Model Answer
0 min readIntroduction
The Indian Constitution, a cornerstone of our democracy, derives its legitimacy from the people. This legitimacy manifests in different forms of power – constituent, amending, and legislative – each playing a distinct role in shaping the nation's legal and political landscape. The Constituent power established the Constitution itself, the amending power allows for its modification, and the legislative power enables the creation of laws. Understanding these distinctions is vital for comprehending the dynamic nature of the Indian Constitution and the checks and balances inherent within it. The 42nd Amendment Act, 1976, often referred to as the 'Mini-Constitution,' vividly exemplifies the interplay and potential conflicts between these powers.
Constituent Power
Constituent power refers to the power to create a constitution. It's the sovereign authority that brings a constitution into existence. In India, this power was initially vested in the Constituent Assembly, formed under the Cabinet Mission Plan of 1946. This assembly, comprising elected representatives from British India and princely states, drafted and adopted the Constitution of India.
The Constituent Assembly was not a directly elected body, a point of contention raised by some scholars. However, it was considered representative enough to exercise this fundamental power.
Example: The drafting of the Indian Constitution (1949-1950) by the Constituent Assembly, culminating in its adoption on November 26, 1950, is a prime illustration of constituent power. The debates and deliberations within the assembly reflect the exercise of this power.
Amending Power
Amending power is the authority to alter or modify a constitution after it has come into force. This power is essential for adapting the constitution to changing societal needs and circumstances. Article 368 of the Indian Constitution outlines the procedure for amending different parts of the Constitution. The amendment process is not uniform; some provisions require a simple majority, others a special majority (two-thirds of members present and voting, and a majority of the total membership of the House), and some necessitate ratification by at least half of the state legislatures.
The Kesavananda Bharati case (1973) introduced the "basic structure" doctrine, which placed limitations on the amending power, preventing changes that would fundamentally alter the character of the Constitution. This significantly curbed the absolute power of Parliament to amend the Constitution.
Example: The 42nd Amendment Act, 1976, which introduced significant changes including the addition of the Preamble's words "socialist" and "secular," demonstrates the exercise of amending power. Its subsequent repeal by the 44th Amendment Act, 1978, highlights the limitations and potential for reversal of amendments.
Legislative Power
Legislative power is the authority to make laws on matters falling within the legislative competence of the Parliament and State Legislatures. This power is derived from the Constitution and is exercised through the enactment of statutes. The Constitution delineates the legislative powers between the Union Parliament (Parliament of India) and the State Legislatures, as outlined in Schedules I and II. Article 245 vests legislative powers in the Parliament, while Article 253 defines the legislative powers of the States.
Legislative power is subject to constitutional limitations and judicial review. Laws passed by the legislature can be challenged in courts if they violate fundamental rights or are inconsistent with the Constitution.
Example: The Motor Vehicles Act, 1988, enacted by the Parliament, is an example of legislative power. Similarly, state laws like the Uttar Pradesh Urban Planning and Development Act, 1972, exemplify the legislative power of State Legislatures.
Distinguishing the Powers: A Comparative Table
| Power | Definition | Time of Exercise | Body Exercising Power | Scope | Example |
|---|---|---|---|---|---|
| Constituent Power | Power to create a constitution | Initial creation of the Constitution | Constituent Assembly | Creation of the entire Constitution | Drafting and adoption of the Indian Constitution (1949-1950) |
| Amending Power | Power to alter or modify the Constitution | After the Constitution comes into force | Parliament (with varying majorities) | Modification of specific provisions | 42nd Amendment Act, 1976 (and its subsequent repeal) |
| Legislative Power | Power to make laws | Ongoing, as needed | Parliament and State Legislatures | Enactment of statutes within defined legislative competence | Motor Vehicles Act, 1988 |
It’s crucial to understand that while distinct, these powers are interconnected. The amending power is derived from the original constituent power, and legislative power operates within the framework established by the Constitution.
Conclusion
In essence, constituent power establishes the foundation, amending power allows for adaptation, and legislative power provides the mechanism for governance. The Indian Constitution, through its carefully defined processes and judicial interpretations, attempts to balance these powers and ensure that they are exercised responsibly, upholding the principles of democracy and the rule of law. The ongoing debates regarding the scope of the amending power, particularly concerning the “basic structure” doctrine, underscore the enduring significance of these distinctions in shaping the Indian polity.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.