DPSP, FDs, Procedure of Amendment & Doctrine of Basic Structure (DAMP)
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Contents
- Describe the procedure of amendment of the Constitution of India under Article 368. Why has this amendment procedure been often criticized?
- Fundamental Duties are not enforceable in the same manner as Fundamental Rights, but they are still essential for the welfare and betterment of both individuals and society. Discuss
- Highlight the constitutional significance of the directive principles of state policy in the Indian polity.
- The Directive Principles, which play a crucial role in the governance of a country, are inherently interconnected with Fundamental Rights, and cannot be viewed independently. Examine
- Examine how the balance between Fundamental Rights and Directive Principles of State Policy has been shifted through judicial rulings and constitutional amendments since the inception of the constitution.
- Discuss how the Indian Constitution strikes a balance between flexibility and rigidity through Article 368.
20-04-2023
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Answer :
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Approach to the answer: Introduction: Briefly mention the Constitutional provisions regarding amendment of the Constitution Body: Explain the procedure of amendment of the Constitution of India under Article 368. Give reasons as to why this procedure has been criticized often. Conclusion: Summarizes and concludes on a positive note. |
Answer: The Constitution of India provides for its amendment to adjust itself to the changing conditions and needs. Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure.
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The procedure for the amendment of the Constitution as laid down under Article 368 is as follows: |
- An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in any House of Parliament and not in the state legislatures.
- The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.
- The bill must be passed in each House by a special majority, that is, a majority of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
- Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
- If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority.
- After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the President for assent.
- The President must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill to the Parliament for reconsideration.
- After the President’s assent, the bill becomes an Act (i.e., a Constitutional Amendment Act) and the Constitution stands amended in accordance with the terms of the Act.
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Criticism of the Amendment Procedure |
- The power to initiate an amendment to the Constitution lies with the Parliament. The state legislatures cannot initiate any bill or proposal for amending the Constitution except in one case, that is, passing a resolution requesting the Parliament for the creation or abolition of legislative councils in the states.
- A major part of the Constitution can be amended by the Parliament alone either by a special majority or by a simple majority. Only in a few cases, the consent of the state legislatures is required and that too, only half of them.
- The Constitution does not prescribe the time frame within which the state legislatures should ratify or reject an amendment submitted to them. It is also silent on the issue of whether the states can withdraw their approval after the same.
- There is no provision for holding a joint sitting of both the Houses of Parliament if there is a deadlock over the passage of a constitutional amendment bill.
- State ratification is not time bound in nature, thus delaying the passage of the bill.
- The provisions relating to the amendment procedure are too sketchy. Hence, they leave a wide scope for taking matters to the judiciary.
Despite these defects, it cannot be denied that the process has proved to be simple and easy and has succeeded in meeting the changing needs and conditions of society. We have done more than 100 amendments in the constitution to reflect changing social, economic, and political circumstances. That’s why Indian constitution is called as ‘living document’.
19-04-2023
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Approach to the answer: Introduction: Write a brief introduction about Fundamental duties. Body: Address the demand by highlighting how FDs are essential for welfare and betterment even after being non-justiciable in nature. Conclusion: Summarizes and concludes on a positive note. |
Answer: Fundamental duties were added to the Constitution through the 42nd Amendment in 1976 and are contained in Article 51A of the Constitution. Fundamental duties are non-justiciable, meaning that they cannot be enforced through the courts. Fundamental duties are an essential component of the Indian Constitution, as they outline the responsibilities that citizens have towards the nation and society.
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Fundamental duties still essential for the welfare and betterment of both individuals and society |
- Though Fundamental duties are not enforceable, it complements fundamental rights and helps in ensuring in their implementation.
- Article 51A (a) mandates every citizen to respect the Constitution and its ideals. By fulfilling this duty, citizens can help to create an environment in which fundamental rights are respected and upheld.
- Article 51A (b) mandates every citizen to cherish and follow the noble ideals that inspired the national struggle for freedom. This includes ideals such as liberty, equality, and fraternity, which are enshrined in the Constitution as fundamental rights.
