Salient Features II: Parliamentary System, Secularism and Basic Structure
Three features that together answer the question of what cannot be changed. The parliamentary system decides who governs, secularism decides on what terms a plural society is gover…
Three features that together answer the question of what cannot be changed. The parliamentary system decides who governs, secularism decides on what terms a plural society is governed, and the basic structure decides what no majority may undo.
This is chapter 23 of the PSIR Optional Notes, from the part on Indian Government and Politics in the Paper I syllabus. The complete book is a free download.
UPSC syllabus
Salient Features of the Indian Constitution: parliamentary system and amendment procedures; judicial review and basic structure doctrine. (Secularism is treated here as the substantive commitment those procedures protect.)
In one page
- India chose the parliamentary over the presidential system for two reasons Ambedkar gave: it provides more responsibility, daily and continuous, at some cost in stability; and it suited a country already familiar with the form.
- The system’s features: a nominal and a real executive, collective responsibility to the lower house, ministers drawn from the legislature, majority rule, and dissolution.
- Indian secularism is not the American wall of separation. It is principled distance: the state may engage with religion, to reform or to support, but on non-preferential terms and in the service of equality and freedom.
- The distinctive Indian move is that religious freedom in Article 25 is expressly made subject to social reform, which permits temple-entry legislation and the abolition of untouchability.
- The amendment procedure in Article 368 has three tracks: simple majority for specified matters outside 368, special majority, and special majority plus ratification by half the states.
- The basic structure doctrine emerged from Kesavananda Bharati (1973): Parliament may amend any provision but may not damage or destroy the Constitution’s basic features.
- Its components have been identified case by case rather than listed exhaustively: supremacy of the Constitution, rule of law, separation of powers, judicial review, free and fair elections, federalism, secularism, and the balance between Parts III and IV.
- The doctrine is India’s answer to the problem every constitution faces, that the amending power is also the power to abolish. Its cost is that unelected judges decide what is essential.
The parliamentary system
Why it was chosen
The Assembly considered the presidential alternative seriously. Ambedkar’s defence of the parliamentary form turned on a distinction between two kinds of accountability. A presidential executive is assessed periodically, at fixed elections; a parliamentary executive is assessed daily, by question hour, adjournment motions, no-confidence motions and the constant possibility of losing the house. His conclusion was that India needed more responsibility than stability, since a government insulated for a fixed term in a deeply unequal society was the greater risk.
Two further reasons weighed. The form was familiar: the Government of India Act 1919 and 1935 had built responsible government in the provinces, so the personnel and the conventions existed. And in a plural society a cabinet drawn from the legislature allows continuous representation of regions and communities in the executive, which a single elected president does not.
Features and the Indian variations
The standard features are a nominal head of state and a real executive, ministers drawn from and answerable to the legislature, collective responsibility under Article 75(3), majority party government, a leader of the opposition, political homogeneity of the cabinet, secrecy, and dissolution of the lower house.
Three Indian variations should be noted.
- The President’s position is defined, not conventional. The Forty-second Amendment made ministerial advice binding; the Forty-fourth added that the President may require reconsideration once, after which the advice is binding. In Britain this is convention; here it is text.
- Anti-defection. The Tenth Schedule, inserted by the Fifty-second Amendment in 1985, disqualifies a member who votes against the party whip. It stabilised governments and, in the process, weakened the individual legislator’s accountability to conscience and constituency, which is the standing criticism of it.
- Cabinet size. The Ninety-first Amendment (2003) capped the council of ministers at fifteen per cent of the strength of the house, after the practice of enlarging ministries to buy support.
The system’s working problems are examinable: the decline of Parliament’s scrutiny function, falling sitting days, the passage of bills without committee reference, the use of the money-bill route to bypass the Rajya Sabha, and the concentration of decision-making in the Prime Minister’s Office. These belong properly to Chapter 24 and should be cross-referenced rather than repeated.
Secularism
The Indian conception
Western secularism, in its dominant American form, requires separation: the state neither aids nor hinders religion, and the wall between them is mutual. Indian secularism does something different and the difference must be stated precisely, because calling it a deviation or an imperfection is the commonest error.
Rajeev Bhargava‘s formulation, principled distance, is the standard account. The state maintains a distance from all religions but that distance is not uniform and not fixed: it may intervene in one religion and not another, or support one and not another, depending on what freedom and equality require in the specific case. What makes it principled rather than opportunistic is that the ground of any engagement must be a value the state can defend publicly, not the preference of a community.
The constitutional text bears this out.
- Article 25 guarantees freedom of conscience and free profession, practice and propagation of religion, but expressly subject to public order, morality, health and the other Part III rights, and Article 25(2)(b) explicitly saves laws providing for social welfare and reform and for throwing open Hindu religious institutions to all classes.
- Article 17 abolishes untouchability outright, which is direct interference in a religiously sanctioned practice.
