+91-91611-70999, +91-97601-92098, +91-99188-66992 •
Legal Aid & Social Development Educational Society logo

Study Material

Constitutional Analysis

THE CONSTITUTION OF INDIA

-An In-depth Analysis-

 

INDEX

1.  Historical development of the Constitution of India

2.  Drafting of the Constitution of India

3.  Characteristics and Features of the Constitution of India

4.  Preamble to the Constitution of India

5.  Indian Citizenship

6.  Federalism under the Constitution of India

7.  Territory of the Union

8.  Fundamental Rights & Duties

9.  Right to Constitutional Remedies

10.              State Directives- Principles of State Policy

11.              Amendment Procedures under the Constitution of India

12.              Government of the Union

13.              Government of the States

14.              Union Territories

15.              The State of Jammu & Kashmir

16.              Local Governments

a.  Panchayats

b.   Municipalities

17.              Judicial Systems

a.  Supreme Court

b.   High Court

c.   Subordinate Courts

18.              Emergency Provisions

19.              Miscellaneous Provisions

a.  Rights and Liabilities of Government/Public Servants

b.   Public Service Commission

c.   Minorities, Scheduled Castes & Scheduled Tribes

d.  Languages

e.   Schedules to the Constitution

20.              Important Case Laws

21.              Important Doctrines

22.              Case Laws: Reference & Research

23.              Understanding Citations

24.              Sample Papers

CHAPTER-1

HISTORICAL DEVELOPMENT OF THE CONSTITUTION OF INDIA

Historical background

The Indian constitution is not a product of a political revolution in nations nor is imposed by a supreme authority or ruler to a state. The Constitution of India can be very well said to be a product of administrative adoption by the people of the state, themselves, choosing to be governed by a specific set of rules and regulations that is by constituting a new state through a constitution. Constitution can be defined to be a legal document by which a new state or nation is formed by re-arrangement. The purpose of constitution in context to the Indian sub-continent was to improve upon the currently existing system of administration as was then at the time of British ruling in India. The current act of constitution of the year 1949 has history with respect to its birth and formation. The contents of our constitution appear to be compliances of various constitution of the world. The basic ideology of the Constitution of the India has been formulated by ransacking all the known constitution of the world at the time of its inception. Alliteratively it can be very well argue that the act of the Constitution of India, 1949 is work of wisdom and legal acumen as for the length of time it has survived and has successfully regulated the Indian democracy.

                          We shall now deal with legislation that led to the final constitution of India as it is known today. 

The Government of India Act, 1858

Historically, The Government of India Act 1858 is the first known constitutional legislation and references point to the current constitution in operation. By this Act of 1858 the British ground assumed sovereignty India, commencing the British rule. The act of 1858 is legislative in nature where by the British Crown established their rule in India, taking over control from the East India Company.

 The basic features of this act include the following-

1.  Provides for absolute control and power in the hands of British Crown.

2.  Provides for ruling and Administrative post, Executive the power of the Crown in India.

3.  Provides as the starting point of governmental administration of society in geographically location that is, India.

4.  Provides a hierarchy of power to govern a newly annexed state that being India. The Crown being the head of hierarchy power followed by Secretary of state of India, who assumes and executes the power of the Crown to govern India.

5.  Provides for a Council of India whose members were to belong from England. And the directors of East India Company. The role of Council was to assist the Secretary of state of India.

6.  Provides for Executive administration for the state of India, where the geographically territory of India was divided into provinces. The territory of India was to be governed by Governor-General assisted by the Secretary of state of India. Under the Governor-General, the Indian provinces were headed by a Governor, assisted by an Executive Council.

7.  The Act of 1858 nowhere provided any provision to incorporate Indian representation for administration of the territory of India.

8.  Provides for complete supremacy of the British Crown, where the supreme head was endowed with absolute power with respect to civil control, Military, Executive, Legislative, Judicial powers.

 

Thus, in conclusion it can be stated that the Government of India Act 1858 being the first legislation was merely a legal document were by British Crown took control over the territory Indian from the hands of the East India Company.

 

The administrative hierarchy as provided under the Government of India Act, 1858:

 

The British Crown

(Supreme Head)

I

Secretary of State of India

I

Governor General (India)

(Council of India)

I

Governor (Province)

(Executive Council)

 

The Indian Councils Act, 1861

After enactment of the Government of India Act 1858, the common notion amongst the Indian society was to influence representation of Indian members as part of the ruling government, which was completely in the hands of the British. This notion was the reason that led to the enactment of the Indian Councils Act, 1861. The primary reason behind legislation of this Act was to include non-official members to the Executive Council, which was responsible for assisting and implementing state policies directly under the Governor to the Province. These non-official members were exposed to limited aspects of legislature and were appointed on basis of nomination. Further, these non-official members though representative of local Indian thoughts and governances had limited authority as the Governor-General had the superseding authority to Veto any law passed by the provincial Government. None the less, such non-official members were given representation both at central level and state/province level.

It may be interesting to note that the Indian National Congress (INC) was formed during the enforcement period of the Indian Councils Act, 1861 in the year 1885 under the control of the Moderates. The formation of the Congress Political Party influenced the next enactment, Indian Councils Act, 1892.

Indian Councils Act, 1892

The subsequent enactment of the Indian Councils Act, 1892 led to further improvements in the previous Act of 1861. The key improvements as influences by the Indian National Congress (INC) are as follows;

1.  The numbers of seats reserved for non-official members were considerably increased providing more opportunity to persons of Indian society. Such increase number of seats was carried out both at the central level and state/province level in the Executive Council.

2.  The non-official members were now to be elected by local bodies such as universities, district boards, municipalities and other such bodies as they were in existence at the prevalent time.

3.  This enactment was landmark legislation as for the first-time native residents and general people of the Indian society were allowed representation in the Executive Council, both at central and state.

Thus, this act paved a platform for native Indian people to represent themselves as part of the government. Although, it is pertinent to be aware that even after giving an opportunity to the native Indian citizens, the scope of power and area of administration remained limited. The majority of control and power were still concentrated in the hands of British, which kept the mutiny up-rolling against them.

Indian Councils Act, 1909

This Act was an outcome of the Morley-Minto reforms. Lord Morley was the then Secretary to the State of India. Lord Minto was the then Viceroy to India who was commissioned by the British Crown by way of delegating special powers upon him. The main idea behind appointing Lord Minto as the Commissioner to India was to amicably settle and solve the grievance of Indian political leaders demanding fair and authoritative Indian representation in the British government. The key changes and reform to the previous Indian Councils Act of 1892 as incorporated in the new act of 1909 are as follows;

1.  The size of Executive Council both at central and provincial level was increased in order to incorporate larger native members in to the council.

2.  The scope of authority and power of legislation was enlarged and was now to include important administrative sections such as budget, state expenditure, infrastructural development and other money related matter.

3.  Another important facet of this legislation was that this was the first act to prove for reservation of seats for Muslim candidates. Clearly the objective of the British was to sow seeds of religious discrimination and thus the concept of Divide and Rule came into existence.

It is interesting to note that a political party in the name of Muslim League was formed in the year 1906. Historically, it is without an iota doubt that the Indian political environment stood divided in religious bias, succumbing to British Rule.

The Government of India Act, 1915

The objective of the Government of India Act, 1915 was to consolidate all preceding enactments and to compile in one document the complete legislation to administer the British state of India. By this Act the Legislative, Executive and the Judicial body stood compiled in one enactment. Thus, it can be concluded that the mere objective behinds enactment of the Act of 1915 was to put down a legislation compiling all preceding statues and law in to one comprehensive document.

The Government of India Act, 1919

The Government of India Act, 1919 was an outcome of the Montagu-Chelmsford report. Lord E.S. Montague was the then Secretary of the State of India and Lord Chelmsford was the then Governor-General of India. The main features that were recorded into the Act of 1919 are as follows;

1.  The report suggested for a dual independent government at the central and provincial level, as is federalism in its true sprite and essence.

2.  The dual government policy was to separate and divide legislative powers between the centre and province. The centre and the provinces were to have separate subject matter for legislation which was not to be over-ridden by either government, that being union and provincial government.

3.  That even though the concept of dual government was executed on basis of the Montagu-Chelmsford report, the final executive authority and power to veto any legislation remained in hands of the British.

4.  The end result was a formation of a Bicameral legislature and increased in the number of Indian representation to the Executive Council.

The modification carried out on basis of the Montagu-Chelmsford report failed miserably as the Act of 1919 failed to fulfill the aspirations and demands of Indian political leaders. Essentially, the main point of combat was that the supreme power to control the affairs of the state of India remains in hands of the British Crown.

Due to aforesaid reasons, during this time period the ‘Swaraj’ movement took place under the leadership of Mahatma Gandhi. The objective of the Swaraj movement was to attain self-government, which was to be achieved through non-cooperation. During the same period in the year 1927 Lord Simon was commissioned to India in order to facilitate and resolve grievance of Indian political leaders. As known, the Simon commission failed which led to the enactment of Government of India Act, 1935.  

The Government of India Act, 1935

This Act of 1935 was the last legislative attempt by the British Rulers, after which the Indian Independence Act, 1947 was enacted. The main features of the Act of 1935 included;

1.  The Indian states were to join together as a federation, which was important not only for administrative purposes but it also provided for a geographical unity.

2.  The central government was now to be a Diarchy that is the Legislature was to be divided into two houses, Federal Assembly and Council of States.

3.  The legislative power was separated between the center and states with respect to subject allocation for law making. Likewise, today, the concept of Federal List, Provincial list and concurrent list was adopted.

The reforms carried out under the Act 1935 failed to deliver the ‘Dominion Status’ as promised by the Simon Commission in the year 1929 to the Indian political leaders. The sole objective of Indian freedom fighter since the inception of the Government of India Act, 1858 was to achieve a dominant position in governance of the affairs of state of India. This streak ended with the enactment of the Indian Independence Act in the year 1947. 

The Indian Independence Act, 1947

The British supremacy which had its colonial hands all over the world was deeply affected at the end of World War-II. The state of India was now turning difficult for the British to rule. Thus, the Indian Independence Act was placed on 4th July, 1947 and received the Royal ascent by the Crown on 18th July, 1947.

It is important to note that Indian Independence Act did not lay down the constitution of India, but was merely legislated to declare India as an independent entity. The act further provided 15th August, 1947 as the date on which India and Pakistan shall be recognized as Independent dominions.

This Act gave absolute power to Indian law makers to repeal any act enacted by the British parliament, which included the Indian Independence Act, 1947 itself. The Governor-General and Governors to the provinces were to remain as acting constitutional head to the union and to the states, until and unless new administrative machinery is set in place. The Governor-General and Governors to the provinces were now devoid any legislative powers are power to veto any enactment made after the enforcement of Indian independence Act. In conclusion, the Indian legislature was now independent of any foreign influence and India was now a free and independent nation. 

***

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER-2

DRAFTING OF THE CONSTITUTION OF INDIA

The Background

As already discussed in the previous chapter, it was after the World War-II in the year 1940 that the British Government decided to hand over the territory of India to natives of the nation and giving them the right to frame their own constitution. In multiple narratives, it is recorded that the British around this time period were in a rush to hand over the ruling of the state of India. This urgency can be concluded from the fact that the Royal assent to the Indian Independence Act, 1947 was granted in a swift 14days from the date it was placed.

Cripps Mission  

Sir Stafford Cripps, who was a member of the British cabinet, was commissioned to India in the year 1942 with the objective to zero down a draft declaration for constitution of an independent India. The biggest challenge before Sir Cripps was to reconcile and co-ordinate between the two major political parties, Indian National Congress (INC) and Muslim league, in order to form a mutual agreement between them in order to frame a new constitution. The highlights of the recommendations are stated here in brief;

1.  The constitution of India was to be framed by an elected constituent assembly formed by native Indian representatives.

2.  The territory of India was to have its own dominion status that is at that point in time a combined geographical area of India and Pakistan.

3.  Even though the state of India was to become an independent dominion, the new formed nation was to be a part of the British Commonwealth.

4.  As per the recommendation, India was to comprise of all provinces that were in existence under the British rule. All states/Provinces which were under the British control could not have voted out to not be a part of the Indian constitution.

The Cripps Mission failed because of the dynamic Quit India Movement and no fruitful result was achieved. The failure of the Cripps mission led to the Shimla Conference under the administration of the then Governor-General Lord Wavell. The objective of the conference was to amicably settle the political differences between the Congress and Muslim League. Even after considerable efforts the Conference failed to end in success.

Finally, the division of the territory of India into India and Pakistan resolved the dispute between the two political ideologies. It was on 26th July, 1947 that a separate constituent assembly for Pakistan was announced.

After commencement of the Indian Independence Act 1947

It was on 15th August, 1947 that India stood to be an autonomous and independent nation. India now was legislatively sovereign and the humongous task of drafting of the constitution for India was the next land mark step to be under taken.

Constituent Assembly of India     

As discussed earlier, the urgent need for a new constitution was being pressed by the British way before passing of the Independence Act of 1947. Thus, the first meeting of the constituent assembly was held on 9th December 1946. The constituent assembly of India was to be elected by indirect election within the Lower House that is the Provincial Legislative Assembly. It was after separation of Pakistan from India that a constitution Drafting Committee was formed under the chairmanship of Dr. B.R. Ambedkar, and the first draft proposal of the constitution of India was presented on 26thFebruary, 1948. The drafting committee took 2 years, 11 months and 18 days to complete drafting the constitution of India.

The newly framed constitution received the assent of the first President of India 26th November, 1949 and it was declared passed. The constitution actually came into force on 26th January, 1950 which is its date of commencement. It is interesting to note that even though a major part of the constitution of India came into force on 26th November, 1949 which was given immediate effect; but all parts of the constitution happened to be enforced on 26th January, 1950. The day which we commemorate as Republic Day, on which date our constitution was adopted in its finality. 

Sources of The Constitution of India

The Indian Constitution being the World’s lengthiest Constitution, at its commencement, comprised of 395 Articles in 22 Parts and 8 Schedules. It took precisely 2 years, 11 months and 18 days for the constituent drafting assembly to come up with the final draft of this longest constitution, headed by Dr. B. R. Ambedkar. The original Constitution of India was handwritten in italics by Prem Behari Narain Raizada, which was signed on 24th January, 1950 by 284 members of the Constituent Assembly, which included 15 women. Our constitution makers took inspiration from provisions of various other constitutions of the world while drafting the constitution for our country, which is why the Indian Constitution is often called a bag of borrowings. Undoubtedly, our constitution is a well drafted document as it till date supports and reflects the largest democracy of the world. 

Some of the important sources of our Constitution are as follows-

Source

Borrowing

The Govt. of India Act 1935

Administrative details, The Federal Scheme, Power/Role of Federal Judiciary, Emergency provisions, Public Service Commissions, Office of the Governor.

The British Constitution (United Kingdom)

 

Parliamentary form of government, Single Citizenship, Law making procedure, Bicameral Legislature/ Cabinet system, Rule of Law, Writs, Post/office of the Comptroller & Auditor General (CAG) of India.

The United States Constitution

 

Preamble, Fundamental Rights, Impeachment of Supreme court and High court judges, Independent Judiciary, Functions/Role of the Vice-President, Judicial Review

The Irish Constitution

 

Directive Principles of State Policy, Nomination of members of Rajya Sabha, Method of Presidential election

The Canadian Constitution

 

Federation with strong centre, Residuary powers with centre, Appointment of Governors (by centre), Review by the Supreme Court

The Australian Constitution

 

Idea of Concurrent list, Joint Sitting of Parliament, Principle of Co-operative Federalism, Freedom of    inter-state trade, commerce and trade

The Weimar Constitution of Germany

Suspension of Fundamental Rights, Emergency provisions

The Constitution of South Africa

Procedure for amendment of the constitution, Election of Members of the Rajya Sabha

The French Constitution

Ideas of Republic and Liberty, Equality and Fraternity in the Preamble

 

The Russian Constitution

 

Fundamental Duties, Idea of Social, Economic and Political Justice in Preamble

The Japanese Constitution

 

Procedures Established by Law

Quick Summary

The Constitution of India came into force on 26th January 1950. Since then, the day is celebrated as Republic Day. However, before 26th January 1950 it was called Independence Day because it was the day on which thousands of people, in villages, in mohallas, in towns, in small and big groups would take the independence pledge, committing them to the complete independence of India from British rule.

