The executive, legislative, and judicial branches of government receive their power from the constitution and are bound by it. With the aid of its constitution, India is governed by a
parliamentary system of government with the
executive directly accountable to the
legislature though the two partially overlap each other. • Under Articles 52 and 53: the
president of India is head of the executive branch • Under
Article 60: the duty of preserving, protecting, and defending the constitution and the law. • Under
Article 74: the
prime minister is the head of the
Council of Ministers, which aids and advises the president in the performance of their constitutional duties. • Under Article 75(3): the Council of Ministers is answerable to the
lower house. The constitution is considered
federal in nature, and
unitary in spirit. It has features of a federation, including a
codified, supreme constitution; a three-tier governmental structure (central, state and local); division of powers between Centre and states;
bicameralism; and an independent
judiciary. It also possesses unitary features such as a single constitution, single
citizenship, an integrated judiciary, a flexible constitution, a strong
central government, appointment of
state governors by the central government,
All India Services (the
IAS,
IFS and
IPS), and
emergency provisions. This unique combination makes it quasi-federal in form. Each state and
union territory has its own government. Analogous to the president and prime minister, each has a
governor or (in union territories) a
lieutenant governor and a
chief minister.
Article 356 permits the president to dismiss a state government and assume direct authority if a situation arises in which state government cannot be conducted in accordance with constitution. This power, known as
president's rule, was abused as state governments came to be dismissed on flimsy grounds for political reasons. After
S. R. Bommai v. Union of India, such a course of action is more difficult since the courts have asserted their right of review. The 73rd and 74th Amendment Acts introduced the system of
panchayati raj in rural areas and
Nagar Palikas in urban areas. An amendment bill must be passed by each house of Parliament by a two-thirds majority of its total membership when at least two-thirds are present and vote. Certain amendments pertaining to the constitution's federal nature must also be ratified by a majority of state legislatures. Unlike ordinary bills in accordance with
Article 245 (except for
money bills), there is no provision for a joint session of the
Lok Sabha and
Rajya Sabha to pass a constitutional amendment. During a parliamentary recess, the president cannot promulgate
ordinances under his legislative powers under
Article 123, Chapter III. Despite the
supermajority requirement for amendments to pass, the Indian constitution is the world's most frequently-amended national governing document. The constitution is so specific in spelling out government powers that many amendments address issues dealt with by statute in other democracies. In 2000, the
Justice Manepalli Narayana Rao Venkatachaliah Commission was formed to examine a constitutional update. The commission submitted its report on 31 March 2002. However, the recommendations of this report have not been accepted by the consecutive governments. The
government of India establishes term-based
law commissions to recommend legal reforms, facilitating the rule of law.
Limitations In
Kesavananda Bharati v. State of Kerala, the
Supreme Court ruled that an amendment cannot destroy what it seeks to modify; it cannot tinker with the constitution's basic structure or framework, which are immutable. Such an amendment will be declared invalid, although no part of the constitution is protected from amendment; the basic structure doctrine does not protect any one provision of the constitution. According to the doctrine, the constitution's basic features (when "read as a whole") cannot be abridged or abolished. These "basic features" have not been fully defined, The
Kesavananda Bharati v. State of Kerala decision laid down the constitution's basic structure: This implies that Parliament can only amend the constitution to the limit of its basic structure. The Supreme Court or a
high court may declare the amendment null and void if this is violated, after a
judicial review. This is typical of parliamentary governments, where the judiciary checks parliamentary power. In its 1967
Golak Nath v. State of Punjab decision, the Supreme Court ruled that the state of Punjab could not restrict any fundamental rights protected by the basic structure doctrine. The extent of land ownership and practice of a profession, in this case, were considered fundamental rights. The ruling was overturned with the ratification of the 24th Amendment in 1971. Its duty (mandated by the constitution) is to act as a watchdog, preventing any legislative or executive act from overstepping constitutional bounds. The judiciary protects the fundamental rights of the people (enshrined in the constitution) from infringement by any state body, and balances the conflicting exercise of power between the central government and a state (or states). The courts are expected to remain unaffected by pressure exerted by other branches of the state, citizens or interest groups. An independent judiciary has been held as a basic feature of the constitution, which cannot be changed by the legislature or the executive. Article 50 of the Constitution provides that the state must take measures to separate the judiciary from the executive in the public services.
