On the roads of Indian democracy, we have travelled for about 63 years now and shall continue the journey for years to come in the same rickety ancient grubby vehicle of ours that has driven us for so long. The list of travellers is an assemblage of young dazzling men and women. The blatant contrast between them arouses debates. It makes us ponder over the role of youth in Indian politics.
There have been certain qualities constantly attributed to youth such as passion, aggression, and impetuousness, which have been viewed in both negative and positive lights.
. Many argue that “youth” is an inexperienced and immature stage of life and are in disagreement as to whether the qualities of youth can be beneficial for politics, or detrimental. Speculation has also led to debates about whether young adult brains are biologically ready to make tough decisions.
At the same time, for the establishment of “Rule by the People” in the world’s largest democracy as we proudly declare ourselves to be, it is important to understand who these “people” really are.
According to ‘Indian Youth Portal’ 41.05% of the total population of the nation comes under the category of youth. Hence, it is obvious that participation of youth in the functioning of our country’s political practices is integral. The methods of working need to be revolutionised at a grass root level which can be attained by giving them the power to create a world in which they wish to live. Their innovative way of assessment and unacceptability towards injustice and unfair practices, makes them the ideal class of people to work for the people and strengthen their representation.
After having addressed the question of the importance of youth contribution, we need to shift our focus on the practicality of this idea. A simple survey* reveals an interesting result. 87% of the university students surveyed for the same, believe that the…
Abraham Lincoln, the 16th President of the United States of America, aptly defined democracy as a government of the people, by the people and for the people.
Abraham Lincoln, the 16th President of the United States of America, aptly defined democracy as a government of the people, by the people and for the people. This definition clearly underlines the basic tenet that, in this- form of government, people are supreme. The ultimate power is in their hands and they exercise it in the form of electing their representatives at the time of elections. In modern times this type of democracy, which is representative in nature, is most suitable. The other type, the direct democracy in which the people themselves enact and implement laws and run the administration, is now not feasible as countries are large and their populations huge. In a country like Switzerland, which has comparatively small population, direct democracy can still be found.
India is the biggest democracy in the world, with a population of over one billion. India, a union of states, is a sovereign socialist, secular, democratic, republic, with a parliamentary system of government. The republic is governed in terms of the Constitution, which was adopted on 26 November, 1949 and came into force on 26 January, 1950. During the past fifty-three years there have been regular elections to the Parliament and state legislatures. This reflects the maturity and wisdom of the Indian electorate, in whom the ultimate power and sovereignty rests. With the passage of time, Indian voters have become more assertive and active as regards their participation in the process of democracy. The turnout of Indian voters has significantly increased during the past elections. It was about 52% only during the Lok Sabha elections of 1952 which increased to 64% during the ninth Lok Sabha elections held in 1989. Similarly during the last elections for Parliament, the voter’s turnout has been quite encouraging. This phenomenon…
No institution including the Election Commission of India (ECI) and no personality or office in a democracy can be beyond public criticism and debate. There have been occasions in the past when political parties have vehemently disagreed with the ECI’s decisions and found fault with its directives. Some of them have merely voiced their dismay, while others have accused the poll panel of lacking in neutrality and being influenced by the ruling party of the day. However, it is not often that a major political party holds a protest against the ECI and openly accuses the Chief Election Commissioner of timidity. By organising such protests, the Bharatiya Janata Party (BJP) has set a precedent of sorts. The party’s grievance is that the Returning Officer for the Varanasi constituency, where its prime ministerial aspirant Narendra Modi is a candidate, denied him permission to hold a rally in Varanasi city, citing security reasons.
