1
Summary
Polity Class 28

A BRIEF OVERVIEW OF THE PREVIOUS CLASS AND Q&A SESSION (05:00 PM)

PARDONING POWERS OF THE PRESIDENT (05:16 PM)

  • Pardon- Here the president has the power to pardon both the sentence as well as conviction. The person is completely absolved from all sentences, punishments, and disqualifications. 
  • Commutation- Here the President substitutes one form of the sentence with a lighter sentence. For example- The death sentence can be commuted to life imprisonment. Rigorous imprisonment can be converted to simple imprisonment. 
  • Remission- It means reducing the period of a sentence without changing the character of the sentence. For example- Imprisonment of 14 years can be converted to 10 years
  • Respite- It means awarding a lesser sentence in place of the original sentence due to special circumstances like old age, physical disabilities, pregnant women, and so on. 
  • Reprieve- It means giving a stay on a sentence for a temporary period of time so that the convict can seek either pardon or commutation from the president. 
  • Pardoning powers- President v/s Governor
  • President of India has more power than the governor of a state. The president can pardon sentences awarded by the military court also while the governor cannot. 
  • The president can pardon a death sentence while the governor cannot but the governor can Suspend, Remit, or Commute a death sentence.
  • The exercise of the power by the president is not subject to judicial review except when the presidential decision is arbitrary, irrational, malafide, and discriminatory.  

VICE PRESIDENT (05:35 PM)

  • Elections
  • Electoral College consists of both elected and nominated members of parliament. 
  • It does not include members of state legislative assemblies 
  • Qualifications 
  • a) Citizen of India 
  • b) Above 35 years old 
  • c) He should be qualified to be a member of the RS.
  • d) He should not hold any office of profit. 
  • Nomination papers have to be signed by 20 electors and supported by 20 seconders.
  • Conditions
  • He should not be a member of either House of Parliament or the state legislature. 
  • He should not hold any office of profit. 
  • The term is 5 years
  • Functions of Vice President 
  • He acts as an ex-officio chairman of the Rajya Sabha
  • He acts as a president when a vacancy occurs in the office of the president. 
  • Since independence, two vice presidents have been re-nominated i.e., Dr Sarvpalli Radhakrishnan, and Hamid Ansari. 
  • Since Independence, Five vice presidents have become presidents i.e. Dr. Sarvapalli Radhakrishnan, V V Giri, Venkatraman, Shankar Dayal Sharma, and K R Narayanan.  
  • Removal
  • Vice President can be removed through the Impeachment process
  • He can be removed by a resolution passed by a majority of all the then members of Rajya Sabha and agreed to by Lok Sabha. 
  • It means Rajya Sabha should pass the resolution with an effective majority and Lok Sabha with a Simple Majority. 
  • The resolution can be moved only in Rajya Sabha and no need to mention the grounds for his removal. 
  • 14 days advance notice should be given before the house takes up the resolution. 

JUDICIARY (05:56 PM)

  • The concept of Rational Legal Administration was started by the British in 1853. 
  • During British time 
  • a) Judiciary was not independent and it followed the "Rule By Law". Example- Sedition Law.  Any decision of SC can be overturned by Governor General. 
  • b) It was also not impartial- Indian judges can not hear the cases of European subjects. 
  • Both these aspects were removed by the Constitutional makers while drafting the Constitution. Our Indian judiciary was made both Independent and Impartial. 
  • [* By this we can say that the Indian constitution is not an extension of the GoI 1935 Act]
  • According to constitution-makers, the judiciary is expected to perform two important functions 
  • a) Protection of FRs from the exploitation of other organs of the state i.e. Legislature and executive and also from individual citizens. 
  • b) To ensure constitutional governance- It must ensure that the legislature and executive function with limitations.  
  • Articles related to the judiciary-
  • Article 13, Article 226, Article 32, Article 131 (Original jurisdiction to resolve the conflict between State and centre), Articles 141 (Judgement of SC is binding over all the courts- Integrated judiciary), Article 142 (Judiciary can declare a law- example- Vishaka case ), Article 139 (parliament can expand the scope of Writs). 

WHETHER THE JUDICIARY HAS PERFORMED THESE FUNCTIONS? (06:13 PM)

  • Justice Manepalli Narayana Rao Venkatachaliah classified the performance of the Judiciary into various phases 
  • a) 1947-1967- Passive phase 
  • b) 1967- 1975- Conflict among Judiciary, executive and legislative
  • c) 1975- 1977- Darkest phase 
  • d) 1977-80- Revival of credibility
  • e) 1980- till now- Judicial activism 
  • Why there is conflict among Judiciary, executive, and legislative?
  • In our constitution, there is only a separation of functions but not of powers
  • Judicial review is not explicitly mentioned but it can be derived from Article 13 of the Indian constitution
  • The conflict between Fundamental Rights and DPSPs. 
  • FRs talk about individual rights and DPSPs talk about the collective welfare of the society 
  • Why there is a conflict between the collective welfare of society and Individual rights?
  • There is always a conflict between self-interest and societal welfare. To fulfil self-interest, one has to exploit society. 
  • Legislative and executive were helping the state to fulfill the socialistic pattern whereas the Individuals wanted their rights to be protected. 

