SYNOPSIS: IASbaba’s TLP – 2018: UPSC Mains General Studies Questions [21st November 2017]- Day 2
1. The provision of judicial review makes the Constitution legalistic. Comment.
This is a pretty straight forward question. It has got two keywords if you observe. One is the provision of ‘Judicial Review’ and other, ‘making constitution legalistic’.
You have to clearly write in your answer how it is making the constitution legalistic.
‘Judicial Review’ means that the judiciary can declare a law or legislation as unconstitutional if it is beyond the competence of legislature according to the distribution of powers (under article 246), or it is in contravention of fundamental rights or any of the mandatory provisions of the constitution (For Example, article 301, 304). Even in the absence of such express constitutional provisions, the court can invalidate a law which contravenes any right or is ultra vires, for such power of judicial review follows from the very nature of the constitutional law. Thus, under article 132, the substantial question of law as to the interpretation of constitution is referred to the Supreme Court.
The ‘reasonable restrictions’ in case of fundamental rights are subject to court’s supervision. Judicial review is thus ‘the interposition of judicial restraint on the legislative as well as executive organs of the government.
Note: Here the term ‘resonable restrictions’ is important. In some cases executive is allowed to put that and it is the duty of the judiciary to judge.
In AK Gopalan verses State of Madras, the power of judicial review was firmly established and the limitations for its exercise were clearly enunciated.
How does it make Constitution legalistic?
Philosophy of judicial review is rooted in the principle that constitution is the fundamental law, all governmental organs must not do anything which is inconsistent with the provisions of constitution; and the theory of ‘limited government.’ when a contradiction between the constitution and enacted law exists, it is the duty of judges to resolve it. Thus, judicial review makes constitution legalistic. In a federal system, it is a necessary consequence to have an independent and impartial judiciary to resolve disputes.
The above points should have been there in your answer. The first part, i.e the constitutional provisions and articles for judicial review, most of you have mentioned, but second part is missing.
Connecting the dots:
Judicial Review has been a bone of contention between Legislature and Judiciary. A question on this issue is highly probable. For this you need to know about the scope and the limitations of Judicial review.
In India, the exercise of power of judicial review is itself made subject to the limitations, expressly provided in the constitution example articles 32,226, 74, 77, 163, 166, 105, 194, 12, 212. The Supreme Court has also evolved certain self-imposed limitations on its powers of judicial review, as found in res judicata, laches, standing, waiver, etc.
Nevertheless, in several cases, it has been held that the Supreme Court can act as the custodian, defender of rights of people, and democratic system of government only through the judicial review. In Keshavanand Bharti’s case, it was held that the judicial review is a ‘basic feature’ of the constitution and cannot be amended.
The scope of judicial review is sufficient in India, to make supreme court a powerful agency to control the activities of executive and the legislature. In no way, judicial review makes the Supreme Court a rival of the parliament.
Note: You need to keep the above points in mind and write a balance answer. Try to read more about scope and limitations of the judicial review.
