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UPSC 2019 Study Notes: Judiciary V/S Executive

Judiciary V/S Executive

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The Supreme court judgement on the SC/ST act and the subsequent review petition file by the govt on it has again brought forward the tug of war between the Executive and the Judiciary. Therefore, it is right time to go through the history of this contest and the various amendments and judgements related to this matter. Also, Polity is an important component of the GS paper of UPSC Civil services prelims, as for the last 7 years the average weightage for polity questions is 15 marks and last year it was 22 marks making one of the make or break subjects for IAS Preparation.

Round 1

The issue starts right at the start of independent India, when the Govt was carrying out Redistribution of land to implement the socialistic principles envisioned in the constitution. Subsequently this move was challenged in the court of Law based on Article 13 – Laws inconsistent with or in derogation of the fundamental rights as then Right to Property was a Fundamental right under Article 31. {this was repelled by 44th amendment – 1978and the courts were giving decisions against the government.

The Govt therefore introduced the First Amendment bill which added the 9th schedule to the constitution and all the property related laws were put in this schedule. (please read other provisions of this amendment as well from “Indian Polity by LAXMIKANT”, this is important for IAS Preparation)

9th Schedule – Laws put under this schedule cannot be challenged in the court of law.

The Supreme upheld this amendment in the Shankari prasad (1953) and Sajjan Singh (1965) judgements.

Round 2

Golaknath Case (1967) – In the face of the 1953 Punjab Security and Land. Tenures Act, the state government held that the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared ‘surplus’. This was challenged by the Golak Nath family in the courts on the grounds of Article 14 and article 19 (f) and (g) – Equality) and the case was referred to the Supreme Court. The question raised was whether an amendment should be considered as a law as defined under article 13 of the constitution.

The SC decided that Amendment is a law, and all laws can be reviewed by the court. The Judgement stated that Parliament cannot amend the Fundamental Rights.

The Govt’s response to the Golaknath case was 24th and 25th amendment to the constitution. (Art 13 and 368)

24th amendment –

1) Parliament can amend any part of the constitution including Fundamental rights.

2) Amendment is not a law

3)Compulsory for President to give his assent to constitution amendment bill.

25th Amendment –

1) Curtailed the Right to property by stating that laws relating to property cannot be challenged n the grounds of Equality.

2) Provided that any Law made to give effect to Directive Principles contained in article 39 (b) or (c) cannot be challenged on the grounds of violation of rights guaranteed under article 14, 19 and 31.

Round 3

Kesavanand Bharti Case – In this case, Swami HH Kesavanand Bharati challenged Kerala govt attempts to impose restriction on his property under article 26 – Right to manage Religiously owned property without Government Interference. This case also challenged the 24th, 25th and 29th Amendments passed by the Govt.

The Court Ruled that the 3 amendments challenged were valid and confirmed that the Govt has the power to amend any part of the Constitution including FR, as long as it does not alter the Basic Structure of the constitution. Hence a new Concept the Basic Structure Doctrine was introduced by the SC to curtail the amending powers of the Parliament.

Basic Structure has not been defined by the SC, however it is based on the principles given in the Preamble. Over the years, SC has confirmed the following as the part of the Basic Structure of the constitution –

  1. Judicial Review
  2. Republic
  3. Secular nature of the state
  4. Article 14 and 19 of the constitution
  5. Supremacy of the constitution
  6. Welfare State
  7. Free and Fair Elections
  8. Unity and Integrity of the Nation
  9. Parliamentary system
  10. Separation of Powers. Etc.

The Basic Structure Doctrine was first used on the Raj Narain v/s Indira Gandhi Case, where SC struck down the 29th Amendment claiming, it prohibited Judicial Review which is a part of the Basic structure of the Constitution.

Round 4

Govt passed the 42nd Amendment which gave superior powers to the Parliament to amend the constitution. It altered the Amending procedure and Scope.

SC Struck Down the 42nd Amendment on the grounds that a Limited Amending Power itself is a part of Basic Structure of the Constitution in the Minerva Mills Judgement 1980.

The Current situation is Govt can amend any part of the constitution, provided it does not affect the Basic Structure of the Constitution, which is to be Decided by the SC.

The last major chapter in the above war was 99th Amendment, which established NJAC (National Judicial Appointments Commission) to replace the collegium system. The Supreme struck Down the amendment, stating it violated the Separation of Power’s principle (Executive Overreach) and Independence of Judiciary.

We hope this post was useful for your IAS Preparation. All the Best.

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