FIRST PHASE 1947-67 (06:30 PM)

  • This phase is called the passive judiciary
  • Constitution was drafted and FRs like Freedom of speech and other freedoms were given to citizens. The government realized the absolute nature of these rights. 
  • At the time of Independence, 2% of big zamindars were holding 90% of the land
  • [* Redistributive justice- Government must form such policies which benefit the highest number of society]
  • The government wanted to bring land reforms, especially the land ceiling Acts. 
  • The government brought 1st Amendment to the constitution (1st CAA). It introduced the IXth schedule into the constitution. Any law put under the IXth schedule cannot be challenged in a court of law. It gave a blanket power to the government to put any law beyond judicial scrutiny. 
  • Judiciary did not react to this. This is why it is called the Passive phase of the Judiciary. 
  • Why passive?-
  • The conditions prevailing in the country were responsible for this. Judiciary felt that both the legislative and executive are trying to do societal welfare and thus Judiciary did not take any action. 
  • Legislature and Executive were enjoying a huge amount of credibility at that time and working for a socialistic identity. 
  • SC in A K Gopalan case 1950, reaffirmed the commitment towards the procedure established by Law. Judiciary will not question the content and intent, it will go strictly by the procedure. 
  • Judiciary deliberately remained passive. 

PHASE II- CONFLICT PHASE (1967- 1975) (06:59 PM)

  • The judiciary was forced to interfere
  • The government adopted a socialistic pattern of society but it was not successful such as land ceiling laws etc. 
  • The policies of the government led to a severe food crisis. From the second Five year plan, we tried to focus on industry, and agriculture was neglected which led to the food crisis. 
  • 1962- China attacked India. 
  • Now judiciary became active and decided to interfere. 
  • Golaknath case- The government had confiscated his land under the land ceiling Act. SC ruled that when there is a conflict between the FRs and DPSPs, then FRs will be given priority and importance. 
  • In 1967- Indira Gandhi became PM. This time was facing political instability. Indira Gandhi wanted to come out from the shadow of the Syndicate. Thus she firmed Congress(R) and came up with the Abolition of Privy purses and the Nationalization of Private banks. 
  • Both decisions were challenged in the SC and SC struck down both these decisions. 
  • 1971- Indira Gandhi opted for elections and demanded the Absolute Majority so that she can implement the socialistic schemes. 
  • 24th and 35th CAA was enacted and Article 368 was amended. Article 368 talks about the procedure to amend the Constitution. 
  • She changed the title to "Power to Amend the constitution". She also stated that parliament has the sovereign power to amend any power of the constitution including FRs and this amendment to the constitution will not be called as LAW under Article 13. 
  • She also kept these laws in the IXth schedule. 
  • Judiciary reacted in the Keshavanand Bharti case, in 1973.
  • SC came out with a landmark judgment constituting 13 members. They gave the judgment with a 7:6 majority. 
  • SC has recognized the sovereign power of parliament to amend any part of the constitution including the FR. At the same time, it stated that Parliament can not amend the Basic structure of the Constitution. SC said that the Basic structure will be defined from time to time and case to a case basis. 
  • Basic structure= Independent judiciary, Rule of law, Parliamentary democracy, Judicial review, etc
  • It ensured a Balance of power. The organs of the government i.e. legislative and executive are supreme in their function but not Sovereign. Parliament is supreme but not sovereign. 
  • SC stated that if the constitutional amendment Act violates the Basic structure of the Constitution, then the Constitutional Amendment Act can be held unconstitutional. 
  • Indira Gandhi faced a serious crisis in 1973 as the Arab-Israel war started, which led to an inflationary situation. 
  • In 1975, Allahabad HC came out with the sensation judgment which was disqualified under RPA 1951. 
  • SC gave a conditional stay on this disqualification. 

PHASE III- DARKEST PHASE (1975-1977) (07:41 PM)

  • Judiciary failed to perform the two important functions- Protecting the FRs and constitutional governance. 
  • The government came out with MISA
  • 1976- SC came out with the ADM Jabalpur case
  • The government argued that Under MISA, the government can arrest and detain them for any amount of time. 
  • SC accepted the argument of the government and agreed to go by the procedure established by Law. The Attorney General of India argued that the Right to life is not an absolute right. 
  • 42nd CAA 1976, introduced Article 31C, which argued that FRs are not sacrosanct and it can be violated in the name of DPSPs
  • 42nd CAA 1976 removed the authority of the Supreme Court to adjudicate petitions regarding elections of Prime Minister, President, Vice president, and Speaker of Lok Sabha

PHASE IV (1977-1980)- REVIVAL PHASE (07:47 PM)

  • Maenka Gandhi case 1978
  • SC expanded the concept of the basic structure. 
  • It expanded the scope of the Right to Life.
  • SC introduced the concept of "Due process of Law". Any legislative and executive actions if violative of the due process of law then it would be held unconstitutional. 
  • The due process of law is based on the principles of natural justice. The principle of natural justice is based on the fair and just application of the law. 
  • Minerva Mills case 1980
  • Article 368 gives limited power to the parliament to amend the constitution, and this limited power cannot be used by parliament to acquire unlimited power to amend the constitution. 
  • Article 31C was struck down by the SC as it was violating the Basic structure of the constitution. 
  • In this case, SC said that the independence of the Judiciary and Judicial review is the basic structure of the Constitution. 

PHASE V- JUDICIAL ACTIVISM (1980 ONWARDS) (07:57 PM)

  • Concept of PIL, Judicial activism, etc 
  • Question- Do you think presidential activism is necessary to prevent the dictatorship of the Prime minister? Comment (15 marks/ 250 words)

The Topic for the next class:- Judicial Activism and Continuation of Judiciary.