Best Answer 1: Akash
Best Answer 2: 2017
न्यायिक समीक्षा के माध्यम से न्यायलय संसद पर संविधान की उच्चता को स्थापित करता है , भारतीय संविधान न्यायलय को कई आधारो पर न्यायिक समीक्षा का अधिकार देता है जैसे – मूल अधिकार के उल्लघन पर अनु 13 के तहत अनु 32 से सीधे उच्चतम न्यायलय व अनु 226 से सबन्धित उच्च न्यायलय जाया जा सकता है और संघीय मामले , व स्वतन्त्र न्यापालिका के विषय मे भी न्यायिक समीक्षा के माध्यम से संविधान का शासन स्थापित करती है
प्ररम्भ मे न्यायिक समीक्षा की सीमा ” विधि द्वारा स्थापित प्रक्रिया ” तक सिमित थी, किंतु कालन्तर मे यह “विधि सम्मत प्रक्रिया” के माध्यम से प्राकृतिक न्याय को वरीयता देने लगी जो मेनका गांधी v/s UOI केस मे स्पष्ट दिखता है , केशवानन्द भारती केस मे इसको संविधान का आधारभूत ढॉचे का अंग मान लेने से न्यायिक समीक्षा की प्रक्रिया और मजबूत हो गयी है
1) यह संविधान के शक्तियो के विभाजन की भावना की रक्षा करती
2) नागरिको के मूल भूत अधिकारो को सुरक्षा की गारन्टी देता है
3) सरकारो के निरंकुश नही होने देती है
4) प्राकृतिक न्याय को वरीयता देती है जिससे न्याय के प्रति आम जन मे आस्था और मजबूत होती है
किंतु पिछले कुछ न्यायिक समीक्षा के मामलो मे न्यायपालिका और संसद के मध्य टकराव समाने आया जैसे NJAC, आधार बिल , बिना किसी स्पष्ट प्रक्रिया के कारण ये विवाद उत्पन्न होते है
भारत जैसे बडे लोकतन्त्र मे जो अपने नागरिको को मूल अधिकार की सुरक्षा देता है और संघीय शासन को अपनाने के साथ शक्तियो के विभाजन का सिद्वांत अपनाता मे न्यायिक समीक्षा ही संविधान के शासन के लिए जरूरी है किंतु इस प्रक्रिया के लिए एक स्पष्ट दिशा निर्देशो की जरूरत महसूस हो रही है
Q.2) Examine the provisions of constitutional amendment. Do you think the Indian Constitution is more flexible than rigid? Examine.
Write what are the provisions to amend the constitution and then put the arguments whether it is flexible or rigid and substantiate it with valid arguments, based on your arguments conclude it.
A Constitution should be a dynamic and a living document. It should be able to adapt itself to the changing needs of the society. Sometimes under the impact of new powerful social and economic forces, the pattern of government will require major changes.
Part XX of the Constitution of India has only one article that is Article 368 that deals with the amendment of the Constitution. As per this article, Parliament may add, amend or repeal any provision of the constitution as per the procedure laid down for this purpose. However, Parliament cannot amend those provisions which form the ‘Basic structure ‘ of the Constitution.
There are three types of bills that seek to amend the Constitution:
- Bills that are passed by Parliament by Simple Majority, this doesn’t come under Art 368
- Bills that have to be passed by Parliament by Special Majority, i.e. above 50% of the total membership and 2/3rd of present and voting.
- Bills that have to be passed by Special Majority and also to be ratified by not less than half of the State Legislatures.
Bills are passed by both Houses of Parliament by a simple majority of members present and voting, which doesn’t come under art 368. It consists of:
- Admission or establishment of new States, formation of new States, and alteration of areas, boundaries or names of existing States.
- Creation or abolition of Legislative Councils in the States.
- Administration and control of Scheduled Areas and Scheduled Tribes.
- Administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram.
In India ARTICLE 368 provides the power of amendment. In India all constitutional amendments can be generally effectuated by a Special Majority. The clause 2 of Art 368 also specifies certain situations in which apart from above mentioned special majority ratification by more than half of the number of States is required, they are:
- Election of the President.
- Extent of executive power of the Union & State.
- Provisions dealing with the Supreme Court.
- Provisions dealing with High Courts in the States & Union territories.
- Distribution of legislative power between Centre and State.
- Representation of States in Parliament.
- Seventh schedule.
- 368 itself.
Classification and debate of amendment procedures in two heads as rigid and flexible:
- These amendments are considered outside the scope of Art 368 and hint at flexibility.
- Special majority in matters such as Fundamental Rights and Directive Principles requiring two-thirds majority in Parliament. Both rigidity and flexibility indicated here.
- Special majority of Parliament and ratification of half of states in matters such as election of the President. Indicates more rigidity while being flexible.
- Thus, both rigidity and flexibility are characteristics of the Indian Constitution. It is more rigid in some matters such as amendments relating to the federal character, more flexible in others.