On 19 February 1946, the British government declared that they were sending a Cabinet Mission to India to resolve the whole issue of freedom and constitution making. The Cabinet Mission, which arrived in India on 24 March 1946, held prolonged discussions with Indian leaders. On 16 May 1946, having failed to secure an agreement, it announced a scheme of its own, that being by way of elections based on adult franchise. The problem now was delay in the formulation of the new constitution, as elections are a time taking process. Therefore, it was decided that the newly-elected legislative assemblies of the provinces were to elect the members of the Constituent Assembly on the basis of one representative for roughly one million of the population. The Sikh and Muslim legislators were to elect their quota based on their population.

The Constituent Assembly was to have 389 members. Of these, 296 were to be from British India and 93 from the princely Indian states. At 11 a.m., on 9 December 1946, the Constituent Assembly of India began its first session. For all practical purposes, the chronicle of independent India began on that historic day. Independence was now a matter of dates. The real responsibility of deciding the constitutional framework within which the government and people of India were to function had been transferred and assumed by the Indian people with the convening of the Constituent Assembly.

However, the Muslim League now refused to join its deliberations. Consequently, Mountbatten Plan was announced which made it clear that India was to be partitioned. With India becoming independent on 15 August 1947, the Constituent Assembly became a sovereign body. It was responsible for framing the Constitution as well as making ordinary laws.

Work Stages

The work was organized into five stages: first, committees were asked to present reports on basic issues; second, B.N. Rau, the constitutional adviser, prepared an initial draft on the basis of the reports of these committees and his own research into the constitutions of other countries; third, the drafting committee, chaired by Dr Ambedkar presented a detailed draft constitution which was published for public discussion and comments; fourth, the draft constitution was discussed and amendments proposed; fifth, and lastly the constitution was adopted.

National Entities

Constituent Assembly took the charge of adopting the National Flag on July 22, 1947, as well the National Anthem on January 24, 1950 which was originally composed by Rabindranath Tagore. The State Emblem having three lions, a galloping horse, a bull and chakra which is taken from Ashoka’s Sarnath pillar was adopted by Government of India on January 26, 1950.

***

 

 

 

 

 

 

  CHAPTER-3

CHARACTERISTICS & FEATURES OF THE CONSTITUTION OF INDIA

Introduction

As per the Chairman of the drafting committee, Dr. B.R. Ambedkar, he was of the opinion that different constitution of the world when reduced to writing are similar in nature as for as its basic features are concerned. The biggest challenge as per him is to remove the faults which have occurred in that constitutional legislation due to efflux of time. After experimenting the constitutional legislation on scale of time, there arises a need and demand of the nation to accommodate fresh perspective in to the constitutional draft.

Our Indian constitution was drafted keeping in mind future challenges and was document of great intellectual research. It has its own unique characteristic and features; even though the Indian constitutional draft is a compilation of multiple constitution of the world the documents so created was a legally and socially stainable art work. Few features of the Indian constitution are herein discussed below;

1.  Drawn from different sources

Many authors and legal luminaries often debate upon the intellectual input made to draft our constitution. It is further criticized for being a document which is devoid of national merit, as barely any fresh drafting has been included in the Constitution of India. Few scholars deem the constitution to not have its own identity as it is copied in nature.

On the contrary its argued that it’s not an essay task to pick and choose successful provision (in relation to time) from multiple constitutions and thereafter compile it in such a fashion that the combination turns out to be a successful legal draft on basis of which a nation could run. Although concerning present time the constitution of India has had several amendments, where by the 78th amendment carried out in the year 1996 has practically re-casted the entire constitution. Hence, the original frame work for all practical purposes has been substituted.

2.  Longest constitution of the world  

Our constitution is both the lengthiest and most detailed constitution of the world. The constitution initially had 395 Articles 8 Schedule which were in 22 Parts. Since then 122 amendment bills have been presented in Indian parliament, out which 101 amendment bills have been passed amending the constitution. As of March 22, 2018 the last bill that was passed was the 122th bill which led to the enactment of The Goods and Services Tax (GST) Act. At present there are 467 Articles, 12 Schedules and 5 Appendixes, which are in 25 Parts. These numbers reflect the extremely comprehensive nature of the document. Despite a bulky document our constitution is very flexible which is clear from the fact that till today 101 amendment bills have been passed, subsequently converting into law which has completely changed the face our constitution. It is notable to observe that the concept of non-justiciable right was included un our constitution, which shows intuitive characteristic of that document. Non-justiciable rights are those which at the time of inception are not executable meaning thereby they cannot be enforced. Thus, this depicts the future planning done by the framers of the constitution.

3.  Quasi-federal nature  

The Indian constitution is frame for both the union and the states of which it is comprised. The constitutional draft included inception and administrative details for functioning of the union of Indian and governance of its states. A federal state as a concept has different constitutional frame work for the union and for all its states, individual and independent constitution. The legislative right of which rests with the states themselves. Like the United States of America, each state has its own constitution and even the citizen hold dual citizenship, recognized by the state and the union, respectfully. In India such is not the case. Further details are given under the chapter of Federalism to this book.

4.  A Flexible constitution

An amendment to the constitution can be carried out as per the provision entailed under Article 368, which provides flexibility the Indian constitution. As already mentioned 101 constitutional amendments have been carried out till date. Further provision in the constitution are made by which administrative changes and procedural abnormalities can be mended without carrying out a constitutional amendment. Topics such as name of the states, boundary descriptions, abolition or creation of selective legislative bodies do not require a constitutional amendment. Thus, even after our constitution being extensive in nature it can be easily amended making it flexible.

5. Special Status to Jammu & Kashmir

Article 370 to the constitution of India has been a controversial article and provides a special status for the state of Jammu Kashmir. The terms special status refers to certain temporary provision with respect to state of Jammu Kashmir which has been in corporate under Article 370 to the constitution of India.

The Article said state that the provision relating to states as established under the constitution shall not apply to the state of Jammu Kashmir. Further, the power of parliament to make laws for the said state is limited in nature. The subject as listed under the Union list and the Concurrent list shall not pro-bone apply to the state of Jammu Kashmir, but legislation power are limited to matters and subjects as specified under the Instrument of Accession, subject to declaration made by the President by India.

The reason behind such special treatment being given to the state of the Jammu Kashmir is Geo-political in nature. As of today the state of the Jammu Kashmir derives governance from its own constitution. Which is so based upon the Instrument of Accession. The Indian Union Parliament has limited power to govern the state of affairs which limits themselves to subjects in relation to Military, Defense, Communication and International relation. This list being inclusive and exhaustive in nature.

6. Special Article dedicated to solve Regional problem

The framers of the constitution have minutely designed special provision in order to address and solve regional issues keeping in mind the diversity in culture that is spread across Indian states. These articles aim to readdressed regional specifies problems that are concentrated in specific parts of the Indian states.

Article 371 and Articles 371A to 371I are provision in own constitution that is devices for the state of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, and Goa. Article 371 was included in the initial draft of the constitution whereas Article 371A, to 371I were letter introduces relying on the initial Article and its concept.

7. Fundamental Rights & Constitutional Remedies

 The concept of fundamental rights as introduces to are our constitution guaranteed certain basic rights as to enable the citizen of India, to achieve liberty, Liberty is a basic sense of freedom and personal connivance which forms a necessity and essential requirement for living in any kind of legal establishment in a nation.

The Fundamental Rights guaranteed under the constitution per se forms part of the basic structure of the constitution and therefore cannot be refused to persons receding in India. For its protection constitutional remedies are provided in form of writ using which any individual whose Fundamental Rights are violated can approach the High Court & the Supreme Court as provided under Article 226 & Article 32 respectfully.

The writs available for protection are Habeas Corpus, Mandamus, Certiorari, Quo-Warranto, and Prohibition.

It is important to note that Fundamental Right are not absolute in nature but are subject to limitations. Such limitations are expressed in form of Fundamental Duties which were introduces as part IV (A) to constitution vide the 42nd Constitutional Amendments. These Fundamental Duties are read along with Fundamental Rights where every citizen is aspect to conduct himself in a prudent manner and his Fundamental Rights Can only be enforced if he has not failed to perform his Fundamental Duties.

8. Judicial Review  

It makes to the constitution enforceable and protects individual beyond the heads of the legislature. Meaning judicial review is a mechanism which keeper check on Arbitrary and Unconstitutional legalizations. Judicial review form part of the basic features of the constitution as held in the case “Keshwanand Bharati Vs state of Kerala”. The India Judiciary function as a guardian to the Constitution and protects are Fundamental Rights.

Judicial review upholds the nation of check and balance between the Legislature and its Unanimous supremacy. For example, a comparison between the American constitution and the British Constitution shows how balanced the Indian Constitution has been designed. The American constitution allows its Supreme Court to pronounce judgment which are then treated as law of the land and possess power to overturn the constitution as per convening. In the alternative, the British Constitution holds the British parliament to be supreme i.e.; the courts are not over and above the British Crown.

The examples demonstrate how balance the Indian scope of judicial review is a combination of the American constitution and the British constitution scriptures. Recently, the Supreme Court of India has expanded itself into the realm of judicial legislation. The power of judicial review cannot extend itself into law making but such powers have been exceeded in recent times. It can be said so on the basis of Supreme Court issuing guidelines, to regulate the observation of National Anthem in multimedia complex and regulation of sell of liquor with respect to distance form National Highway are clear example of judicial legislation being passed in the name of interim measure.

9. Special and Dedicated Provisions for Social Equality

The Indian Constitution entails separate provisions for Scheduled Caste, Scheduled Tribes and Anglo Indians providing for special provisions in order to achieve the Constitutional Goal of promoting social equality. The Indian Constitution even covers special provisions relating to abolition of untouchability. These dedicated provisions are aimed at removing all and any kind of discrimination between citizens on grounds of race, caste, creed and other social features. Such provisions are not limited to the Constitution itself, but the articles provide that the Government is at liberty to pass legislation in aspect of promoting social equality, aiming specifically at Scheduled Caste, Scheduled Tribes and Anglo Indian.

10.   No Absolute Power Reserved for the Head of the State/Nation

The President is the first citizen of the nation and is the highest dignitary of the State i.e. India. He is also the Head of the Constitution and the country. Even though the President is the international representative for our country, he cannot act beyond the advice given by his council of ministers. Thus, no absolute power with respect to administrative or executive functions lie with the President. For example, legislative decision making, which requires the assent of the President is also not an absolute power within the scope of the President as he can only Veto a legislation once but has to pass the bill if it is placed for the second time, limiting his power to only send back the legislation for reconsideration.

11.   Geographical Outline

The Indian Constitution clearly defines the geographical reach of India. Before the Constitution came into being India was divided in multiple British Provinces and about 600 Indian States governed by autonomous rulers. Integrating such a diverse geography with their consent was not an amicable task in reality, but the Constitution in detail provided for such union. The draft of the Constitution had to privatize the needs of individual units, which came to be known as States within the Indian Territory. Such states were an outcome of integration of British Provinces that were pre-existing during the era of British Rule in India.

12.   Basic Underlying Features and Principles of the Constitution

The Constitution of India is the supreme law of the land, which not only establishes our nation, but also promises its dwellers certain rights which are important for the survival of them and the nation. The basic idea of any Constitution in the world is to establish administrative & executive policies in way of institutionalizing them to unable to regulate and run a nation. Thus, the source of legislation and governance in a nation draws its ideology from the Constitution.

Likewise, there are certain basic features of our Constitution that cannot be amended as they resemble the basic idea of India; if so amended the very concept of our Constitution will fail its objective. There has been immense litigation on the subject that can the Constitution be completely amended, disturbing the very basic structure on which it was built. Before 1967, the view taken by the Supreme Court of India was that the legislation had the absolute power to amend the Constitution. Article 368 provides the Parliament the power to amend any provision of the Constitution including Article 368 itself. Subsequent to the case of Golakhnath vs. State of Punjab (1967), the 11 Judge-Bench of the Supreme Court held that the Parliament is not competent to amend the fundamental rights as provided in Part-IV of the Constitution as it will fail the basic idea that the Indian Constitution was set to achieve. The said judgment was overruled by a 13 Judge-Bench of the Supreme Court in the case of Keshavananda vs. State of Punjab (1973), wherein the Court held that the legislative power as contemplated under Article 368 is absolute and cannot be disturbed. The Court further held that even though the Courts cannot curtail the power of the legislature, the legislature has an innate responsibility to protect the basic features and characteristic of the Constitution and important articles relating to judicial review, essential fundamental right of liberty federal system and Parliamentary System of Government Formation cannot be altered completely. This came to be known as the doctrine of basic features of the Constitution meaning thereby that certain basic features cannot be amended and are immune from Parliamentary interference. This stand of the Apex Court was reaffirmed later in the case of Minerva Mills vs. Union of India (1980) and thereafter in cases of Sampat vs. Union of India (1987) and Union of India vs. Raghubir (1989). Thus, in conclusion it can be said that our Constitution is amiable but certain underlying features and basic principles of the Constitution should remain untouched.

***

 

 

 

 

 

 

 

 

 

 

CHAPTER-4

PREAMBLE THE CONSTITUTION OF INDIA

Ideology behind the Preamble

Preamble in ordinary parlance means the part of a document which serves as introduction. As the meaning suggests, Preamble is an introduction to the Indian Constitution which declares the aims and objectives of the Constitution and for that matter of the Indian Union itself. It is generally referred to as the heart and soul of the Indian Constitution and is basically a declaration of our social, economic, religious and legal aspirations.

The Preamble is the living ideology to the Indian Constitution and has been enshrined therein to draw the basis and pre-face to the Constitution of India. The present text of our preamble has been an outcome of the 42nd amendment, also known as the mini-constitution. To understand the spirit and basic characteristics of our Preamble, it is pertinent to go through the text of it which reads as follows-

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

Explanation of the bare text

The enacting words, “We, the people of India… in our constituent assemble… do hereby adopt, enact and give to ourselves this constitution”, throws light on the basic democratic principle that power ultimately rests in the hands of the people of India. The phrase “we the people” emphasises the concept of popular sovereignty as laid down by French Philosopher Rousseau “All the power emanates from the people and the political system will be accountable and responsible to the people.” In short, it enunciates the principle of “Government OF the people, FOR the people and by the people.”

The distinguishable features of the Preamble to the Indian Constitution are as under:-

It is relevant to note that the Preamble to the Constitution of India has developed and gained clarification by multiple judicial pronouncements by our Supreme Court and thus it has its own unique features, which are herein discussed below;

1.  The Preamble states the objectives of the Constitution which it aims to achieve. It further acts as an introduction and lays down the ideology that persist in our constitution. Also, the preamble entails a legal periphery admits which the Constitution functions as whole. 


2.  The preamble provides for a legal interpretation of Constitution and it also clarifies the ambiguity, if any, that it faced in judicial interpretation of the Constitution. Meaning thereby, the preamble behaves like a measuring yardstick providing a boundary within which the Constitution works. 


3.  The preamble stores the source of the Constitution of India, which is the people of India. It expresses the fact the Constitution is adopted and cultivated by the people of India themselves. The preamble indicates the union of multiple states which have come together to constitute India. The preamble as an introduction provides the idea of sovereignty as India being born as a new nation is an independent and indivisible country.

4.  The preamble though forms part of the Constitution guiding and assimilating the ideology of the Constitution is not per se a legal impediment, meaning the provisions of the preamble are not enforceable in the court of law.

5.  The preamble forms part of the basic structure of the Constitution of India and therefore the same cannot be amended that the basic spirit of the preamble and the principles that guides the preamble cannot be altered by the legislature. 


Concepts that have been embodied in the Preamble to the Constitution of India are as follows:-

Before the 42nd Amendment

[A] Sovereign-

The word sovereign means Supreme. It means free from the control of any foreign power and implies that India is not a dependency or a dominion of any other nation, but an independent state. It enjoys external and internal sovereignty, meaning thereby that externally it is free from the control of any foreign power and internally it has a free government which is directly elected by the people and makes laws that govern the people. Sovereignty allies in peace and war. The Popular sovereignty is also one of the basic structures of constitution of India. Hence, Citizens of India also enjoy sovereign power to elect their representatives through elections held for the parliament, state legislature and local bodies as well. People have supreme right to make decisions on internal as well as external matters. No external power can dictate the government of India. India’s membership of the commonwealth or of the United Nations does not impose any external limit on her sovereignty. The Commonwealth is a free association of sovereign Nation. The sovereignty empowers India to either acquire a foreign territory or cede a part of its territory in favour of a foreign state.

