15 Apr 2021

Form of Government:

1. Autocracy/ Absolute Monarchy – Concentration of power in one unelected hand
2. Democracy – government on the basis of elections
3. Constitutional Monarchy – head of state is king/ queen but acts on the aid and advice of elected council of ministers
4. Republican Govt.- head of state is elected not a monarch

Democracy

Direct -people vote on every issue, they make laws for themselves

Indirect/ Representative – people choose their representatives who make laws on their behalf

Referendum -people voting on certain important issues in representative democracies

Plebiscite – vote where people choose whether or not they want to remain in a state

In representative democracy

Written constitution – Laws can not be in violation of constitution. Constitution is supreme. Two types of laws – ordinary laws and constitutional laws

Unwritten constitution – Laws framed by parliament is supreme i.e parliament is supreme. Ordinary law and constitution law one and the same

So constitution basically limits the power of state. It has to abide by the constitution

Who will interpret the constitution – Judiciary. It can review laws and policies of govt – not violative of constitution i.e Judicial review

Legislature will frame the laws.

Who will implement – Executive

Two systems here

1. Parliamentary form – Executives/ ministers come from Parliament/ must get themselves elected within 6 months.
2. Presidential form – Executive is not part of legislature

Titbits

1. In parliamentary form, head of government is prime minister while head of state is president (republic) or monarchy (constitutional monarchy) whereas president is both head of government as well as head of state in presidential form
2. Incomplete separation of power in parliamentary form; complete separation of power in presidential form

Form of Govt

1. Unitary – Only 1 tier of govt for the whole country. Units do not get any power directly from the constitution. There may be local bodies and provinces but parliament delegates power to them
2. Federal – more than 1, generally 2 tier. Units i.e states/ provinces derive power directly from the constitution

Shades of Federalism:

Note:

1. Federal government is possible only in countries with written constitution
2. 3rd tier of governance i.e Panchayati Raj and Municipalities is not federalism but more decentralisation and local self governance.

Various constitutional doctrines

1. Separation of Powers – among legislative, executive and judiciary so that no one becomes all powerful
2. Checks and Balances-  among the three: for instance, judicial review is judicial check on executive and legislature
3. Doctrine of repugnancy – state law on concurrent list liable to be struck down if inconsistent with central law
4. Doctrine of harmonious reconstruction – Constitutional provisions interpreted not in isolation but to be construed as to harmonize with those other parts
5. Doctrine of pith and substance – finding out the true nature of a statute, 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
6. 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
7. Basic Structure – Constitution has some basic structure which can not be amended even if all members of both the house vote to amend that provision (Keshvananda Bharati Case)
8. Judicial review – Constitutional courts to examine whether laws or policies violate the constitution

Historical background

Timeline

1. Regulating Act, 1773 – Governor of Bengal became Governor General of Bengal (not india) i.e Bombay and Madras presidency subordinate, Supreme court in Calcutta
2. Pitts Act 1784 – Board of Control for political affairs, 1st time called British Possession in India
3. Charter Act of 1833 – Centralization complete, Governor General of Bengal became that of India, law member introduced in the council
4. Charter Act 1853 – Open competition for civil services
5. Government of India Act 1858 – Act for good govt, abolished EIC, under direct rule of British govt/ crown now, Secretary of state post created
6. Act of 1861 – Recognition to portfolio system, some indians nominated to council
7. Act of 1892 – same story
8. Act of 1909/ Morley – Minto – element of election introduced, 1st Indian in executive council of viceroy, Separate Electorate
9. Act of 1919/ Montagu – Chelmsford – Dyarchy or dual govt in provinces – transferred and reserved subject, Bicameral legislature
10. GOI Act 1935 – Federation, Autonomy to provinces, 3 lists, residuary powers in viceroy

Titbits:

1. From 1858 under direct control of British govt. Therefore, GOI acts, before that charter act (EIC charter) and regulating act
2. Concurrent list was borrowed from GOI act 1935 as well as Australian constitution. Residuary power vests with centre now while it vested in viceroy in GOI act 1935
3. 1st name is secretary of state and 2nd name is viceroy i.e Montagu and Morley are secretaries

Features from other constitution (Only Imp things)