Judicial review Judicial review was adopted by the constitution of India from
judicial review in the United States. In the Indian constitution,
judicial review is dealt with in
Article 13. The constitution is the supreme power of the nation, and governs all laws. According to
Article 13: • All pre-constitutional laws, if they conflict wholly or in part with the constitution, shall have all conflicting provisions deemed ineffective until an amendment to the constitution ends the conflict; the law will again come into force if it is compatible with the constitution as amended (the Doctrine of Eclipse). • Laws made after the adoption of the constitution must be compatible with it, or they will be deemed void
ab initio. • In such situations, the Supreme Court (or a high court) determines if a law is in conformity with the constitution. If such an interpretation is not possible because of inconsistency (and where separation is possible), the provision which is inconsistent with the constitution is considered void. In addition to Article 13, Articles 32, 226 and 227 provide the constitutional basis for judicial review. Due to the adoption of the
Thirty-eighth Amendment, the Supreme Court was not allowed to preside over any laws adopted during a state of emergency which infringe
fundamental rights under article 32 (the right to constitutional remedies). The
Forty-second Amendment widened Article 31C and added Articles 368(4) and 368(5), stating that any law passed by Parliament could not be challenged in court. The Supreme Court ruled in
Minerva Mills v. Union of India that judicial review is a basic characteristic of the constitution, overturning Articles 368(4), 368(5) and 31C.
The executive Chapter 1 of the Constitution of India creates a
parliamentary system, with a prime minister who, in practice, exercises most executive power. The prime minister must have the support of a majority of the members of the
Lok Sabha, or lower House of Parliament. If the prime minister does not have the support of a majority, the Lok Sabha can pass a motion of no confidence, removing the prime minister from office. Thus the prime minister is the member of parliament who leads the majority party or a coalition comprising a majority. The prime minister governs with the aid of a
Council of Ministers, which the prime minister appoints and whose members head ministries. Importantly, Article 75 establishes that "the Council of Ministers shall be
collectively responsible to the House of the People" or Lok Sabha. The Lok Sabha interprets this article to mean that the entire Council of Ministers can be subjected to a no confidence motion. If a no confidence motion succeeds, the entire Council of Ministers must resign. Despite the prime minister exercising executive power in practice, the constitution bestows all the national government's executive power in the office of the president. This de jure power is not exercised in reality, however. Article 74 requires the president follow the "aid and advice" of the council, headed by the prime minister. In practice, this means that president's role is mostly ceremonial, with the prime minister exercising executive power because the president is obligated to act on the prime minister's wishes. The president does retain the power to ask the council to reconsider its advice, however, an action the president may take publicly. The council is not required to make any changes before resubmitting the advice to the president, in which case the president is constitutionally required to adhere to it, overriding the president's discretion. The president is chosen by an electoral college composed of the members of both the national and state legislatures. Article 55 outlines the specifics of the electoral college. Half of the votes in the electoral college are assigned to state representatives in proportion to the population of each state and the other half are assigned to the national representatives. The voting is conducted using a secret,
single transferable vote. While the Constitution gives the legislative powers to the two Houses of Parliament, Article 111 requires the president's signature for a bill to become law. Just as with the advice of the council, the president can refuse to sign and send it back to the Parliament, but the Parliament can in turn send it back to the president who must then sign it.
Dismissal of the prime minister Despite the president's mandate to obey the advice of the prime minister and the council, Article 75 declares that both "shall hold office during the pleasure of the president."
Presidential power to legislate When either or both Houses of Parliament are not in session, the prime minister, acting via the president, can unilaterally exercise the legislative power, creating
ordinances that have the force of law. These ordinances expire six weeks after Parliament reconvenes or sooner if both Houses disapprove. The Constitution declares that ordinances should only be issued when circumstances arise that require "immediate action." Because this term is not defined, governments have begun abusing the ordinance system to enact laws that could not pass both Houses of Parliament, according to some commentators. This appears to be more common with divided government; when the prime minister's party controls the lower house but not the upper house, ordinances can be used to avoid needing the approval of the opposition in the upper house. In recent years, around ten ordinances have been passed annually, though at the peak of their use, over 30 were passed in a single year. Ordinances can vary widely on their topic; recent examples of ordinances include items as varied as modifications to land owner rights, emergency responses to the COVID-19 pandemic, and changes to banking regulations. == Federalism ==