The word is similar in meaning to the word independent. The independence of India is not a gift by the British, but is an earning of the people of India and hence the word sovereign in meaning includes an independent authority of a state having the power to legislate on any subject of governance; India being independent of any external power or foreign state or nation. Sovereignty also includes the duty to promote international peace which has been inherently introduced into our preamble. 


[B] Democratic-

The first part of the preamble “We, the people of India” and, its last part “give to ourselves this Constitution” clearly indicate the democratic spirit involved even in the Constitution. India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as "one man one vote". Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, gender, Religious intolerance or education. The word 'democratic' not only refer to political but also to social & economic democracy.

As defined, democracy is a system of governance in which the people exercise their power directly or through elected representatives belonging to their native geographical area in order to develop a governing body to run and govern such democracy. India is a democratic republic, which means though India is a democracy but the power to control is exercised by the elected people; and it still has an elected head with such elected representatives. The Indian democracy can be studied under two heads; 


(a) Political democracy

The people of India exercise their sovereignty through the parliament at the centre and legislature at state level. The democracy is maintained through adult suffrage and further includes the essential requirements such as representation of people, responsible government and accountability/transparency of governance.

(b) Social Democracy

India is a welfare country which is also referred to as welfare state, which means that the government is responsible and accountable for the social well-being of the citizens of India. It further inspires the provisions (Art.36-51) of Directive Principles of State Policy and adds a progressive approach for the government to take steps in order to provide social justice to citizens of India. The preamble also guarantees the basic fundamental rights to its citizens in order to achieve social justice. The Supreme Court has also strongly held that the fundamental rights (Art.14-32) form part of basic structure to the Constitution and cannot be removed from the Constitution of India. Social democracy also runs parallel to concept of equality amongst equal.

[C] Republic-

In a republic form of government, the head of the state is an elected person and not a heredity monarch. The supreme power rests in the body of citizens entitles to vote and is exercised by representatives chosen directly or indirectly by them. This word denotes a government where no one holds a public power as proprietary right. As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years his post not being hereditary. Every citizen of India is eligible to become the President of the country.

The ideology of Justice enshrined in the Preamble draws inspiration from the Russian constitution and that of Liberty, Equality and Fraternity dates back to the French Revolution (1789).

It means the government of India as promised under Constitution is formed by the people and for the people. In the simple terms, it means that no foreign representative or any non-national can participate in formation of the government which will govern India. The term republic also signifies that all government offices and premises are open to all the citizens of India, being available for redressal and services as extended by them.

[D] Justice-

Our constitution ensures and guarantees Social, Economic and Political Justice to its citizens through different provisions like Fundamental Rights and Directive Principles of State Policy. Social Justice denotes equal treatment of all citizens without any distinction on the basis of caste, creed, colour, race, religion or sex. It means absence of privileges or special treatment being extended to any section of the society, and improvement in the conditions of backward classes and women through positive discriminations. Economic Justice on the other hand, refers to non-discrimination on the basis of economic factors which involves elimination of glaring inequalities in wealth, income and property. Political justice seeks to provide for equal political rights, equal access to all political offices and equal voice in the government to all its citizens.

The concept of justice can be further sub divided under three heads of study, they being

(a) Political Justice

The term political justice guarantees equal opportunities to men and women in public employment. Such Justice though forms part of equality is an essential feature of political justice. Political Justice also includes equal opportunity to all citizens of India to take part in election and government formation. It further includes individual justice and guarantees one man one vote. In relation to participation in adult suffrage.

(b) Economic justice

Economic Justice includes allocation of wealth and distribution of state resources amongst equal classified segments of society. It aims to achieve justice by promoting the ideology of welfare state.

(c) Social Justice

Social Justice can be inferred as social harmony, promoting peace by way of remaining social discrepancy. It is also linked to the concept of secularism where person belonging to different caste, creed, religion are not discriminated. The most essential feature of social justice is that all the citizens of are equal before law no advantage what so ever is is awarded to any person, concerning law enforcement.

[E] Liberty-

Liberty is an important tool in a democratic framework. It means absence of restraints on the activities of individuals, and at the same time provide opportunities for their development. Our preamble secures all its citizens with liberty of thought, expression, belief, faith and worship through the fundamental rights which are enforceable in nature. However, this does not imply unrestricted liberty or arbitrary abuse of liberty and therefore reasonable restrictions have also been provided in the constitution. The concept of liberty as conceived by the Preamble is not absolute but qualified.

Liberty correspondents to free social existence that is grant of basic or essential legal rights to its citizens for them to be able to enjoy freedom. Liberty is not                         or is limited to freedom of thought, expression, speech, faith or religion. But it essential backbone to democracy, providing social security for living. Liberty has been inculcated in state directive for public policy as it distinguishing factor between a civilised and uncivilized society.

Liberty can be achieved by an individual only when he recognizes his fundamental duties against other citizens of the state, the government alone cannot achieve liberty, it needs the support of its citizens. For e.g Art. 51A to the Constitution of India was introduced by 42nd amendment which identifies and expresses the importance of introducing liberty as an essential duty of state. Liberty in general is an hypothesis for the states as a whole.

[F] Equality-

The preamble provides for Equality of status and opportunity which is again threefold, political, economic and civic. This envisages that no section of the society enjoys special privileges, all citizens should be treated equally and individuals are provided with adequate opportunities without any discrimination on the basis of caste, creed, birth, religion, sex, etc. Equality before law and equal protection of law should be followed and practised. Similarly, equality of opportunities implies that regardless of the socio-economic situations into which one is born, he/she will have the same chances everybody else to develop his/her talents and choose means of livelihood.

It is interesting to note that the grant of liberty and Fundamental Rights would be meaningless if the concept of equality is not absolute as discussed, equality can only be exercised amongst equal and true equality can be achieved video classification of section of society so that equality can be impressed in that class. Similarly, equality guarantees that no discrimination shall be exercised by the state. As  Art. 15 guarantees equality, in parallel it promotes political and social equality wherein universal adult franchise and abolition of untouchability form part of the concept of equality.

[G] Fraternity and Dignity-

The 42nd amendment to the constitution (1976) added the words ‘and integrity’ in the sentence ‘Fraternity assuring the dignity of the individual and the unity and integrity of the Nation’. This refers to a feeling of brotherhood and a sense of belonging to each other leaving no room for regionalism, communalism or caste-ism which hinders the unity of the State. The preamble assures two-fold i.e. aspects of fraternity, meaning the dignity of the individual and its unity and integrity of the nation. Also, the fundamental duties enshrined under Article 51 provides that it shall be the duty of every citizen to promote harmony and the spirit of common brotherhood amongst all the people of India irrespective of the religious, linguistic, regional or sectional diversities.

In simple terms the concept of fraternity promotes brotherhood amongst the citizens of India, guaranteeing   individuals one individuality. Fraternity is basic is unity in diversity where the concept has led to the development of introduction of the concept secular and welfare state, which was so introduced after the 42nd amendment Act. Further dignity has been coupled with fraternity and it promises protected livelihood to every citizens of India. These concepts have been enshrined in IV of the Constitution of India that is in Directive Principles of State Policy.

After the 42nd Amendment

[A] Socialist-

Before the term was added by the 42nd Amendment to the constitution of India in 1976, the Constitution had a socialist content in the form of certain Directive Principles of State Policy. The term socialist here means democratic socialism i.e. achievement of socialistic goals through democratic, evolutionary and non-violent means. Democratic Socialism implies a mixed economy in which both Public sector and Private sector run together as two wheels of economic development. It includes inclusive growth in socialism and welfare of society. The Supreme Court while considering the essence of the word ‘socialist’ has held that the basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave.

It was initiative by Congress government in the year 1975 in order to promote or develop India into welfare state. There were many reasons behind adding socialist into preamble, specifically to develop a socialist pattern of society. The most acute reason was to increase state ownership in the Indian economy consequently gaining control of the economic progress of India. Further it was to take control of production, Industry and service organization under state ownership. Management of trade and business was part of such business was part of such control under the government of India as to enable them to strive for a uniform growth of the citizens of India, not causing concentration of national wealth into the hands of private industries and persons. The concept of socialism was not an ideal concept as it also allows private entities to participate and progress in socialistic economy.

[B] Secular-

Secular means the relationship between the government and the people which is determined according to constitution and law. By the 42nd Amendment to the constitution in 1976, the term "Secular" was also incorporated in the Preamble. It means that the Government, its institutions and their representatives should respect all religions meaning thereby that it does not uplift or degrade any particular religion.  In the light of Indian Secularism it is said that India is neither religious, nor irreligious nor antireligious. It implies that there is no such thing as a state religion for India. It stands for the right to freedom of religion for all citizens. Explaining the meaning of secularism as adopted by India, Alexander Owics has written, "Secularism is a part of the basic of the Indian Constitution and it means equal freedom and respect for all religions."

It promotes the concept of fraternity instilled in the preamble. Apart from guaranteeing freedom of religion under Art. 25-28 it further gives the citizens of India to the liberty and the right to choose, adopt and follow any religion the individual proposes to choose. The state funded institutions do not promote any religion that is to say that no state run institutions  is a religion specific. Therefore the state promote secularity by not promoting any religion but by giving liberty to all citizens to follow any religion they so desire.

***

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER-5

INDIAN CITIZENSHIP

CITIZENSHIP

Citizens, in common parlance, refer to members of the political community to which they belong. They are the people who compose the state. The concept of citizenship becomes particularly important because citizens of every country enjoy certain rights and privileges which are conferred on them and perform certain duties which are cast upon them by the law of land which governs them. Our constitution does not contain elaborate and comprehensive law relating to citizenship in India. It only provides for the classes of persons who would be deemed to be the citizens of India at the date of commencement of the Constitution i.e. on January 26, 1950. The detailed law relating to citizenship, its acquisition and termination, subsequent to the commencement of the constitution are governed by the citizenship Act of 1955. It has to be read in consonance with provisions of Part-II of the constitution (Articles 5-11) in order to get a complete picture of the law of Indian citizenship.

Article 5-8 of the Constitution of India

Persons who become citizens on January 26, 1950- As per Articles 5-8 of the constitution, the following persons are deemed to be the citizens of India at its commencement-

1-          A person born and domiciled in the territory of India irrespective of the nationality of his parents.

2-          A person domiciled in the territory of India, either of whose parents was born in the territory of India- irrespective of the Nationality of his parents or place of birth of such person.

3-          A person who or whose father or mother was not born in India, but who;

(a) had his domicile in the territory of India, and

(b) had been ordinarily residing within the territory of India for not less than 5 years immediately preceding the commencement of the constitution- irrespective of the nationality of his parents.

4-          A person who had migrated from Pakistan provided he, either of his parents or grandparents was born in India as defined in the Government of India Act, 1935. Citizenship under this clause is further classified on the basis of migration before or after July 19, 1948 subject to fulfilment of certain specified conditions.

5-          A person who migrated from India to Pakistan after the 1st March, 1947, but had subsequently returned to India under a permit issued under the authority of the Government of India.

6-          A person ordinarily residing in any other country outside India (whether before or after commencement of this constitution), who himself, or any of his parents or grandparents was born in India as defined in the government of India Act, 1935 makes an application in the prescribed form, to the consular or diplomatic representative of India in the country of his residence.

Acquisition of citizenship after January 26, 1950- The citizenship Act, 1955 provides for the following modes of acquisition of Indian citizenship-

1.          By Birth-

2.          every person born in India on or after January 26, 1950, shall be a citizen of India by birth.

3.          By Descent- a person, born outside India shall be a citizen of India by descent, if either of his parents is a citizen of India at the time of person’s birth.

4.          By Registration- Indian citizenship can be acquired by registration to the effect before the prescribed authority. For e.g. persons of Indian origin who are ordinarily resident in India and have been so resident for five years immediately before making the application for registration; persons who are married to citizens of India.

5.          By Naturalisation- A foreigner can acquire Indian citizenship, on application for naturalisation to the Government of India.

6.          By incorporation of external territory- If any new territory becomes a part of India, the Government of India shall specify the persons of that territory who shall be the citizens of India.

Loss of Indian Citizenship- A person can lose his citizenship, whether acquired under the citizenship Act, 1955 or under Articles 5-8 of the Indian Constitution in the following ways-

1.          Renunciation- a voluntary act by which a person who is a citizen of more than one country abjures the citizenship of one of them.

2.          Termination- by operation of law when a person acquires the citizenship of another country.

3.          Deprivation- compulsory termination by order of the Government of India in cases of fraud and disloyalty.

Single citizenship in India

Unlike other federal states like the U.S.A and Switzerland which guarantees dual citizenship to its citizens, our Indian constitution though federal in nature and spirit provides for one citizenship, namely, the citizenship of India. Indian constitution does not recognise the principle of dual citizenship i.e. national as well as state citizenship. In India, a person born or resident in any state can acquire only one citizenship, namely that of India. As far as the state is concerned only domicile certificate for state related rights can be acquired by a citizen of India.

***

 

 

 

CHAPTER-6

FEDERALISM UNDER THE CONSTITUTION OF INDIA

FEDERALISM

Federation in basic terms means that the power of the government is divided into two segments; power of the central government and the state government, it is the existence of dual polity. Federalism in a principle of government which defines the relationship between Central government at the national level and its constituent units at the regional, state or local levels.

In India, there are two governments,

a)   the Union government and

b)  the State government.

The two governments are not subordinate to each other but work in unity and co-operation with each other. Though the Indian constitution has the traits of being a federal constitution by providing for division of power between the Centre and the States but there are provisions which give Supreme power to the Central Government and concentrates administrative powers with the State governments. This makes the Indian Constitution a Quasi Federal structure. It embodies the principle that in spite of federalism, the national interest ought to be paramount.

It has been rightly stated by Granville Austin that “the Constitution of India is neither purely federal nor purely unitary but is a combination of both. It is a Union or Composite State of a novel type”.

In order to avoid confusion in the area and workings of the Centre and State Government, the Constitution provides for detailed guidelines, which are incorporated in the Seventh Schedule to the Constitution in the form of Union list, State list and Concurrent list.

VII Schedule to the Constitution of India

Union list- the central government can make laws on topics given under the union list. This is an exclusive right of the central government and the state government cannot interfere or make laws on the subjects given in the union list. 

State list- the state government can make laws applicable to residents of that state (domicile of that state) and the central government cannot interfere in the law-making decision of the state government.

Concurrent list- the topics/subjects listed in the concurrent list are cognizable to both the state and the central government. Both the governments can make laws unless and until they are not contradictory to each other, but it has to be complimentary in nature.

Federal System

Though there is no internationally accepted definition of federalism or federal state, it simply means distribution of power to legislate independently on subject matters as distributed between the union and that states (unit of nation).

There are two systems of constitutional governance they being a unitary system and a federal system.

(a) Unitary system

(b) Federal system

The unitary system is where the union or the central government is in control of all its state or provinces belonging under the geography of that nation. For e. g.  South Africa follows the unitary system of Constitutional governance. The second being the federal system where the legislative power is distributed between the union and the state. For e.g. America is most appropriate example of federal state.

The essential features of federalism as a concept are herein discussed as follows;

1.  Dual governance

The most outstanding features of federalism is that there are two governments at the union level and at state level where the union Government drafts legislation for the common interest of states and the State legislature independently drafts legislation for the benefit of the citizens residing in that state. Hence a dual form of government is one of most crucial element of a federalist state.

2.  Distribution of power

The second most obvious essential to federalism is that there has to be a clear-cut division between the power of the union and the state. The said division of power is purely the legislative power wherein the state and the union exercise their function within the boundaries of such distributed powers between them. Primarily such distribution of power has to be an exclusive division but in practical cases it may be difficult to achieve the same. Hence the division of the powers between the legislative authority of the state union if absolute forms am essential part of federalism.

3.  Law of the Land

Observing the supremacy of Constitution is outmost necessary as federalism cannot exist until and unless the Constitution clearly distributes and divides the legislative power between the union and its states. The Constitution of any nation, whether written or observed has to essentially recognize the division of power for federalism to be embodied as a concept in that nation.

4.  Courts and judiciary

The primary responsibility of the judiciary is to protect the Constitution and the rights of the citizens that has embedded in it. As a matter of fact, judiciary presides over the states and the union with its functional responsibility to carve out legislative disputes between them. Apart from the challenging task of interpreting the Constitution, a judiciary belonging to federal nation has an inherent liability to maintain distribution of legislative powers between the states and union.

Indian Federalism

India as federal nation has its own reservation as the Indian Constitution as interpreted by the Supreme Court until as recent as 2001 in the case of Gangaram Moolchandani Vs State of Rajasthan has observed that although the federal features have a striking impact and pressure in the Indian Constitution, a few unitary features of Constitution governance have their influence on our Constitution.

