Part IV) and also the Fundamental Duties (Part IV-A). However, with rising right and rising wedge between right and left and also the ephemeral political aspirations of various political parties have diluted the discrimination safeguards.

The Union Government set up the National Commission for Minorities (NCM) under the National Commission for Minorities Act, 1992. Six religious communities, viz; Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been notified in Gazette of India as minority communities by the Union Government all over India . Original notification of 1993 was for Five religious communities Sikhs, Buddhists,Parsis,Christians and Muslims.

Functions and Powers

  • Evaluate the progress of the development of Minorities under the Union and States.
  • Monitor the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislatures.
  • Make recommendations for the effective implementation of safeguards for the protection of the interests of Minorities by the Central Government or the State Governments.
  • Look into specific complaints regarding deprivation of rights and safeguards of the Minorities and take up such matters with the appropriate authorities.
  • Cause studies to be undertaken into problems arising out of any discrimination against Minorities and recommend measures for their removal.
  • Conduct studies, research and analysis on the issues relating to socio-economic and educational development of Minorities.
  • Suggest appropriate measures in respect of any Minority to be undertaken by the Central Government or the State Governments.
  • Make periodical or special reports to the Central Government on any matter pertaining to Minorities and in particular the difficulties confronted by them.
  • Any other matter which may be referred to it by the Central Government.

The Commission has the following powers:

  • Summoning and enforcing the attendance of any person from any part of India and examining him on oath.
  • Requiring the discovery and production of any document.
  • Receiving evidence on affidavit.
  • Requisitioning any public record or copy thereof from any court or office.
  • Issuing commissions for the examination of witnesses and documents.

State minority commission

The recognition of any community as a religious minority means that the States should have a State level Commission to ensure that the rights and privileges allowed to the minorities under law are not denied to them. In a situation of difficulty a member of the minority community can invoke the law that safeguards his interests. In pursuance of this objective, each State in the Union including Union Territories are required to set up respective Minority Commission to cater to the needs and interests of the minority communities in the concerned states. However, the Union Minister for Minorities, while replying to a question in the Parliament disclosed that twelve States, including four ruled by BJP and its allies, and six Union Territories (UTs) have not set up Minorities Commissions at their respective levels. Incidentally, Jammu and Kashmir also figures in the list of twelve States with no Minority Commission.

 

Federal Structure: Union-State relations.

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The Indian constitution provides for a federal framework with powers (legislative ,executive and financial) divided between the center and the states. However, there is no division of judicial power as the constitution has established an integrated judicial system to enforce both the central laws as well as state law. The Indian federation is not the result of an agreement between independent units, and the units of Indian federation cannot leave the federation.Thus the constitution contains elaborate provisions to regulate the various dimensions of the relations between the centre and the states.

To understand the topic first we must understand the concept of federalism….

Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government governs issues that affect the entire country, and smaller subdivisions govern issues of local concern. Both the national government and the smaller political subdivisions have the power to make laws and both have a certain level of autonomy from each other.

A federation is traditionally constituted when two or more independent neighboring states forge a Union for defined purposes of common interest by divesting themselves of a measure of sovereignty which is vested with the federal government. “The urge for union comes from the need for collective security against aggression and economic co-ordination for protection and expansion of trade and commerce. The federation is given only enumerated powers, the sovereignty of the states in the Union remains otherwise unimpaired”.

“A Federation in USA is of this type. Alternatively, a federation is formed when a sovereign authority creates autonomous units and combines them in a Union.” Once constituted, the national and state governments possess co-ordinate authority derived from the several constitutions and enjoy supremacy in their respective spheres of authority and jurisdiction. Canadian federation belongs to this category. However, the differences between the two lie in the degree and extent of emphasis on unitary features.

Characteristic Features of Federalism are:-

(i) Supremacy of Constitution:-Supremacy of the Constitution is a doctrine where by the Constitution is the supreme law of the land and all the State organs including Parliament and State Legislatures are bound by it. They must act within the limits laid down by the Constitution. They owe their existence and powers to the Constitution and, therefore, their every action must have its support in the Constitution.

(ii) The distribution among bodies with limited and co-ordinate authority, of different powers of government;

(iii) The authority of the courts as interpreters of the Constitution;

(iv) Double citizenship is another characteristic of some of the Federation.

A unitary system on the other hand has the highest degree of centralization. In a unitary state, the central government holds all the power. Lower-level governments, if they exist at all, do nothing but implement the policies of the national government. In a purely unitary state, the same set of laws applies throughout the nation, without variation. Unitary states create national policy, which is then applied uniformly. This uniformity sometimes serves as an advantage because people and businesses know exactly what to expect from the laws, regardless of geographical location. At the same time, to maintain its uniformity, a unitary government must overlook local differences that might call for different rules or policies.

Now coming back to our main topics Administrative, Legislative and Financial Relationship between centre and state

Administrative relations between the Centre & the States:

The administrative relations between the Centre and the States have been stated from Article 256 to Article 263 of the Constitution. As a rule, the Central Government exercises administrative authority over all the matters on which the Parliament has the power to make laws, whereas the State Governments exercise authority over the matters included in the State List.   The executive power of the State is to be exercised in compliance with laws made by the Parliament. Also, the Union Executive is empowered to give directions to a State, when necessary like- construction and maintenance of means of communications, declared to be of national and military importance, and also on the measures for the protection of Railways.Article 256 of the Constitution states that the executive power of the states shall be so exercised as to ensure compliance with the laws of Parliament.

Also the union executive power extends to the giving of such directions to the states as may appear to the Government of India to be necessary for the purpose.  It is further stipulated under Article 246 of the Constitution that if the state government fails to endorse the laws passed by the Parliament within its jurisdiction, the union government can issue directions to the states to ensure their compliance. This article lays down that it shall be the duty of the states to exercise its executive power so as to ensure that due effect is given within the state to every act of Parliament and to every existing law which apply in that state. This is a statement of constitutional duty of every state.

