27 August 2022

MAINS DAILY QUESTIONS & MODEL ANSWERS

Q1. Discuss the Parliament’s Power to amend the Indian Constitution under Article 368 of the Constitution along with the issues faced in the same. (250 words)

Paper & Topic: GS I à Indian Culture

Model Answer:

Introduction:

• Part XX of the Constitution contains Article 368, which deals with parliament’s competence to modify the constitution and its procedures. Article 368 allows for two sorts of amendments: amendments by a special majority of Parliament and amendments by a special majority of Parliament plus ratification by half of the state legislatures by a simple majority.

Body:

• The Constitution, which is regarded as the people’s “common will,” is a founding document that establishes the state’s existence and regulates its various institutions. It is not only the land’s fundamental law, but also the live organic matter from which all other laws are to be derived in accordance with the needs of the nation. Rather than putting this vital responsibility completely in the hands of the judiciary, the Indian Constitution’s founders included Article 368 as a legal process for constitutional change.

Articles 368 and 369 (Power to Amend the Constitution and its Procedure):

• Regardless of anything else in this Constitution, Parliament may, in the exercise of its constituent power, alter any provision of this Constitution by way of addition, variation, or repeal, using the procedure outlined in this Article. In certain cases, the Indian legislature is responsible for enacting new legislation, changing current laws, and repealing obsolete ones. The Constitution, which is merely a statute, will also be amended. The possibility of abuse of the powers provided to the government to undermine the nation’s democratic values is explicitly raised by the constitution’s amenability.

The following four mechanisms for amending the Constitution are provided in the Constitution:

• Certain parts of the Constitution may be amended by a simple majority of Parliament in the same way that ordinary statutes are adopted by Parliament. In the case of a member’s government or the European Union’s government, these changes can be transferred.
• Modifications to specific parts of the Constitution can be made by a simple majority of the State Legislature, just like any other legislation.
• Only a special majority of Parliament can amend certain articles, frequently referred to as entrenched clauses. By a two-thirds majority of the members present and voting in each House, as well as a majority of the overall membership of each House. There may be no combined sitting of both chambers for the purpose of changing the Constitution.
• Amendments to such laws require the approval of at least half of the states, as well as a special majority of legislators.

Limitations on the power to amend: The Constitution’s Basic Structure:

• The idea of the constitution’s basic structure is one component that has shaped the development of the Indian Constitution for a long time.
• The landmark Kesavananda Bharati case led to the creation of the Constitution in the following ways: it established tight constraints on Parliament’s capacity to modify the Constitution.
• It states that no amendment can violate the Constitution’s fundamental structure; it allows Parliament to amend any part of the Constitution (within this limitation); and it establishes the judiciary as the final authority in determining whether an amendment violates the fundamental structure and what constitutes the fundamental structure.
• The Supreme Court’s five-judge bench in Nagaraj v. Union of India re-explained the basic feature theory in detail as follows.
• Basic structures are underlying and binding constitutional provisions that are based on systematic principles.
• Constitution is responsible for their continuity and longevity. These concepts are part of constitutional law, even if they aren’t explicitly mentioned.

J. Sikri concluded that the basic structure of the Constitution should include the following qualities, based on the Kesavananda Bharati decision:

• The supremacy of the Constitution, the Republic and Democratic systems of government, the Constitution’s secular nature, the separation of powers between the legislature, the executive, and the judiciary, and the Constitution’s federal character
• Although Parliament has the right to alter the Constitution under Article 368 of the Indian Constitution, it cannot change the Constitution’s core framework because India’s Constitution is a fundamental law of the land.

Conclusion:

• One issue that stands out in the Article 368 procedure is that the Parliament appears to have the sole authority to modify the Constitution in any way. However, it is false to assert that the Parliament is self-governing as long as Article 368 is in place. The procedure itself limits the use of the power to alter the Constitution on Parliament, therefore it cannot be the deciding authority of the constitutional scheme. The Indian Constitution was designed to be a dynamic legislation that preserves its validity throughout time without becoming obsolete, while also catering to the demands of various social classes in India. It appears to have been designed with the best elements of other countries’ constitutions in mind. The Supreme Court’s suggested notion of the Basic Structure serves as a guiding principle for defending such ideals and maintaining the Constitution’s substance. The comparison with other countries highlights the significant difference in the amount of complexity and bureaucratic work required to amend India’s Constitution, which makes it one of the most powerful.

