PAPER – II
INDIAN CONSTITUTIONAL LAW : THE NEW CHALLENGE
PARLIAMENTARY / PRESIDENTIAL FORMS OF GOVERNMENT :
There r two main forms of modern govts. – democracy & dictatorship. A modern
democratic govt. may hv parliamentary or presidential pattern of govt. If the executive &
legislative branches r unified & co-ordinated under the control of the same persons,
such a system is called parliamentary. If the executive & legislative branches r largely
independent of one another, but each possessing checks on the powers of the other in
order to make power limited, controlled & diffused, the system is presidential.
In a parliamentary system, a clear distinction is made b/w the head of the State & the
head of the govt. The head of the State, King or Queen in Britain or the President in
India possesses all the powers & privileges which the constitution & laws may confer
upon him, but in practice he exercises none. He is simply the bearer of authority. In
India, the authority of the President was governed by conventions inherited from Britain
& deemed as sine qua non of a parliamentary system of govt. The 42nd Constitution
Amendment Act, 1976 gave the convention a constitutional sanction & provided that the
advice of the Council of Ministers (CoM) shall be binding on the President.
The Govt. is constituted from the majority party or a combination of parties, if they agree
on certain fundamentals for purpose of coalition. The normal procedure is that the Chief
Executive, Monarch or President summons the leader of the majority party or coalition /
the PM, who chooses his own team of ministers from among the members of his party
including a few from outside if necessary & in case there is no constitutional bar to such
an inclusion. The CoM is collectively responsible to the legislature. Out of the CoM, the
PM chooses some 15 or more, but generally not more than 20 persons & they make a
Cabinet. Cabinet is a wheel within a wheel & it is the pivot on which the whole political
machinery revolves. It is the supreme directing authority, the magnet of policy, which
coordinates & controls the whole of the executive govt. & integrates & guides the work
of the legislature. There is a sharp distinction b/w a Cabinet & the CoM. The members
of the Cabinet meet collectively under the chmn/ship of the PM, generally once a week,
to decide upon the policy and in general head up the govt.
The CoM is headed by the PM. He is the captain of the team, which plays the game of
politics in accordance with the mandate received at the general elections. The PM
(i) he is the head of the Ministry, i.e., the govt. of the country;
(ii) he is also the leader of the legislature of the country;
(iii) he is the person through whom the head of the State/King/Queen or President
normally communicate with the Cabinet; &
(iv) he is the head of the legislative wing of the party & responsible for maintaining
harmony with its organizational wing.
Parliamentary System – Pre-requisites, Merits & Drawbacks
Parliamentary system is the most cherished & aspired for as it is based on the fact that
the govt. is carried on in the name of the head of the State by Ministers who r the
members of the majority party/coalition in the parliament.
The first pre-requisite is the presence of a titular executive – head of the State. The
head of the State is not the directing & deciding factor responsible before the nation for
measures taken. Secondly, the CoM in a parliamentary system is answerable to the
legislature & they remain in office as long as they retain its confidence individually &
collectively. Thirdly, a certain degree of moderation among political parties. If cabinet
& parliament disagree / in case of deadlock, the electorate will decide b/w them. The
appeal to the people is the ultimate source of the political authority & the only logical
manner of settling any serious dispute b/w rival agencies of the State. Finally, Cabinet
is the secret body & collectively responsible for its decisions. It must deliberate in
This is the only form which ensures harmonious co-op. b/w the executive & legislative
branches of the govt. The ultimate appeal rests with people & govt. must remember
them to whom it will have to a/c in future. In parliamentary system, the majority party
forms the govt. & the minority constitutes the Opposition. The Opposition must oppose
& criticize the govt. The then President R.Venkataraman, in his inaugural address to
37th Commonwealth Parliamentary Conference held at New Delhi described the system
of Parliamentary democracy as superior to all other systems & emphasised that if
worked properly & honestly, there was perhaps no better substitute than the
representative Parliamentary democracy. Another merit is its flexibility & elasticity.
(i) Parliamentary system violates the theory of separation of powers. Combination
of executive & legislative functions in the same set of individuals leads to tyranny.
(ii) It is unstable. The govt. has no fixed life. It remains in office only so long as it
can retain parliamentary majority.
(iii) Cabinet system is said to be insufficient because it is govt. by amateurs. Its
ever-growing size is not suitable for prompt & effective discussion & decision.
(iv) Political power is monopolised by the majority party. So long as parliamentary
majority is assured, it assumes dictatorial powers.
(v) The Cabinet Govt. is charged with lack of promptness in deciding & taking
immediate action in times of war or national crisis or emergency.
If there is no proper balance b/w the powers of the executive & the legislature, the result
is likely to be either the executive becomes too powerful & the legislature becomes very
weak as is the case in Britain & India or the executive becomes very weak & unstable
and the legislature begins to dominate as was the case in France in the 3rd & 4th
Republic. Suggestions for Improvement :
(i) Effective work is done by a talented & dedicated minority, not by the bulk of
membership. Political parties alone can & should ensure that man with the
capacity & will to keep the govt. on is used & elected to either House. Members
should be encouraged to specialise in choosing areas. Grooming of shadow
ministers & funding of recognised political parties by the State to build the strong
Secretariat would be a great help.
(ii) Parliamentary work is a whole-time job being performed by almost all the
(iii) Secretarial staff, adequate emoluments & other necessary facilities should be
(iv) There should be specialised committees concerned with particular depts.
Devices should be adopted to make the executive strong.
(v) A strong alert, comptnt. & united Opposition is sine qua non of responsible
parliamentary govt., but in India it has throughout bn fragmented & weak. In
order to avoid the dictatorship of the Cabinet, Opposition should be so strong that
if need arise it may be able to form an alternative govt. This is quite possible in
(vi) The legislature must have faith in the primacy of moral values & ethical conduct
in public life & promote civility & graciousness. However, it is a two way traffic
b/w the people & the elected representatives.
(vii) Rigidity of party discipline should be slightly relaxed & members of the ruling
party should be allowed to speak a little freely than at present & also to vote in
exceptional cases according to their conscience.
(viii) The legislators must remain in constant touch with their electorate & the people
at large, who also have an obligation & duty to have their eyes on their
representatives’ conduct, performance & to keep them straight.