It can be said that India is a quasi-federal or semi-federal nation. In understanding it can be concluded the basic features of federalism have been incorporated into the Indian Constitution which has been further balanced by few striking unitary features to produce a more effective from of government.

Federalist Properties of Indian Constitution: -

1.  Inherent Nature

The Indian Constitution is neither federal nor purely unitary. India is a case of Suits Generis case where it quasi federal as it has selective combination of both system incorporated under constitutional governance. It was so done by the framers of the Constitution as to aid needs of the Indian Society right after Independence. Being a unique system in itself, the center observes a dominance over the states as it enjoys financial hold over them.

The Indian Constitution with reference to legislative powers have distinguished a III list that being a Concurrent list which has legislative subjects on which both center and the state can draft own legislation upon. Everything there persists a state list and union list, over time we have proceeded towards the unitary system of governance for e.g. the union has greater financial powers and control over the state when it comes to state expenditure.

The union further has greater powers in administrative appointments over the state. Recently with the introduction of GST as a taxing regime in India clearly establishes that the Indian Government is proceeding to shape a unitary form of governance. Though the Supreme Court has held until as late as 1994 in the case of S. R. Bommai vs Union of India that federalism forms part to the basic structure of Constitution and therefore cannot be completely ignored other taken away.

2.  Adopted Federalism

In Indian history, the formation of the nation was integration of multiple princely provinces who all came together to form India. These states were autonomous bodies themselves and for the same reason were reluctant to compromise their sovereignty. Hence Indian federalism was a necessary step to achieve the formation of the nation. In totality, independent states came together to form a federation and have to retain their independence at state level therefore federalism was an necessary adopted concept.

This integration of states/provinces was relatively less challenging as such states were already under the British rule, under their unitary form of governance. Once freedom obtained by these states /provinces were accustomed to central governance or domination and hence the Indian states came out to be a federalist nation. It is relevant to note that few states like Sikkim, Assam and Goa remained to be independent after the Indian Independence; but subsequently such state merged into the Indian federalism.

3.  Unequal State Representation

The representation of the states in the national council of states (Rajya Sabha) is not equal and hence this feature is a domination from the concept of federalism. The state representation in the Rajya Sabha is dependent on the population density of each state and have all states have varying representation at national level. The representative numbers vary from 1 to 31 and also includes 12 nominated members by The President of India; thus, it lacks federalism nature.

Taking e.g. the states of Sikkim has been adopted under Constitution of India as an associate state rather than being a member state to the union of India. It was so done by 31st amendment in 1975 by insertion of Art.2A to the Indian Constitution. Further it provides a special status to state of Jammu & Kashmir to draw its own Constitution which again is a significant deviation from the concept of federalism.

4.  Lack of Dual Citizenship

Ideally a federalist state provides for a dual citizenship as it is in the United States of America, where the citizens one independently issued citizenship of the state and center separately.

Apart from duality of citizenship the Indian Constitution does not recognize a federal court system.  India, the judicial system follows a unitary system where petitions can be appealed from the state judiciary to the union.  Whereas in a federal judiciary system the jurisdiction of court is specifically differentiate in respect of matter arising out of state jurisdiction and the union jurisdiction. In case of USA the state court or the federal courts have dominance over disputes relating to the state issues whereas the Supreme Court sits over matters of jurisdiction arising out of disputes in union subjects. Therefore, the Supreme Court and High Court in India do not function independently and hence lacks a federalist feature.

In respect of elections and state accounts, audits; our Constitution does not provide for a completely bifurcated system but in fact elections, accounts and audits are co-related to each other in practice.

5.  Emergency Provisions

Another unique facet of the Indian Constitution that deviates from federalist nature is that executive union has dominance over the states in respect of declaring emergency on them; as the President can declare over a state or a union territory, which is striking feature unitary system of governance. In reference to the same it may be interesting to point out the union parliament offers the power to alter and amend the boundaries of the states without its prior consent or approval.

***

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER-7

TERRITORY OF THE UNION

Territory of the Union

As it is already known that India as country is a union of states and observers a federal system of governance. The Union of India that is a Union of 29 states all together is known as BHARAT, which has been expressed in Art. 1(1) of Constitution of India.

The Union of India is a different expression then that of the territory of India. The Union includes only the state, whereas the territory of India is inclusive of the states, Union territory and also such territories that may be acquired by the Indian Government It is to note that such acquisition of territory can be made by purchase, treaty, cession or conquest as provided by the Constitution.

Formation of New States & Alterations of Boundaries

The Union Government that is the parliament has the absolute power to alter and amend the territory /boundaries of the state without the states consent of whose boundary is being altered. This power is a shift from the federal ideology that has been adopted by framers of our Constitution. Hence in totality the parliament has the supreme will to reorganize, dismantle or integrate the territory outline of the states which form part of the Union of India.

It is interesting to note that such absolute power of reorganization vested with the parliament is a historical development, as such power was provided under The Government of India Acts as discusses in the preceding chapters.

Procedure for Reorganization of States

The initiation of the procedure for alteration of state boundaries is by the President, who shall introduce a bill in the parliament for such amendment. No person except the President has the power to move such a bill. The only requirement for tabling of such a bill is that the bill shall be referred to the state legislature so that it can express its views with respect to the alterations so being carried out. Thus, in totality the states territory can be redistributed at will of the Union legislature.

Since the Commencement of the Constitution, The Foregoing power has been used by Parliament to enact the following Acts/Legislatures, the compilation is as per the recordings of the eminent constitutional author, Shri Dr. D. D. Basu;

1. The Assam (Alteration of Boundaries) Act, 1951, altered the boundaries of Assam by ceding a strip of territory from India to Bhutan.

2. The Andhra State Act, 1953, formed a new State named Andhra, by taking out some territory from the State of Madras as it existed at the commencement of the Constitution.

3. The Himachal Pradesh and Bilaspur (New State) Act, 1954, merged the two Part-C States of Himachal Pradesh and Bilaspur to form one State, namely, Himachal Pradesh

4.The States Reorganization Act, 1956, reorganized the boundaries of the different States of India in order to meet local and linguistic demands. Apart from transferring certain territories as between the existing States, it formed the new State of Kerala and merged the former States of Madhya Bharat, Pepsu, Saurashtra, Travancore Cochin, Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh in other adjoining States.

5. The Rajasthan and Madhya Pradesh (Transfer of Territories) Act, 1959, transferred certain territories from the State of Rajasthan to that of Madhya Pradesh.

6.The State of Nagaland Act, 1962, formed the new Nagaland, with effect from 1-2-1964, comprising the territory of the comprising the territory of the ‘Naga Hills Tuensang Area which was previously a Tribal Area in the sixth Schedule of the Constitution, forming part of the State of Assam.

7.The next change was introduced by the Punjab Reorganisation Act, 1966, by which the State of Punjab was split up into the State of Punjab and Haryana and the Union Territory of Chandigarh with effect from 1-11.1966.

8. The Andhra Pradesh and Mysore (Transfer of Territory) Act, 1968.

9. The Bihar and Uttar Pradesh (Alteration of Boundaries) Act, 1968.

10. The Assam Reorganization (Meghalaya) Act, 1969, created an autonomous sub-State named Meghalaya, within the State of Assam.

11. Himachal Pradesh was upgraded from the status of a Union Territory to that of a State by the State of Himachal Pradesh Act, 1970.

12. The North-Eastern Areas (Reorganization) Act 1971, similarly, brought up Manipur, Tripura and Meghalaya into the category of states, and added Mizoram and Arunachala Pradesh to the list of Union territory.

13. The Haryana and Uttar Pradesh (Alteration of Boundaries) Act, 1979.

14. Mizoram which had been made a Union Territory by the Act of 1971, was elevated to the status of the State, by the State of Mizoram Act, 1986.

15. Arunachala Pradesh a Union Territory was made a state by State of Arunachal Pradesh Act, 1986.

16. Goa became a state by virtue of Goa, Daman and Diu Reorganization Act, 1987, separating it from Daman and Diu with effect from 30-5-1987.

17. A new State of Chhattisgarh was created by carving out its territory from that of territories of Madhya Pradesh by enacting the Madhya Pradesh Reorganisation Act, 2000 (w.e.f. 1-11-2000).

18. The State of Uttaranchal came into being on 9-11-2000 by separating its territory out of the territories of Uttar Pradesh vide the Uttar Pradesh Reorganisation Act, 2000.

19. By enacting the Bihar Reorganisation Act, 2000, the State of Jharkhand was created on 15-11-2000 by carving its territory out of the territories of the Bihar State.

20. The Andhra Pradesh Reorganisation Act, 2014 formed the state of Telangana.

21. The Bihar and West Bengal (Transfer of territories) Act, 1956, transferred certain territories from Bihar to West Bengal.

22. The Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959, made alterations in the boundaries of states of Andhra Pradesh.

23. The Bombay Reorganization Act, 1960, partitioned the State of Bombay to form the new State of Gujarat and to name the residue of the Bombay as Maharashtra. Thus, the State of Bombay was split up into two States—Maharashtra and Gujarat.

24. The Acquired Territories (Merger) Act 1960, provided for the merger into the State of Assam, Punjab and West Bengal of certain territories acquired by agreements between the Government of India and Pakistan, in 1958 and 1959.

***

 

 

 

 

 

 

 

 

CHAPTER-8

FUNDAMENTAL RIGHTS & DUTIES

FUNDAMENTAL RIGHTS

Part-III of the Indian Constitution from Article 12 to 32 contains fundamental rights. Fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. It is called corner stone of the constitution and together with Part-IV (Directive Principles of State Policy) constitutes the conscience of the Constitution. This chapter of the Constitution has been described as the Magna Carta of India. Fundamental Rights are individual rights enforceable against the arbitrary invasion by the state.

Fundamental Rights are not absolute rights and parliament could put reasonable restriction. The grounds for the restriction may be the advancement of SCs, STs, OBCs, women and children; general public order; decency; mortality; sovereignty & integrity of India; security of the state; friendly relations with foreign states, amongst other grounds.

THE STATE (Article 12)

The term State is defined under Article 12 of Part III of the Constitution. It includes the Union and State governments, the Parliament and state legislatures Government and all local or state authorities within the territory of India or under the control of the Indian government. Thus, municipalities, panchayats, district boards, improvement trusts, etc. within the territory of India or under the control of Government of India would constitute State as per Article 12.

Note:- The definition and determination of ‘State’ is important because it is only against the state our fundamental rights can be enforced, in other words only the state has the constitutional duty to enforce and comply with fundamental rights of every citizen of India. 

Classification of Fundamental Rights-

The Constitution itself classifies the Fundamental Rights under seven groups as follows-

1.  Right to equality (Article 14-18)

2.  Right to freedom (Article 19-22)

3.  Right against exploitation (Article 23-24)

4.  Right to freedom of religion (Articles 25-28)

5.  Cultural & educational rights (Articles 29-30)

6.  Right to Property (Article 31)

[Note- Article 31 was removed/omitted as fundamental Right by 44th Constitutional Amendment Act 1978 and made a Legal Right under Article 300-A of the Constitution.]

7.  Right to constitutional remedies (Article 32).

Legal Knowledge- Constitutional Right vs. Legal (Statutory) Right

Constitutional Right- it is a right guaranteed under the constitution of India and is permanent in nature, meaning it cannot be taken away unless and until the constitution is itself amended. For example, right to property is a constitutional right.

On the other hand, such right being a fundamental right (which also comes from the constitution), cannot ever be taken away from the citizen of India, as it forms the basic structure of our constitution which cannot be amended by the parliament. For example, right to freedom of speech and expression is a fundamental right and can never be taken away.

Legal (Statutory) Right- legal rights are provided to the citizens of the state by a statute, meaning by a law, act or a legislation made by the government. For example, right to vote is not a constitutional right but a legal right, as this right comes from an act/law made by the parliament and not the constitution itself, The Representation of the People Act, 1951.  

At present there are only six Fundamental rights as described below in brief-

RIGHT TO EQUALITY (ARTICLES 14-18)

Equality before law (Article 14)

Article 14 says that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India It is available to any person including legal person’s i.e. statutory corporation, companies, etc.

Art. 14 is taken from the concept of equal protection of laws has been taken from the constitution of USA. The concept of rule of law is a negative concept while the concept of equal protection of laws is a positive concept. The concept of equality before the law is equivalent to the second element of the concept of the ‘rule of law’ propounded by A.D. dicey, the British jurist.

Exceptions to it are, the President of India, State Governors, Public Servants, Judges, Foreign diplomats, etc., who enjoy immunities, protections, and special privileges i.e. extra protection in law.

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15)

Article 15 says that the state shall not discriminate against only of religion, race, sex, place of birth or any of them.
Under Article 15 (3) & (4), the government can make special provisions for women & children and for a group of citizens who are economically and socially backward.

Equality of opportunities in matters of public employment (Article 16)

Article 16 says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state; thereby meaning that all jobs and opportunity granted in any office run by the state or the central government will be made equally available to all citizens of India. 

Abolition of Untouchability (Article 17)

Article 17 says that Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offense punishable by law.

Abolition of titles (Article 18)

Article 18 says that no title, not being a military or academic distinction, shall be conferred by the State. No citizen of India shall accept any title from any foreign state.

The awards, Bharat Ratna, Padma Vibhuhan, Padma Bhusan and Padma Shri, called as The National Awards would not amount to title within the meaning of Article 18.

RIGHT TO FREEDOM (ARTICLES 19-22)

Protection of certain rights regarding freedom of speech, etc. (Article 19)

Article 19 says that all citizens shall have the right to freedom of speech and expression. The right includes right to;

1.  To assemble peacefully and without arms.

2.  To form associations or unions.

3.  To move freely throughout the territory of India.

4.  To practice any profession or to carry on any occupation, trade or business.

Protection in respect of conviction for offenses (Article 20)

Article 20 says that state can impose reasonable restrictions on the groups of security of the state, friendly relations with foreign states, public order, decency, morality, contempt of court, defamation, etc. In application, this article safeguards a person form being convicted in an offence which is not in violation of any law enforced in India. No person can be convicted and put in jail for an act committed by him which is not defined to be an offence under the laws enforced in India. Also, no person can be charged with a penalty which is more than what is prescribed in the law, time being in force. 

Right Against Double Jeopardy

This article also gives the right against double jeopardy, which means that no person can be punished for the same offence more than once by the judiciary. The nature of trial should be as per the judicial process in India, which cannot be repeated more than once.

For example, X was charged for committing fraud in a company. The company carried out a departmental enquiry and found X guilty. X was removed by the company. Later on, a FIR was lodged by the company against X, on basis of which X was sentenced to 3 years in prison. In this case it is not double jeopardy. For considering double jeopardy, departmental enquiry and punishment of removing X from the company will not be considered, but the legal prescribed procedure will be followed. Now, if another FIR is lodged against X for the same offence, this FIR and the proceedings made in pursuance to the FIR will be violative of Article 20.       

Right against Self-Incrimination

Under this right, a person is protected to be a witness against himself. Any alleged offender or accused has a constitutional fundamental right which protects him from being a witness against himself. Such person if even actually involved in a crime, has a right to remain silent over his guilt. He is under no obligation to disclose that he has actually committed an offence, it is upon the state to prove beyond reasonable doubt that the said alleged offence was actually committed by that person.

For example, X is accused of a murder and is thereby arrested by police. Upon being produced before the magistrate within 24 hours (incumbent duty of the police), X is under no obligation to confess of any act done by him. He has the right to remain silent.

Protection of life and personal liberty (Article 21)

Article 21 of the constitution of India is one of the most celebrated fundamental right, where the judiciary over the years have expanded the scope of the article to encompass basis and necessary rights of the citizens of India. It in brevity includes, right to environment, speedy redressal, travel rights, housing rights, protection against human violation, legal aid, livelihood, medical help, privacy rights, right to work, right to free and fair trial, education etc. Hence, this article has the widest possible interpretation.   

Right to Education (Article 21-A)

Article 21A states that that state shall provide free and compulsory education to all children of the age of 6-14 years.

(Article 22)

Article 22 deals with protection against arrest and detention in certain cases. This fundamental right includes that no person shall be arrested without informing him the reason of such arrest. Also, he will not be denied the right to consult a legal practitioner of his choice, subject to reasonability and affordability. This right also guarantees that if any person is arrested he shall be produced before the magistrate within 24 hours of his arrest, so as to safeguard him from procedural atrocities. 