There may be some substance in its grievance as other leaders seem to have had no problem in addressing rallies at the same venue. However, it seems the party is protesting too much, as this one instance is not enough to conclude that the entire machinery of the Election Commission is acting with bias against the BJP and Mr. Modi. With just one round of polling left in the multi-phase exercise, Mr. Modi has criss-crossed the length and breadth of the country including Uttar Pradesh and addressed rallies without any such problem. The words of its senior leader Arun Jaitley, that “timid men can dwarf high office” and “if you can’t provide security, don’t hold polls in the country”, may not be quite fair, considering the impressive way in which the Commission has held the mammoth democratic exercise over the last two decades without many complaints of rigging. Voter turnout has improved considerably over the years; people living in remote areas and from communities prevented in the past from voting by feudal overlords are exercising their franchise without fear.
Carping at the referee for one unpalatable decision, even if it involves the party’s iconic contestant, may not be justified. One of the principal complaints of the BJP against the United Progressive Alliance regime was that it undermined institutions such as the CAG by its continuous attacks. The BJP’s outburst against the ECI would seem no different in its tenor. Parties should desist from unfair attacks that might put undue pressure on election officials. It is equally plausible that the BJP was merely being opportunistic and seeking last-minute electoral gains by playing the victim. For its part, the Election Commission should be more alert, closely monitor field-level decisions and deal with complaints against its officials with a greater sense of urgency.
One of the most encouraging aspects of the 2014 Lok Sabha elections has been the significantly high voter turnout in areas affected by Left-wing extremism. Bastar in Chhattisgarh, that remains severely affected by Maoist insurgency, saw a voter turnout of almost 60 per cent as opposed to 47.33 per cent in 2009. Here, as well as in other areas, the Maoists had called for a total boycott of elections. But in most areas, in spite of the violence perpetrated by the Maoist rebels, people have come out in large numbers to cast their vote. In Gadchiroli constituency in Maharashtra, that is a part of the Maoists’ foremost guerrilla zone, the Dandakaranya Special Zone Committee, over 68 per cent votes were cast as opposed to 65.21 per cent in the 2009 elections. Munger and Jamui in Bihar also saw a 10 per cent increase in voter turnout. The only affected area where the turnout was low is Orissa’s Malkangiri that recorded a voting percentage of 48 per cent. One reason attributed to the higher turnout is the enthusiasm of first-time voters who came out in large numbers.
Also, in many Maoist-affected areas, people are tired of the long cycle of violence, and want things to change. The voter turnout in Bastar has left the Maoists worried. After the elections in Bastar on April 10, they have held meetings at several places with Adivasis to understand what prompted this high turnout. Even in the formerly Maoist-hit areas in West Bengal, that went to the polls on May 7, the turnout has been exceptional. West Medinipur, Purulia and Bankura registered a turnout of 81.41, 78.75, 80.55 per cent respectively till 5 p.m. In Jhargram, it was almost 88 per cent. The challenge for the new government would be to focus on the development of the red corridor, especially when people there have expressed their faith in democracy.
One major reason why the Maoists were able to entrench themselves in these regions was that the Indian state had completely forsaken its people. The void left by the state was just filled by Maoists. The onus is on whosoever forms the next government in New Delhi to change the equation. In many areas, there is sympathy among the Adivasis for Maoists. Security operations in these areas may have put Maoists on the back foot, but this can only be a temporary trend. In the absence of a real developmental intervention by the new government, there will be no ebb in violence in Bastar and other Maoist-affected areas. One of the biggest challenges before the new government will be to instil a sense of security among the people. That will only happen if the people have confidence in the government — after which they will reject Maoism.
When a law replacing an invalid executive order retains the same classification that was held to violate the constitutional norm of equality, it has to be struck down. It was only natural that the Supreme Court should declare unconstitutional Section 6-A of the Delhi Special Police Establishment Act that requires prior approval of the Centre before the Central Bureau of Investigation (CBI) can begin an inquiry or investigation against officers of the Union Government in the rank of Joint Secretary and above for the same reason that it invalidated the government’s ‘Single Directive’ in Vineet Narain (1997). The section was introduced by Parliament in 2003 to restore the ‘Single Directive’, a set of instructions to the CBI on the modalities of holding an enquiry. In yet another verdict that insulates the investigating agency from dependence on government approval at every stage, the Court has seen through the distinction made between officers based on their rank alone.
