Topic: Comparison of the Indian constitutional scheme with that of other countries; Salient features of the Representation of the People Act
Q1. What factors influenced the choice of a parliamentary form of government over a presidential form by the framers of the Indian Constitution? Was it the right choice? (10 marks)
Introduction
A parliamentary system is a form of government where executives hold power with the majority support of the legislature. India is administered by a parliamentary system based on the British Westminster model. (Definition-based)
Main Body
Reasons to prefer Parliamentary Democracy over Presidential System
- Familiarity: India, during British rule, was acquainted with the parliamentary system, which made it easier for the transition.
- Diverse Representation: The parliamentary system, through its multi-member representation, allows for a more comprehensive representation of India's diverse society.
- Flexible and Adaptable: This system allows for flexibility and adaptability to changes. It can enact laws swiftly compared to the presidential system, which can potentially be gridlocked due to the strict separation of powers.
- Collective Responsibility: The concept of collective responsibility to the Parliament ensures accountability and prevents the arbitrary use of power, unlike the presidential system, where the executive power is centralized.
- Cohesion: The parliamentary form is considered more suitable to ensure the cohesion of a culturally, religiously, and linguistically diverse country like India.
- Civilizational History: Dr Ambedkar once said - “It (India) had parliamentary institutions when people of Europe were mere nomads.”
Reasons NOT to prefer Presidential System
- Fear of Autocracy: In a Presidential system, the President has a fixed tenure and is not accountable to the legislature. This could lead to autocratic tendencies and concentration of power.
- Separation of Powers: The strict separation of powers, a key characteristic of the Presidential system, can potentially lead to legislative paralysis and deadlock between the executive and legislative branches of the government.
- Lack of Representation: A Presidential system might not guarantee adequate representation of diverse groups, which is crucial in a diverse country like India.
Analysis of the Decision
- Helped preserve democracy: The choice has helped preserve democratic values in India, given the mechanisms of checks and balances.
- Helped preserve the integrity of Indian territory by giving representation to all groups.
- The Indian political system has shown the ability to adapt and change according to changing circumstances. For instance, adopting the anti-defection law was an attempt to stabilize the system.
- However, the system has not been without its share of challenges. Frequent elections, coalition politics, and policy paralysis have sometimes slowed down the pace of socio economic reforms.
Conclusion
It is arguable whether it was the right choice, as the system has both its merits and demerits. However, the functioning of the Indian democratic setup for more than seven decades points towards the success of the parliamentary form of government in India.
Q2. Philosophical undertone of the Indian Constitution resonates with the French Constitution, but there are many differences between the two. Discuss. (10 marks)
Model Structure
Introduction
- Indian Constitution is partly borrowed and partly original with many features and ideals developing during the freedom struggle. Ideals of liberty, equality and fraternity were taken from the French Revolution and the ensuing constitution.
Main Body
Similarities between the Indian and French Constitutions:
- Written constitutions,
- Elected heads,
- Emergency and amendment process.
But there are many differences also. These differences include -
- There is a semi–presidential system in France with the President being de facto head and having more power than the Prime Minister. India went for a parliamentary form of government with the Prime Minister being the de facto head and having more powers.
- Head of the government in India is the prime minister with tenure of 5 years but the French President has tenure of 7 years.
- Indian Constitution has a provision for procedure established by law and has due process of law introduced by judiciary. There is no such provision in the French Constitution.
- Both countries have secularism but the French adopted complete separation of state from religion while India has provided for distance between state and religion but not complete separation.
- India follows federal polity whereas France has more of a unitary structure.
- Elections in India are conducted by the election commission with no role of the judiciary whereas in France the judiciary plays a role in elections.
- India is a written constitution whereas the French constitution is based on the principle of Executive supremacy and is the only Democratic constitution that way.
- The Constitution of India is flexible and changes can be easily done at the time of need. On the contrary, the constitution of France has a rigid constitution that requires a resolution to be passed by a 60% majority in two houses of Parliament.
- The Indian constitution does not allow the President to have an upper hand in the country’s management whereas the President of France has complete power here and the Prime Minister works as his assistant.
- France allows dual citizenship in comparison to India which provides for single citizenship.
Conclusion
India borrowed many features from mature democracies of that time but in comparison, there are more differences than similarities which shows the indigenous nature of our constitution.
Q3. How does the principle of separation of powers in the Constitution of India differ from the rigid separation of powers in the Constitution of the United States of America? Provide illustrations to support your explanation. (15 marks)
Introduction
- The separation of powers is a fundamental principle underlying the design of political systems. Both the Constitution of India and the United States Constitution include elements of this principle but implement it in unique ways.
- There is an old adage containing a lot of truth that “power corrupts and absolute power corrupts absolutely”. To evolve effective control mechanisms, the man had been looking for devices to contain the forces of tyranny and authoritarianism. “Separation of Powers” was conceived to be one such device. (Quote-based)
Main Body
1. Distinction in the nature of separation:
- The U.S. The Constitution has a rigid separation of powers, with clear delineations between the branches of government - the executive (President), legislative (Congress), and judiciary (Supreme Court).
- The Indian Constitution endorses a flexible separation of powers, where overlap between branches is permitted, leading to a fusion of powers. (For e.g. The council of ministers, part of the executive, are members of the legislature and are collectively responsible to the Lok Sabha.)