Presidential System – Pre-requisites, Merits & Drawbacks
The independence of the legislative & executive powers is the specific quality of
Presidential Govt. Neither is there Cabinet nor r there Ministers. The members r not
members of the legislative majority party. They hv no access to d legislature. They
don’t take part in the debate & hv no locus standi to initiate or to defend the policy of the
It has its origin in the United States. Pakistan also adopted this system under General
Ayub Khan, but again reverted to the Parliamentary System in 1973. There r two
factors which influence the framers of the American Constitution against the Cabinet
form of govt. Montesquieu’s theory of separation of powers also had a great appeal for
the Americans as separating the three branches of govt. has prevented tyranny &
absolutism. The Cabinet govt. could function only when the life of the nation was
divided into distinct political parties – each with its separate programme & platform. The
Presidency of the US is one of the greatest political offices in the world. He is
absolutely free with respect to his exercise of powers & tenure of office, except that all
appointments made & treaties concluded by him r satisfied by Senate. As his term of
office goes with the calendar, his responsibility to the electorate is unenforceable. He
can only be impeached by the Senate.
The President is assisted by his Secretaries, who r heads of different depts. They r
appointed by him & r responsible to him. None of them is member of Congress nor is
he responsible to it. He may send messages from time to time to Congress
recommending the enactment of particular laws, which r received favourably by the
Congress. No doubt, the President can veto laws. If the bill vetoed by him is again
passed by both the Houses of Congress with a 2/3rd majority in each House, it becomes
law without the signature of the President.
The American Presidency has six outstanding characteristics :-
(i) It is made executive, but it has grown;
(ii) It is a solitary not a collective executive;
(iii) It is popularly elected in practice directly;
(v) It is separated from Congress; &
(vi) It may be tinkered with, but can’t be reformed.
Without being responsible, this system retains a representative character. The
President is an elected representative of the people, but his tenure doesn’t depend
upon the fluctuating will of the legislature. A fix tenure of office accounts for greater
continuity of policy & firmness in the administration & it can be successfully carried out
without any fear of break. It creates a stable executive within the framework of
democratic order. Unity of control, quickness in decision & concerted policy, which
emergency of any kind demand, can best be obtained in this system. The head of the
State is the Chief foreign policy maker & the Commander-in-Chief of the armed forces
of the country. This is not possible in the Cabinet system of govt. This also makes
possible the appointment of experts to head various depts. of the govt. without
consideration of their party affiliations. Since Secretaries/Cabinet Ministers hv no berth
in the legislature, work-load of Congress with them is negligible. Nor hv they any
constituency to nurse or to look forward to the day of election. Such a system is best
suited for countries inhabited by different communities with diverse interests.
It divides govt. into watertight compartments as it is based on separation of powers. In
actual practice, there can be no rigid division b/w the executive & legislative depts. To
divide them into independent & co-ordinate depts. is to create friction b/w them, which is
highly injurious to good & efficient govt. Lack of direct initiative in legislation on the part
of the executive is a very serious defect. Legislation is the main function, which is not
under the instructions of the executive. Fixed tenure is not good & it is characterised to
be autocratic, irresponsible & dangerous. Once the President has been elected, the
nation must continue with him whether they like or approve his policy or not. The
President has his weaknesses & the greatest weakness is Congress. The President
has no dependable way to command the legislature support, as the British Minister has.
Thus, the suggestion is to give Cabinet Members seats in Congress without the right to
On the whole, both forms of govt. have points of strength as well as of weakness. The
shortcomings of the two forms of govt. may be removed by a very judicious & careful
combination of the best features of both the forms, i.e., stability of the presidential
system & responsibility of the executive to the legislature, a fundamental characteristics
of the parliamentary system. Sri Lanka & France Constitutions offer interesting
examples of a mixed form of govt., but mixing of the two forms of govt. should vary from
country to country to suit the requirements & conditions of the country concerned.
Indian & Britain Constitutions establish a parliamentary form of govt. There is a nominal
or constitutional head of the executive (President), whose functions r formal &
ceremonial. The real executive power is vested in the CoM with the PM as the head.
The PM & his Cabinet r collectively responsible to the legislature & remain in office so
long as they enjoy the confidence of the legislature.
In presidential form of govt., President is the real executive head. He is elected directly
by the people for a fixed term. The members of his Cabinet r appointed by him & they r
personally responsible to him and not to the legislature.
POWER OF JUDICIAL REVIEW + ARTICLES 72 & 161 :
Art. 13 provides for judicial review of all legislations in India – past as well as future.
This power has been conferred on the High Courts & the Supreme Court of India u/Art.
226 & 32 respectively, which can declare a law unconstitutional if it is inconsistent with
any of the provisions of Part III of the Constitution.
JR is the power of courts to pronounce upon the constitutionality of legislative acts
which fall within their normal jurisdiction. In Kesavanand Bharti v. State of Kerala,
Khanna, J. said, “JR has become an integral part of our constitutional system & a power
has been vested in the SC & HCs to decide about the constitutional validity of the
provisions of statutes. If the provisions of the statutes r found to be violative of any of
the Arts., which is the touchtone for the validity of all laws, the courts r empowered to
Power corrupts a man & absolute power corrupts absolutely, which ultimately leads to
tyranny, anarchy & chaos. When Montesqieu gave his doctrine of separation of powers,
he has obviously moved by his desire to put a curb on absolute & uncontrollable power
in any one organ of the govt. A legislature, an executive & a judiciary comprehend the
whole of what is meant & understood by govt. It is by balancing each of these powers
against the other two that the efforts in human nature towards tyranny can alone be
checked & restrained thereby preserving the freedoms enshrined in the Constitution.
The concept has the origin in the theory of limited govt. & in the theory of two laws – an
ordinary & supreme (i.e., the Constitution). Any act of the ordinary law-making bodies
contravenes the provisions of the supreme law must be void & there must be some
organ which is to possess the power or authority to pronounce such legislative acts
The doctrine of JR was for the first time propounded by the SC of America. Originally,
the US Constitution did not contain any express provision for JR. The power of JR was,
however, assumed by the SC of America in the historic case of Marbury v. Madison.