Apart from there being no reasonable basis to treat corrupt public servants of a certain rank differently from those below them, the Court has given cogent and practical reasons too: that Section 6-A is destructive of the objective of the Prevention of Corruption Act as it blocks the truth from surfacing, protects those who commit crimes thwarts independent investigation and provides a forewarning to corrupt officers as soon as allegations are made against them. The government argued in vain, as it did in defence of the Single Directive earlier, that officers of the rank of Joint Secretary and above are “decision-making” officials who required protection against malicious or vexatious allegations. In the absence of such protection, it was contended, officials may tend to make no decisions, or limit themselves to ‘safe decisions’.
However, as the amicus curiaepointed out to the Court, there was no known instance of harassment of officials between 1997 and 2003, the period in which no such prior approval was required. Further, other provisions requiring sanction from the competent authority before commencing prosecution remain intact. The real mischief in the provision, the Court has noted, is that the very group of officers who may be the target of the inquiry get to decide whether the probe should be allowed or not. It has ruled that where it could be inferred that a corrupt act had taken place, but there is no direct evidence, the ‘expertise’ to decide whether to begin a probe should remain with the CBI, and not with the government. The verdict thus strengthens the agency in a way the legislature has failed to do over the years. It has restored what it calls the ‘signature tune’ of Vineet Narain: “however high you may be, the law is above you.”
Essays on the organization, functions and Role of the Election commission in India
A good electoral system is, therefore, the bed rock of genuine representative government. The architects of the Indian constitution attached the highest significance to arzon-dependent electoral machinery for the conduct of elections. For this it was necessary that an independent election commission with its vast paraphernalia should be set-up in country such a commission could ensure fair and free elections of the representatives of the pie at all levels. Articles 324, Dr. Ambedkar contended, “proposed centralise the election machinery in hands of a single commission, be assisted by regional commissioners working under the supervision direction control of the election commission and not and under e control of the state government as envisaged earlier.”
Composition of the Election Commission:
Of the four pillars of the Indian constitution, the Election commission is one, the other three being the Supreme Court, the public service commission and the comptroller and Auditor General of India. On the Election commission depends the integrity of election, which truly is the oxygen of democracy. Thus viewed, its independence d impartiality assume critical importance to the country’s entire political system. To ensure free and fair and impartial elections, the constitution establishes the Election Commission, a body autonomous in character and free from political orenecutive influence. The commission is an All India body having jurisdiction over, elections to parliament, fate Legislatures, offices of the president and vice-president. The Election Commission consists of the Chief Election Commissioner, and such number of Election Commissioners if any as the president may fix from time to time. The Chief Election Commissioner stands at the apex of the hierarchy of the Election Commission of India. All these commissioners are appointed by the president subject to the provisions of any law enacted by parliament for the purpose.
The Chief Election Commissioner acts as the chairman of the Election Commission .in case any other Election Commissioner besides him is appointed. The tenure of the Chief Election Commissioner is independent of the executive discretion, for he cannot be removed from his of face except in the like manner and on the like grounds as a judge of the Supreme Court. The conditions of service of the Chief Election Commissioner cannot be varied to his disadvantage after his appointment. The president also promulgated an ordinance amending the Chief Election Commissioner and other Election Commissioner Act providing for unanimous transaction of business and decisions but in case of differences of opinion among the three members the matter shall be decided “according to the opinion of the majority.” The Chief Election Commissioner and other Election Commissioner Act, 1991 as existed before the issue of ordinance was weighed in favour of the chief election commissioner on decision making in case of differences among the members of the commission. The constitution provides for a single member or multimember Election Commission.
