Constitutional Law MCQs for CLAT PG, Page 2

The constituent power of Parliament to amend the Constitution is contained in Article 368. The scope and limits of this power have been the subject of some of the most significant constitutional adjudication in India. In Shankari Prasad Singh Deo v. Union of India (1951), the Supreme Court upheld the First Constitutional Amendment and held that the word 'law' in Article 13, which prevents the State from making laws inconsistent with Fundamental Rights, does not include a constitutional amendment enacted under Article 368. Parliament could therefore amend Fundamental Rights. This position was reversed in Golak Nath v. State of Punjab (1967), where the Supreme Court by a slender majority of 6:5 held that constitutional amendments are 'law' within the meaning of Article 13 and that Parliament has no power to abridge or take away Fundamental Rights through the amendment process. Parliament responded by enacting the 24th Constitutional Amendment, which inserted specific provisions in Articles 13 and 368 to negate the effect of Golaknath and to expressly confer on Parliament the power to amend the Constitution including any provision of Part III. In Kesavananda Bharati v. State of Kerala (1973), a thirteen-judge bench upheld the validity of the 24th Amendment and overruled Golaknath, holding that Parliament does have the power to amend Fundamental Rights. However, the Court simultaneously introduced the doctrine of basic structure as an overarching limitation, holding that even the widest amending power cannot be used to damage or destroy the basic structure or essential framework of the Constitution. In this manner the Court crafted a middle path between unlimited parliamentary sovereignty and absolute constitutional rigidity.

Part IV of the Constitution, comprising Articles 36 to 51, contains the Directive Principles of State Policy. Article 37 expressly states that the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. The non-justiciable character of DPSPs distinguishes them from the enforceable Fundamental Rights in Part III. In State of Madras v. Champakam Dorairajan (1951), the Supreme Court held that in the event of a conflict between Fundamental Rights and DPSPs, Fundamental Rights would prevail, as DPSPs are expressly made non-justiciable. This led Parliament to introduce constitutional amendments - particularly Article 31A, 31B (with the Ninth Schedule) and ultimately Article 31C - to give primacy to laws implementing DPSPs over certain Fundamental Rights. However, in Minerva Mills Ltd. v. Union of India (1980), the Supreme Court held that the 42nd Amendment had gone too far in giving blanket immunity to all laws implementing any DPSP from challenge on grounds of Articles 14 and 19. The Court held that the balance between Part III and Part IV is itself part of the basic structure of the Constitution. Neither Fundamental Rights nor Directive Principles can be made absolutely supreme over the other; they are complementary and must be read harmoniously to further the constitutional vision of a just social order. The Preamble's ideals of justice - social, economic and political - can only be achieved through this harmonious interaction.

The Indian Constitution distributes legislative powers between Parliament and State Legislatures through three lists in the Seventh Schedule: List I (Union List), List II (State List), and List III (Concurrent List). In practice, the boundaries between these lists are not always clear, and a law enacted by one legislature may incidentally touch upon a subject falling within the competence of the other. To resolve such conflicts without invalidating laws unnecessarily, Indian courts have evolved the doctrine of pith and substance. According to this doctrine, when a law is challenged on the ground that the legislature which enacted it lacks competence because the subject matter belongs to the list of another legislature, courts examine what is the 'pith' - the true nature and character - and the 'substance' - the dominant purpose - of the legislation. If, viewed in its entirety, the law substantially and predominantly deals with a subject within the competent legislature's list, it will be upheld even if it incidentally encroaches upon a matter in another list. In State of Bombay v. F.N. Balsara (1951), the Bombay Prohibition Act was challenged on the ground that it incidentally affected import of liquor, which is a Union subject. The Supreme Court applied the doctrine and upheld the Act, holding that the pith and substance of the Act fell within the State List (public health, intoxicating liquors) even though it incidentally touched upon the Union subject of import. The doctrine ensures that legislative overlap is managed without paralysing the federal structure by invalidating genuinely competent legislation on account of incidental effects.

Articles 25 and 26 of the Constitution protect freedom of religion and the right of religious denominations to manage their affairs. Article 25(1) gives every person the right to freely profess, practise and propagate religion subject to public order, morality, health and other provisions of Part III. Article 26 gives every religious denomination the right to manage its own affairs in matters of religion. In Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar (1954) - the Shirur Math case - the Supreme Court introduced the 'essential religious practices' doctrine: the protection under Articles 25 and 26 extends only to those religious practices that are 'essential' or 'integral' to the religion. Courts are required to determine, by examining the tenets and practices of the religion, whether a particular practice is essential or merely peripheral. Non-essential practices can be regulated by the State without violating constitutional protection. The Shirur Math case also distinguished between matters of religion - which are fully protected - and secular or administrative activities associated with religion, such as property management, which are subject to State regulation. In Indian Young Lawyers Association v. State of Kerala (2018) - the Sabarimala case - the Supreme Court by a 4:1 majority applied the essential practices doctrine to hold that the exclusion of women between 10 and 50 years from the Sabarimala temple was not an essential religious practice and therefore could not claim constitutional protection under Article 26. The majority held that the practice violated women's right to worship and their rights to equality and dignity under Articles 14, 15, 17 and 21.

The independence of the judiciary is recognised as a basic feature of the Constitution. Articles 124 to 147 of the Constitution deal with the Supreme Court, while Articles 214 to 231 deal with High Courts. The Constitution provides several structural safeguards for judicial independence - security of tenure, fixed service conditions that cannot be varied to a judge's disadvantage, charging salaries to the Consolidated Fund (thus not subject to Parliamentary vote), and a difficult process of removal only through impeachment. The appointment of judges to the Supreme Court and High Courts is provided under Article 124(2) and Article 217 respectively. Both Articles require the President to consult with the Chief Justice of India and such other judges as he deems necessary. The interpretation of this 'consultation' requirement became the subject of significant constitutional litigation. In S.P. Gupta v. Union of India (First Judges Case, 1981), the Supreme Court held that consultation did not mean concurrence and that the executive had the primacy in appointments. This decision was overruled in Supreme Court Advocates-on-Record Association v. Union of India (Second Judges Case, 1993), where a nine-judge bench held that in matters of appointment and transfer of judges, the opinion of the Chief Justice of India and the collegium of the two senior-most judges of the Supreme Court would have primacy over the executive. The collegium system was further elaborated in the Third Judges Case (1998) where the Court held that the collegium for Supreme Court appointments would consist of the Chief Justice of India and the four senior-most judges of the Supreme Court. The National Judicial Appointments Commission (NJAC), created by the 99th Constitutional Amendment to replace the collegium, was struck down by the Supreme Court in 2015 as violating the basic structure of the Constitution by compromising judicial independence.