RIGHT AGAINST EXPLOITATION (ARTICLES 23-24)

Prohibition of traffic in human beings and forced labour (Article 23)

This right includes the power and duty of the state to ensure that trafficking of human beings for begging or force labour shall be prohibited and penalized. Forced labour has been a concern in innumerable pockets of our country, where women and children are forced to work in prostitution, domestic slavery, industrial exploitation, begging and other such unconstitutional activities.    

Prohibition of employment of children in factories, etc. (Article 24)

Article 24 prohibits working of any child below the age of 14 to be employed in any factory, mine, industry and other employment, exposing such child to a hazardous environment.

RIGHT TO FREEDOM OF RELIGION (ARTICLES 25-28):

Freedom of conscience and free profession, practice, and propagation of religion (Article 25)

Article 25 guarantees right of a person to profession, practice, and propagation of religion subject to public order, morality, and implications of health. India’s secularity is upheld in this article, subject to reasonable restrictions for smooth functioning of democracy.

Interesting note- Loudspeakers

The Supreme Court has held in the case of Church of God (Full Gospell) in India vs. K.K.R. Majestic Colony Welfare Association, AIR 2000 SC 2773, that no religion prescribes that prayers should be performed by disturbing the peace of others, hence voice-amplifiers and beating of drums are not restricted, provided they do not disturb others. The state police can take action if any such practice becomes unreasonable and breaches peace of another.   

Freedom to manage religious affairs (Article 26)

Article 26 provides that subject to public order, morality, and implications on health every religious denomination has the right to;

a.   To establish and maintain institutions for religious and charitable purpose.

b.  To manage its affairs with respect to religion.

c.   To own and acquire movable and immovable property.

d.  To regulate and administer such property in accordance with law. 

Freedom as to payment of taxes for promotion of any particular religion (Article 27)

This article states that no person can be compelled to pay any tax on ground or religion or for funding religious demonstrations. If religious services are being utilized by a person, the charge paid in lieu of such a service is a fee and not tax.

Freedom as to attendance at religious instructions or religious worship in certain educational institutions (Article 28)

It provides that religious teaching or instructions will not be taught or propagated in any school or educational institute, run or funded by the state. Hence, government run schools or institutions are banned from imparting religious instructions. The school could alternatively promote nationalism and patriotism.   

CULTURAL AND EDUCATIONAL RIGHTS (ARTICLES 29-30):

Protection of language, script, and culture of minorities (Article 29)

This article protects the right of people to preserve their language, script or culture residing in any part of the territory of India, however remote the usage of such practice maybe. It extends rights to minority practitioners of ever form of culture they wish to follow and preserve.

It also guarantees that no person can be denied access to any educational institution run by the state or funded by the state, on grounds of caste, colour, creed, sex, race, language or any such of them. 

Right of minorities to establish and administer educational institutions (Article 30)

Article 30 ensures that minority segment in India, following either a religion, language or a culture have the right to establish any educational institute and run it according to their choice. Also, the state cannot discriminate its funding to religious institutions on basis of a religion. 

RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)

Article 32 deals with the right to move to the Supreme Court for the enforcement of Fundamental Rights including the Writs of

(i)          Habeas corpus,

(ii)        Mandamus,

(iii)      Prohibition,

(iv)       Certiorari and

(v)         Quo Warranto.

Such writs are further discussed in detail below. Also, the High Courts in States also can issue such writs under the provisions enshrined in Article 226 of the Constitution of India.

FUNDAMENTAL DUTIES

Fundamental duties were incorporated in the Indian constitution on the recommendations of the Swarn Singh Committee by 42nd Amendment Act, 1976. They are included in Part IV-A as Article 51A of the Constitution. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002. Article 51-A brings the Indian Constitution into conformity with international treaties like the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.

The fundamental duties are as follows, it shall be the duty of every citizen of India:

1.  To abide by the Constitution and respect the National Flag and the National Anthem;

2.  To cherish and follow the noble ideals which inspired our national struggle for freedom;

3.  To uphold and protect the sovereignty, unity and integrity of India;

4.  To defend the country and render national service when called upon to do so;

5.  To promote harmony and the spirit of common brotherhood amongst all the people of India;

6.  To value and preserve the rich heritage of our composite culture;

7.  To protect and improve the natural environment

8.  To develop the scientific temper, humanism and the spirit of inquiry and reform;

9.  To safeguard public property and to abjure violence;

10.      To strive towards excellence in all spheres of individual and collective activity;

11.      Who is a parent or guardian has to provide opportunities for education to his child, or as the case may be, ward between the ages of six to fourteen years. (added by 86th amendment, 2002)

Enforcement of Fundamental Duties

There is no provision in the Constitution for direct enforcement of any of these duties but the courts may seek to enforce them if a reasonable specific law in this regard is being violated.

The Supreme Court has held in the case of Rural litigation vs State of U.P., AIR 1987 S.C 359, that since the duties are obligatory for a citizen, it would follow that the state should strive to achieve the same goal. The court may, therefore issue suitable directions in these matters, in appropriate cases.

Conflict between Fundamental Rights & Fundamental Duties

 The Fundamental Principles as covered under part IVA of the Constitution, in subject to Fundamental Rights as embodied in part III of the Constitution hold greater impotence and has wider relevance because of Fundamental Rights can be directly enforced before the High Court and the Supreme Court, where Fundamental Duties are non-justiciable have setting out higher responsibility upon the citizens of India to confer upon themselves moralistic and nationalistic responsibilities.

***

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER-9

RIGHT TO CONSTITUTIONAL REMEDIES

Law of Writs

A proceeding under Article 32 is described by the Constitution as a ‘constitutional remedy’ for the enforcement of the Fundamental Rights included in Part III of the constitution. Article 32 provides a guaranteed remedy for the enforcement of Fundamental Rights and the right to this remedy is itself a fundamental right.  The Supreme Court shall have power to issue directions or orders in the nature of Writs including Writs of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred thereto. Supreme Court is thus, the protector and guarantor of fundamental rights.

Article 226 of the Constitution of India

Under Article 226 of Constitution, High Court also has the power to issue such writs and orders as are necessary for administrative action and judicial or quasi-judicial action. The power of High Court to issue writs is wider than that of the Supreme Court to the extent that under Article 32, the Supreme Court has the power to issue these writs only for the purpose of enforcement of the Fundamental Rights whereas under Article 226 a High Court can issue these writs not only for the purpose of enforcement of fundamental rights but also for the redressal of any other injury or illegality, owing to contravention of the ordinary law.

Types of writs

There are two types of writs; Prerogative writs and other Writs.

Prerogative writs

Prerogative writs are a subset of the class of writs which are issued by the court under special circumstances and are often known as extra ordinary remedies. Prerogative writs are of 5 types:

1.          Habeas Corpus

2.          Mandamus

3.          Certiorari

4.          Prohibition

5.          Quo-Warranto

1.          Habeas Corpus

The literal meaning of this writ is “To have the body”. It is issued when there is a violation of fundamental right of liberty. It is an order to produce before the Court the person who has been detained and the court examines such person and if the detention is found illegal, the Court sets free such person thereby protecting the liberty of the person which was infringed by illegal detention.

Who can file the Writ of Habeas Corpus?

According to the general rule, a Writ Petition can only be filed by that person whose rights have been infringed, habeas corpus being an exception to this general rule. Writ of Habeas Corpus can be filed by

(a) person whose right to liberty has been infringed, and

(b) any other person on behalf of the aggrieved, as the person is illegally detained he himself cannot approach the court of law.

To whom it is issued

The Writ of Habeas Corpus is issued to the Authorities of States, Governments, organisations or individuals.

2.          Mandamus

It is a Latin word which means “We Command” or “We order”. It is an order from the Court to any sub-ordinate government officer or a Public Authority or State Authority, ordering for co-operation and to do some specific act which that body is obliged under law to do but has had failed to do so. It serves as a reminder to these state authorities to perform their duty. The primary scope and function of mandamus is to “command” and “execute” rather than to “enquire” and “adjudicate”.

Who can file it?

This petition can be filed before the court only by the aggrieved individual. It can be filed only when the legal right of the person is violated by a government servant/authority.

To whom it can be issued?

It can be issued by Supreme Court or High Court only against a Lower Court or public authority or a person holding a public office.
It cannot be issued against an individual or private organisation, as they do not come under the definition of state given under Article 12 of the constitution of India.

Non-availability of Writ of Mandamus

The writ petition is not maintainable when a remedy under the Code of Civil Procedure or any other law is available. For example, the High Court cannot entertain writ petitions for mandamus to a public servant where an alternative remedy/relief has been provided under any other act or law in force. For example, if X is a government servant who is illegally dismissed from service. X can approach the High Court under Article 226 for issue of writ of Mandamus only when there is no other remedy in any other law that gives him protection. 

3.          Certiorari

The literal meaning of the word ‘certiorari’ is ‘to be more fully informed of’. It is a writ which seeks a judicial review. Judicial review here means reviewing or quashing the judgement passed by the inferior court of law, authority or quasi-judicial authority without jurisdiction or in excess of the jurisdiction vested by law. The writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction

To whom it is issued

It can be issued to an Inferior Court, Tribunal or Quasi-Judicial Authority and it can only be filed by an aggrieved individual. The purpose of this writ is to quash or nullify the judgement/direction/order issued by such a judicial or quasi-judicial body.

Essentials to issue writ of Mandamus

1.          There must be an order or judgement passed by an Inferior Court, tribunal or Quasi-judicial Authority.

2.          Such court, tribunal or officer must have passed an order or judgement acting without jurisdiction or in excess of the jurisdiction vested by law.

3.          There must be an error of judgement in appreciating the facts of the case.

4. Prohibition

It means to Stop. A writ of prohibition is a writ directing a subordinate court to stop doing something which the law prohibits.  It is issued by the Supreme Court or a High Court to an inferior court forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with which, it is legally not vested. When the writ is issued, proceedings in the lower court are stayed i.e. Sub Judice. The writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction.

The writ of prohibition differs from the writ of mandamus in the sense that while mandamus commands activity, prohibition commands inactivity. Further, mandamus is available against judicial as well as administrative authorities, but writ of prohibition and certiorari are issued only against judicial or quasi- judicial authorities.

To whom it is issued

It is issued to an Inferior Court, Tribunal or Quasi-judicial Authority. It cannot be issued against a legislative or administrative body. Such petition can be filed only by the aggrieved individual. The purpose of the court is to prohibit the judicial/quasi-judicial body from proceeding further with the case.

Essentials to issue of writ of Prohibition

1.  There must be an on-going case in an Inferior Court, tribunal or Quasi-Judicial Authority.

2.  The writ can be issued only when the proceedings are pending in a court.

3.  The writ can be issued at any stage of the proceeding.

4.  Writ of Prohibition cannot be filed when the proceeding has matured into decision, and if the said court or authority in which writ is pending ceases to exist.

5. Quo-Warranto

The meaning of the writ is “What is your authority”. This writ is issued to restrain a person from holding a public office to which he is not entitled to. Quo Warranto is a proceeding whereby the court enquires into the legality of the claim which a party asserts to a public office, and to oust him/her from its enjoyment if the claim is found to be frivolous or invalid.

It is applicable to public offices only and it can be filed by any person showing sufficient cause and interest in the case.

Essentials to issue of writ of Quo-Warranto

1.  It should be a public office which must be created by statue or constitution itself.

2.  The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.

3.  There must be a contravention of the constitution or a statue or statutory instrument while appointing such person to that office.

4.  When this writ is issued, it has the effect of removal of the person from public office with immediate effect.

Public Interest Litigation

Public Interest Litigation is a concept which is to help giving justice to similarly affected persons/victims by way of one litigation. If thousands of persons are affected by one cause of action, then thousands of cases need not be filed, but one case can be filed as a PIL and relief to all such persons can be granted by one judgment of the court. It also reduces the unnecessary burden of the court.

Public Interest Cases

The first petition of such a nature was filed by Hussainara Khatoon on behalf of multiple prisoners in the State of Bihar who were awaiting their trial and in that process, they had served sentences which were more than what they could be awarded if held guilty, it was accepted by the Supreme Court in Hussainara Khatoon vs State of Bihar. The first definition of PIL was given in the case of S.P. Gupta vs. Union of India. Thereafter public interest litigations have been used as a method to deliver justice to multiple victims in one petition, like in the case of Bhopal Gas Tragedy, Union Carbide Corporation vs Union of India.   

Jurisdictions

A Public Interest Litigation can be filed both before the High Courts under Article 226 of the Constitution and the Supreme Court under Article 32 of the Constitution. It can also be filed in the District Court under Section 133 of the Criminal Procedure Code. The decision to approach which court lies of the extent of jurisdiction of such public litigation. If one person is fighting a public interest litigation for affected persons being from a state, he shall approach the High Court, or otherwise, if the affected persons are nation-wide then such person will have to approach the Supreme Court.

***

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER-10

STATE DIRECTIVES

DIRECTIVE PRINCIPLES OF STATE POLICY

Part IV of the constitution, Articles 36-51, contains the Directive Principles of State Policy. Directive principles may be said to contain the philosophy of the Indian constitution These are guidelines for framing of laws by the government. As the name suggests, directive principles are broad ‘Directives’ given to the state in accordance with which the legislative and executive powers are to be exercised. They are directions given to the state to guide the establishment of an economic and social democracy, as proposed by the Preamble.

Non-justiciability

Article 37 states that though the Directive Principles are “Fundamental in the governance of the country” but they are non- justiciable in nature i.e. they are not enforceable in any court of law. Despite being non-justiciable, the Directive Principles act as a check on the state and imposes an obligation on the State to apply them in matters of legislation. Thus, they serve to emphasise the welfare state model of the Constitution and emphasise the positive duty of the state to promote the welfare of the people by affirming social, economic and political justice.

Scope of the Directives

Even though the state directives are non-justiciable it is incumbent upon the state to abide by the state directives in relation to policy matters and thereafter execution of the same. Further, the impression embodied in the constitution, is the idea of a welfare state and not a mere police state, which means that the state is not only responsible to provide security to all citizens by enforcement of law and order but is also responsible for providing basic and convenient lifestyle to its citizens. The directive aims at establishing economic, social, democratic balance amongst all its citizens as under the duty as provided from Art. 36-51.

Classification of Directive Principles

Directive Principles may be classified under the following three categories:

1.  Ideals that the state ought to strive towards achieving-

a.   Securing a social order through social, economic and political justice along with minimising inequalities

b.  Striving towards an equitable distribution pattern of resources

c.   Securing decent living standards and social and cultural opportunities to all

d.  Working towards better health of the masses through improved nutrition (Article 47)

e.   Promoting international peace, security and amicable relations. (Article 51)

2.  Directions for the exercise of legislative and executive power-

a.   Development of village panchayats towards self- government (Article 40)

b.  Development of cottage industries (Article 43)

c.   Securing a uniform civil code (Article 44)

d.  Promote the interests of and work for the economic uplift of the scheduled castes and scheduled tribes and protect them from discrimination and exploitation. (Article 46)

e.   Working towards the modernisation of agriculture and animal husbandry. (Article 48)

f.    Protecting the environment and safeguarding of forests and wildlife (Article 48A)

g.   Protecting and maintaining historic sites and monuments (Article 49)

h.  Separating the judiciary from executive. (Article 50)

3.  Rights of the citizens which the State must aim towards securing-

a.   Providing adequate means of livelihood for all citizens (Article 39)

b.  Equal pay for equal work for men and women. (Article 39)

c.   Proper and humane working conditions (Article 42)

d.  Reduction of the concentration of wealth from the hands of a few, and distribution of community resources to serve the common good. (Article 39)

e.   Providing free and compulsory primary education to children below the age of 16 years (Article 45)

f.    Providing equal opportunities for justice and free legal aid (Article 39A)

g.   Provision for government assistance in unemployment, illness, disablement and old age (Article 41)

h.  Provision of maternity leave (Article 42)

i.    Securing the Participation of workers in management of the industries (Article 43A)

Directives contained in other part of the constitution-

a.   Besides the directives contained in part IV, there are certain Directives in other parts of the Constitution, which are also not enforceable but courts have given similar attention to them.

b.  Article 350A- Provision of facilities for instruction in mother tongue at primary stage of education to children belonging to linguistic minority groups.

c.   Article 351- Union to promote Hindi Language and to develop it as to serve as a medium of expression of culture of India.

d.  Article 335- In matters of appointments to services and posts of the Union and state, claims of the members of the schedule castes and schedule tribes shall be taken into consideration.