Where there is more than one I members the CEC acts as its chairman. The committee on Electoral Reforms has made certain recommendations with regard to the items and conditions of service Of the Chief Election Commissioner and the other Election Commissioners. After having studied those recommendations the chief Election Commissioners of India conditions of service rules 1972 were amended with introspective, effect from 1st January 1986. The Chief Election Commissioner of India will not be entitled to the salary and other facilities, like rent free accommodation, equivalery to that of a judge of Supreme Court. The term of his office has also been extended upto 6 years, from the date he assumes office or till the day he at his the age of 65 years. To assist the Chief Election Commissioner in the performance of his onerous duties there exists a large paraphernalia of the officers and the staff subordinate to him. Among them is the regional commissioner. Deputy Election Commissioner, secretary, Under secretary, Research officers etc.
In the place of the regional commissioners a new post of Deputy Election Commissioner was created in the Election Commission for the first time in 1956. Since he Deputy Chief Election Commissioner is appointed by the president and is usually sent on deputation, he can be recalled by the central govt, at the request of the chief Election Commissioner at any time. At the state or the union territory level there is the Chief Election officer as the kingpin in the Electoral machinery. He is nominated by the Election Commission in consultation with the state Govt. He is usually a senior executive or judicial officer of the state Government. He is assisted by the joint deputy or assistant Chief Election officers as well as the rest of the staff appointed by him in consultation with the state government. He may be a whole time or part time officer. At the district level the electoral duties are discharged by the District officer or the Executive Officer in addition to his normal administrative routine.
The responsibility for the preparation and revision of electoral rolls is rested in an officer called the Electoral Registration officer. He may have under him Assistant Electoral Registration officers. The election in every constituency is supervised by an officer known as the returning officer nominated by the Election commission in consultation with the govt, of the state. The same officer can be nominated as returning officer r more than one constituencies. He is assisted by one or more assistant Returning Officers so designated by the Election Commission. The staff consisting of presiding and polling officers, for the actual conduct of the poll is appointed by the District Election officer. The District Election Officer may appoint a presiding officer for each polling station and such polling officers are necessary. The presiding officer keeps order of the pooling station and ensures the fair conduct of the poll.
Functions and powers of the Election Commission:
The Election Commission of India has to perform multifarious duties assigned to it under the constitution. Some of the principal functions of the commission are:
(1) Demarcation of constituencies:
To facilitate the process of elections a country has to be divided into several constituencies. The task of delimiting constituencies is generally performed by a delimitation commission. But the power to delimit parliamentary and assembly constituencies for the first general elections in 1951 was conferred on the president. The Election Commission distributed the seats district wise in each one of the states and directed the Chief Electoral Officers to prepare proposals for the physical demarcation of constituencies according to the prescribed criteria. The procedure adopted in the delimitation of constituencies in 1951 led to a virtual power in the hands of the ruling party to decide the contours of the constituencies as it suited its designs. The association of parliamentary Advisory committees with the delimitation commission gave top priority to political consideration. The Election Commission strongly pleaded for taking away this power from the parliament. The Delimitation commission was to consist of three members, two of whom were to be nominated by the president from serving or retired judges of the Supreme Court or High Courts while the Chief Election Commissioner was to be an ex-officio member.
(2) Electoral Rolls:
The second important but tedious function of the Election Commission is to prepare for identification the upto date list of all the persons who are entitled for voting at the poll.
(3) Recognition of political parties and Allotment of Symbols:
A new part IV A has been added to the representation of the people Amendment Act, 1951 on registration of political parties. Section 29 A now inserted provides for registration with the commission, of associations and bodies of individual citizens of India as political parties for purpose of this Act. This provision came into force from June 15, 1989. A recognised political party has been classified either as a National Party or a state party under paragraph 7 of the Elections symbol order 1968. Another important function of the Election Commissioner is to allot symbols to the political parties and the candidates, and also to accord recognition to the political parties. The commission has specified certain symbols as reserved and others as free. The reserved symbols are only available for candidates sponsored by the political parties and the free symbols are equally available to other candidates. The Election Commission has power to adjudicate upon disputes with regard to recognition of political parties and rival claims to a particular symbol for the purposes of elections.