Q2. What do you understand by the term ‘Constitutional Morality’. Also discuss its evolution in the Indian Political Scenario. (250 words)

Paper & Topic: GS I à Indian Culture

Model Answer:

Introduction:

• The Constituent Assembly, which was established in 1946, was writing a communal vision for the country’s future. The Assembly met for 165 days between December 1946 and 1949, debating and drafting the provisions that became the framework for our Constitution.

Body:

• Adherence to the essential ideals of constitutional democracy is referred to as “constitutional morality.” The notion of Constitutional Morality is broad enough to secure the ultimate goal of the Constitution, a socio-juridical scenario that allows every citizen, for whom and by whom the Constitution exists, to unfold their full personhood.
• It gives a foundation for how governance should be carried out. It establishes standards for institutions to follow in order to exist, as well as an expectation of behavior that is consistent with the Constitution’s spirit as well as its content. It also holds the government and its officials responsible.
• Constitutional morality isn’t a brand-new idea. It is substantially contained in the Constitution itself, in sections such as Fundamental Rights (Articles 12–35), Directive Principles of State Policy (Articles 36–51), Preamble, and Fundamental Duties.
• (1) The Constitution’s text; (2) Constitutional Assembly debates; (3) Events that occurred during the Constitution’s drafting; and (4) Case Law History are the roots of constitutional morality.

The contours of constitutional morality are shifting:

• Adherence to the essential ideals of constitutional democracy is referred to as constitutional morality. It is founded on ideals such as individual autonomy and liberty, equality without discrimination, acknowledgment of identity with dignity, and the right to privacy, and is not limited to obeying constitutional requirements strictly.
• For example, in the Sabarimala verdict, the Supreme Court upheld religious freedom, gender equality, and the right of women to worship as guaranteed by Articles 14, 21 and 25 of the Constitution, ruling that the practise of barring women of a certain age from entering the Sabarimala temple in Kerala was unconstitutional. To protect constitutional morality, the Supreme Court went around the “doctrine of essentiality.” In this case, constitutional morality prevailed against social morality, which discriminates against women based on biological factors such as menstruation.

Other times when the Supreme Court has supported constitutional morality include:

• The Supreme Court limited Parliament’s ability to violate the Constitution’s Basic Structure in the Kesavananda Bharati case.
• The Supreme Court ruled in the Naz Foundation case that only Constitutional Morality, not Public Morality, should prevail.
• The Supreme Court declared constitutional morality as a controlling notion that “highlights the need to sustain people’s trust in the institution of democracy” in the case of the Lt Governor of Delhi.
• The Supreme Court of India offered a framework in Navtej Singh Johar v. Union of India to reaffirm the rights of LGBTQ and all gender non-conforming people to dignity, life, liberty, and identity.

Conclusion:

• As a result, constitutional morality ensures the rule of law in the land while also incorporating society’s changing ambitions and ideals. It recognises society’s plurality and variety and strives to make individuals and communities more inclusive in their functioning by always giving opportunities for development and reform, as our Constitution requires.

Q3. Describe the Supreme Court’s recent decision on the 102nd Constitutional Amendment, which recognises “Socially and Educationally Backward” classes (SEBC). Will it take away state governments’ ability to recognise SEBCs? (250 words)

Paper & Topic: GS I à Indian Culture

Model Answer:

Introduction:

• A Constitution Bench of the Supreme Court dealt with another problem in the ruling that deemed the Maratha reservation illegal. It ruled by a 3:2 majority that states do not have the authority to identify “socially and educationally backward” (SEBC) classes after the passage of the 102nd Constitution Amendment Act in 2018.

Body:

Background:

• Article 338B of the 102nd Constitution Amendment established a National Commission for Backward Classes.
• The Amendment also included Article 342A, which states that the President, in collaboration with the Governors of the relevant States, must notify a list of SEBCs in reference to each State and Union Territory. After that, Parliament can make additions.