- Article 51A (e) mandates to promote harmony and the spirit of common brotherhood amongst all the people of India, transcending religious, linguistic, and regional or sectional diversities. This duty is closely related to the fundamental right to equality and non-discrimination under Article 14 of the
- Article 51A(g) of the Constitution mandates that it is the duty of every citizen to protect and preserve the natural environment including forests, lakes, rivers, and wildlife. It contributes to the protection of Article 21, which includes the right to a clean and healthy environment.
Fundamental duties play a crucial role in the implementation of fundamental rights under the Indian Constitution. By promoting a culture of civic responsibility and social harmony, citizens can contribute to the protection and promotion of individual liberties and freedoms, which are essential for a just and democratic society.
18-04-2023
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Approach to the answer: Introduction: Write a brief introduction about DPSP. Body: Address the demand by highlighting the significance with the help of relevant articles of the DPSP. Conclusion: Summarizes and concludes on a positive note. |
Answer: The Directive Principles of State Policy (DPSP) are guidelines or principles that are enshrined in Part IV of the Indian Constitution. The DPSPs lay down the socio-economic and political objectives that the Indian state should strive to achieve to promote the welfare of its citizens. The DPSPs are not enforceable by the courts of law, but they are fundamental in guiding the state policies and the governance of the country.
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The constitutional significance of the DPSP in the Indian polity can be analyzed as follows: |
- Social justice: The DPSP lays down several provisions for ensuring social justice in the country, such as providing equal opportunities and facilities for all citizens, promoting the welfare of weaker sections of society, and protecting the rights of minorities. Articles 38, 39, and 46 of the DPSP deal with issues related to social justice.
- Economic welfare: The DPSP also lays down provisions for promoting economic welfare in the country, such as ensuring equitable distribution of resources, preventing concentration of wealth and means of production, and promoting agriculture and rural development. Articles 39, 40, and 43 of the DPSP deal with issues related to economic welfare.
- Governance: The DPSP also contains provisions related to governance, such as ensuring transparency and accountability in public administration, promoting a decentralized system of governance, and promoting the integrity and sovereignty of the nation. Articles 50, 51, and 51A of the DPSP deal with issues related to governance.
- International relations: The DPSP also lays down provisions related to India’s international relations, such as promoting peaceful relations with other countries, promoting international law and justice, and promoting the ideals of the United Nations. Article 51 of the DPSP deals with issues related to international relations.
The Directive Principles of State Policy serve as a guiding force for the government in shaping policies and legislation that promote the welfare and development of the citizens of India. Although they are not enforceable by any court of law, they are fundamental in the governance of the country and provide a framework for achieving the ideals of a just, equitable and inclusive society.
17-04-2023
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Approach: Introduction: Give a short description of Fundamental rights and Directive principles. Body: Write arguments with the help of cases to show how they are interconnected. Examine how both are inter-related to each other and one cannot be isolated from the other. Conclusion: Conclude with striking balance between two by highlighting its importance. |
Answer: The Fundamental right represents the civil and political rights, and the directive principles embody social and economic rights. Fundamental rights are called negative rights as they impose obligations on the state not to encroach on individual liberty. Directive Principles of the constitution are positive rights and impose positive obligations on the state.
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Directive principles and fundamental rights are interconnected: |
- Kerala Education Bill 1958, the SC while affirming the primacy of fundamental rights over the directive principles, qualified complementary nature by pleading for a harmonious interpretation of the two.
- Kesavananda Bharti v. State of Kerala: The fundamental rights and directive principles constitute the “conscience of the constitution” there is no antithesis between the fundamental rights and directive principles, and one supplements the other.
- Integrated scheme: Supreme Court in Golak Nath case emphasized that the fundamental rights and directive principles formed an “integrated scheme” which was elastic enough to respond to the changing needs of society.
- Harmonious relation: The Supreme Court said in State of Kerala v. N.M Thomas, that the Directive Principles and Fundamental rights should be construed in harmony with each other, and every attempt should be made by the court to resolve any apparent inconsistency between them.
- To achieve broader socio-economic goals: In Pathumma v. State of Kerala, the Supreme Court has emphasized that the purpose of the directive principles is to fix certain socio-economic goals for immediate attainment by bringing about a non-violent social revolution.