The Federalists had lost the election of 1800, but before leaving the office, they had
succeeded in creating several new judicial posts. Out of 42, the retiring Federalists
President John Adams appointed 40. The appointments of commissions were
confirmed by the Senate & they were signed & sealed, but Adam’s Secretary of State
failed to deliver certain of them. When the new President Thomas Jefferson assumed
office, he instructed his Secretary of State James Madison not to deliver 17 of these
commissions including one for William Marbury, who filed a petition in the SC. Held, S.
31 of the Judiciary Act was repugnant to Article III & S. 2 itself limited the SC’s original
jurisdiction to cases affecting ambassadors, other public ministers, consuls & those to
which a State is party. Since Marbury fell in none of these categories, the Court had no
The Constitution is superior paramount law unchangeable by ordinary means & that an
Act of the legislature repugnant to the Constitution (the fundamental & paramount law of
the nation) is void. In Indian Constitution, there is an express provision for JR and, thus,
it is more on a solid footing than in US. Patanjali Shastri, CJ in State of Madras v. V.G.
Row, said, “Our Constitution contains express provisions for JR of legislation as to its
conformity with it unlike in the US where the SC has assumed extensive powers of
reviewing legislative acts under the cover of widely interpreted ‘due process clause’”.
But even in the absence of the provision for JR, the Courts would hv bn able to
invalidate a law which contravenes any constitutional provision as the power of JR
follows from the very nature of constitutional law. In A.K. Gopalan v. State of Madras,
Kania, CJ pointed out that it was only by way of abundant caution that the framers of
our Constitution inserted the specific provisions in Art. 13. In India, it is the Constitution
that is supreme & that a statute law to be valid must be in all conformity with the
constitutional requirements & it is for the judiciary to decide whether any enactment is
Under the power of JR, the Courts can test all pre-Constitution & post-Constitution or
future laws & declare them unconstitutional in case they contravene any of the
provisions of Part III of the Constitution. In Kesavanand Bharti’s case, SC held that
since JR is the basic feature of Indian Constitution, it cannot be damaged or destroyed
by amending the Constitution u/Art. 368.
JR of Pardoning Power of the President u/Art.72 & the Governor u/Art. 161 :
Pardon is an act of grace. It cannot be demanded as a matter of right. A pardon not
only removes the punishment, but also places the offender in the same position as if he
had never committed the offence. A pardon may be absolute or conditional. A pardon
is conditional where it does not become operative until the grantee has performed some
specified act or where it becomes void when some specified event happens. This
power can be exercised only to reduce & not to enhance the sentence.
Executive clemency is a matter of discretion and yet subject to certain standards. It is
not a matter of privilege. It is a matter of performance of official duty. It is vested in the
President / Governor not for the benefit of the convict, but also for the welfare of the
people. Therefore, this discretion has to be exercised on public considerations alone.
In Maru Ram v. UOI, the SC observed that the power of pardon, commutation & release
u/Art. 72 of the President’s (also u/Art. 161 of the Governor’s) can’t run riot & must keep
sensibly to a steady course and that the public power shall never be exercisable
In Kehar Singh v. UOI, the SC, while agreeing with Maru Ram’s case, reiterated that the
question as to the area of the President’s power u/Art. 72 falls clearly within the judicial
domain & can be examined by the Courts by way of JR. However, it may not be
possible to lay down any precise, clearly defined, specific & sufficiently channelized
guidelines as the power u/Art. 72 is of the widest amplitude. Held, Kehar Singh had no
right to be given personal hearing by the President as the Presidential power u/Art. 72 is
beyond JR except the cases when it is exercised mala fide or arbitrarily. The Courts
need not spell out the specific guidelines for the exercise of the power. The President
can’t be asked to give reasons for orders. Since the power of pardon is part of the
constitutional scheme, it cannot be judicially reviewed on its merits.
In Swaran Singh v. State of U.P., the SC relying on the law laid down in the above two
cases (though these two cases didn’t call for judicial intervention), invalidated the
remission of sentence by the Governor of U.P. because some material facts were not
brought to the knowledge of the Governor u/Art. 161. Rejecting the argument that the
Governor’s action u/Art. 161 is beyond judicial scrutiny, the SC held that if such power
was exercised arbitrarily, mala fide or in absolute disregard to the canons of
constitutionalism, the order cannot get the approval of law & in such a case, the judicial
hand must be stretched to it. Thus, the exercise of President’s power u/Art. 72 as also
of the Governor u/Art. 161 is subject to JR.
In Epuru Sudhakar v. Govt. of Andhra Pradesh, a Congress worker was convicted for
the murder of a worker of Telgu Desham & he was awarded death sentence, but the
Governor granted pardon, the SC held that the pardoning power is open to JR on
limited grounds like non-application of mind, mala fide, arbitrariness, irrelevant
considerations, etc. Absence of application to convey reasons does not mean that
there should not be reasons. It is important to bear in mind that every aspect of the
exercise of pardon power does not fall in the judicial domain. However, a pardon
obtained by fraud or granted by mistake or for improper reasons (on political grounds as
INDEPENDENCE OF JUDICIARY :
Only an impartial & independent judiciary can protect the rights of the individual &
provide equal justice without fear or favour. It should be free from political pressure.
The Constitution has made several provisions to ensure IoJ.
Security of Tenure : The judges of the SC & HCs have security of tenure. They can’t be
removed from office except by an order of the President & that can also only on the
ground of proved misbehaviour or incapacity supported by a resolution adopted by a
majority of total membership of each House & also by a majority of not less than 2/3rd of
the members of the House present & voting (Art.124(4) & 218). However, Parliament
may regulate the procedure for presentation of the address, investigation & proof of the
misbehaviour or incapacity of a judge (Art.124(5) & 218). But it can’t misuse this power
because special procedure for this removal must be followed.
Fixed Salary : The salaries & allowance of judges of the Courts are fixed by the
Constitution & charged on the Consolidated Fund of India (Art. 125 & 221). They are
not subject to vote of legislature. During the term of their office, their salaries &
allowance can’t be altered to their disadvantage except in grave financial emergency.
Jurisdiction : Parliament may change pecuniary limit for appeals to the SC in civil cases,
enhance the appellate jurisdiction of the SC, confer supplementary power u/Art. 139 to
enable it to work more effectively, confer power u/Art. 140 to issue direction, order or
writ including all the prerogative writs for any purpose other than those mentioned in Art.
32/226. All these provisions are that the Parliament can exceed, but can’t curtail the
jurisdiction & power of the SC (Art. 138 & 230).