The Supreme Court’s decision on the SEBC’s recognition and the power of the state:

• The Bombay High Court upheld the quota for the Maratha people on numerous grounds.
• One of the grounds was that the Act creating the Maratha quota through a new category named ‘SEBC’ was unlawful since the State government had no ability to identify any new backward class after the 102nd Amendment was enacted.
• Parliament’s objective, according to the Union government, was merely to create a Central List that would apply only to the Central government and its institutions. It had nothing to do with the State Backward Classes Lists or the State governments’ authority to label a community backward.
• With two other justices joining him, Justice S. Ravindra Bhat adopted a literal view of the 102nd Amendment, stating that there was no ambiguity in its wording that required a “purposive construction.” Justice Bhat, writing for them, cited three primary reasons.
• One, the text made it plain that only the President may notify the list, and that subsequent amendments could only be made by Parliament through legislation.
• The Supreme Court’s decision was based on deliberations before a Rajya Sabha Select Committee, which revealed that the Centre had rejected suggestions from members who wanted a specific clause added stating that states would retain the ability to designate SEBCs.
• Naturally, the state’s capacity to list SEBC has been weakened by the Supreme Court’s literal interpretation. However, proper modifications to Articles 338B and 342A can simply restore this.

Conclusion:

• The Supreme Court has ordered the Centre to publish a list of SEBCs for each state and union territory, and the current State Lists may be used until this is done. The Centre may either comply or attempt to modify the Constitution further to explain that the 102nd Amendment was not meant to strip states of their ability to identify SEBCs.

Q4. The Preamble is often regarded as the embodiment of the Indian constitution’s soul and spirit. Talk about it (250 words)

Model Answer:

Introduction:

• The preamble to a constitution serves as a window into what is contained within the document. It is the Indian people’s decision to create a sovereign, socialist, secular, and democratic republic. People will have social, economic, and political justice in this republic, as well as freedom of thought, expression, belief, faith, and worship, and equality of status and opportunity, which will promote fraternity among them and ensure the individual’s dignity as well as the nation’s unity and integrity.

Body:

Background:

• The preamble was written after the entire constitution had been written by the Constituent Assembly.
• It arose from Jawaharlal Nehru’s Objectives Resolution, which was introduced on the fifth day of the Constituent Assembly’s opening session deliberations.
• The Preamble was ruled to be an important part of the Constitution in the Keshavananda Bharati case in 1973.
• “Secular,” “Socialistic,” and “and Integrity” were not mentioned in the original Preamble. The 42nd Constitutional Amendment was used to include them.

Preamble’s Importance:

• The Preamble encapsulates the Constitution’s underlying thought and essential values—political, moral, and religious.
• It contains the Constituent Assembly’s big and noble vision, as well as the goals and aspirations of the Constitution’s founding fathers.
• The Supreme Court stated in the Berubari Union 16 case (1960) that the Preamble “states the general goals behind the various articles in the Constitution, and so is a key to the thoughts of the Constitution’s framers.”
• Furthermore, where terminology used in an article are vague or have several meanings, the Preamble’s aims may be used to aid in interpretation.
• ‘The Preamble to our Constitution expresses what we had thought or dreamed for so long,’ said Sir Alladi Krishnaswami Iyer, a member of the Constituent Assembly who played a key role in the creation of the Constitution.
• The Preamble, according to K M Munshi, a member of the Constituent Assembly’s Drafting Committee, is the “horoscope of our sovereign democratic country.”
• It is, however, non-justiciable and neither a source of authority nor a limitation on Parliamentary powers. Nonetheless, it encapsulates the concept of India as a sovereign nation.
• The preamble depicts India’s vision and aspires to the principles stated in it for the people of India.

Conclusion:

• Another member of the Constituent Assembly, Pandit Thakur Das Bhargava, summed up the importance of the Preamble this way: ‘The Preamble is the most precious portion of the Constitution.’ It is the Constitution’s heart. It’s a crucial part of the Constitution. It is a precious gem enshrined in the Constitution. It is a proper benchmark by which to assess the Constitution’s worth.