- SC in Minerva Mills case said that the fundamental rights “are not an end in themselves but are the means to an end.” The end is specified in the directive principles.
- A middle path: In R. Coelho v. state of T.N. SC said that it is the responsibility of the government to adopt a middle path between individual liberty (Fundamental Rights) and public good (Directive Principles).
There should be harmony between fundamental rights and Directive Principles since maintenance of harmony between them is a basic feature to the constitution.
03-10-2023
Answer :
The tension between justiciable Fundamental Rights and non-justiciable Directive Principles of State Policy has sparked conflicts since the Constitution’s inception. Judicial decisions and constitutional amendments have shaped their relationship:
- Champakam Dorairajan Case (1952): Fundamental Rights supreme but amendable. The Supreme Court ruled that if conflicts arise, Fundamental Rights prevail. However, Parliament can amend Fundamental Rights to implement Directives.
- Golaknath Case (1967): Fundamental Rights sacrosanct. The Supreme Court held that Parliament can’t abridge Fundamental Rights for Directive Principles’ implementation.
- 24th and 25th Amendments (1971): Fundamental Rights amendable, laws implementing directives immune. The 24th amendment empowered Parliament to amend any part, including Fundamental Rights. The 25th amendment provided immunity to laws implementing Article 39(b) and 39(c) from challenges under Article 14, 19, and 31, with no judicial review.
- Kesavananda Bharati Case (1973): Acceptance of two directives’ supremacy over certain Fundamental Rights, but preserving judicial review. The undermining of judicial review was deemed unconstitutional.
- 42nd Constitutional Amendment (1976): Supremacy of Directive Principles. Article 31C was amended to give primacy to all Directives over Fundamental Rights under Article 14, 19, and 31.
- Minerva Mills Case (1980): Balanced relationship reinstated. The Supreme Court invalidated the broad supremacy of all Directives, restoring Article 31C’s original form. The balance between Part III and Part IV was deemed integral for the Constitution’s core commitment to social revolution.
Presently, Fundamental Rights hold supremacy over Directive Principles, but Parliament can amend Fundamental Rights to implement Directives without affecting the Constitution’s basic structure.
06-10-2023
Answer :
Constitutions across the world can be categorized as rigid or flexible. A rigid Constitution is one that requires a special procedure for its amendment, as for example, the American Constitution. A flexible constitution, on the other hand, is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution.
The Constitution of India strikes a balance between flexibility and rigidity by providing for different types of amendment procedures, such as:
• Under Article 368, some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each House present and voting, and a majority (that is, more than 50 per cent), of the total membership of each House. E.g. fundamental rights.
• Article 368 also provides for amendment of some other provisions by a special majority of the Parliament and with the ratification by half of the total states. E.g. extent of the executive power of the Union and the states.
• At the same time, some provisions of the Constitution (not U/A 368) can be amended by a simple majority of the Parliament in the manner of ordinary legislative process. E.g. establishment of new states.
Reasons for synthesis of flexibility and rigidity in the Indian Constitution:
• The makers of the Constitution knew there may be some faults or mistakes in the Constitution; they also knew that the Constitution would need modifications according to changing needs of the society. Whenever such mistakes or requirements for modification came to light, they wanted the Constitution to be easily amended. E.g. bringing in Schedule 9 through 1st Constitutional Amendment Act to allow some laws to prevail even if they were contrary to some fundamental rights.
• Further, there were some provisions in the Constitution that were of temporary nature, and it was decided that these could be altered later on once the new Parliament was elected. E.g. abolition of privy purse through 26th Constitutional Amendment Act.
• However, at the same time, the Constitution was framing a federal polity and therefore, the rights and powers of the States could not be changed without the consent of the States.
Some other features such as sovereignty, secularism, unity & integrity etc. were so central to the spirit of the Constitution that the Constitution makers were anxious to protect these from change. These provisions had to be made rigid. These considerations led to different ways of amending the Constitution.
Such a balance makes the Indian Constitution a living document that responds to changing times and ensures an evolving and thriving Indian democracy.