John Burgess is of the opinion that the first and most important part is the organization of the State for the accomplishments of future changes in the Constitution, which is the amendment clause. In Indian constitution though the procedure is classified as Rigid but it has practically proved to a flexible one.
Connecting dots: Please write about Art 368, then mention it’s flexible and rigid features and based upon the arguments conclude with an argument.
Today’s best answer: Payal https://uploads.disquscdn.com/images/66a98055d154de2b09bca28b957a23a811d311676d1ab5cda302d74a71f466a0.jpg
Q.3 What are non-justiciable rights? Discuss. Why are they considered fundamental to the
functioning of the government? Comment.
Explain what non-justiciable rights and why are they called so. Then outline reasons behind these rights being fundamental to the functioning of the government substantiating with examples. Also, outline relevant articles and parts of Indian constitution.
Non-justiciable rights are the rights that are not legally enforceable by the courts for their violation. The government cannot be compelled to implement them.
Under Indian constitution the Directive Principles of State Policy, mentioned under Part IV of the constitution are non-justiciable rights. These are unlike fundamental rights which can be enforced by Supreme Court or High Courts through issuance of writs.
Rationale behind DPSPs kept as non-justiciable:
- Country not having enough resources to implement them.
- Vastness and backwardness pose major hurdle in the implementation.
Points to be covered:
Article 37, Part IV of Indian constitution states that DPSPs shall not be enforceable by any court but are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws.
- The Articles include matters relating to right to work, right to education, the uniform civil code, and other principles of good governance that the State must take note of. Dr. B.R. Ambedkar rightly called the DPSPs as ‘Instruments of Instructions’.
- Article 41 directs the State to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Various schemes like the NREGA, integrated rural development schemes that have been enacted for the purpose of social and economic justice.
- Under Article 38 State is supposed to promote welfare of the people. Thus, a legislation based on principles mentioned under DPSPs would not only help in functioning of government but would also result into good governance.
- DPSPs facilitate policy continuity and stability both on domestic and international front irrespective of government in power.
- Enable opposition to keep a check and control on the government. It also serves as common political manifesto and as a benchmark for judiciary to decide on constitutional validity of a law.
DPSPs thus forms the bedrock of the democracy. As the country is progressing economically and politically, there is a need to re-look at the DPSP’s and strengthen them by giving people more right based entitlements. While Right to Education (Article 46), Food security act (article 39,45), Panchayati raj system (Article 40) MGNREGA etc have been enacted to promote the priciples of DPSPs many like the right to health under Article 46 has not received the required attention.
Connecting the dots:
- Another set of rights that are non-justiciable are those mentioned in the preamble. However, the phrase fundamental to the functioning of the government is used particularly for DPSPs.
- A related question is whether DPSPs should be justiciable or not.
Best answer 1: Raymond
Best answer 2: Payal Borkar
4. What is judicial overreach? Do you think the balance between judicial review and parliamentary supremacy has been disturbed off late? Examine with the help of suitable examples.
The role of the Judiciary in India has recently come under considerable attack, particularly from the Legislative branch, which feels that the courts have been exceeding their authority in interpreting the law, and that they have become an extra constitutional lawmaking body.
This question tests student’s ability to relate various aspects and issues related to Judiciary. One should be clear about the concept of judicial review, constitutional arrangement for it, judicial activism and over reach. One should be able to highlight difference between review and over reach.
Kindly do note in these type of questions do write article, judgments, committee or commission’s recommendations to make answer better and more effective. Here examples should be relevant to asked theme and more contemporary because question provide “off late” disturbance.
Also need to focus on key word ‘examine’ while answering, you should be able to examine given statement from multiple dimensions and provide a balanced conclusion in the end,you can take any side as well provided you supplement it with good arguments.
The line between judicial activism and Judicial Overreach is very narrow. In simple terms, when judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government.
Judicial Review refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict the Constitution of India. The power of Judicial Review is incorporated in in regard to the Supreme Court in Articles 32 and 136 of the Constitution and Articles 226 and 227 of the Constitution as the High Courts are concerned, the judiciary in India has come to control by judicial review every aspect of governmental and public functions.