Legislative relations between the Centre & the States:

  • Union List Only Parliament can make laws in the case of a subject listed in the Union list. It has 100 subjects for now.
  • State List Only state can make laws in the case of a subject listed in the State List. It has 61 subjects for now.
  • Concurrent  List:- Parliament and state (both) are allowed to make laws on the subjects listed in this list. If both have made laws on the same subject then the central law overrides the state law. It has 52 subjects for now.

42nd Amendment Act, 1976 transferred 5 Subjects from state list to concurrent list. (those five subjects were – education, forests, weights and measures, protection of wild animals and birds and administration of justice; constitution and organisation of all courts except the Supreme Court and the high courts.

 

Financial relations between the Centre & the States:
• The essence of federalism is not just the distribution of functions but also the distribution of resources necessary for the adequate & effective performance of
these functions.
• No system of federation can be successful unless both the union and the states have at their disposal adequate financial resources to enable them to discharge their respective responsibilities under the constitution.
• In the Indian constitution, the union – state financial relations are given in Chapter one of Part XII running from Art. 264 to 293.

Under the Constitution the financial resources of the State are very limited though they have to do many works of social uplift under directive principles. In order to cope with their ever-expanding needs, the Central Government makes grants-in-aid to the States. Grant- in-aid to States , through it Central Government exercises a strict control over the States because grants are granted subject to certain conditions.

The Indian constitution provides for a federal framework with powers divided between the Centre and the states. The Financial powers entrusted by the Constitution reflect a clear asymmetry between the taxation powers and the functional responsibili-ties, with the Centre being assigned taxes with higher revenue potential and States being entrusted with more functional responsibilities.  The Constitution provides, under Article 280, the institutional mechanism of Finance Commission and other enabling provisions for the transfer of resources from the Centre.

The Role of the Finance Commission under Indian Constitution are to make recommendation to the President with regard to following matters:
a) To determine the scheme that governs the matters relating to the distribution of net proceeds of taxes which are in the divisible pool, between the Centre and States.
b) To make recommendations, to determine the principle that would regulate or govern the revenues to the States from the Central Revenue in the form of Grant in Aid to the needy States
c) This function of the Commission is included by the way of 73rd and 74 Constitutional Amendment to strengthen the financial Status of the local bodies by providing the supplement to the resources of the Panchayats and Municipalities in the States on the basis of the recommendation of State Finance Commission from the Consolidated fund of the State.
d) The last function of the Commission as provided by the Constitution under Article 280 3(d) is very vast any matter relating to the Fiscal interest between the intergovernmental bodies can be referred to the Commission by the President, These function or Terms of Reference, which broadly fixed by the Constitution itself; while at the same time an element of flexibility is built into these terms of reference under sub clause (d) of Article 280(3). Under this Clause the President has a power to refer any matter to the Commission ‘in the interests of sound finance.

 

Finance Commission

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Under the Constitution the financial resources of the State are very limited though they have to do many works of social uplift under directive principles. In order to cope with their ever-expanding needs, the Central Government makes grants-in-aid to the States. Grant- in-aid to States , through it Central Government exercises a strict control over the States because grants are granted subject to certain conditions.

The Indian constitution provides for a federal framework with powers divided between the Centre and the states. The Financial powers entrusted by the Constitution reflect a clear asymmetry between the taxation powers and the functional responsibili-ties, with the Centre being assigned taxes with higher revenue potential and States being entrusted with more functional responsibilities.  The Constitution provides, under Article 280, the institutional mechanism of Finance Commission and other enabling provisions for the transfer of resources from the Centre.

The Role of the Finance Commission under Indian Constitution are to make recommendation to the President with regard to following matters:
a) To determine the scheme that governs the matters relating to the distribution of net proceeds of taxes which are in the divisible pool, between the Centre and States.
b) To make recommendations, to determine the principle that would regulate or govern the revenues to the States from the Central Revenue in the form of Grant in Aid to the needy States
c) This function of the Commission is included by the way of 73rd and 74 Constitutional Amendment to strengthen the financial Status of the local bodies by providing the supplement to the resources of the Panchayats and Municipalities in the States on the basis of the recommendation of State Finance Commission from the Consolidated fund of the State.
d) The last function of the Commission as provided by the Constitution under Article 280 3(d) is very vast any matter relating to the Fiscal interest between the intergovernmental bodies can be referred to the Commission by the President, These function or Terms of Reference, which broadly fixed by the Constitution itself; while at the same time an element of flexibility is built into these terms of reference under sub clause (d) of Article 280(3). Under this Clause the President has a power to refer any matter to the Commission ‘in the interests of sound finance.

The 73rd and 74th Constitutional Amendment Acts, 1992, which gave Constitutional status to panchayati raj institutions (PRIs) and urban local bodies (ULBs) respectively, in both letter and spirit in order to bring about greater decentralisation and increase the involvement of the community in planning and implementing schemes and, thus, increase accountability.

The Amendments left important matters such as implementation, service delivery (including local capacity building) and transfer of responsibilities and powers to rural local bodies at the discretion of the state legislatures. Consequently, while expenditure responsibilities of local bodies are extensively enhanced, there is no law to ensure a corresponding assignment of funds to match the additional responsibilities.

The State Finance Commissions are required to recommend financial support from the state and principles for determination of taxes, tolls and fees that could be assigned to or appropriated by the local bodies

Article 243I of the Indian Constitution prescribes that the Governor of a State shall, as soon as may be within one year from the commencement of the Constitution (Seventy-third Amendment) Act, 1992, and thereafter at the expiration of every fifth year, constitute a Finance Commission to review the financial position of the Panchayats and to make recommendations to the Governor as to

The principles which should govern

 

  1. The distribution between the State and the Panchayats of the net proceeds of the taxes, duties, tolls and fees leviable by the State, which may be divided between them under this Part and the allocation between the Panchayats at all levels of their respective shares of such proceeds;
  2. The determination of the taxes, duties, tolls and fees which may be assigned as, or appropriated by, the Panchayats;
  3. The grants-in-aid to the Panchayats from the Consolidated Fund of the State;

 

Directive Principles of State Policy

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An important feature of the constitution is the Directive Principles of State Policy. Although the Directive Principles are asserted to be “fundamental in the governance of the country,” they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution’s preamble.