- Articles 26 to 28 protect religious denominations’ management of their own affairs, prohibit taxes for promoting a religion, and bar religious instruction in wholly state-funded institutions.
- Articles 29 and 30 protect minority language, script and culture, and the right of minorities to establish and administer educational institutions, with state aid available on non-discriminatory terms.
- Article 44 directs the state toward a uniform civil code, which is in tension with the personal-law regime the Constitution simultaneously tolerates.
Doctrine and difficulty
The essential religious practices test, developed from Shirur Mutt (1954), holds that constitutional protection extends to practices essential to a religion, with the courts deciding what is essential. It has enabled reform, in temple entry and in Shayara Bano (2017) on instant triple talaq, and it has been widely criticised for making judges arbiters of theology, most visibly in the Sabarimala litigation from 2018.
The standing criticisms of Indian secularism should be given in three registers. From the right, that it is pseudo-secular, interfering with the majority’s institutions while leaving minority personal law untouched. From the left and liberal, that it has been practised as management of communities rather than as protection of individuals, so that community leaders acquire authority over their members. From Ambedkar’s position, that tolerating personal law preserves precisely the religious authority over social life that reform must break.
The defence, and the fair conclusion, is that a state facing a society where religion structures social life cannot be neutral by abstention, since abstention leaves existing religious hierarchy in place. Principled distance is a harder standard than separation, not a weaker one, and the failures are failures of application rather than of design.
Amendment and the basic structure
Article 368 and the three tracks
| Track | Requirement | Examples |
|---|---|---|
| Simple majority (outside Article 368) | Majority of those present and voting | Admission and formation of new states, alteration of areas and names, citizenship, quorum, salaries, creation or abolition of state legislative councils |
| Special majority | Majority of the total membership of each house and two-thirds of those present and voting | Fundamental Rights, Directive Principles, and all other provisions not in the third category |
| Special majority plus state ratification | The above, plus ratification by the legislatures of not less than half the states | Election of the President, executive and legislative powers of Union and states, the Lists, representation of states in Parliament, Article 368 itself, and the Supreme Court and High Courts |
The procedure can be initiated only in Parliament, by a minister or a private member, and needs no prior presidential recommendation; there is no provision for a joint sitting on a constitutional amendment bill, so each house must pass it separately by the required majority; and since the Twenty-fourth Amendment the President is bound to assent.
The road to Kesavananda
The doctrine emerged from a two-decade contest over land reform and property.
- Shankari Prasad (1951) and Sajjan Singh (1965) held that “law” in Article 13 did not include a constitutional amendment, so Fundamental Rights could be amended.
- Golak Nath (1967) reversed this by six to five: Fundamental Rights were beyond the amending power altogether. This was doctrinally unstable, since it left the Constitution unable to change a chapter that plainly needed adjusting.
- The Twenty-fourth Amendment (1971) restored the amending power expressly; the Twenty-fifth inserted Article 31C; the Twenty-ninth placed Kerala land reform laws in the Ninth Schedule.
- Kesavananda Bharati v. State of Kerala (1973), decided by a bench of thirteen judges by seven to six, held that Parliament may amend any part of the Constitution, including Fundamental Rights, but may not damage or destroy its basic structure.
The doctrine’s intellectual origin is worth a line: the German constitutional idea of an unamendable core, transmitted through the writing of Dietrich Conrad, whose 1965 lecture at Banaras Hindu University was cited in argument.
What the doctrine has been used for
- Indira Nehru Gandhi v. Raj Narain (1975) struck down Clause 4 of the Thirty-ninth Amendment, which had placed the Prime Minister’s election beyond judicial scrutiny, as a violation of free and fair elections and judicial review.
- Minerva Mills (1980) struck down the Forty-second Amendment’s clauses giving Parliament unlimited amending power and barring review, holding limited amending power and the balance between Parts III and IV to be basic features.
- Waman Rao (1981) fixed 24 April 1973, the date of Kesavananda, as the cut-off after which Ninth Schedule entries are open to basic-structure review; I.R. Coelho (2007) confirmed it.
- S.R. Bommai (1994) held secularism and federalism to be basic features and made Article 356 proclamations justiciable.
- Supreme Court Advocates-on-Record Association (2015) struck down the Ninety-ninth Amendment and the National Judicial Appointments Commission as violating judicial independence.
The features identified across the cases include supremacy of the Constitution, the republican and democratic form, secularism, separation of powers, federalism, judicial review, free and fair elections, the rule of law, the independence of the judiciary, Article 32, the balance between Parts III and IV, and the limited nature of the amending power itself. The list is deliberately open, which is both the doctrine’s flexibility and its problem.
Debate: Is the basic structure doctrine legitimate?