The intervention of judiciary in legislative and executive domain raise question on Instances where balance between judicial review and parliamentary legislative supremacy is disturbed
- Liquor ban on highways: Legislations already present to look after the liquor issue.
- Empowered committee on environment: series of interim orders creating a parallel executive structure.
- Striking down of NJAC act: Prevented say of executive in appointment of judges, which was nowhere mandated by constitution.
However this balance due to judicial activity is not necessarily disturbed in all cases.On various occasions this balance between judicial review and parliamentary supremacy is maintained
- Basic structure emerged as result of judicial review (Keshavanand bharati case): curtailed arbitrariness of legislative
- Due process of law in Maneka Gandhi case on Right to life: justified as SC is empowered with interpretation of constitution
- Sexual act on girl below 15 by her husband is criminalised rape: This solved contradiction in customary marriage laws and Child marriage act
Certain circumstances force judiciary to jump the ropes and encroach into of other law making bodies. The primary cause being improper action and initiative from executive side. Judicial over reach can be seen as failure of government machinery wherein judiciary has to step in and do the work supposed to be done by executive.
Also Recent denial from SC to interfere in Padmavati movie case shows judiciary does not intend to encroach into domain of other bodies until its necessary.
An independent judiciary is of critical and backbone in a political democracy, as it provides checks and balances vis-à-vis the executive and the legislature. But to maintain harmony there must be some institutional mechanisms that check judicial overreach or judicial under-reach to make the judiciary accountable, particularly to citizens.
Connecting the dots:
Similar topic can be asked in diverse aspects one can be asked to Differentiate between Judicial Review, Judicial Overreach and Judicial Activism simultenously to Give relevant example for each. One should be able to realize their necessity and provide arguments for and against if required.
Best Answer: Prajwal
Q.5) Creativity and popular sentiment have come in conflict many a times in India’s independent history. What are your views in this regard? How a balance can be maintained? Discuss.
In this question, there are two parts. One is your views about creativity and popular sentiments conflict. So, for this part you need to give examples from atleast 2-3 decades back because Independent History is mentioned. Then second part is how to balance both here use SC judgements, Policies, Legal framework and also your opinion which should be practical.
Creativity is use of ideas or imagination to create something new which maybe far different than originals.
Indian constitution guarantees Right of freedom of speech and expression under article 19(1)(a) to safeguard creativity, however it also imposes reasonable restrictions to it under Article 19(2) on grounds like public order, decency and morality. Due to this we often find conflict in creativity and popular public sentiment.
Points to be covered:
The conflict has surfaced many times since independence in following fields:
- Cinema- Conflict has arisen for several films on subjects like depicting country in bad light (India’s Daughter), portraying life of political leaders in unfavorable manner (Kissa kursi ka), communal violence (Parzania, Black Friday), hurting religious sentiments (The Da Vinci Code, Sins), obscenity (The Bandit Queen) and tabooed subjects (Fire based on lesbian relationship).
- Literature- Banning due to religious issues (Salman Rushdie’s novel ‘The Satanic Verses, book by Tasleema Nasreem), treason charges on political cartoonist Aseem Trivedi.
- Visual Art- Attack on M.F. Hussain paintings on issue of portraying nudity for Hindu goddesses.
- Economic: 1991 reforms.
- Political Creativity: Women reservation in Nagaland.
To maintain a balance
- Spirit of Tolerance: Ancient culture
- SC ruling in criminal case against MS dhoni for being portrayed as Lord Vishnu on a magazine cover
- Amend Cinematograph Act and implement Shyam Benegal committee recommendations
- Internal check on artists through institutions representing them, for eg through News broadcasters association, literary institutions for authors.
- Confidence of concerned groups: In case of Padmavati, rather than showing it to Media and other groups, showing it directly to the concerned community leaders.
Our constitution and SC provides and guarantees Freedom of expression but that shouldn’t be used to hurt sentiments of public in such a diverse country like India. Creativity and popular sentiments should go hand-in-hand for betterment of society.