Article 37 of the Constitution declares that the DPSP “shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” It is not a mere coincidence that the apparent distinction that is drawn by scholars between the ICCPR rights and ESC rights holds good for the distinction that is drawn in the Indian context between fundamental rights and DPSP. Thus the bar to justiciability of the DPSP is spelled out in some sense in the Constitution itself.

The Directive Principles may be classified into 3 broad categories—

  1. Socialistic
  2. Gandhian and
  3. Liberal-intellectual.

(1) Socialistic Directives

Principal among this category of directives are (a) securing welfare of the people (Art. 38) (b) securing proper distribution of material resources of the community as to best sub serve the common-good, equal pay for equal work, protection of childhood and youth against exploitation. etc. (Art.39), (c) curing right to work, education etc. Art. (41), (d) securing just and humane conditions of work and maternity relief (Art. 42) etc.

(2) Gandhian Directives

Such directives are spread over several Arts. Principal among such directives are (a) to organize village panchayats (Art. 40), (b) to secure living wage, decent standard of life, and to promote cottage industries (Art.43), (c) to provide free and compulsory education to all children up to 14 years of age (Art. 45), (d) to promote economic and educational interests of the weaker sections of the people, particularly, the scheduled castes and scheduled tribes, (e) to enforce prohibition of intoxicating drinks and cow-slaughter and to organize agriculture and animal husbandry on scientific lines (Arts. 46-48).

(3) Liberal intellectual directives

Principal among such directives are (a) to secure uniform civil code throughout the country (Art.44), (b) to separate the judiciary from the executive (Art.50),  (c) to protect monuments of historic and national importance and  (d) to promote international peace and security.

Lok Adalats and Legal Awareness Campaign

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LOK ADALATS

Lok stands for People and the word Adalat means Court. Lok Adalat is a special kind of people’s court in which disputes solved by direct talks between the litigants. The members of legal profession, college students, social organisations, charitable and philanthropic institutions and other similar organisations may be associated with Lok Adalat. Salient features of this dispute resolutions are participation,accomadation,fairness,expectations,voluntariness,neighbourliness,transparency and lack of animosity.Lok Adalat after studying the case, try to solve the simple differences which otherwise are likely to leave for reaching consequences through mutual understanding and compromise. The concept of Lok Adalat is an innovative Indian contribution to the world jurisprudence.

Ancient concept of settlement of dispute through mediation, negotiation or through arbitral process known as ‘People’s court verdict’ or decision of ‘Nyaya-Panch’ is conceptualised instutionalised in the philosophy of Lok Adalat. The concept of Lok Adalat was pushed back into oblivion in last few centuries before independence and particularly during British regime.  Now this concept has been rejuvenated and became more popular amongst litigants. Camps of Lok Adalat were initially started in Gujarat in March 1982, and now it has been extended throughout the country. The evolution of this movement was a part of the strategy to relieve heavy burden on the Courts with pending cases and to give relief to the litigants who were in the queue to get justice. And the Legal Services Authorities Act 1987 gave a statutory status to Lok Adalats pursuant to the Constitutional mandate in Art. 39-A of the Constitution of India, contains various provisions for settlements of dispute through Lok Adalat.

Levels of lok adalats

State Authority Level –  The Member Secretary of the State Legal Services Authority organizing the Lok Adalat would constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judge of the High Court or a sitting or retired judicial officer and any one or both of- a member from the legal profession; a social worker engaged in the upliftment of the weaker sections and interested in the implementation of legal services schemes or programmes.

High Court Level: The Secretary of the High Court Legal Services Committee would constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judge of the High Court and any one or both of- a member from the legal profession; a social worker engaged in the upliftment of the weaker sections and interested in the implementation of legal services schemes or programmes.

District Level: The Secretary of the District Legal Services Authority organizing the Lok Adalat would constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judicial officer and any one or both of either a member from the legal profession; and/or a social worker engaged in the upliftment of the weaker sections and interested in the implementation of legal services schemes or programmes or a person engaged in para-legal activities of the area, preferably a woman.

Taluk Level: The Secretary of the Taluk Legal Services Committee organizing the Lok Adalat would constitute benches of the Lok Adalat, each bench comprising of a sitting or retired judicial officer and any one or both of either a member from the legal profession; and/or a social worker engaged in the upliftment of the weaker sections and interested in the implementation of legal services schemes or programmes or a person engaged in para-legal activities of the area, preferably a woman.

National Lok Adalat:  National Level Lok Adalats are held for at regular intervals where on a single day Lok Adalats are held throughout the country, in all the courts right from the Supreme Court till the Taluk Levels wherein cases are disposed off in huge numbers. From February 2015, National Lok Adalats are being held on a specific subject matter every month.

Permanent Lok Adalat: The other type of Lok Adalat is the Permanent Lok Adalat, organized under Section 22-B of The Legal Services Authorities Act, 1987. Permanent Lok Adalats have been set up as permanent bodies with a Chairman and two members for providing compulsory pre-litigative mechanism for conciliation and settlement of cases relating to Public Utility Services like transport, postal, telegraph etc. Here, even if the parties fail to reach to a settlement, the Permanent Lok Adalat gets jurisdiction to decide the dispute, provided, the dispute does not relate to any offence. Further, the Award of the Permanent Lok Adalat is final and binding on all the parties. The jurisdiction of the Permanent Lok Adalats is upto Rs. Ten Lakhs. Here if the parties fail to reach to a settlement, the Permanent Lok Adalat has the jurisdiction to decide the case. The award of the Permanent Lok Adalat is final and binding upon the parties. The Lok Adalat may conduct the proceedings in such a manner as it considers appropriate, taking into account the circumstances of the case, wishes of the parties like requests to hear oral statements, speedy settlement of dispute etc.