No Discussion : Neither in Parliament nor in a State Legislature, a discussion can take
place with respect to the conduct of a judge of the SC in discharge of his duties (Art.
Power to Punish for Contempt : The SC & the HCs have power to punish any person for
its contempt (Art. 129 & 215). This power is very essential from maintaining the
impartiality & independence of the judiciary.
Separation of Judiciary from Executive : Art. 50 directs the State to take steps to
separate the Judiciary from the Executive in the public services of the State. It
emphasises the need of securing Judiciary from the interference by Executive.
Prohibition on Practice after Retirement : Art. 124(7) prohibits a retd. Judge of SC to
appear & plead in/before any court / authority within the territory of India & Judge of HC,
Appointment : The Constitution doesn’t leave the appointment of judges of the SC &
HCs to the unguided discretion of the Executive, who is required to consult judges of the
SC and HCs in the matter of appointment (Art. 124(2) & 224). IoJ is emphasized by
Art. 229 which provides that appointment of Officers & servants shall be made by the
CJ or such other Judge or Officers as he may appoint.
Although judges are appointed by the Executive in consultation with legal experts, it was
held in S.P. Gupta v. UOI by the SC that the word ‘consultation’ didn’t mean
concurrence by the judges. Thus, the power of appointment of judges of the SC & the
transfer of judges of the HCs was only vested in the Executive from whose dominance
the judiciary is expected to be free. By conceding the power of appointment exclusively
to the Executive, the SC had itself put the IoJ into danger. Bhagwati, J. had suggested
for establishment of a Judicial Commission for recommending the names of the persons
for appointment as judges of the SC & HCs. Secondly, the power of the President
u/Art. 222 to transfer a judge from one HC to another may also be used to undermine
In S.C. Advocates-on-Record Association v. UOI, SC by 7 : 2 majority overruled S.P.
Gupta’s case & held that the opinion of the CJI must be given the greatest weight in the
selection of judges of the SC & HCs & the transfer of HC judges. The executive
element in appointment process is reduced to minimum & any political influence is
eliminated. Initiation of the proposal for appointment as judges must be started well in
time & the appointment should be duly announced soon. No appointment of any judge
to the SC or any HC can be made unless it is in conformity with the opinion of the CJI.
The opinion of the CJI has not mere primacy, but is determinative in the matter transfer
of judges & CJs of the HCs. The criterion for the appointment of the CJI shall be
seniority. This ruling of the SC ensured independence & impartiality of judiciary in India.
In Union of India v. Pratibha Bannerjea, the SC held that judges & officials of the HCs
are not govt. servants. There is no master-servant relationship b/w them. The framers
of the Indian Constitution were evidently keen to ensure that the judiciary was
In Re. Special / Presidential Reference No. 1 of 1998, popularly known as ‘Transfer of
Judges Case – III’ 9–Judges of the SC unanimously held that the recommendations
made by the CJI on the appointment of judges of the SC without following the
consultative process are not binding on the Govt. While widening the scope of CJI’s
consultative process, the SC gave its opinion whether the Govt. was bound by the
recommendations of the CJI sent to it without consulting his two senior-most
colleagues. The Apex Court held that CJI must consult a Collegium of 4 senior-most
Judges of the SC & made it clear that if 2 Judges give adverse opinion, CJI should not
send the recommendation to the President. The Collegium should make the decision in
consensus & unless the opinion of the Collegium is in conformity with that of the CJI, no
recommendation is to be made. In effect, the CJI & at least 3 or the 4 senior-most
The aforesaid decision of the SC, though affirmed the law laid down in Second Judges’
Case (S.C. Advocates-on-Record Association v. UOI), has made the consultative
process more democratic & transparent. This would ensure the independence &
impartiality of the judiciary of India. However, as a result of the above decision as well
as the Second Judges’ Case, Art. 124 has been made redundant. These cases have
vested the power of appointment of judges of higher judiciary completely in the SC. {
This is not a satisfactory position. The process might not be transparent in this case
also. The Broad consensus appears to be on the appointment of a National Judicial
Commission, that would balance both sides – the executive & the judiciary in this
An independent judiciary is the sine qua non of a vibrant democratic system. Only an
impartial & independent judiciary can stand as a bulwark for the protection of individuals
& meet out even-handed justice without fear or favour. The judiciary is the protector of
the Constitution and as such it may have to strike down executive, administrative &
legislative acts of the Centre & States. For rule of law to prevail, IoJ is of prime
necessity. It is necessary that the Courts are allowed to work in an atmosphere of
independence of action & judgments and is insulated from all kinds of pressure –
Opinion given by the SC in Re. Special / Presidential Reference No. 1 of 1998,
popularly known as ‘Transfer of Judges Case – III’ :
(i) The expression ‘consultation with the CJI’ in Art. 217(1) & 222(1) requires
consultation of judges in the formation of the opinion of CJI. The sole individual
opinion of the CJI does not constitute consultation.
(ii) The transfer of puisne judges is judicially reviewable only to the extent that
recommendation has not been made in consultation with 4 senior-most judges of
the SC or that the views of the CJ of the HC from which the transfer is to be
effected & to which the transfer is to be effected have not been obtained.
(iii) So far as appointment to the HC is concerned, the recommendation must be
made in consultation with 2 senior-most puisne judges of the SC & u/Art. 217(1),
the Governor of the State is also to be consulted.
(iv) The CJI is not entitled to act solely in his individual capacity without consultation
with other judges of the SC in respect of materials & information conveyed by the
GOI for non-appointment of a judge recommended for appointment.
(v) The requirement of consultation by the CJI with the colleagues, who are likely to
be conversant with the affairs of the HC concerned includes judges who hv
occupied the office of a judge or CJ of that HC on transfer.
(vi) Strong cogent reasons do not have to be recorded as justification for departure
from the order of seniority in respect of each senior judge who has been passed
over. What has to be recorded is the positive reason for the recommendation.
(vii) The views of the other judges consulted should be in writing & should be
conveyed to the GOI by the CJI along with his views to the extent set out in the
(viii) The CJI is obliged to comply with the norms & requirements of the consultation
process as aforesaid in making the recommendation to the GOI.
(ix) The recommendations made by the CJI, without complying with the norms &
requirements of the consultation process as aforesaid, are not binding upon the go.
