Prelims tit-bits- Polity part 6

Most Imp. Constitutional doctrines

1. Basic structure doctrine- Keshvananda Bharati Case (1973)

  • Constitution has some basic structure which can not be amended even if all members of both the houses vote to amend that provision
  • Federalism, Judicial review, Separation of power, art 20, art 21 etc are part of basic structure

2. Doctrine of Colorable Legislation –

  • Whatever legislature can’t do directly, it can’t do indirectly
  • It is most commonly applied wrt article 246 (3 lists)
  • when a Legislature does not possess the power to make law upon a particular subject but nonetheless indirectly makes one

3. Doctrine of Pith and Substance- 

  • Pith means true nature” or “essence and substance means the essential nature underlying a phenomenon.
  • Thus, the doctrine of pith and substance relates to finding out the true nature of a statute.
  • This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution.
  • The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is about a subject that falls in the State list <contrast it with doctrine of colorable legislation>

4. Doctrine of Repugnancy- 

 

  • REpugnancy is an inconsistency or contradiction between two or more parts of a statute
  • So. if a state passes any law on concurrent list subject which is inconsistent with the central law on that subject, it would be repugnant and liable to be struck down to the extent of repugnancy.

5. Doctrine of Harmonious Construction  

  • Constitutional provisions should not be construed in isolation from all other parts of the Constitution, but should be construed as to harmonize with those other parts.
  • As we discussed in judgement series when article 368 and 13 were found to be inconsistent, supreme court in Shankari Prasad case applied this principle to opine that parliament can amend fundamental rights and constitutional amendment would not be considered law for the purpose of article 13

6. Doctrine of Separation of Power –

Separation of power among executive, legislature and judiciary so that no one branch of govt wields excessive absolute power

Discuss – Other important constitutional doctrines

Discuss- Compare and contrast doctrine of separation of power with doctrine of checks  and balances

Discuss- Compare Separation of Power in parliamentary democracies (India) v/s presidential democracies (USA)

A few most imp. DPSPs

  • To secure for all citizens a uniform civil code (art 44)
  • To protect and improve the environment (art 48A)
  • To separate judiciary from executive (art 50)
  • To promote international peace and security (art 51)
  • To provide free legal aid to the poor (art43A)

Discuss– DPSPs which trump fundamental rights under article 14 and 19

Three types of cut motions

  • Policy cut: to be reduced to Rs. 1 <you disagree with govt policy>
  • Economy cut: reduce by a specific amount.<done in more thrifty manner, no disagreement with policy>
  • Token cut: reduce by Rs. 100 < to ventilate a specific grievance>
  • Note- If any cut motion is accepted, govt is defeated in LS and has to resign

Discuss- Parliamentary oversight of executive in financial sphere

By Dr V

Doctor by Training | AIIMSONIAN | Factually correct, Politically not so much | Opinionated? Yes!