Mobile lok adalat: Mobile lok adalat is new concept in which justice is delivered through van. The van consists of facilities like court compartments with basic amenities as well as microphone, computer, printer, seating arrangement for lawyers and the team, cabinet for the presiding officer, projector, internal and external address system, and generator among others.

Benefits of lok adalats

  • There is no court fee and even if the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat.
  • There is no strict application of the procedural laws and the Evidence Act while assessing the merits of the claim by the Lok Adalat. The parties to the disputes though represented by their Advocate can interact with the Lok Adalat judge directly and explain their stands in the dispute and the reasons therefore, which is not possible in a regular court of law.
  • Disputes can be brought before the Lok Adalat directly instead of going to a regular court first and then to the Lok Adalat.
  • The decision of Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat whereas in regular courts of law there is always a scope to appeal to the higher forum on the decision of the trial court, which cause delay in the settlement of dispute finally. The reason being that in a regular court, decision is that of the court but in Lok Adalat it is mutual settlement and hence no case for appeal will arise. In every respect the scheme of Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.

Legal awareness campaign

The growing number of issues, problems, unabated corruption and indecisiveness prevailed in our society that has given rise to demand support from the people of the country. Be it the legal, poverty, literacy, health, environment and many other issues – each cause is clamoring for public attention. Effort to get such attention, the governments and organizations has come together to devote to a particular cause so that awareness may be raised for the welfare of the society.

Understanding of the legal literacy and legal awareness is the need of the hour to deal with these uncertain problems existing and rising in the society. What it is, why it is important, and how we can promote it. Majority people of India are legal illiterate and not aware of the basic rights conferred upon them by law. Substantial population of the country living in the cities, towns and villages do not know what are their rights and entitlements under the law. Even the literate people are helpless and confused when there is a violation or infringement of a right enforceable in law.

Lack of knowledge about the basic legal and civil liberties, human rights, constitutional directives, and principles and other guidelines that protect the people’s dignity, liberty and freedom manifests itself in the society in the form of problems such as child labour, human trafficking, domestic violence, child marriage, dowry etc. that threatens the safety of all.   Therefore, the absence of the legal awareness in the society is mainly responsible for the deception, exploitation and deprivation of rights and benefits, from which the people suffer in the hands of state apparatus. The miserable condition in which the people find themselves can be alleviated to some extent by creating legal literate and legal awareness amongst the people. At this backdrop, legal literacy and legal awareness assume critical significance.

 

Constitutional and legal provisions for legal awareness

In 1987, the Legal Services Authorities Act (LSAA) was enacted by the Parliament which came into force on 9th November, 1995 with an object to establish a nationwide uniform network for providing free and competent legal services to the weaker sections of the society on the basis of equal opportunity. The National Legal Services Authority (NALSA) has been constituted under the LSAA, 1987 to monitor and evaluate implementation of legal services available under the Act.   This Act was passed with the affirmed objective of fulfilling one of the Directive Principles of State Policy enunciated in Article 39A of the Constitution of India. Under it, the Constitution of India provides for equal justice and free legal aid – The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Under the Articles 14 and 22(1) also provide that it’s the obligatory for the State to ensure equality before law and a legal system which promotes justice on the basis of equal opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society.   In every State, State Legal Services Authority has been constituted to give effect to the policies and directions of the NALSA and to give free legal services to the people and conduct Lok Adalats in the State. The State Legal Services Authority is headed by Hon’ble the Chief Justice of the respective High Court who is the Patron-in-Chief of the State Legal Services Authority. And in every District, District Legal Services Authority has been constituted to implement Legal Services Programmes in the District.

 

Role of NALSA in legal awareness and legal aid

  • Legal Aid Counsel Scheme to provide meaningful legal assistance to under trial prisoners, who feel handicapped in their defense on account of lack of resources or other disabilities and cannot engage a counsel to defend them.
  • Counseling and Conciliation Scheme to encourage the settlement of disputes by way of negotiations and conciliation.
  • Supreme Court Middle Income Group Scheme to provide legal services to the middle income class citizens, i.e., citizens whose annual income does not exceed Rs. 2 lakh.
  • The NALSA organizes Judicial colloquium to create a forum for ongoing regional cooperation among Judges focusing on Human Rights and Access to Justice.
  • Victims Assistance Program (VAP) has been prepared by the NALSA target the most disadvantaged, distraught vulnerable and victimized population.

Judiciary : Composition, Role, Judicial Review and Judicial Activism.

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Union Judiciary : The Supreme Court ; its role and powers

The Supreme Court is the highest court of The Indian Republic.  Judiciary, the third organ of the government, has an important role to play in the governance. It settles the disputes, interprets laws, protects fundamental rights and acts as guardian of the Constitution. India has a single unified and integrated judicial system and that the Supreme Court is the highest court in India.

The  promulgation  of  Regulating  Act  of  1773  by  the  King  of  England paved the way for establishment of the Supreme Court of Judicature at Calcutta. The Letters of Patent was issued  on 26 March  1774 to establish  the  Supreme Court  of  Judicature  at  Calcutta,  as  a  Court  of  Record,  with  full  power  & authority  to  hear  and  determine  all  complaints  for  any  crimes  and  also  to entertain, hear and determine any suits or actions against any of His Majesty’s subjects  in  Bengal,  Bihar  and  Orissa.  The  Supreme  Courts  at  Madras  and Bombay was established by King George – III on 26 December 1800 and on 8 December 1823 respectively.

Federal Court of India was established under the Government of India Act 1935. The Federal Court  had  jurisdiction  to  solve  disputes  between  provinces  and  federal  states and  hear  appeal  against  Judgements  from  High  Courts.

After  India  attained independence in 1947, the Constitution of India came into being on 26 January 1950. The Supreme Court of India also came into existence and its first sitting was held on 28 January 1950.