INDIAN CONSTITUTIONAL LAW : THE NEW CHALLENGE
PARLIAMENTARY / PRESIDENTIAL FORMS OF GOVERNMENT :
There r two main forms of modern govts. – democracy & dictatorship. A modern
democratic govt. may hv parliamentary or presidential pattern of govt. If the executive &
legislative branches r unified & co-ordinated under the control of the same persons,
such a system is called parliamentary. If the executive & legislative branches r largely
independent of one another, but each possessing checks on the powers of the other in
order to make power limited, controlled & diffused, the system is presidential.
In a parliamentary system, a clear distinction is made b/w the head of the State & the
head of the govt. The head of the State, King or Queen in Britain or the President in
India possesses all the powers & privileges which the constitution & laws may confer
upon him, but in practice he exercises none. He is simply the bearer of authority. In
India, the authority of the President was governed by conventions inherited from Britain
& deemed as sine qua non of a parliamentary system of govt. The 42nd Constitution
Amendment Act, 1976 gave the convention a constitutional sanction & provided that the
advice of the Council of Ministers (CoM) shall be binding on the President.
The Govt. is constituted from the majority party or a combination of parties, if they agree
on certain fundamentals for purpose of coalition. The normal procedure is that the Chief
Executive, Monarch or President summons the leader of the majority party or coalition /
the PM, who chooses his own team of ministers from among the members of his party
including a few from outside if necessary & in case there is no constitutional bar to such
an inclusion. The CoM is collectively responsible to the legislature. Out of the CoM, the
PM chooses some 15 or more, but generally not more than 20 persons & they make a
Cabinet. Cabinet is a wheel within a wheel & it is the pivot on which the whole political
machinery revolves. It is the supreme directing authority, the magnet of policy, which
coordinates & controls the whole of the executive govt. & integrates & guides the work
of the legislature. There is a sharp distinction b/w a Cabinet & the CoM. The members
of the Cabinet meet collectively under the chmn/ship of the PM, generally once a week,
to decide upon the policy and in general head up the govt.
The CoM is headed by the PM. He is the captain of the team, which plays the game of
politics in accordance with the mandate received at the general elections. The PM
(i) he is the head of the Ministry, i.e., the govt. of the country;
(ii) he is also the leader of the legislature of the country;
(iii) he is the person through whom the head of the State/King/Queen or President
normally communicate with the Cabinet; &
(iv) he is the head of the legislative wing of the party & responsible for maintaining
harmony with its organizational wing.
Parliamentary System – Pre-requisites, Merits & Drawbacks
Parliamentary system is the most cherished & aspired for as it is based on the fact that
the govt. is carried on in the name of the head of the State by Ministers who r the
members of the majority party/coalition in the parliament.
The first pre-requisite is the presence of a titular executive – head of the State. The
head of the State is not the directing & deciding factor responsible before the nation for
measures taken. Secondly, the CoM in a parliamentary system is answerable to the
legislature & they remain in office as long as they retain its confidence individually &
collectively. Thirdly, a certain degree of moderation among political parties. If cabinet
& parliament disagree / in case of deadlock, the electorate will decide b/w them. The
appeal to the people is the ultimate source of the political authority & the only logical
manner of settling any serious dispute b/w rival agencies of the State. Finally, Cabinet
is the secret body & collectively responsible for its decisions. It must deliberate in
This is the only form which ensures harmonious co-op. b/w the executive & legislative
branches of the govt. The ultimate appeal rests with people & govt. must remember
them to whom it will have to a/c in future. In parliamentary system, the majority party
forms the govt. & the minority constitutes the Opposition. The Opposition must oppose
& criticize the govt. The then President R.Venkataraman, in his inaugural address to
37th Commonwealth Parliamentary Conference held at New Delhi described the system
of Parliamentary democracy as superior to all other systems & emphasised that if
worked properly & honestly, there was perhaps no better substitute than the
representative Parliamentary democracy. Another merit is its flexibility & elasticity.
(i) Parliamentary system violates the theory of separation of powers. Combination
of executive & legislative functions in the same set of individuals leads to tyranny.
(ii) It is unstable. The govt. has no fixed life. It remains in office only so long as it
can retain parliamentary majority.
(iii) Cabinet system is said to be insufficient because it is govt. by amateurs. Its
ever-growing size is not suitable for prompt & effective discussion & decision.
(iv) Political power is monopolised by the majority party. So long as parliamentary
majority is assured, it assumes dictatorial powers.
(v) The Cabinet Govt. is charged with lack of promptness in deciding & taking
immediate action in times of war or national crisis or emergency.
If there is no proper balance b/w the powers of the executive & the legislature, the result
is likely to be either the executive becomes too powerful & the legislature becomes very
weak as is the case in Britain & India or the executive becomes very weak & unstable
and the legislature begins to dominate as was the case in France in the 3rd & 4th
Republic. Suggestions for Improvement :
(i) Effective work is done by a talented & dedicated minority, not by the bulk of
membership. Political parties alone can & should ensure that man with the
capacity & will to keep the govt. on is used & elected to either House. Members
should be encouraged to specialise in choosing areas. Grooming of shadow
ministers & funding of recognised political parties by the State to build the strong
Secretariat would be a great help.
(ii) Parliamentary work is a whole-time job being performed by almost all the
(iii) Secretarial staff, adequate emoluments & other necessary facilities should be
(iv) There should be specialised committees concerned with particular depts.
Devices should be adopted to make the executive strong.
(v) A strong alert, comptnt. & united Opposition is sine qua non of responsible
parliamentary govt., but in India it has throughout bn fragmented & weak. In
order to avoid the dictatorship of the Cabinet, Opposition should be so strong that
if need arise it may be able to form an alternative govt. This is quite possible in
(vi) The legislature must have faith in the primacy of moral values & ethical conduct
in public life & promote civility & graciousness. However, it is a two way traffic
b/w the people & the elected representatives.
(vii) Rigidity of party discipline should be slightly relaxed & members of the ruling
party should be allowed to speak a little freely than at present & also to vote in
exceptional cases according to their conscience.
(viii) The legislators must remain in constant touch with their electorate & the people
at large, who also have an obligation & duty to have their eyes on their
representatives’ conduct, performance & to keep them straight.
