India has a written constitution which is federal in nature and parliamentary form of government has been adopted under this constitution. In this context, can the Austinian sovereign be traced to India? Discuss.
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ಡೆಗಳು ಹೇಗೆ ರೂಪುಗೊಳ್ಳತ ಮೆಟಾ ಮಾರ್ಫಕ್ ರೋ ರಾಜ್ಯದ ವಿಶಿಷ್ಟ ಲ ಕ್ಷಣ ವೆಂದರೆ ಮೆಟಾಮಾರ್ಫಿಕ್ ರೂಪುಗೊಂಡಿವೆ ಮೆಟಾಮಹೋವ್ನ ರಾಜ್ಯದ ವಿಶಿಷ್ಟ ಲಕ್ಷಣವೆಂದರೆ ಮೆ ಟಾಮಾ ಕ್ ಬಂಡೆಗಳು ಫಾರ್ಮ್ಫಿಕ್ ರಾಕ್
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The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of India's constitutional history during the last decade of the 20th century, has reappeared in the public realm.While setting up the National Commission to Review the Working of the Constitution (the Commission), the National Democratic Alliance government (formed by a coalition of 24 national and regional level parties) stated that the basic structure of the Constitution would not be tampered with. Justice M.N. Venkatachalaiah, Chairman of the Commission, has emphasised on several occasions that an inquiry into the basic structure of the Constitution lay beyond the scope of the Commission's work.
Several political parties -- notably the Congress (I) and the two Communist parties which are in the opposition -- have made it clear that the review exercise was the government's ploy to seek legitimacy for its design to adopt radical constitutional reforms thus destroying the basic structure of the document.
Much of the public debate has been a victim of partial amnesia as even literate circles of urban India are unsure of the ramifications of this concept, which was hotly debated during the 1970s and 1980s. The following discussion is an attempt to chart the waters of that period rendered turbulent by the power struggle between the legislative and the judicial arms of the State.
According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. Hence Parliament was invested with the power to amend the Constitution. Article 368 of the Constitution gives the impression that Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not distort, damage or alter the basic features of the Constitution under the pretext of amending it. The phrase 'basic structure' itself cannot be found in the Constitution. The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati case in 1973.[1] Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by Parliament.
The pre-Kesavanada position
Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of citizens, was challenged as early as in 1951. After independence, several laws were enacted in the states with the aim of reforming land ownership and tenancy structures. This was in keeping with the ruling Congress party's electoral promise of implementing the socialistic goals of the Constitution[contained in Article 39 (b) and (c) of the Directive Principles of State Policy] that required equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few. Property owners -- adversely affected by these laws -- petitioned the courts. The courts struck down the land reforms laws saying that they transgressed the fundamental right to property guaranteed by the Constitution. Piqued by the unfavourable judgements, Parliament placed these laws in the Ninth Schedule of [2] the Constitution through the First and Fourth amendments (1951 and 1952 respectively), thereby effectively removing them from the scope of judicial review.
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