The Chief Justice and other judges of the Supreme Court are appointed by the President of India. While appointing the Chief Justice, the President is constitutionally required to consult such other judges of the Supreme Court as he deems proper, but outgoing Chief Justice is always consulted. Normally, the senior most judge of the Supreme Court is appointed as the Chief Justice of India, although there is no constitutional requirement to do so. While appointing other judges, the President is bound to consult the Chief Justice and other senior judges, if he deems proper.

The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice and 7 puisne Judges – leaving it to Parliament to increase this number.

According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. Primarily, it is an appellate court which takes up appeals against judgments of the High Courts of the states and territories.

The Supreme Court is a Court of Record. It has two implications. All its decisions and judgments are cited as precedents in all courts of the country. They have the force of law and are binding on all lower Courts, and indeed the High Courts. As a Court of Record, the Supreme Court can even send a person to jail who may have committed contempt of the court.

As a Federal Court: Supreme Court is the Federal Court of India, India being a federation; powers are divided between the Union and State governments. The Supreme Court of India is the final authority to see to it that the division of powers as specified in the constitution is obeyed by both the Union and the State governments. So, Article 131 of the Indian Constitution vests the Supreme Court with original and exclusive jurisdiction to determine the justiciable disputes between the Union and the States or between the States.

Interpreter of the Constitution and Law: The responsibility of interpreting the constitution rests on the Supreme Court. The interpretation of the constitution which the Supreme Court shall make must be accepted by all. It interprets the constitution and preserves it. Where a case involves a substantial question of law as to the interpretation of the constitution either certified by the High Court or being satisfied by the Supreme Court itself, an appeal shall lie to the Supreme Court for interpretation of the question of law raised.

As a Court of Appeal: The Supreme Court is the highest court of appeal from all courts in the territory of India. Appeal lies to the Supreme Court of the cases involving interpretation of the constitution. Appeals in respect of civil and criminal cases also lie to the Supreme Court irrespective of any constitutional question.

Advisory Role: The Supreme Court has an advisory jurisdiction in offering its opinion an any question of law or fact of public importance as may be referred to it for consideration by the President.

Guardian of the Constitution: The Supreme Court of India is the guardian of the constitution. There are two points of significance of the Supreme Court’s rule as the protector and guardian of the constitution.

  • First, as the highest Federal Court, it is within the power and authority of the Supreme Court to settle any dispute regarding division of powers between the Union and the States.
  • Secondly, it is in the Supreme Court’s authority to safeguard the fundamental rights of the citizens.

In order to discharge these two functions it is sometimes necessary for the Supreme Court to examine or review the legality of the laws enacted by both the Union and the State Governments. This is known as the power of Judicial Review. Indian Supreme Court enjoys limited power of Judicial Review.

Writ Jurisdictions: Under Article 32 of the constitution of Supreme Court can issue Writs for the enforcement of fundamental rights. These writs are in the nature of Habeas Corpus, Mandamas, Prohibition, and Quo-warranto Certiorari.

Power of Judicial Review and Supreme Court: The power of the Judiciary to examine the validity of such law is called Judicial Review. The Supreme Court of India enjoys limited power of Judicial Review. Judicial Review empowers the courts to invalidate laws passed by the legislature. Supreme Court of India also enjoys the power of Judicial Review. If it occurs to the Supreme Court that any law enacted by Parliament or by a State Legislature curbs or threatens to curb the citizen’s fundamental rights, the Supreme Court may declare that law as unlawful or unconstitutional.

High Court: Organization, Powers and functions

The India High Courts Act 1861 was enacted to create High Courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency towns. These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India, which was established under the Government of India Act 1935.

Art-214 of the constitution provides that, “There shall be a High Court for each state” Art-231 further provides that , “Parliament may by law establish a common High court for two or more states and a union territory.” At present for example there is a common High court for the states of punjab, Haryana and Union Territory of Chandigarh. Similarly. There is Common High court for Assam, Nagaland, Manipur, Meghalaya, Tripura and Mijoram.

A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;

A High Court judge may be removed before he or she attains the age of 62 years, only on the ground of incapacity or proved misbehaviour. He or she may be removed if both the Houses of Parliament adopt a resolution by a majority of their total membership and by two thirds majority of members present and voting, separately in each House in the same session. Such a resolution is submitted to the President, who then can remove the concerned judge.

The jurisdiction of the High court can basically be divided into-

(a) Original Jurisdiction and  (b) Appellate Jurisdiction

(a) Original Jurisdiction:The original jurisdiction of the High Courts is very limited.

(i) Cases related to Fundamental rights.(Can even issue writs for legal rights)

(ii) Constitutional jurisdiction.

(iii) Power of judicial review

(iv) The cases related to matters such as will, divorce, contempt of court.

(v) Election disputes.

(b) Appellate Jurisdiction:When a High Court hears an appeal against the decision of a lower court, it is called Appellate Jurisdiction.The High Court can hear appeals against the decisions of the lower Courts in the following cases:

(i) Civil cases

(ii) Appeals in revenue cases against the decision of the revenue board.

(iii) In cases related to succession,insolvency, patent, Design etc.

2. appeal in criminal cases-

(i) If the session judge has awarded imprisionment for seven year or more.

(ii) where the session judge has awarded capital punishment.

3. Constitutional Cases– if the high court certify that perticular cases is fit for appeal before itself and involves a substantial question of law.

Administrative powers

  1. It supervises and superintends the working of all the courts subordinate to it.
  2. It makes rules and regulations for the court subordinate to it and cun change such law.
  3. It can transfer any case from one court to another court
  4. It can investigate or enquire in to the record or anotherconnected documentsof any court subordinate to it.

Subordinate Judiciary

Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive . Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive .

The framework  of the  current  legal  system has been  laid  down by the  Indian  Constitution  , which states for an integrated and uniform judiciary system and  the judicial  system  derives  its  powers  from  it.  There  are  various  levels  of  judiciary  in  India— different  types  of  courts,  each  with  varying  powers  depending  on  the  tier  and  jurisdiction bestowed upon them. They form a hierarchy of importance, in line with the order of courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with District Judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom.