Presidential System – Pre-requisites, Merits & Drawbacks
The independence of the legislative & executive powers is the specific quality of
Presidential Govt. Neither is there Cabinet nor r there Ministers. The members r not
members of the legislative majority party. They hv no access to d legislature. They
don’t take part in the debate & hv no locus standi to initiate or to defend the policy of the
It has its origin in the United States. Pakistan also adopted this system under General
Ayub Khan, but again reverted to the Parliamentary System in 1973. There r two
factors which influence the framers of the American Constitution against the Cabinet
form of govt. Montesquieu’s theory of separation of powers also had a great appeal for
the Americans as separating the three branches of govt. has prevented tyranny &
absolutism. The Cabinet govt. could function only when the life of the nation was
divided into distinct political parties – each with its separate programme & platform. The
Presidency of the US is one of the greatest political offices in the world. He is
absolutely free with respect to his exercise of powers & tenure of office, except that all
appointments made & treaties concluded by him r satisfied by Senate. As his term of
office goes with the calendar, his responsibility to the electorate is unenforceable. He
can only be impeached by the Senate.
The President is assisted by his Secretaries, who r heads of different depts. They r
appointed by him & r responsible to him. None of them is member of Congress nor is
he responsible to it. He may send messages from time to time to Congress
recommending the enactment of particular laws, which r received favourably by the
Congress. No doubt, the President can veto laws. If the bill vetoed by him is again
passed by both the Houses of Congress with a 2/3rd majority in each House, it becomes
law without the signature of the President.
The American Presidency has six outstanding characteristics :-
(i) It is made executive, but it has grown;
(ii) It is a solitary not a collective executive;
(iii) It is popularly elected in practice directly;
(v) It is separated from Congress; &
(vi) It may be tinkered with, but can’t be reformed.
Without being responsible, this system retains a representative character. The
President is an elected representative of the people, but his tenure doesn’t depend
upon the fluctuating will of the legislature. A fix tenure of office accounts for greater
continuity of policy & firmness in the administration & it can be successfully carried out
without any fear of break. It creates a stable executive within the framework of
democratic order. Unity of control, quickness in decision & concerted policy, which
emergency of any kind demand, can best be obtained in this system. The head of the
State is the Chief foreign policy maker & the Commander-in-Chief of the armed forces
of the country. This is not possible in the Cabinet system of govt. This also makes
possible the appointment of experts to head various depts. of the govt. without
consideration of their party affiliations. Since Secretaries/Cabinet Ministers hv no berth
in the legislature, work-load of Congress with them is negligible. Nor hv they any
constituency to nurse or to look forward to the day of election. Such a system is best
suited for countries inhabited by different communities with diverse interests.
It divides govt. into watertight compartments as it is based on separation of powers. In
actual practice, there can be no rigid division b/w the executive & legislative depts. To
divide them into independent & co-ordinate depts. is to create friction b/w them, which is
highly injurious to good & efficient govt. Lack of direct initiative in legislation on the part
of the executive is a very serious defect. Legislation is the main function, which is not
under the instructions of the executive. Fixed tenure is not good & it is characterised to
be autocratic, irresponsible & dangerous. Once the President has been elected, the
nation must continue with him whether they like or approve his policy or not. The
President has his weaknesses & the greatest weakness is Congress. The President
has no dependable way to command the legislature support, as the British Minister has.
Thus, the suggestion is to give Cabinet Members seats in Congress without the right to
On the whole, both forms of govt. have points of strength as well as of weakness. The
shortcomings of the two forms of govt. may be removed by a very judicious & careful
combination of the best features of both the forms, i.e., stability of the presidential
system & responsibility of the executive to the legislature, a fundamental characteristics
of the parliamentary system. Sri Lanka & France Constitutions offer interesting
examples of a mixed form of govt., but mixing of the two forms of govt. should vary from
country to country to suit the requirements & conditions of the country concerned.
Indian & Britain Constitutions establish a parliamentary form of govt. There is a nominal
or constitutional head of the executive (President), whose functions r formal &
ceremonial. The real executive power is vested in the CoM with the PM as the head.
The PM & his Cabinet r collectively responsible to the legislature & remain in office so
long as they enjoy the confidence of the legislature.
In presidential form of govt., President is the real executive head. He is elected directly
by the people for a fixed term. The members of his Cabinet r appointed by him & they r
personally responsible to him and not to the legislature.
POWER OF JUDICIAL REVIEW + ARTICLES 72 & 161 :
Art. 13 provides for judicial review of all legislations in India – past as well as future.
This power has been conferred on the High Courts & the Supreme Court of India u/Art.
226 & 32 respectively, which can declare a law unconstitutional if it is inconsistent with
any of the provisions of Part III of the Constitution.
JR is the power of courts to pronounce upon the constitutionality of legislative acts
which fall within their normal jurisdiction. In Kesavanand Bharti v. State of Kerala,
Khanna, J. said, “JR has become an integral part of our constitutional system & a power
has been vested in the SC & HCs to decide about the constitutional validity of the
provisions of statutes. If the provisions of the statutes r found to be violative of any of
the Arts., which is the touchtone for the validity of all laws, the courts r empowered to
Power corrupts a man & absolute power corrupts absolutely, which ultimately leads to
tyranny, anarchy & chaos. When Montesqieu gave his doctrine of separation of powers,
he has obviously moved by his desire to put a curb on absolute & uncontrollable power
in any one organ of the govt. A legislature, an executive & a judiciary comprehend the
whole of what is meant & understood by govt. It is by balancing each of these powers
against the other two that the efforts in human nature towards tyranny can alone be
checked & restrained thereby preserving the freedoms enshrined in the Constitution.
The concept has the origin in the theory of limited govt. & in the theory of two laws – an
ordinary & supreme (i.e., the Constitution). Any act of the ordinary law-making bodies
contravenes the provisions of the supreme law must be void & there must be some
organ which is to possess the power or authority to pronounce such legislative acts
The doctrine of JR was for the first time propounded by the SC of America. Originally,
the US Constitution did not contain any express provision for JR. The power of JR was,
however, assumed by the SC of America in the historic case of Marbury v. Madison.