Connecting the dots:
- Cinematograph act and issue of censorship
- Freedom of Expression as restricted right.
- Moral Policing.
- Pressure groups and their role.
For any of above topic, this content can be used with certain additions and deletions.
Best Answer: The best takes take time!
Creativity may be considered as the use of imagination and original ideas to create something. Many a times we find its conflict with popular sentiments. The recent instances of some fringe groups attacking Cinema Theaters on Padmavati row ( alleging misrepresentation of facts and undermining Rajput Valour an dignity) is exemplifying.
Other instances in Independent India (inter alia) :
- Art Creativity
For example those of MF Hussain were attacked for tarnishing the religious sentiments of Hindus, protracting Hindu Goddesses with Nudity.
- Literary Creativity :
- Wendy Degner’s book : The Hindus and alternative History was banned – for it spread sexuality and obscenity – affecting religious sentiments
- Mathrubhagan – by Murugan – Mr. Murugan was forced to withdraw his book and offer an unconditional apology.
- Film Creativity :
- Vishwaroopam , Davinci Code – were restricted in India.
- Political Creativity:
Women reservations ( to increase participation) in local government structures – saw protest from the Male communities ( since it affected their customs and traditions) in Nagaland.
HOW A BALANCE BETWEEN THE TWO CAN BE ESTABLISHED :
- The creator must research well before presentation in the public- the sentiments, history must been seen well. It has to be a moral consciousness
- For movies, of historical themes or involving communities, screening could be carried out with historians, experts, community leaders and stakeholders.
- Making implementation of Laws effective – Examples :
- Sec 95 of the Cr PC which allows the state to declare certain publications fortified if it is seditious (Sec 124 A) , Promotes enmity among groups (Sec 153 A), against national interest (153 B)
- Cinematographers Act – Could be amended, we can haven US’s CARA like structure where its role is only to certify not to censor. Selecting members of CBFC with Paper Norm (Mudgal Committee recommendation )
Our Constitution bestows rights with duties, FRs aren’t sacrosanct, they are subject to reasonable restrictions. Hence creating anything in the name of freedom of artistic expression isn’t logical. Creativity must be encouraged, yet restrictions must be imposed; police must be alert to check people don’t take laws into hands.
Best Answer 2 : Buzz Lightyear
Our constitution has guaranteed Right to freedom of speech and expression which extends to both artists who express themselves through writing, art, filmography etc and to those who express popular sentiments.
Instances where creativity and popular sentiments came into conflict:
- M F. Hussain’s painting depicting Hindu goddess led to discontent among people
- Caricature of Tamil Nadu’s higher dignitaries led to the arrest of cartoonist
- Notion of privileges became popular sentiment for the MLAs to curb press creativity in Karnataka.
4. Time and again books of various authors have been banned . E.g. Satanic verses by Salman Rushdie, P. Murugan was harassed by people over his book One part women
- Activists writers like Kallburgi, Gauri Lankesh were murdered over the discontent some fringe elements had with their work
- Banning of movies from IFFI Goa festival citing of popular sentiments. In the same light governments of MP, UP , Rajasthan went to the extent of banning Padmavati movie over public discontent.
But a balance needs to be strived between expression of creation and popular sentiments. This can be done through:
- To avoid outright banning of any work based on popular sentiments and testing the works first on the parameters of public morality , as defined under art 19 of constitution
- Use of criminal laws only when the work can incite people against national integrity , communal hatred etc.
- Codification of parliamentary privileges will help in curbing the control over press creativity.
4. Recommendations of Shyam Benegal’ s committee for CBFC should be implemented
Lastly , creativity should be within the domains of reasonable restrictions enshrined by constitution like public order , morality , contempt of court etc. Also popular sentiments should not be given complete weightage to impose restrictions. Boards and committees should regulate artworks on basis of rules and regulations. Arbitrary articles should be struck down like SC did for IT Act. So that a balance is created between creativity and popular sentiments.