Type of cases

  • Civil cases pertain to disputes between two or more persons regarding property, breach of agreement or contract, divorce or landlord – tenant disputes. Civil Courts settle these disputes. They do not award any punishment as violation of law is not involved in civil cases.
  • Criminal cases relate to violation of laws. These cases involve theft, dacoity, rape, pickpocketing, physical assault, murder, etc. These cases are filed in the lower court by the police, on behalf of the state, againt the accused. In such cases the accused, if found guilty, is awarded punishment like fine, imprisonment or even death sentence.
  • Revenue cases relate to land revenue on agriculture land in the district.

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The District Courts of India are presided over by a judge. They administer justice in India at a district level. These courts are under administrative and judicial control of the High Court of the State to which the district concerned belongs.

       The highest court in each district is that of the District and Sessions Judge. This is the principal court of civil jurisdiction. This is also a court of Sessions. Sessions-triable cases are tried by the Sessions Court. It has the power to impose any sentence including capital punishment.

       There are many other courts subordinate to the court of District and Sessions Judge. There is a three tier system of courts. On the civil side, at the lowest level is the court of Civil Judge (Junior Division). On criminal side the lowest court is that of the Judicial Magistrate. Civil Judge (Junior Division) decides civil cases of small pecuniary stake. Judicial Magistrates decide criminal cases which are punishable with imprisonment of up to five years.

       At the middle of the hierarchy there is the Court of Civil Judge (Senior Division) on the civil side and the Court of the Chief Judicial Magistrate on the Criminal side. Civil Judge (senior division) can decide civil cases of any valuation. There are many additional courts of Additional Civil Judge (senior division).The Jurisdiction of these addition courts is the same as that of the principal court of Civil Judge (Senior Division). The Chief Judicial Magistrate can try cases which are punishable with imprisonment for a term up to seven years. Usually there are many additional courts of Additional Chief Judicial Magistrates. At the top level there may be one or more courts of additional district and sessions judge with the same judicial power as that of the District and Sessions judge.

The Judiciary plays a very important role as a protector of the constitutional values that the founding fathers have given us. They try to undo the harm that is being done by the legislature and the executive and also they try to provide every citizen what has been promised by the Constitution under the Directive Principles of State Policy. All this is possible thanks to the power of judicial review.

 

All this is not achieved in a day it took 50 long years for where we are right now, if one thinks that it is has been a roller coaster ride without any hindrances they are wrong judiciary has been facing the brunt of many politicians, technocrats, academicians, lawyers etc. Few of them being genuine concerns, and among one of them is the aspect of corruption and power of criminal contempt. In this paper I would try to highlight the ups and downs of this greatest institution in India.

 

 

 

The rule of law is the bedrock of democracy, and the primary responsibility for implementation of the rule of law lies with the judiciary.1 This is now a basic feature of every constitution, which cannot be altered even by the exercise of new powers from parliament. It is the significance of judicial review, to ensure that democracy is inclusive and that there is accountability of everyone who wields or exercises public power. As Edmund Burke said: “all persons in positions of power ought to be strongly and lawfully impressed with an idea that “they act in trust,” and must account for their conduct to one great master, to those in whom the political sovereignty rests, the people”.2

 

 

 

India opted for parliamentary form of democracy, where every section is involved in policy-making, and decision taking, so that every point of view is reflected and there is a fair representation of every section of the people in every such body. In this kind of inclusive democracy, the judiciary has a very important role to play. That is the concept of accountability in any republican democracy, and this basic theme has to be remembered by everybody exercising public power, irrespective of the extra expressed expositions in the constitution.3

 

 

 

The principle of judicial review became an essential feature of written Constitutions of many countries. Seervai in his book Constitutional Law of India noted that the principle of judicial review is a familiar feature of the Constitutions of Canada, Australia and India, though the doctrine of Separation of Powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the functions of another.4

 

The power of judicial review has in itself the concept of separation of powers an essential component of the rule of law, which is a basic feature of the Indian Constitution. Every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt raised in that behalf, by the courts. The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India has come to control by judicial review every aspect of governmental and public functions.5

 

 

 

Extent of Judicial Review in India:

 

The initial years of the Supreme Court of India saw the adoption of an approach characterised by caution and circumspection. Being steeped in the British tradition of limited judicial review, the Court generally adopted a pro-legislature stance. This is evident form the rulings such as A.K. Gopalan, but however it did not take long for judges to break their shackles and this led to a series of right to property cases in which the judiciary was loggerhead with the parliament. The nation witnessed a series of events where a decision of the Supreme Court was followed by a legislation nullifying its effect, followed by another decision reaffirming the earlier position, and so on. The struggle between the two wings of government continued on other issues such as the power of amending the Constitution.6 During this era, the Legislature sought to bring forth people-oriented socialist measures which when in conflict with fundamental rights were frustrated on the upholding of the fundamental rights of individuals by the Supreme Court. At the time, an effort was made to project the Supreme Court as being concerned only with the interests of propertied classes and being insensitive to the needs of the masses. Between 1950 and 1975, the Indian Supreme Court had held a mere one hundred Union and State laws, in whole or in part, to be unconstitutional.

 

After the period of emergency the judiciary was on the receiving end for having delivered a series of judgments which were perceived by many as being violative of the basic human rights of Indian citizens 7and changed the way it looked at the constitution. The Supreme Court said that any legislation is amenable to judicial review, be it momentous amendments8 to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect the life of a citizen9. Judicial review extends to every governmental or executive action – from high policy matters like the President’s power to issue a proclamation on failure of constitutional machinery in the States like in Bommai case, to the highly discretionary exercise of the prerogative of pardon like in Kehar Singh case  or the right to go abroad as in Satwant Singh case.Judicial review knows no bounds except the restraint of the judges themselves regarding justifiability of an issue in a particular case.