(4) Scrutiny of the Nomination Papers:
Another function of the Election Commission is to examine the nomination papers of the candidates. These papers are accepted if found in order, but rejected otherwise. This duty is performed by the returning officer who notifies to all the contesting candidates the date, time and place for the formal scrutiny of nomination papers. The Returning officer summarily but judicially examines all the nomination papers and decides the objection raised. He is also to see whether the requisite requirements of security deposit, election symbol, election agent etc. have also been fulfilled. He is empowered to reject the nomination papers either by upholding the objection raised by a rival candidate or on his own motion or any of the following (a) that the candidate either is not qualified or is disqualified to fill the seat under any of the relevant constitutional provisions viz. Articles 84. 102, 173 and 191 (b) that the provision of sections 33 and 34 of the representation of the people’s Act 1951 have not been complied with and (c) that the signature of the candidate or the proposer on the nomination or papers is not genuine.
(5) The conduct of the poll:
Another stupendous task that the Election Commission has to undertake is the conduct of the poll throughout the whole of India. In a parliamentary constituency, the returning officer is to make suitable arrangements for conducting the poll with the prior approval of the Election Commission. The commission can order a Ripoll for the whole constituency under compulsion of circumstances. Articles 324 confers on the Election Commission necessary powers to conduct the elections including the power to countermand the poll in a constituency and ordering a fresh poll there in because of hooliganism and break down of law and order at the line of polling or counting of votes.
(6) Election Expenses:
Another most controversial function that the election commission has perform is no scrutinize the accounts of election expenses submitted by contestants in elections. In India every contesting candidate is required to maintain and file the accounts of his election expenses. Within a prescribed period after publication of the result of his election within 10 days from the last date of filing the returns the Returning Officer submits to the Election Commission a list of all the candidates and their agents together with their returns as also his observation in respect of candidates who have failed to lodge returns in the specified time and a accordance with the procedure prescribed by law. The commission scrutinizes the accounts and dudes whether the returns are in proper form and whether they have been lodged in time. In case of default it notifies the candidates or their agents of there disqualification by publishing these in the official Gazette.
Role of the Election Commission:
Election is the contrivance through which a modern state creates amongst its citizens a sense of involvement and participation in public affairs. It is through popular elections that the authority of a govt, is clouted with legitimacy and peaceful and orderly transfer of authority to new leaders is ensured. For this it was necessary than an independent Election Commission with its vast paraphernalia should be set up in the country. Such a commission would ensure fair and free election of the representatives of the people at all levels. According to L.K. Advani, “The Election Commission occupies a pivotal place in the scheme of the Indian constitution. During recent years it has willingly or unwillingly abdicated its independent Supra governmental authority and accepted for itself the role of a mere official department charged with the conduct of elections.” The relations between CES and the central and state Governments are not cordial. The confrontation and the ensuing embarrassment for the Governments as a result of the ruling given by Chief Election Commissioner J.N. Seshan have only been increasing. With a critical evaluation of the working of the Election Commission of India so far as we can now infer that: Firstly, the working of the Elections Commission of India during the last four decades has shown that the Election Commission worked independently and impartially, as well as efficiently.
Secondly, the Election Commission has fulfilled all the constitutional obligations, and has never tried to go beyond or over step the limits of the constitution. It always worked within the frame work of the constitution. Thirdly, when the Election Commission conducted the first General Election in 1951-52 the electorate were just 17 million but the present strength of the electorate is about 50 crores. The commission, has however been able to cope with its ever mounting responsibilities. It has the capacity to meet new challenges and faced the situation boldly. Fourthly, although the faith of the people in democracy, its institutions and political parties has eroded but their faith in the Election Commission has all the more strengthened or fortified. According to the Election Commission, the very fact that in almost all states the ruling parties have suffer setbacks shows that the elections have been free and fair. It has given the lie to the wide spread belief that the party in power will use official machinery and influence the voters in its favour.