Conflict Between State Directives And Fundamental Rights

The directive principles of state policy as entailed under part IV as Constitution have a wider scope than that of fundamental rights as discussed under part III of Constitution. As concluded, Fundamental Rights are directly enforceable before the judiciary as provided under Art. 32 and Art. 226, whereas the directive principles cannot be directly against the state. This dilemma in itself is a contradiction as on one hand basic Fundamental Rights are guaranteed to the citizens and on the other hand the responsibility of the state as given under directive principles are not compulsory to be performed. Thus, in such a situation the judiciary plays and important part in bridging the difference between enforceable Fundamental Rights and non-enforceable state directives. The state directive are non-enforceable on the condition that economic capability of the state does not allow the state to comply with the directives in its absolute meaning.

Implementation of State Directives

It is not out of note to ponder upon the point that the state directives are merely literature to the Constitution and because they cannot be enforced, it has no meaning at all. It is incorrect to state that the state directives have no force and no reference can be made to it while considering the of the state.

In consideration of the same there are certain imperatives that the judiciary in interpretation of state actions has developed overtime.

1.  One of the eminent enforcement of the state directives is in relation to management of natural and material resources available at the hands of the government. The state has to exercise its duties cautiously to ownership, control and distribution of natural resources of the country, so that common good of people is kept in for most priority.

2.  Multiple legislation have been enacted in enforcement of Art. 40  to the Constitution where matters relating to Panchayats have been considered by the state. These bodies not only perform executive functions but are also empowered with judicial powers.

3.  In enforcement of Art. 45 to the Constitution of the India the  legislature has  gone ahead to make primary calculation compulsory throughout the territory of India. Even though the ground reality made differ from the legislative intent, but the state directives can be propelled to execute the legislations as drafted under Art. 45

4.  The government has further taken initiative to form national and  state boards for various industries for promotion and development of these sectors. Have, the state cannot be side lined  for its initiative and enforcement of state directives.

5.  The state for developing and raising the living standard, of the citizens of India, specifically those belonging to the rural population have developed national schemes for promotion of their living conditions few examples are Integrated Rural Development Program (IRDP) , National Rural Employment Program (NREP)  and Desert Development Program (DDP)  amongst many others.

6.  The state promotion of its duties further took steps to curtail and end hazardous substances to human consumption, such as banning intoxicating drinks, drugs and tobacco. The state promotes medical welfare of the nation and example of which is setting up of new AIIMS like institution in every state of the country.

***

 

 

 

 

 

 

CHAPTER-11

AMENDMENT PROCEDURES UNDER THE CONSTITUTION OF INDIA

Amendment Procedure (Article 368)

Under Article 368 the procedure of amendment of the Constitution is laid out, the highlights of which are produced below;

1.  The parliament can amend the constitution by way of addition, variation or repeal.

2.  An amendment is carried out by moving a bill in each house of the parliament and passing it with 50% simple majority i.e. ratification by one-half of the strength of the respective house.

3.  There are special circumstances, when a bill is moved to amend powers of the Union or the States, composition and structure of the Supreme Court and the High Courts, the Seventh Schedule, and other such provisions as per Article 368 clause (2), a special majority of two-third members voting for the motion is required. Also, such majority is to be achieved in at least half (50%) of the State Legislatures in India, and each State has to pass the bill by a special majority.

4.  Lastly, on basis of the Doctrine of Basic Structure, certain basic features of the Indian Constitution cannot be amended as laid down in the historic case of Kesavanandan Bharti vs. Union of India. Fundamental Rights, objectives of the Preamble, federal structure of India, judicial review, balance of Directive Principles to rights and odd, form part of the basic structure to our Constitution, but the list is merely inclusive and not exhaustive. 

Article 368 in The Constitution of India 1949

Article 368. Power of Parliament to amend the Constitution and procedure therefor;

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent

 

(3) Nothing in Article 13 shall apply to any amendment made under this article

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

Till date our Parliament has passed 101 Constitutional amendments, where the important amendments are differentiated in bold;

Amendments

Year

Provisions/Changes

1st
Amendment
Act

1951

 

To overcome difficulties
in Fundamental rights,
Special treatment to
educationally & socially
backward classes

2nd
Amendment
Act

1952

Readjusted the scale of
representation in Lok Sabha
on the basis of 1951 census

3rd
Amendment
Act

1954

Transferred items of State
List to Concurrent List

4th
Amendment
Act

1955

Property, Trade & Commerce
related amendment;
Extended scope of Article 31A,
Authorised the state to
nationalise any trade

5th
Amendment
Act

1955

Empowered the President to
fix time limit for state
legislatures to express their
views on central laws affecting
the areas & boundaries of state

6th
Amendment
Act

1956

Included new subject in
Union list i.e. interstate sales tax

7th
Amendment
Act

1956

Abolished classification of states
into 4 categories;
High Court jurisdiction
& establishment

8th
Amendment
Act

1960

 

Extended reservation of SC,
ST & Anglo Indians in
Lok Sabha for 10 years

9th
Amendment
Act

1960

Transfer of territory of
Berubari union to Pakistan

10th
Amendment
Act

1961

Incorporated territories of
Dadra & Nagar Haveli in
Indian union

11th
Amendment
Act

1961

Change in procedure of
election of Vice President

12th
Amendment
Act

1962

Incorporated Goa, Daman
& Diu in Indian Union

13th
Amendment
Act

1962

Special provision & status
of state given to Nagaland

14th
Amendment
Act

1963

Incorporated Pondicherry
in Indian union;
Provided legislature & council
of ministers for union territories

15th
Amendment
Act

1963

 

Increased retirement age
of high court judges from
60 to 62 years;
Extended jurisdiction of
high courts to issue writs,
Provision for appointment,
allowances of retired judge
of High Court

16th
Amendment
Act

1963

Empowered states to impose
restriction on fundamental
rights related to sovereignty
& integrity of country;
Changes in the form of oath

17th
Amendment
Act

1964

Amended right to property;
Added more provisions
in 9th schedule

18th
Amendment
Act

1966

Related to the formation
of new state.

19th
Amendment
Act

1966

Abolished system of election
Tribunals;
Authorised High courts to hear
election petitions

20th
Amendment
Act

1966

Validated appointments of district
judges by adding new article 233A

21st
Amendment
Act

1967

Included Sindhi language
in 8th schedule

22nd
Amendment
Act

1969

Creation of new autonomous
state of Meghalaya

23rd
Amendment
Act

1969

Further 10 years extension
of reservation of SC, ST &
Anglo Indian seats in Lok Sabha

24th
Amendment
Act

1971

 

Compulsion for President to give
his assent on Constitutional
Amendment Bill;
Affirmed the Right of Parliament
to amend any part of constitution

25th
Amendment
Act

1971

 

Curtailed right to property;
Provided that any Bill passed
for DPSP would not be void
if it conflicts article 14, 19 & 31
(Human Rights articles)
of the Indian constitution

26th
Amendment
Act

1971

 

Abolished titles & special
privileges of former rulers
of princely states

27th
Amendment
Act

1971

Made certain provisions for
Arunachal Pradesh & Mizoram

28th
Amendment
Act

1972

Abolished special privileges of IC
officers & empowered Parliament
to determine their service condition

29th
Amendment
Act

1972

Included Kerala land reform
in 9th schedule

30th
Amendment
Act

1972

Provisions related to Supreme
Court in civil cases

31st
Amendment
Act

1972

 

Raised the number of
Lok Sabha seats from
525 to 545

32nd
Amendment
Act

1973

Special provisions related
to Andhra Pradesh

33rd
Amendment
Act

1974

Provision related to the
resignation of MPs &
State legislatures

34th
Amendment
Act

1974

Included land reform
in 9th schedule

35th
Amendment
Act

1974

Protectorate status of
Sikkim terminated

36th
Amendment
Act

1975

Full-fledged state
status to Sikkim

37th
Amendment
Act

1975

Legislative assembly &
Council of ministers to
UT Arunachal Pradesh

38th
Amendment
Act

1975

Declaration of emergency
promulgation of ordinance
by President is non-justiciable

39th
Amendment
Act

1975

 

Disputes related to President,
Vice President, Prime minister
& the Speaker beyond
scope of judiciary

40th
Amendment
Act

1976

Provisions related to EEZ
& maritime zone;
Included 64 central
laws in 9th schedule

41st
Amendment
Act

1976

Increase in retirement age
of members of PSC from 60 to 62

42nd
Amendment
Act

1976

 

-MINI CONSTITUTION-

Added Socialist, Secular
& integrity in Preamble,
Added Fundamental duties
(Part IV A);
Creation of All India Judicial Service;
Extended the time limit of
President rule from 6 months to 1 year;
Added 3 new directive principles,
Raised tenure of Lok Sabha &
State legislature assemblies from
5 to 6 years;
Proclamation of national emergency;
Made obligatory for President
to act on the advice of Council
of ministers

43rd
Amendment
Act

1977

Carried out by Janata government
to nullify some changes introduced
by 42nd amendment;
Restored the jurisdiction of Supreme
Court & High Court with respect to
issue the writs

44th
Amendment
Act

1978

 

Modified emergency provision;
Deleted right to property from
Fundamental rights; Fundamental
rights guaranteed by article 20 and 21
cannot be suspended during
national emergency

45th
Amendment
Act

1980

Further extension of 10 years for
reserved seats of Lok Sabha
& state legislative assemblies

46th
Amendment
Act

1982

Related to tax reforms

47th
Amendment
Act

1984

Included land reforms acts
in 9th schedule

48th
Amendment
Act

1984

Related to President’s rule
in Punjab

49th
Amendment
Act

1984

Constitutional sanctity to
autonomous district of Tripura

50th
Amendment
Act

1984

Empowered Parliament to restrict
the Fundamental rights of the
person working in intelligence
organisations

51st
Amendment
Act

1984

Reservation of Lok Sabha
seats in Meghalaya,
Arunachal Pradesh,
Nagaland, Mizoram

52nd
Amendment
Act

1985

 

Added 10th schedule
regarding disqualification
on the grounds of defection

53rd
Amendment
Act

1986

Added new article 371-G,
Constitutional Provision for
Mizoram

54th
Amendment
Act

1986

Changes in the provisions
of salaries of Judges

55th
Amendment
Act

1986

Strength of legislative assembly
of Arunachal Pradesh

56th
Amendment
Act

1987

Special provision in constitution
for setting up of state of Goa

57th
Amendment
Act

1987

Determination of assembly
constituencies in certain
north-eastern states
by delimitation commission

58th
Amendment
Act

1987

Empowered President to publish
under his authority the translation
of Constitution in Hindi

59th
Amendment
Act

1988

Extended Tenure of
President’s Rule in Punjab

60th
Amendment
Act

1989

Increased the ceiling of
professional tax

61st
Amendment
Act

1989

Reduced voting age from
21 to 18 years for Lok Sabha
as well as assembly election

62nd
Amendment
Act

1989

Further extension of 10 years for
the reserved seats in Lok Sabha
& state legislative assembly

63rd-64th
Amendment
Act

1990

Regarding Tenure of
President’s Rule in Punjab

65th
Amendment
Act

1990

Establishment of National
Commission for SCs & STs

66th
Amendment
Act

1990

Place Lands Reform Act

67-68th
Amendment
Act

1990,
1991

Extended Tenure of
President’s Rule in Punjab

69th
Amendment
Act

1991

Special status to Delhi by
designing as National Capital
Territory of Delhi

71st
Amendment
Act

1992

Included Konkani, Manipuri &
Nepali languages in 8th schedule

72nd
Amendment
Act

1992

Reservation to STs in Tripura
State Legislative Assembly

73rd
Amendment
Act

1992

Constitutional status to
Panchayati Raj institution,
Added part IX entitled
as Panchayats,
Added the 11th schedule

74th
Amendment
Act

1992

Constitutional status to
urban local bodies,
Added Part- IX A entitles
as The Municipalities,
Added 12th schedule

75th
Amendment
Act

1994

Establishment of
rent tribunals

76st
Amendment
Act

1994

Tamil Nadu Reservation Act

77th
Amendment
Act

1995

Reservation of SCs & STs
in government Jobs

78st
Amendment
Act

1992

Place Lands Reforms Act

79st
Amendment
Act

2000

Extension of Reservation to
SC, ST & Anglo Indians
in Parliament

80th
Amendment
Act

2000

Provided for an alternative scheme
for devolution of revenue between
centre and states

81st
Amendment
Act

2000

Ended 50% ceiling on reservation
in backlog vacancies

82nd
Amendment
Act

2000

 

Making provisions in favour
of SC & ST for relaxation in
qualifying marks in any examination

83rd
Amendment
Act

2000

No reservation in Panchayats for
SCs in Arunachal Pradesh

85th
Amendment
Act

2001

Consequential seniority in promotion
to SC & ST in government jobs

86th
Amendment
Act

2002

 

Made elementary education
the fundamental right,
Added article 21 A – free &
compulsory education to all the
children of 6-14 years,
Added new fundamental duty
under article 51-A

87th
Amendment
Act

2003

Made 2001 census the basis for
delimitation of constituencies of
the Lok Sabha and state legislatures

88th
Amendment
Act

2003

Provision for service tax
(Article 268-A)

89th
Amendment

Act

2003

Bifurcated the National Commission
for Scheduled Castes & Scheduled
Tribes into two separate bodies –
National Commission for
Scheduled Castes (Article – 338) &
National Commission for Scheduled
Tribes (Article 338-A)

90th
Amendment

Act

2003

Reservation in Assam Assembly
relating to Bodoland Territory Area

91st
Amendment
Act

2003

Provisions to limit the size
of Council of Ministers,
Article 75(1A), Article 75(1B),
164(1A), 164(1B),
Provision to debar defector
from holding public office.
Article 361-B,
The Provision of 10th
schedule (anti-defection law)

92nd
Amendment
Act

2003

Included Bodo, Dongri, Maithili &
Santhali in 8th schedule

93rd
Amendment
Act

2005

 

Empowered state to make
provisions for socially &
educationally backwards classes
& SC and STs in educational
institutions including private
institutions except for minority
educational institutions

94th
Amendment

Act

2006

Provision of Minister of Tribal
Welfare in newly created states

95th
Amendment

Act

2010

Extension of reservation for
SCs & STs in Lok Sabha

96th
Amendment
Act

2011

Substituted ‘Odia’ for ‘Oriya’

97th
Amendment
Act

2011

Constitutional status to
co-operative societies,
Made the right to form
co-operative society a
fundamental right,
For the promotion of
co-operative societies
a new DPSP is added
under article 43-B,
Added new Part IX-B entitled as
‘The Co-operative societies’

98th
Amendment
Act

2012

Provided special provisions for
Hyderabad-Karnataka region of
state of Hyderabad

99th
Amendment
Act

2014

Established national judicial
appointment commission

100th
Amendment
Act

2015

Land boundary agreement
between India and Bangladesh
Amended 1st schedule of Constitution

101st
Amendment
Act

 

102nd

Amendment

Act

 

103rd

Amendment

Act

2016

 

 

 

2018

 

 

 

2018

Tax reforms act GST
Article 246(A), 269A, 279-A

 

Constitutional Status to National Commission for Backward Classes

 

10% Reservation to the Economically Weaker Section of General Category Class by amending Article 15 & 16

 

Judicial Developments over time

Article 368 to the Constitution of India provides for an absolute power to the parliament to amend any part of the Constitution, without any limitation. This view was uniformly adopted by the judiciary until 1967.

The initial cases that challenged the power of the parliament as contemplated under Art. 368 were of the opinion that the legislature has unchallengeable and qualified power to amend and reorganize the provisions of the Constitution in any manner, what so ever.

It the case of Shankari Prasad Vs Union of India, 1952 the Supreme Court had categorically recorded its judgement that the union legislature has the absolute freedom to amend or alter any part of the Constitution, to the extent of replacing the entire Constitution as a whole. Thereafter in the year 1965 in the case Sajjan Singh Vs State of Rajasthan the Supreme Court of India followed the principle as laid down in the case of Shankari Prasad Vs Union of India. Thus, the initial judicial interpretation of Art. 368 was purely textual in nature and hence it was unanimously concluded that the power of the legislature 368 is unquestionable and absolute, falling out of the preview of Judicial Review.