 

Judicial Review of Political Questions:

 

In the initial stages of the judicial adjudication Courts have said that where there is a political question involved it is not amenable to judicial review but slowly this changed, in Keshavananda Bharathi’s case,10 the Court held that, “it is difficult to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal constitution…. Judicial Review of constitutional amendments may seem involving the Court in political question, but it is the Court alone which can decide such an issue. The function of Interpretation of a Constitution being thus assigned to the judicial power the State, the question whether the subject of law is within the ambit of one or more powers of the legislature conferred by the constitution would always be a question of interpretation of the Constitution.”

 

Than it was in Special Courts Bill, 1978, In re, case where the majority opined that, “The policy of the Bill and the motive of the mover to ensure a speedy trial of persons holding high public or political office who are alleged to have committed certain crimes during the period of emergency may be political, but the question whether the bill or any provisions are constitutionally invalid is a not a question of a political nature and the court should not refrain from answering it.” What this meant was that though there are political questions involved the validity of any action or legislation can be challenged if it would violate the constitution. This position has been reiterated in many other cases11 and in S.R. Bommai’s case the Court held, “though subjective satisfaction of the President cannot be reviewed but the material on which satisfaction is based open to review…” the court further went on to say that, “The opinion which the President would form on the basis of Governor’s report or otherwise would be based on his political judgment and it is difficult to evolve judicially manageable norms for scrutinizing such political decisions. Therefore, by the very nature of things which would govern the decision-making under Article 356, it is difficult to hold that the decision of the president is justiciable. To do so would be entering the political thicker and questioning the political wisdom which the courts of law must avoid. The temptation to delve into the President’s satisfaction may be great but the courts would be well advised to resist the temptation for want of judicially manageable standards. Therefore, the Court cannot interdict the use of the constitutional power conferred on the President under Article 356 unless the same is shown to be male fide.”

 

As Soli Sorabjee points out, “there is genuine concern about misuse by the Centre of Article 356 on the pretext that the State Government is acting in defiance of the essential features of the Constitution. The real safeguard will be full judicial review extending to an inquiry into the truth and correctness of the basic facts relied upon in support of the action under Article 356 as indicated by Justices Sawant and Kuldip Singh. If in certain cases that entails evaluating the sufficiency of the material, so be it.”

 

What this meant was the judiciary was being cautious about the role it has to play while adjudicating matters of such importance and it is showing a path of restraint that has to be used while deciding such matters so that it does not usurp the powers given by the Constitution by way of the power of review at the same it is also minimizing the misusing of the power given under Article 356 to the President.

 

Judicial Review as a part of the Basic Structure:

 

In the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of India the propounded the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution, The Judges made no attempt to define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five basic features:

 

  1. Supremacy of the Constitution. 2. Republican and democratic form of Government. 3. Secular character of the Constitution. 4. Separation of powers between the legislature, the executive and the judiciary. 5. Federal character of the Constitution.

He observed that these basic features are easily discernible not only from the Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of dignity and freedom of the individual which could not by any form of amendment be destroyed. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. The Constitutional bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure. In S.P. Sampath Kumar v. Union of India((1987) 1 SCC 124 at 128.), P.N. Bhagwati, C.J., relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. In Sampath Kumar the Court further declared that if a law made under Article 323-A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

 

In Kihoto Hollohan v. Zachillhur (1992 Supp (2) SCC 651, 715, para 120) another Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.

 

Subsequently, in L. Chandra Kumar v. Union of India ((1997) 3 SCC 261) a larger Bench of seven Judges unequivocally declared:

 

“that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.

 

Though one does not deny that power to review is very important, at the same time one cannot also give an absolute power to review and by recognizing judicial review as a part of basic feature of the constitution Courts in India have given a different meaning to the theory of Check’s and Balances this also meant that it has buried the concept of separation of powers, where the judiciary will give itself an unfettered jurisdiction to review any thing every thing that is done by the legislature.

 

Expansion of Judicial Review through Judicial Activism:

 

After the draconian exposition of power by the Executive and the Legislature during Emergency the expectations of the public soared high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions. Likewise the judiciary has taken an activist view the Beginning with the Ratlam Municipality case 12the sweep of Social Action Litigation13 had encompassed a variety of causes14.

 

With the interpretation given by it in Menaka Gandhi case the Supreme Court brought the ambit of constitutional provisions to enforce the human rights of citizens and sought to bring the Indian law in conformity with the global trends in human-rights-jurisprudence. This was made possible in India, because of the procedural innovations with a view to making itself more accessible to disadvantaged sections of society giving rise to the phenomenon of Social Action Litigation/Public Interest Litigation15. During the Eighties and the first half of the Nineties, the Court have broken there shackle’s and moved much ahead from being a mere legal institution, its decisions have tremendous social, political and economic ramifications. Time and again, it has sought to interpret constitutional provisions and the objectives sought to be achieved by it and directed the executive to comply with its orders.

 

SAL, a manifestation of judicial activism, has introduced a new dimension regarding judiciary’s involvement in public administration16. The sanctity of locus standi and the procedural complexities are totally side-tracked in the causes brought before the courts through SAL. In the beginning, the application of SAL was confined only to improving the lot of the disadvantaged sections of the society who by reason of their poverty and ignorance were not in a position to seek justice from the courts and, therefore, any member of the public was permitted to maintain an application for appropriate directions17.

 

The new role of the Supreme Court has been criticised in some quarters as being violative of the doctrine of separation of powers; it is claimed that the Apex Court has, by formulating policy and issuing directions in respect of various aspects of the country’s administration, transgressed into the domain of the executive and the legislature. As Justice Cardozo puts it, “A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.”18 It is with this view that innovations in the rules of standing have come into existence.

 

Limitation on the power of review:

 

The expansion of the horizon of judicial review is seen both with reverence and suspicion; reverence in as much as the judicial review is a creative element of interpretation, which serves as an omnipresent and potentially omnipotent check on the legislative and executive branches of government. But at the same time there is a danger that they may trespass into the powers given to the legislature and the executive.