The Federalists had lost the election of 1800, but before leaving the office, they had
succeeded in creating several new judicial posts. Out of 42, the retiring Federalists
President John Adams appointed 40. The appointments of commissions were
confirmed by the Senate & they were signed & sealed, but Adam’s Secretary of State
failed to deliver certain of them. When the new President Thomas Jefferson assumed
office, he instructed his Secretary of State James Madison not to deliver 17 of these
commissions including one for William Marbury, who filed a petition in the SC. Held, S.
31 of the Judiciary Act was repugnant to Article III & S. 2 itself limited the SC’s original
jurisdiction to cases affecting ambassadors, other public ministers, consuls & those to
which a State is party. Since Marbury fell in none of these categories, the Court had no
The Constitution is superior paramount law unchangeable by ordinary means & that an
Act of the legislature repugnant to the Constitution (the fundamental & paramount law of
the nation) is void. In Indian Constitution, there is an express provision for JR and, thus,
it is more on a solid footing than in US. Patanjali Shastri, CJ in State of Madras v. V.G.
Row, said, “Our Constitution contains express provisions for JR of legislation as to its
conformity with it unlike in the US where the SC has assumed extensive powers of
reviewing legislative acts under the cover of widely interpreted ‘due process clause’”.
But even in the absence of the provision for JR, the Courts would hv bn able to
invalidate a law which contravenes any constitutional provision as the power of JR
follows from the very nature of constitutional law. In A.K. Gopalan v. State of Madras,
Kania, CJ pointed out that it was only by way of abundant caution that the framers of
our Constitution inserted the specific provisions in Art. 13. In India, it is the Constitution
that is supreme & that a statute law to be valid must be in all conformity with the
constitutional requirements & it is for the judiciary to decide whether any enactment is
Under the power of JR, the Courts can test all pre-Constitution & post-Constitution or
future laws & declare them unconstitutional in case they contravene any of the
provisions of Part III of the Constitution. In Kesavanand Bharti’s case, SC held that
since JR is the basic feature of Indian Constitution, it cannot be damaged or destroyed
by amending the Constitution u/Art. 368.
JR of Pardoning Power of the President u/Art.72 & the Governor u/Art. 161 :
Pardon is an act of grace. It cannot be demanded as a matter of right. A pardon not
only removes the punishment, but also places the offender in the same position as if he
had never committed the offence. A pardon may be absolute or conditional. A pardon
is conditional where it does not become operative until the grantee has performed some
specified act or where it becomes void when some specified event happens. This
power can be exercised only to reduce & not to enhance the sentence.
Executive clemency is a matter of discretion and yet subject to certain standards. It is
not a matter of privilege. It is a matter of performance of official duty. It is vested in the
President / Governor not for the benefit of the convict, but also for the welfare of the
people. Therefore, this discretion has to be exercised on public considerations alone.
In Maru Ram v. UOI, the SC observed that the power of pardon, commutation & release
u/Art. 72 of the President’s (also u/Art. 161 of the Governor’s) can’t run riot & must keep
sensibly to a steady course and that the public power shall never be exercisable
In Kehar Singh v. UOI, the SC, while agreeing with Maru Ram’s case, reiterated that the
question as to the area of the President’s power u/Art. 72 falls clearly within the judicial
domain & can be examined by the Courts by way of JR. However, it may not be
possible to lay down any precise, clearly defined, specific & sufficiently channelized
guidelines as the power u/Art. 72 is of the widest amplitude. Held, Kehar Singh had no
right to be given personal hearing by the President as the Presidential power u/Art. 72 is
beyond JR except the cases when it is exercised mala fide or arbitrarily. The Courts
need not spell out the specific guidelines for the exercise of the power. The President
can’t be asked to give reasons for orders. Since the power of pardon is part of the
constitutional scheme, it cannot be judicially reviewed on its merits.
In Swaran Singh v. State of U.P., the SC relying on the law laid down in the above two
cases (though these two cases didn’t call for judicial intervention), invalidated the
remission of sentence by the Governor of U.P. because some material facts were not
brought to the knowledge of the Governor u/Art. 161. Rejecting the argument that the
Governor’s action u/Art. 161 is beyond judicial scrutiny, the SC held that if such power
was exercised arbitrarily, mala fide or in absolute disregard to the canons of
constitutionalism, the order cannot get the approval of law & in such a case, the judicial
hand must be stretched to it. Thus, the exercise of President’s power u/Art. 72 as also
of the Governor u/Art. 161 is subject to JR.
In Epuru Sudhakar v. Govt. of Andhra Pradesh, a Congress worker was convicted for
the murder of a worker of Telgu Desham & he was awarded death sentence, but the
Governor granted pardon, the SC held that the pardoning power is open to JR on
limited grounds like non-application of mind, mala fide, arbitrariness, irrelevant
considerations, etc. Absence of application to convey reasons does not mean that
there should not be reasons. It is important to bear in mind that every aspect of the
exercise of pardon power does not fall in the judicial domain. However, a pardon
obtained by fraud or granted by mistake or for improper reasons (on political grounds as
INDEPENDENCE OF JUDICIARY :
Only an impartial & independent judiciary can protect the rights of the individual &
provide equal justice without fear or favour. It should be free from political pressure.
The Constitution has made several provisions to ensure IoJ.
Security of Tenure : The judges of the SC & HCs have security of tenure. They can’t be
removed from office except by an order of the President & that can also only on the
ground of proved misbehaviour or incapacity supported by a resolution adopted by a
majority of total membership of each House & also by a majority of not less than 2/3rd of
the members of the House present & voting (Art.124(4) & 218). However, Parliament
may regulate the procedure for presentation of the address, investigation & proof of the
misbehaviour or incapacity of a judge (Art.124(5) & 218). But it can’t misuse this power
because special procedure for this removal must be followed.
Fixed Salary : The salaries & allowance of judges of the Courts are fixed by the
Constitution & charged on the Consolidated Fund of India (Art. 125 & 221). They are
not subject to vote of legislature. During the term of their office, their salaries &
allowance can’t be altered to their disadvantage except in grave financial emergency.
Jurisdiction : Parliament may change pecuniary limit for appeals to the SC in civil cases,
enhance the appellate jurisdiction of the SC, confer supplementary power u/Art. 139 to
enable it to work more effectively, confer power u/Art. 140 to issue direction, order or
writ including all the prerogative writs for any purpose other than those mentioned in Art.
32/226. All these provisions are that the Parliament can exceed, but can’t curtail the
jurisdiction & power of the SC (Art. 138 & 230).