In the year 1967, Supreme Court overruled its previous judgment as given in the case of Shankari Prasad Vs Union of India and in Sajjan Singh Vs State of Rajasthan The Supreme Court ruled in the case of I. C. Golakhnath Vs State of Punjab held that the Parliament had the absolute power under Art. 368 but the said power could not transgress upon the Fundamental Rights. This case held that the Fundamental Rights are essential provisions to the Constitution as they guarantee basic living rights to its citizens; without which the whole purpose of forming the Constitution of India would fail. Hence, this was the first time that the judiciary in its interpretation of Art. 368 has categorically held the powers under the said Article are restricted and could not withdraw the Fundamental Rights as provided under the Constitution.

The judiciary thereafter in the year 1973 in the case of Keshvanand Bharti Vs State of Kerala modified and overruled its previous judgement as given in Golakhnath Nath Vs State of Punjab. The Supreme opined that the parliament in exercise of its power under Article 368 can amend the Constitution but it cannot disturb the basic features of the Constitution. This is a case from where Doctrine of Basic Structure developed, wherein the court had held that certain basic and essential features of the Constitution cannot be amended as it would defeat the purpose of the Constitution.

Therefore, the powers under Art. 368 to amend the Constitution is limited to the doctrine of basic structure, which is that the basic features of the Constitution cannot be amended. It is relevant to mention that the term basic features are not an exhaustive list but is open to judicial review and interpretation. For e.g. the preamble and the Fundamental Rights form part of the basic structure to the Constitution. However, any amendment proposed to amend the Constitution cannot be sustained if it tampers with the ideology and basic purpose of formation of the Constitution itself.

The law as laid down in noted case has been followed and upheld in the Minerva Mills Vs Union of India 1980 and the position of the legal interpretation of Art. 368 has been constant since then.

***

 

 

 

 

 

CHAPTER-12

GOVERNMENT OF THE UNION

[A] The Union Executive

[1] The President

The President, the Lok Sabha and the Rajya Sabha are collectively called as the Indian Parliament. 

The President is the first citizen of India and is also the head of the Union of India. The President is appointed for a term of 5 years on the qualifications being, a citizen of India, having completed 35 years of age, elected member of the Lok Sabha and should not be holding any office of profit under the state or central government. The President can be removed from office on his death, resignation or by way of invoking impeachment process. On his absence, the Vice President hold the office of the President until the new President is elected.

Powers of the President

The President has the following powers as bestowed upon him by the Constitution;

Legislative Powers: The President has essential legislative powers, like no Bill passed by the Parliament can become a law unless it is assented by the President. He may summon or prorogue the houses to the Parliament. He can also dissolve the Lok Sabha on event of such circumstance when they arise. He also poses veto powers to not pass a bill but this power is not absolute as the Houses can still pass it by a two-third majority.      

Administrative Powers: The President is the appointing authority to the Prime-Minister, Union Ministers, Attorney General, Comptroller General, Auditor General, Governor of States, Judges of the Supreme Court and the High Courts, are few amongst others. The President also has the power to invoke and revoke emergency, national, state or financial. He has the power to appoint 2 Anglo-Indians to the Lok Sabha and 12 members to the Rajya Sabha.    

Judicial Powers: Judicially the President can grant pardon, respite, suspensions, remissions, commutations in respect of punishments/sentence passed by a court in law; such power can extend to granting pardon even in cases of capital punishment (death penalty) being awarded. 

Military Powers: The President is the supreme commander of the Indian Armed Forces and the forces act on his command. He can declare war or annul it, where these powers cannot be exercised without the consent of the Parliament.    

[2] Vice-President

He being the ex-officio chairman of the Rajya Sabha is elected by the members of both the Houses, Lok Sabha and Rajya Sabha. His term can be up to a maximum of 5 years and he is eligible for re-election. The qualifications for the post of Vice-President is same to that of the President, only that he may be an elected Rajya Sabha member. Lastly, as mentioned he acts like the President on vacancy on the post and thereby ceases to be the presider of the Rajya Sabha for the stipulated time period.  

[3] The Prime Minister

The Prime Minster is the main executive head of the Union of India. He heads the council of ministers and advises the President on appoint of other ministers to the Union government. The requisite qualification of the Prime Minster is that of eligibility to be an elected member of the Lok Sabha. It is important to note that the Prime Minister is the acting Chairman for non-constitutional bodies like The National Institution for Transforming India (NITI Aayog), replacing the Planning Commission.       

[4] Council of Ministers

The Prime Minister appoints the Council of Ministers. The Union Council of Ministers exercises executive authority in the Republic of India. It consists of senior ministers, called the Cabinet Ministers, junior ministers, called the Ministers of State and Deputy Ministers.

It is led by the Prime Minister. A smaller executive body, called the Union Cabinet is the supreme decision-making body of India. Only the Prime Minister and ministers of the rank of Cabinet Minister are members of Union Cabinet, the remaining are part of the Council only.

[5] Attorney General

He is the first Law Officer of India. The appointment to this post is made by the President of India on having the required qualifications that being to be eligible to hold the post of a Supreme Court Judge. The role of the Attorney General is to provide advice to the Central Government on legal matter and issues from time to time. He is also an integral part of the parliament but does not have the right to vote. 

 [B] The Union Legislature

The Parliament

The federal structure of India rests upon the principle of Parliamentary form of government which makes the executive accountable to the legislature. At the top of the Indian polity lies the Parliament as the supreme Legislative body of the Republic of India. Besides functioning as the highest law-making body in India, the Parliament has also functioned as a watch dog for the nation and has proved that for the balanced and peaceful development of the country there is no better form of government than the parliamentary form of government. The Parliament of India comprises of the President and the two Houses known respectively as the Lok Sabha (the House of People) and the Rajya Sabha (the Council of States). The two houses of the Parliament came into being in the year 1952 after the first General Election that were held in the year 1952 under the new Constitution adopted by the Constituent Assembly. The Parliament is a deliberative and a legislative body which performs multiple functions which are divisible under the following heads:

1)  Legislation: The major function of the Parliament is to make law. The Parliament since its inception has been constantly involved in the process of making law according to the continuous changing socio-economic needs of the Indian Society. In India since the inauguration of the Constitution the volume of legislation is steadily rising in order to carry out the manifold development and other measures required for establishing a welfare State.

2) Financial Control: The Parliament is responsible for controlling all the public finances which includes grant of money to the administration for expenses on public services, imposition of taxes and authorization of loans. This is the most important function of the Parliament.

3) Deliberation and Discussion: The Houses of the Parliament are constantly engaged in discussion, deliberation, debating public issues, shaping and influencing the government policy and ventilating public grievances. This is constantly done through legislation, control of public finances, and debate on the President's address.

4) Control of the Executive: According to parliamentary form of government executive is responsible to the parliament for its acts and policies. Hence parliament exercises control by various measures like committees, question hour, zero hour etc. ministers are collectively responsible to the Parliament.

5) Providing and exercising control over cabinet: Our Parliamentary system blends the legislative and the executive organs of the State in as much as the executive power is held and used by a group of Members of the Legislature who command majority in the Lok Sabha. In other words, the government functions through various Ministries under the charge of different Ministers. The Parliament provides the Ministers and holds them responsible to the elected representatives of the people. The Ministers could be Member of either of the two Houses of the Parliament. The actual execution of government policies as decided by the Parliament is carried out by the bureaucracy headed by a Secretary of the Department.

6) Critical assessment of the Cabinet and Individual Members: In modern times both executive and the legislative policies are initiated by the Cabinet and the importance of the Legislative function of Parliament has, to that extent, diminished from historical point of view. The Parliament provides the forum through which is ensured that the Cabinet remains in power only as long as it commands majority support in the Lok Sabha which comprises elected representatives of the people. It is one of the most important functions of the Parliament to bring about discussions and critical assessments of the performance of the government departments.

7) Constituent functions: The power to amend the Constitution vests with the Parliament. Constitutional amendments have to be passed by each house by a majority of total membership as well as by two-third majority of members present in voting. In some cases, amendments need ratification from half of the Legislative assemblies of the States.

[1] Rajya Sabha (Council of the States)

It is also called the Upper House of the Parliament. It is presided by the Vice-President of India who is the ex-officio chairman of the House. The Rajya Sabha can never be dissolved. Also, this house does not have the power to raised a Money Bill but can only raise an Ordinary Bill.

Strength: Total 250 members, where 238 members from States and Union Territories and 12 members nominated by the President.    

Election: they are elected by the members of the State Legislature.

Term: 6 years. One-third members retire every 2 years. The Rajya Sabha can never be dissolved.

Qualifications: The elected members must be citizens of India, not less than 30 years of age, not holding any office of profit, not declared insolvent by any court of law, of sound mind and not disqualified by any other law in India.  

[2] Lok Sabha (House of the People)

It is also called the Lower House of the Parliament. It is presided by the Speaker of the House, who also presides the joint session of both Houses. The Lok Sabha has the exclusive power to raise a Money Bill and can be dissolved unlike the Rajya Sabha.

Strength: Total of 552 members where 530 members are State representatives, 20 members represent the Union Territories and 2 Anglo-Indians are nominated members by the President.

Election: They are directly elected by the people of India by way of National Elections or Universal Adult Franchise (18 years being the voting age).

Term: 5 years. It can be dissolved earlier by the President or be extended during the term of emergency.

Qualifications: The elected members must be citizens of India, not less than 25 years of age, not holding any office of profit, not declared insolvent by any court of law, of sound mind and not disqualified by any other law in India. 

Bills

Legislative procedure is initiated in the form of a bill, when the Bill is passed by both Houses of Parliament and assented by the President, it becomes a law. Bills introduced in the Indian Parliament can be classified into 4 types of bills. They are as follows:

1. Money Bills

These are defined in Article 110. These Bills deal with the taxes, borrowings, consolidated and contingency funds, audit and accounting, etc. Article 109 of Indian Constitution gives special procedure regarding Money Bills.

A money Bill can originate only in Lok Sabha after the recommendations of the President. Through the Bill is sent to Rajya Sabha also but even Rajya Sabha rejects/returns the Bill, the Bill is deemed to be passed. The Appropriation Bill and Annual Financial Bill (Budget) are Money Bills.

2. Financial Bills

Any Bill dealing with revenues or expenditure but not certified as Money Bill by the Speaker is a Financial Bill. Financial Bill can only be introduced in Lok Sabha on the recommendations of the President & should be passed by both Houses of Indian Parliament (Lok Sabha or Rajya Sabha) by Simple majority.

3. Constitutional Amendment Bills

Under Article 368 of Indian Constitution with the powers of parliament to amend the constitution, this bill can be introduced in any of the two Houses without recommendations of the President. Such Bills must be passed by each house (Lok Sabha and Rajya Sabha) separately with a special majority (two third of the members present and voting which must be more than absolute majority).

By 24th Constitution amendment Act, 1971 it is obligatory for the president to give his assent to the Constitutional Amendment Bills.

4. Ordinary Bills

Ordinary bills are concerned with any matter other than Financial Bills, money Bills and Constitutional Amendment Bills.

Such Bills can be introduced in either House of Indian Parliament (Lok Sabha or Rajya Sabha) without the recommendations of President of India. These bills are passed by Simple Majority in both Houses.

*******

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER-13

GOVERNMENT OF THE STATES

[A] The State Executive

[1] The Governor

The Governor is the head of a State, appointed by the President of India for a term of 5 years and can be re-appointed thereafter.

Powers of the Governor

Legislative Powers: The Governor may summon or prorogue the State Legislature. He can also dissolve the State Legislature on event of such circumstance when they arise. He also poses veto powers similar to the President but it is again not absolute.      

Executive Powers: The governor appoints the Chief Minister of a State. He also appoints the Advocate General and the Chairman & members of the State Public Service Commission. The President consults the Governor in the appointment of judges of the High Courts and the judges of the District Courts. He also nominates one Anglo-Indian member to the State Legislature.

Judicial Powers: Like the President, judicially the Governor can grant pardon, respite, suspensions, remissions, commutations in respect of punishments/sentence passed by a court in law of that State. 

[2] The Chief Minister and the Council of Ministers

The post of Chief-Minister is an executive and elected head of government of each of twenty-nine states and two union territories (Delhi and Pondicherry). According to the Constitution of India, the Governor is a state's de jure (in law) head, but de facto (in fact) executive authority rests with the Chief Minister.

After state elections of the state legislative assembly, the Governor usually invites the party (or coalition if formed) with a majority of seats to form the government. The Governor appoints and swears in the Chief Minister, whose council of ministers are collectively responsible to the assembly. There are no limits to the number of terms that the Chief Minister can serve in the State. The Governor also appoints the council of ministers to the state legislature on consultation with the Chief-Minister.

[3] Advocate General

This post is the state counterpart to the post of Attorney General. The State Government in their respective states appoint an Advocate General to advice the State on legal difficulties from time to time.     

[B] State Legislature

State Legislature

Like the Central Government, our State Government also is of the Parliamentary type and follows closely the model of the Central Government. The Constitution of India provides for a legislature in each State and entrusts it with the responsibility to make laws for the state. However, the composition of a state Legislature can be different in different states. It can be either bicameral or unicameral. Presently, only six states (Andhra Pradesh, Bihar, J&K, Karnataka Maharashtra and UP) have bi-cameral legislatures. Twenty-Two States and Two Union Territories (Delhi and Puducherry) have uni-cameral Legislatures.

In case of a bicameral state legislature, the upper house is known as State Legislative Council (Vidhan Parishad) and the lower house as the State Legislative Assembly (Vidhan Sabha). Where there is only one House of the State Legislature, it is known as the State Legislative Assembly.

State legislature have exclusive powers over subjects enumerated in List II of the Seventh Schedule of the Constitution and concurrent powers over those enumerated in List III. Financial powers of legislature include authorization of all expenditure, taxation and borrowing by the state government. Legislative assembly alone has power to originate money bills. Legislative council can make only recommendations in respect of changes it considers necessary within a period of fourteen days of the receipt of money bills from Assembly. Assembly can accept or reject these recommendations.

The Governor of a state may reserve any Bill for the consideration of the President. Bills relating to subjects like compulsory acquisition of property, measures affecting powers and position of High Courts and imposition of taxes on storage, distribution and sale of water or electricity in Inter-State River or river valley development projects should necessarily be so reserved. No Bills seeking to impose restrictions on inter-state trade can be introduced in a state legislature without previous sanction of the President.

State legislatures, apart from exercising the usual power of financial control, use all normal parliamentary devices like questions, discussions, debates, adjournments and no-confidence motions and resolutions to keep a watch over day-to-day work of the executive. They also have their committees on estimates and public accounts to ensure that grants sanctioned by legislature are properly utilized.

[1] Vidhan Parishad (Legislative Council)

It is the Upper House of the State Legislature in those states which have a bicameral state legislature. As in the year 2017, there are 7 states which have a legislative council i.e. Andhra Pradesh, Bihar, Jammu and Kashmir, Karnataka, Maharashtra, Telangana, and Uttar Pradesh. It functions like the Rajya Sabha in nature.

Strength: Total not exceeding 1/3rd members of the Vidhan Sabha, and cannot be less than 40 members.    

Election: they are elected in the following manner;

a)   1/3rd of the total membership is elected by the electorates consisting of the members of the self-governing bodies in the state such as Municipalities, District Boards etc.

b)  1/3rd members are elected by the members of the Legislative assembly of the State.

c)   1/12th members are elected by an electorate of University Graduates.

d)  1/12th members are elected by the electorate consisting of the secondary school teachers having minimum 3 years of experience.

e)   1/6th members nominated by the Governor on the basis of their special knowledge/practical experience in literature, art, science, cooperative movement or social service.

Term: 6 years. One-third members retire every 2 years.

Qualifications: The elected members must be citizens of India, not less than 30 years of age, not holding any office of profit, not declared insolvent by any court of law, of sound mind and not disqualified by any other law in India.  

[2] Vidhan Sabha (Legislative Assembly)

Vidhan Sabha is also called the Lower House of the State.

Strength: Total not exceeding 500 members, and cannot be less than 60 members.    

Election: They are directly elected by the citizens of that state by way of National Elections or Universal Adult Franchise (18 years being the voting age).

Term: 5 years, subject to early dissolution or extended term due to invocation of state emergency. 

Qualifications: The elected members must be citizens of India, not less than 25 years of age, not holding any office of profit, not declared insolvent by any court of law, of sound mind and not disqualified by any other law in India.  

*******

CHAPTER-14

UNION TERRITORIES

Union Territories

Union Territories are governed by the President of India through an Administrator appointed by him. Upon considerations, a union territory may be provided with its own legislature and council of ministers. Union Territories of Delhi and Puducherry both have Legislative Assemblies. 