2. Role of Judiciary:
- The U.S. judiciary is constitutionally granted the power of judicial review explicitly. It stands as a separate and independent entity.
- In India, the Constitution does not explicitly provide for judicial review. However, it has been accepted as a part of the basic structure of the Constitution, as per the Supreme Court's interpretation. (Kesavananda Bharati vs. State of Kerala (1973)]
3. Checks and Balances:
- The U.S. Constitution puts in place a system of checks and balances through which each branch of government has some measure of influence over the other branches.
- For instance, the President has veto powers over Congress but Congress can override this veto by a two-thirds majority vote.
- In contrast, the Indian Constitution envisages a system of checks and balances but it leans towards parliamentary supremacy.
- As per Article 111, the President of India has the power to return a bill (except a money bill) for reconsideration. However, if the Parliament sends the bill again, the President has to give his assent, showing the dominance of Parliament.
4. Parliamentary vs Presidential System:
- The U.S. adopts the Presidential form of government, meaning a clearer separation between the legislative and executive branches.
- On the contrary, India follows a Parliamentary form of government, which involves a certain fusion of legislative and executive powers.
Conclusion
- While both the Indian and U.S. Constitutions embrace the principle of separation of powers, the U.S. Constitution enforces a more rigid separation between different branches of government, whereas the Indian Constitution adopts a more flexible approach, primarily due to its adoption of a Parliamentary system.
- This difference, however, does not undermine the commitment of both systems to democratic governance and rule.
Q4. The Indian Constitution was not framed in a few years, but was a result of experiences during the freedom struggle and adoption of main principles from the constitutions of various countries. Discuss. (10 marks)
Model Structure
Introduction
The Constitution of independent India was framed under the chairmanship of Dr B R Ambedkar and took around 3 years and 166 sittings to become the lengthiest written constitution of the world.
Main Body
- Many features of the constitution are a direct result of the experiences gained due to specific events which occurred during the freedom struggle. Some of them are-
- Main principles on which the constituent assembly worked are based on the Objectives Resolution of 1946 moved by Mr Nehru.
- The Karachi session of 1931 highlighted some of the principles which find resonance in fundamental rights and ever evolving economic policy.
- Then there is the draft constitution moved by Mr Motilal Nehru in 1928 which included provisions like right to freedom, universal adult franchise, protection of minorities etc.
- Bulk of the Constitution is based on the Government of India Act 1935, which had provisions like provincial autonomy, federal structure, bicameralism, separation of powers etc.
- Wide differences based on religion, caste, region, language etc prompted the leaders to adopt equality.
- A lot of ideas and provisions were adopted from work during the freedom struggle. But there are few provisions which were directly incorporated from other constitutions like-
- Ideas of socio-economic and political justice from the USSR constitution.
- Liberty, fraternity and equality from the French constitution.
- Preamble, fundamental rights, judicial independence and review from the Constitution of the USA.
- Parliamentary government, procedure established by law and rule of law from the British Constitution.
- Directive principles of state policy and emergency provisions from Irish and German constitutions, respectively.
Conclusion
The Indian Constitution is not a product of few years and haste but decades as it evolved with changing socio-economic conditions and ideas which were native and were also adopted from various revolutions going on across the globe.
Q5. The Representation of the People Act, 1951 provides for grounds of election disqualification. List them and discuss the issues in the current grounds of disqualification. (10 marks)
Model Structure
Introduction
- Under articles 327 and 328 of the Indian Constitution, Parliament and state legislatures are empowered to make rules for elections at their respective levels. As a result, the Parliament has passed the Representation of the People Act of 1951 to list grounds of disqualification.
Main Body
- The act provides for conduct of elections at both levels, administrative machinery for the elections, qualifications and disqualifications, and corrupt practices. In all these provisions, there are disqualification provisions for which any guilty person can be disqualified from contesting elections for 6 years if he/she is found-
- Indulging in bribery or any corrupt practice, and if found influencing elections.
- Promoting hatred and enmity between groups or classes of people, and also spreading religious disharmony.
- Practising and promoting untouchability and committing heinous crimes against women.
- Indulging in terrorism and other acts against the state.
- Dealing in prohibited goods and selling or consuming illegal drugs.
- Getting imprisoned for a minimum of two years and failing to declare assets.
- Though there are ways to disqualify candidates under section 8A of the Representation of the People Act, 1951 for above mentioned practices, the current process of disqualification is found to be complex, time-consuming and ineffective due to reasons like-
- If a person who stands disqualified may submit a petition to the President for the removal of disqualification. This is a time-consuming and complicated process. One infamous example is former CM of Sikkim Prem Singh Tamang who was convicted after 20 years.
- Corrupt practice does not cover areas like paid and fake news which has risen recently due to the internet revolution.
- Promoting hatred and enmity is also not clearly defined and many politicians have escaped any action for blatant violation of this clause.
- The Election Commission has powers to reduce disqualification period but for this there is no oversight to ensure decisions taken in objective.
Conclusion
There is a need for a simplified and time bound disqualification process to break nexus between politicians and criminals. The Election Commission’s advice to make bribery a cognizable offence and a 2-year jail term could also be implemented to create some sort of deterrence.
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