No Discussion : Neither in Parliament nor in a State Legislature, a discussion can take
place with respect to the conduct of a judge of the SC in discharge of his duties (Art.
Power to Punish for Contempt : The SC & the HCs have power to punish any person for
its contempt (Art. 129 & 215). This power is very essential from maintaining the
impartiality & independence of the judiciary.
Separation of Judiciary from Executive : Art. 50 directs the State to take steps to
separate the Judiciary from the Executive in the public services of the State. It
emphasises the need of securing Judiciary from the interference by Executive.
Prohibition on Practice after Retirement : Art. 124(7) prohibits a retd. Judge of SC to
appear & plead in/before any court / authority within the territory of India & Judge of HC,
Appointment : The Constitution doesn’t leave the appointment of judges of the SC &
HCs to the unguided discretion of the Executive, who is required to consult judges of the
SC and HCs in the matter of appointment (Art. 124(2) & 224). IoJ is emphasized by
Art. 229 which provides that appointment of Officers & servants shall be made by the
CJ or such other Judge or Officers as he may appoint.
Although judges are appointed by the Executive in consultation with legal experts, it was
held in S.P. Gupta v. UOI by the SC that the word ‘consultation’ didn’t mean
concurrence by the judges. Thus, the power of appointment of judges of the SC & the
transfer of judges of the HCs was only vested in the Executive from whose dominance
the judiciary is expected to be free. By conceding the power of appointment exclusively
to the Executive, the SC had itself put the IoJ into danger. Bhagwati, J. had suggested
for establishment of a Judicial Commission for recommending the names of the persons
for appointment as judges of the SC & HCs. Secondly, the power of the President
u/Art. 222 to transfer a judge from one HC to another may also be used to undermine
In S.C. Advocates-on-Record Association v. UOI, SC by 7 : 2 majority overruled S.P.
Gupta’s case & held that the opinion of the CJI must be given the greatest weight in the
selection of judges of the SC & HCs & the transfer of HC judges. The executive
element in appointment process is reduced to minimum & any political influence is
eliminated. Initiation of the proposal for appointment as judges must be started well in
time & the appointment should be duly announced soon. No appointment of any judge
to the SC or any HC can be made unless it is in conformity with the opinion of the CJI.
The opinion of the CJI has not mere primacy, but is determinative in the matter transfer
of judges & CJs of the HCs. The criterion for the appointment of the CJI shall be
seniority. This ruling of the SC ensured independence & impartiality of judiciary in India.
In Union of India v. Pratibha Bannerjea, the SC held that judges & officials of the HCs
are not govt. servants. There is no master-servant relationship b/w them. The framers
of the Indian Constitution were evidently keen to ensure that the judiciary was
In Re. Special / Presidential Reference No. 1 of 1998, popularly known as ‘Transfer of
Judges Case – III’ 9–Judges of the SC unanimously held that the recommendations
made by the CJI on the appointment of judges of the SC without following the
consultative process are not binding on the Govt. While widening the scope of CJI’s
consultative process, the SC gave its opinion whether the Govt. was bound by the
recommendations of the CJI sent to it without consulting his two senior-most
colleagues. The Apex Court held that CJI must consult a Collegium of 4 senior-most
Judges of the SC & made it clear that if 2 Judges give adverse opinion, CJI should not
send the recommendation to the President. The Collegium should make the decision in
consensus & unless the opinion of the Collegium is in conformity with that of the CJI, no
recommendation is to be made. In effect, the CJI & at least 3 or the 4 senior-most
The aforesaid decision of the SC, though affirmed the law laid down in Second Judges’
Case (S.C. Advocates-on-Record Association v. UOI), has made the consultative
process more democratic & transparent. This would ensure the independence &
impartiality of the judiciary of India. However, as a result of the above decision as well
as the Second Judges’ Case, Art. 124 has been made redundant. These cases have
vested the power of appointment of judges of higher judiciary completely in the SC. {
This is not a satisfactory position. The process might not be transparent in this case
also. The Broad consensus appears to be on the appointment of a National Judicial
Commission, that would balance both sides – the executive & the judiciary in this
An independent judiciary is the sine qua non of a vibrant democratic system. Only an
impartial & independent judiciary can stand as a bulwark for the protection of individuals
& meet out even-handed justice without fear or favour. The judiciary is the protector of
the Constitution and as such it may have to strike down executive, administrative &
legislative acts of the Centre & States. For rule of law to prevail, IoJ is of prime
necessity. It is necessary that the Courts are allowed to work in an atmosphere of
independence of action & judgments and is insulated from all kinds of pressure –
Opinion given by the SC in Re. Special / Presidential Reference No. 1 of 1998,
popularly known as ‘Transfer of Judges Case – III’ :
(i) The expression ‘consultation with the CJI’ in Art. 217(1) & 222(1) requires
consultation of judges in the formation of the opinion of CJI. The sole individual
opinion of the CJI does not constitute consultation.
(ii) The transfer of puisne judges is judicially reviewable only to the extent that
recommendation has not been made in consultation with 4 senior-most judges of
the SC or that the views of the CJ of the HC from which the transfer is to be
effected & to which the transfer is to be effected have not been obtained.
(iii) So far as appointment to the HC is concerned, the recommendation must be
made in consultation with 2 senior-most puisne judges of the SC & u/Art. 217(1),
the Governor of the State is also to be consulted.
(iv) The CJI is not entitled to act solely in his individual capacity without consultation
with other judges of the SC in respect of materials & information conveyed by the
GOI for non-appointment of a judge recommended for appointment.
(v) The requirement of consultation by the CJI with the colleagues, who are likely to
be conversant with the affairs of the HC concerned includes judges who hv
occupied the office of a judge or CJ of that HC on transfer.
(vi) Strong cogent reasons do not have to be recorded as justification for departure
from the order of seniority in respect of each senior judge who has been passed
over. What has to be recorded is the positive reason for the recommendation.
(vii) The views of the other judges consulted should be in writing & should be
conveyed to the GOI by the CJI along with his views to the extent set out in the
(viii) The CJI is obliged to comply with the norms & requirements of the consultation
process as aforesaid in making the recommendation to the GOI.
(ix) The recommendations made by the CJI, without complying with the norms &
requirements of the consultation process as aforesaid, are not binding upon the go.