Essays on the doctrine of “Judicial Review” under the Indian constitution
The power of Judiciary to review and determine validity of a law or an order may be described as the power of “Judicial Review.” It means that the constitution is the Supreme law of the land and any law in consistent there with is void. The term refers to “the power of a court to inquire whether a law executive order or other official action conflicts with the written constitution and if the court concludes that it does, to declare it unconstitutional and void.”
Judicial Review has two prime functions:
(1) Legitimizing government action; and (2) to protect the constitution against any undue encroachment by the government. The most distinctive feature of the work of United States Supreme Court is its power of judicial review. As guardian of the constitution, the Supreme Court has to review the laws and executive orders to ensure that they do not violate the constitution of the country and the valid laws passed by the congress. The power of judicial review was first acquired by the Supreme Court in Marbury vs. Madison case. 1803. The constitution of India, in this respect, is more a kin to the U.S. Constitution than the British. In Britain, the doctrine of parliamentary supremacy still holds goods. No court of law there can declare a parliamentary enactment invalid. On the contrary every court is constrained to enforce every provision” of the law of parliament. Under the constitution of India parliament is not Supreme. Its powers are limited in the two ways. First, there is the division of powers between the union and the states.
Parliament is competent to pass laws only with respect to those subjects which are guaranteed to the citizens against every form of legislative encroachment. Being the guardian Fundamental Rights and the arbiter of-constitutional conflicts between the union and the states with respect to the division of powers between them, the Supreme Court stands in a unique position where from it is competent to exercise the power of reviewing legislative enactments both of parliament and the state legislatures. This is what makes the court a powerful instrument of judicial review under the constitution. As Dr. M.P. Jain has rightly observed: “The doctrine of judicial review is thus firmly rooted in India, and has the explicit sanction of the constitution.” In the framework of a constitution which guarantees individual Fundamental Rights, divides power between the union and the states and clearly defines and delimits the powers and functions of every organ of the stat^ including the parliament, judiciary plays a very important role under their powers of judicial review. The power of judicial review of legislation is given to the judiciary both by the political theory and text of the constitution.
There are several specific provisions in the Indian constitution, judicial review of legislation such as Act 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372. Article 372 (1) establishes the judicial review of the pre-constitutional legislation similarly. Article 13 specifically declares that any law which contravenes any of the provision of the part of Fundamental Rights shall be void. Even our Supreme Court has observed, even without the specific provisions in Article 13. The court would have the power to declare any enactment which transgresses a Fundamental Right as invalid. The Supreme and high courts are constituted the protector and guarantor of Fundamental Rights under Articles 32 and 226. Articles 251 and 254 say that in case of in consistent if between union and state laws, the state law shall be void. The basic function of the courts is to adjudicate disputed between individuals and the state, between the states and the union and while so adjudicating, the courts may be required to interpret the provisions of the constitution and the laws, and the interpretation given by the Supreme Court becomes the law honoured by all courts of the land.
There is no appeal against the judgement of the Supreme Court. In Shankari Prasad vs. Union of India (1951) the first Amendment Act of 1951 was challenged before the Supreme Court on the ground that the said Act abridged the right to property and that it could not be done as there was a restriction on the amendment of Fundamental Rights under Article 13 (2). The Supreme Court rejected the contention and unanimously held. “The terms of Article 368 are perfectly general and empower parliament to amend the constitution without any exception whatever. In the context of Article 13 law must be taken to mean rules or regulations made in exercise of ordinary legislative power and amendments to the constitution made in exercise of constituent power, with the result that Article 13 (2) does not affect amendments made under Article 368.” In Sajan Singh’s case (1964), the corupetence of parliament to enact 17th amendment was challenged before the constitution. Bench comprising of five judges on the ground that it violated the Fundamental Rights under Article 31 (A).