No. It has no textual basis. Article 368 says Parliament may amend this Constitution and imposes procedural conditions only; the Court added a substantive limit the framers considered and declined to write, since amendment limitation clauses existed in other constitutions and were available to copy. It transfers final constituent authority from an elected Parliament to unelected judges, and the content of the basic structure is decided case by case by those same judges, which is close to unreviewable power. Yes. Every constitution faces the paradox that the amending power, unlimited, includes the power to abolish the constitution by constitutional means, and the Weimar experience shows the consequence. The doctrine distinguishes amendment from replacement, which is a coherent distinction and one the framers implicitly relied on. Its record is the argument: it has been used to protect free elections, judicial review, federalism and secularism, and every one of those interventions defended democratic government rather than displaced it. The examiner’s line. Judge it against the alternative rather than against an ideal. Without it, the Thirty-ninth Amendment’s ouster of the Prime Minister’s election from review and the Forty-second Amendment’s grant of unlimited amending power would both have stood, and the Emergency’s constitutional entrenchment would have been complete. The counter-majoritarian objection is real and unanswerable in principle; the practical answer is that the doctrine has been used sparingly and, so far, in defence of the electoral process itself. Note also its export: Bangladesh, Pakistan and Uganda have adopted versions of it.
The Daily Assessment of responsibility which is not available under the American system is, it is felt, far more effective than the periodic assessment
B. R. Ambedkar, Constituent Assembly, 4 November 1948
The Constitution is a precious heritage; therefore you cannot destroy its identity
Supreme Court of India, Kesavananda Bharati v. State of Kerala, 1973
Where answers lose marks
- Describing Indian secularism as an imperfect wall of separation. It is a different model, principled distance, and Article 25(2)(b) makes the difference textual, not accidental.
- Giving only two amendment tracks. The simple-majority category sits outside Article 368 and is the one candidates forget.
- Saying Kesavananda was unanimous or that it listed the basic features. It was seven to six, and the features have been identified case by case ever since.
- Confusing Golak Nath with the basic structure doctrine. Golak Nath put Fundamental Rights entirely beyond amendment; Kesavananda allowed their amendment and protected the structure instead.
- Presenting the basic structure as settled and uncontroversial. The counter-majoritarian objection is serious and should be stated before it is answered.
- Treating anti-defection as an unmixed good. It bought stability at the cost of the individual legislator’s independence, which is a real change to the parliamentary system.
Asked before
- Constitutional morality in the Indian Constitution. (2024, Paper I, 10 marks)
Answer skeleton
Constitutional morality in the Indian Constitution. (10 marks, 150 words)
Frame. Ambedkar’s term, taken from George Grote’s history of Greece, and used in the Constituent Assembly on 4 November 1948. It names the habits without which constitutional forms are only forms.
The content. A paramount reverence for the forms of the constitution; the settlement of disputes by argument rather than force; freedom of criticism combined with obedience to authority; and self-restraint by those holding power. Ambedkar’s warning: it is not a natural sentiment in India and must be cultivated, since our people have yet to learn it.
Why he thought India needed it. A society organised by graded inequality supplies undemocratic habits; the Constitution’s administrative provisions had to be written in detail precisely because the conventions that sustain British practice could not be assumed.
Judicial career of the idea. Revived in Naz Foundation (2009), and used centrally in Puttaswamy (2017), Navtej Singh Johar (2018) and the Sabarimala judgment (2018), where constitutional morality is set against popular or social morality: the Constitution’s values prevail over majority sentiment.
The criticism. That it lets judges substitute their own reading of constitutional values for democratic choice, and that the phrase is used more often than it is defined.
Close. Its enduring use is Ambedkar’s original one: to insist that constitutional government depends on conduct that the text can require but cannot itself produce.
Last-mile revision
- Parliamentary over presidential: daily responsibility over periodic; familiarity; plural representation in cabinet. Ambedkar, 4 November 1948.
- Indian variations: binding advice under the Forty-second and Forty-fourth Amendments; Tenth Schedule anti-defection 1985; fifteen per cent cabinet cap by the Ninety-first Amendment 2003.
- Secularism as principled distance (Bhargava). Article 25 subject to reform; Article 25(2)(b); Article 17; Articles 26–28; 29–30; Article 44.
- Essential religious practices from Shirur Mutt (1954); Shayara Bano (2017); Sabarimala (2018). Three lines of criticism: pseudo-secular, community management, and Ambedkar’s objection to personal law.
- Article 368: simple majority outside 368, special majority, special majority plus half the states. No joint sitting; assent mandatory since the Twenty-fourth Amendment.
- Shankari Prasad 1951, Sajjan Singh 1965, Golak Nath 1967, Twenty-fourth and Twenty-fifth Amendments 1971, Kesavananda 1973 (7:6).
- Applications: Indira Gandhi v. Raj Narain 1975, Minerva Mills 1980, Waman Rao 1981 and the 24 April 1973 cut-off, Bommai 1994, I.R. Coelho 2007, NJAC 2015.
Read the rest. This chapter is one of 58 in the complete PSIR Optional Notes, covering Paper I and Paper II in full — free to download.