 

One many say that if there is any limitation on judicial review other than constitutional and procedural19 that is a product of judicial self-restraint. As justice Dwivedi empathically observed, “Structural socio-political value choices involve a complex and complicated political process. This court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the court’s structural value choices will be largely subjective. Our personal predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of rule of law.”20

 

The above observations also reveal another assumption to support an attitude of self-restraint, viz., the element subjectiveness in judicial decision on issues having socio-political significance. When one looks at the decisions of the Supreme Court on certain questions of fundamental issues of constitutional law one can see that there is a sharp division among the judges of the apex court on such basic questions of power of the Parliament to amend the Constitution, federal relations, powers of the President etc. This aptly demonstrates the observation of the judge. This would mean that though there has been expansion of powers of judicial review one cannot also say that this cannot be overturned.

 

Judicial self-restrain in relation to legislative power manifests itself in the form the there is a presumption of constitutionality when the validity of the statute is challenged. In the words of Fazl Ali, “…the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles”21

 

In applying the presumption of constitutionality the Courts sometimes apply an interpretational device called ‘reading down’. The essence of the device is that “if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.”22 But all this depends on the outlook and values of the judge.23

 

When it come judicial review of administrative action though the presumption of validity is not so strong in the case of administrative action as in the case of statutes. Still, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint. They have said we cannot the question the legality of the exercise of discretionary power unless and until it is an abuse of discretionary power (which includes mala fide exercise of power, exercising the power for an improper motive, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases unreasonable exercise of power) and non-exercise of discretion ( which come when power is exercised without proper delegation and when it is acted under dictation).

 

The relevant considerations which should make the judicial choice in favour of activism or restraint are the policy and scheme of the statute, the object of conferring discretionary powers, the nature and scope of the discretion, and finally, the nature of the right and interests affected by the decision. Any impulsive move to activism without a serious consideration of these factors may only be viewed as undesirable. Judicial activism, being an exception, not the general rule, in relation to the control of discretionary power, needs strong reasons to justify it. In the absence of such strong support of reasons the interventionist strategy may provoke the other branches of Government may retaliate and impose further limitations on the scope of judicial review.

 

Conclusion:

 

Accountability is an essential part of the rule of law. It is essential for another reason, as in the earlier editions of Dicey,24 of course modified in later editions, referring to John Wilkes’s case,25 that “conferment of any discretion tends to arbitrariness and therefore there is something inconsistent with the rule of law.” But then, as time passed, it was realized that conferment of some discretion for the purpose of application to the facts of a given case is something you cannot do away with. The area of discretion should be the minimum possible, and set norms, standards or guidelines should regulate it, so that it does not tend to become arbitrary. Therefore, the rule of non-arbitrariness is something to be tested by the judiciary whenever the occasion arises.26

 

The growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general perception that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview.

 

The Judges have a duty to perform, which is even more onerous to keep the judicial ship afloat on even keel. It must avoid making any ad hoc decision without the foundation of a juristic principle, particularly, when the decision appears to break new grounds. The judgments must be logical, precise, clear, and sober, rendered with restraint in speech avoiding saying more than that, which is necessary in the case.27

 

It must always be remembered that a step taken in a new direction is fraught with the danger of being a likely step in a wrong direction. In order to be a path-breaking trend it must be a sure step in the right direction. Any step satisfying these requirements and setting a new trend to achieve justice can alone be a New Dimension of Justice and a true contribution to the growth and development of law meant to achieve the ideal of justice.

Salient Features of Indian Constitution

by
  • Lengthiest written Constitution: Originally our constitution contained 395 articles divided in 22 parts and 8 schedules. Constitution has been amended 98 times. Currently there are 25 Parts, 12 Schedules, and 448 Articles. These figures show our constitution as the most comprehensive constitution in the world. (British have no written constitution and Constitution of USA had originally only 7 articles)
  • Starts with a Preamble: It gives an insight into the Philosophy of the Constitution.
  • Drawn from different sources: fundamental rights from USA, bicameralism from UK, Fundamental duties from USSR etc,
  • Blend of Rigidity and Flexibility: making Law is quite flexible and easy in comparison to amending a law.
  • Sovereignty of the Country: managing internal and external affairs freely without any external forces.
  • Democratic state: governing power is derived from the people by means of elected representatives of the people.
  • Republic: India does not have a hereditary post of Head of the State. The Head of the state in India is President and he / she is elected.
  • Socialist State: Indian socialism is democratic socialism. The goals of the socialism are to be realized through democratic means.
  • Secular state: India is secular country. Here No religion is a state religion. The constitution provides equal treatment to all religions.
  • Parliamentary Form of Government: Westminster model of government. Presence of nominal and real executives, majority party rule, collective responsibility of executive to legislature, dissolution of lower house, prime minister has crucial and important role.
  • A blend of Federal and Unitary System: there are separate governments in the Union and States and there is division of power. Unitary features: Strong centre. Single Citizenship, single constitution for both the centre and states, emergency provisions, all India services. India is also quasi-federal as constitution describes India as union of states. States cannot unjoin as well as there is no agreement by states. We have union as well as state lists.
  • Integrated and independent Judiciary: The states have high courts but the verdicts of these courts are subject to appeal to the Supreme Court. The Constitution has made the High Courts subordinate to the Supreme Court.
  • Universal Adult Franchise: Every citizen who is above 18 years has a Voting Right without any discrimination.
  • Three tier government structure: union, state and panchayats.
  • Synthesis of parliamentary sovereignty and judicial supremacy: judicial review of Supreme Court by procedure established by law. Also, parliament can amend major portion of constitution.
  • Fundamental rights: to promote political democracy. Enforceable by courts for violation. They are Justiciable in nature.
  • Fundamental duties: to respect constitution; to promote national unity, integrity, sovereignty; to preserve rich cultural heritage and promote common brotherhood. They are not justiciable in nature.
  • Directive principles of state policy: socialistic, liberal and gandhian meant for promoting ideal social and economic democracy. To establish welfare state. It is the duty of state to apply these in governance. They are not justiciable.
  • Independent bodies: constitution not only provides legislative, executive and judicial organs of government (state and centre) but also has independent election commission, CAG, UPSC, SPSC with security of tenure, service conditions.