Supreme court reiterated its earlier stand taken in Shankari sad’s case and held, “when article 368 confers on parliament the right to amend the constitution the power in question can be exercised over all the provisions of the constitution, it would be unreason about to hold that the word law’ in article 13 (2) takes in amendment Acts passed under article 368. Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and could not be struck down by the application of article 13 (2). The historic case of Golak Nath vs. The state of Punjab (1967) was heard by a special bench of 11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged.
The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed. (1) Article 368 only provides a procedure to be followed regarding amendment of the constitution. (2) Article 368 does not contain the actual power to amend the constitution. (3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list. (4) The expression ‘law’ as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power.
(5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) of it takes away or abridges the rights conferred by part III of the constitution. (6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution. (7) Parliament will have no power from the days of the decision to amend any of the provisions of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined there in. The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the Fundamental Rights case.
The Govt. of India claimed that it had the right as a matter of law to change or destroy the entire fabric of the constitution through the instrumentality of parliament’s amending power. In Minerva Mills case (1980) the Supreme Court by A majority decision has trunk down section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24, 19 and 31 of part III of the constitution, on the ground that part III and part IV of the constitution are equally important and absolute primacy of one over the other is not permissible as that would disturb the harmony of the constitution. The Supreme Court was convinced that anything that destroys the balance between the two part will ipsoTacto destroy an essential element of the basic structure of our constitution.
Judicial Review of Legislative Enactment and ordinances:
One of the first major case A.K. Gopalan Vs. State of Madras. 1951 that came up before the Supreme Court in which the preventive Intention Act, 1950 was challenged as invalid. The court by a unanimous decision declared section 14 of the Act invalid and thus manifested its competence to declare void any parliamentary enactment repugnant to the provisions of the constitution. In Champakan Dorairajan’s case, the Supreme Court held that the order of the state government fixing proportionate scales, for different communities for admission to medical colleges was unconstitutional. The presidential order de-recognising privy purses was also challenged in the Supreme Court which declared the order as unconstitutional and void. Between 1950-1980 parliament passed as many as 1977 Acts and out of them, the Supreme Court invalidate laws passed on 22 occasions.
Principles of Judicial Review:
Justice VS Deshpande in his book propounded a thesis that Judicial Review of legislation in India should rest merely on Article 245 (1) and not on Article 13. According to him, Article 245 (1) interpreted broadly would ensure the supremacy of the constitution over all kinds of laws. Thus, a law to be valid must conform with the constitutional forms. The grave responsibility of deciding upon the validity of laws, is laid up on the judges of the Supreme Court. If a statue isn’t within the scope of legislative authority or it offends some constitutional restriction or prohibition, that statue is unconstitutional and hence invalid. The Statue is not held unconstitutional by the court in a light vein. Both the ‘felt necessities of the time’ and ‘constitutional fundamentals’ are balanced by the court.
Accordingly, the Supreme Court has evolved certain canons, making and norms. H.M. Leervai has enumerated following rules in this regard. (1) There is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and the on us to prove that it is unconstitutional lies upon the person who challenges it. (2) Where the validity of a statue is questioned and there are two interpretations, one of which would make the law valid, and the other void, the former must be preferred and the validity of the law upheld. (3) The court will not decide constitutional questions of a case is capable of being decided on other grounds. (4) The court will not decide a larger constitutional question than is required by the case before it. (5) The court will not hear an objection as to the constitutionality of a law by a person whose rights are not affected by it.
(6) Ordinarily, courts should not pronounce on the validity of an Act or part of an Act, which has not been brought into force, because till then the question of validity would be merely academic. Indian judiciary has been able to overcome the restrictions that were put on it by the 42nd amendment, with the help of the 43rd and 44th amendments. Now the redeeming quality of Indian judiciary is that no future governments could did its wings or dilute its right of Judicial Review. In fact, now the ‘Judicial Review’ is considered to be the basic feature of out constitution.