Delhi Administration

The territory of Delhi until 1991 and before the 69th Constitutional amendment was a Union Territory, after which it was declared to be the National Capital Territory of Delhi, famously known as the Delhi-NCR. It is administrated by a specially appointed post of Lieutenant Governor. The Union Territories of Andaman & Nicobar Islands and Puducherry is also administered by a Lieutenant Governor.  

List of Union Territories in India

There are 7 Union Territories recognized by the Union of India, they are;

1.  Chandigarh

2.  Dadra and Nagar Haveli

3.  Daman and Diu

4.  Lakshadweep

5.  Puducherry

6.  Andaman and Nicobar Islands

7.  NCT of Delhi

*******

 

 

 

 

CHAPTER-15

THE STATE OF JAMMU & KASHMIR

Special Status

Article 370 of the Constitution of India is a 'temporary provision' which grants special autonomous status to the State of Jammu and Kashmir. According to Article 370, except defence, external affairs and communication, the Parliament needs the concurrence of the State Government for applying all other laws. All the provisions of the Constitution which are applicable to the other States are not applicable to the State of Jammu and Kashmir.

Thus, the residents of Jammu and Kashmir live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result of this provision, Indian citizens from other States cannot purchase property in the State of Jammu and Kashmir. Article 370 embodied six special provisions for Jammu and Kashmir, which are as follows;

1.  It exempted the State from the complete applicability of the Constitution of India. The State was allowed to have its own Constitution.

2.  Central legislative powers over the State were limited, at the time of framing, to the three subjects of defence, foreign affairs and communications.

3.  Other constitutional powers of the Central Government could be extended to the State only with the concurrence of the State Government.

4.  The 'concurrence' was only provisional. It had to be ratified by the State's Constituent Assembly.

5.  The State Government's authority to give 'concurrence' lasted only until the State Constituent Assembly was convened. Once the State Constituent Assembly finalized the scheme of powers and dispersed, no further extension of powers was possible.

6.  The Article 370 could be abrogated or amended only upon the recommendation of the State's Constituent Assembly.

Historical Background

The State of Jammu and Kashmir's original accession, like all other princely states, was on three matters: defence, foreign affairs and communications. All the Princely States were invited to send representatives to India's Constituent Assembly, which was formulating a Constitution for the whole of India.

In the case of Jammu and Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State's constituent assembly. This was a "temporary provision" in that its applicability was intended to last till the formulation and adoption of the State's constitution. However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus, the Article has become a permanent feature of the Indian constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir.

Presidential Orders

In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir made a series of orders, which are as follows:

Presidential Order, 1950

It specified the subjects and articles of the Indian Constitution that corresponded to the Instrument of Accession as required by the clause b(i) of the Article 370.

Presidential order of 1952

It was issued on 15 November 1952, at the request of the state government. It amended the Article 370, replacing the phrase "recognized by the President as the Maharaja of Jammu and Kashmir" by "recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat". The amendment represented the abolition of the monarchy of Jammu and Kashmir.

Presidential order of 1954

It was a comprehensive order seeking to implement the 1952 Delhi Agreement. The provisions implementing the Delhi Agreement were:

1.  Indian citizenship was extended to the 'permanent residents' of Jammu and Kashmir (formerly called 'state subjects').

2.  The fundamental rights of the of Indian were extended to the state. However, the State Legislature was empowered to legislate on preventive detention for the purpose of internal security.

3.  The jurisdiction of the Supreme Court of India was extended to the State.

4.  The Central Government was given power to declare national emergency in the event of external aggression. However, its power to do so for internal disturbances could be exercised only with the concurrence of the State Government.

In addition, the following provisions which were not previously decided in the Delhi Agreement were also implemented:

1.  Financial relations between the Centre and the State were placed on the same footing as the other States.

2.  Decisions affecting the disposition of the State could be made by the Central Government, but only with the consent of the State Government.

 

Further Presidential Orders

Subsequent to the Presidential Order 1954, forty-seven Presidential orders have been issued between 11 February 1956 and 19 February 1994, making various other provisions of the Constitution of India applicable to Jammu and Kashmir. All these orders were issued with the 'concurrence of the Government of the State' without any Constituent Assembly. The effect of these orders has been to extend 94 of the 97 subjects in the Union List (the powers of the Central Government) to the State of Jammu and Kashmir, and 260 of the 395 Articles of the Constitution of India

***

 

 

 

 

 

 

CHAPTER-16

LOCAL GOVERNMENTS

Historical Background

Panchayats and Municipalities are units of local self-administration. While Panchayats operate in villages, Municipalities operate in towns.

The bedrock of the present local self-government in India was laid by the Panchayati Raj System. The history of Panchayati Raj starts from the self-sufficient and self-governing village communities. In the time of the Rig-Veda (1700 BC), evidence suggests that self-governing village bodies called ‘sabhas’ existed. With the passage of time, these bodies became panchayats (i.e. council of five persons).

Panchayats were functional institutions of grassroots governance in almost every village. They endured the rise and fall of empires in the past, to the current highly structured system. Village Panchayats and Municipalities resulted from the increasing demand by Indian leaders for autonomy at the national level. They were basically concessions to assuage the growing pressure and these bodies still had to work under government control and supervision. It was provided through various enactments.  The Government of India Act, 1935 also vested various powers of administration in the hands of panchayats. 

The makers of the Constitution of Independent India were not satisfied with the working of these bodies and therefore they included the following directive in Article 40 of the Constitution:

“The state shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.”

However, not much attention was paid to holding elections in these local units of representative democracy. This changed during the time of Prime Minister Rajiv Gandhi. The state legislatures were spurred to enact detailed laws pertaining to the working and organization of these local units by insertion of specific provisions in the constitution. The provisions were inserted through the 73rd and 74th Constitutional Amendment Acts, 1992 which inserted part IX and IXA into the Constitution.

Local Self-Government

Local self-government implies the trickling down of the power to rule to the lowest rungs of the political order. It is a form of democratic decentralization where the participation of even the grass root level of the society is ensured in the process of administration.

Special Features of The New System:

The new system contained the following novel provisions- direct elections by the people, reservation of seats for women, an Election Commission to conduct election, a Finance Commission to ensure financial viability.

These provisions were only guidelines which are to be supplemented by laws enacted by the state legislatures who have to decide the powers and functions of these bodies and other details. This is because ‘local government’ is a subject under the State list. The Union just outlined the scheme that had to be implemented by the states by making laws, or amending their existing laws to bring them into conformity with the provisions inserted through the 73rd and 74th amendments.

Elections to panchayats and municipalities have taken place in most of the states after laws to implement the guidelines in the provisions were enacted by the states. However, these amendments do not apply to Jammu & Kashmir, Meghalaya, Nagaland and National Capital Territory of Delhi.

PANCHAYATS

Part IX of the constitution envisions the following three-tier system of Panchayats:

1.  At the village level;

2.  The District Panchayat at the district level;

3.  The Intermediate Panchayat which stands between the villages and district Panchayats in states where the population is above 20 lakhs.

Composition

The seats in the panchayats are required to be filled by persons chosen by direct elections from territorial constituencies in the Panchayat area. The electorate is termed as the ‘Gram Sabha’.

The Sarpanch or the chairperson of each panchayat shall be elected according to the law passed by a state. Representation of Chairpersons of village panchayats and intermediate panchayats shall be ensured at the district level panchayats and of members of state and union legislature in panchayats of village level by the same law.

Reservation

Article 243D provides for reservation for Scheduled Castes and Scheduled Tribes in proportion to their population. For instance, If SCs constitute 30% population and STs 16% of the population, then 30% and 16% seats respectively will be reserved for them. 1/3rd of these reserved seats shall be for women belonging to SC or ST.

1/3rd of the seats shall be reserved for women. The state also has the option of ensuring reservation for the post of Chairperson of the panchayats by enacting a law.

Duration/Tenure

Every Panchayat continues for 5 years after its first meeting. However, it can be dissolved earlier as per state law. Elections must take place before the expiry of the said period. Elections must take place within six months of dissolution in case it happens. A reconstituted panchayat can only operate for the remainder of the period.

Qualification

Article 243F provides that all members qualified to be MLAs are qualified to be members of Panchayats with the difference that a person aged 21 is also eligible to be a member although he is not eligible to be an MLA.

Powers and Responsibilities

Articles 243G-243H provide the state government with the power to confer upon the panchayats such powers and authority as may be necessary to enable them to function as institutions of self-governance. They may be entrusted with following responsibilities-

1.  Preparing plans for economic development and social justice.

2.  Implementation of schemes for the above.

3.  Responsibilities pertaining to matters listed in the Eleventh Schedule that contains 29 items such as land improvement, minor irrigation, animal husbandry, fisheries, education, women and child development etc.

4.  A state may also authorize a Panchayat to levy, collect and appropriate taxies, duties and tolls through legislation that lays down the procedure to be followed as well as the limits of these exactions.

Finance Commission & Relevance

The state government appoints a Finance Commission every 5 years to review the financial position of the Panchayats and to make recommendations as to the distribution between the state and the Panchayats of the net proceeds of taxes, duties, tolls and fees leviable by the state which may be divided between them and how allocation would be made among various levels of Panchayats. Other features for consideration is what taxes, duties, tolls and fees may be assigned to the Panchayats and grant-in-aid to the Panchayats.

State Election Commission

Article 243K provides for the constitution of a State Election Commission headed by a State Election Commissioner appointed by the governor. This is to ensure free and fair election to the panchayats.

Powers of superintendence, direction and control of elections to the panchayats and preparation of electoral rolls for it are vested in the State Election Commission. To ensure independence of the Commission, it is laid down that the State Election Commissioner can be removed only in the same manner and on the same grounds as a Judge of the High Court.

Bar to Interference by Courts

Article 329 provides that courts shall have no jurisdiction to scrutinize the validity of a law relating to determination of constituencies or the allotment of seats, made under Article 243K. An election to a panchayat can be only called into question through an election petition that needs to be presented to appropriate authority as prescribed by law enacted by the State.

MUNICIPALITIES

Part IXA gives constitutional foundation to local self-government units in urban areas. It came into force on 1-6-1993. Some of its provisions are similar to Part IX such as Reservation of seats, Finance and Election Commissions.

It provides for two types of bodies:

a)   Institutions of self-government. (Article 243Q)

b)  Institutions for planning (Article 243ZX and 243ZE)

Municipalities come under the category ‘Institutions of self-government’. They are of 3 types:

a)   Nagar Panchayat, for areas that are being converted from rural to urban.

b)  Municipal Council for a smaller urban area.

c)   Municipal Corporation for a larger Urban area.

Article 243Q makes it mandatory for the states to constitute such units. However, in case an Industrial establishment in the area provides or proposes to provide municipal services, then the governor, after consideration of size of the area and other factors, can specify the area as an industrial township. It is not necessary to constitute a municipality in such an area.

Composition

The members are elected by direct elections. The state can enact a law to provide representation of the following:

a)   Persons having special knowledge or experience of municipal administration.

b)  Members of Lok Sabha, State Assembly, Rajya Sabha and Legislative Council, and

c)   The chairpersons of committees constituted under clause 5 of Article 243S.

d)  The chairperson is elected in the manner prescribed by the legislature.

Ward Committees

A municipality can have one or more territorial areas with a population of 3 lacs or more that are called wards. For such areas, it is obligatory to constitute a ward committee. The State legislature can make provision for its composition, territorial area and the manner in which the seats are filled.

The state legislature has the prerogative to constitute committees in addition to the wards committees.

Reservations

Reservations in favour of Scheduled Castes and Scheduled Tribes are required to be made in every municipality as provided by Part IX.

1/3rd of the seats that are filled by direct election need to be reserved for women that includes the quota for women belonging to SCs and STs.

The state can also make reservation to the office of chairperson through enacting legislation for the same. All reservations for SCs and STs for the office of chairperson shall expire when the period specified in Article 334 comes to an end.

Duration/Tenure

Every municipality has a term of 5 years commencing from the date of its first meeting. It can be dissolved earlier as well according to law. Article 243Q prescribes that a reasonable opportunity to be heard must be given to the municipality before it is dissolved.

Elections to the municipality must be completed before the expiry of its earlier term. In case the municipality that was constituted earlier is dissolved, elections to constitute a new one must be held within 6 months of dissolution. Such newly constituted municipality shall only continue for the remainder of the term.

Qualification

Article 243V provides that all members qualified to be MLAs are qualified to be members of a Municipality with the important difference that a person aged 21 is also eligible to be a member of a municipality although he is not eligible to be an MLA.

Powers and Responsibilities

Article 243W has conferred the power of enabling the municipalities with all such powers and authority as may be necessary to enable them to function as institutions of self-government.  More specifically, it has been mentioned that they may be given the responsibility of:

a)   Preparation of plans for economic development and social justice,

b)  implementation of schemes as may be entrusted to them, and

c)   governance in regard to matters listed in the 12th schedule. (This schedule contains 18 items such as Urban Planning, Regulation of Land Use, Roads and Bridges, Water Supply, Public Health, Fire Services, Urban Forestry, Slums etc.

The state legislature can also authorize a municipality to levy, collect and appropriate taxes, duties, tolls etc. Limits on such practice and the appropriate procedure can be laid down by the law. Various taxes, duties etc. collected by the State Government can also be delegated to the Municipalities. Grants-in-aid is given to municipalities from the consolidated fund of the state.

Finance Commission

A Finance Commission is appointed under Article 243-I by the State Government to review the financial position of the municipalities and make recommendations as to-

a)   The distribution between the state and the Municipalities of the net proceeds of taxes, duties, tolls and fees leviable by the state which may be divided between them and how allocation would be made among various levels of Municipalities;

b)  What taxes, duties, tolls and fees may be assigned to the Municipalities;

c)   Grant-in-aid to the Municipalities.

d)  The measures needed to improve the financial position of the Municipalities.

e)   any other matter that may be referred to it by the governor.

State Election Commission

Article 243K provides for the constitution of a State Election Commission headed by a State Election Commissioner appointed by the governor. This is to ensure free and fair election to the municipalities. 

Powers of superintendence, direction and control of elections to the municipalities and preparation of electoral rolls for it are vested in the State Election Commission. To ensure independence of the Commission, it is laid down that the State Election Commissioner can be removed only in the same manner and on the same grounds as a Judge of the High Court.

Bar to Interference by the Courts in Electoral Matters

The courts shall have no jurisdiction to examine the validity of a law relating to delimitation of constituencies or the allotment of seats made under Article 243ZA. An election to a municipality can only be called into question through an election petition that is presented to the appropriate authority in the manner prescribed by the law enacted by the state legislature.

PLANNING COMMITTEES

The 74th Amendment lays down that in every state two committees shall be constituted:

a)   At the district level a District Planning Committee. (Article 243ZD)

b)  In every metropolitan area, a Metropolitan Planning Committee. (Article 243ZB)

The composition and manner in which the seats are filled are required to be provided by a law to be enacted by the State Legislature. However, it has been laid down that-

In case of the District Planning Committee at least 4/5th of the members shall be elected by the elected members of the district level Panchayat and of the Municipalities in the district from amongst themselves. Their proportion would be in accordance with the ratio of urban and rural population of the district.

In case of Metropolitan Planning Committee at least 2/3rd of the members of the committee shall be elected by the members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan area from amongst themselves. The proportion of seats to be shared by them would be based on the ratio of the population of the Municipalities and of the Panchayats in the area.

The state legislature needs to make provision regarding:

a)   The functions relating to district planning that may be assigned to the district committees, and

b)  the manner in which the chairperson of a district committee may be chosen.

c)   The committee is required to prepare and forward the proposed plan of action to the state government.

d)  The state is required to make provision for the following when it comes to the Metropolitan Planning Committee:

e)   the representation of the Central and State governments and of such organizations and institutions as may be deemed necessary,

f)    the functions relating to planning and co-ordination for the Metropolitan area,

g)   the manner in which the Chairpersons of such committees shall be chosen.

Conclusion

In conclusion, local self-government is one of the most innovative and forward-thinking governance change processes our country has gone through. The noble idea of taking the governance of a country to the grass root level is indeed praiseworthy.

However, like every system in the world, this system also has its share of hits and misses. Problems of maladministration and misappropriation of funds are recurring. But this shall not stand in the way of efficient governance; and if these ill practices are rooted out, there would be no comparisons around the world to our system of local self-government. India has established a model system for the rest of the countries to follow.

***

 

 

 

 

 

CHAPTER-17

JUDICIAL SYSTEMS

Judicial System

Constitutionally, we do not have a federal system of judiciary, but it is based on unitary system. This can be concluded as unlike the United States of America, which is purely federal, we do not have separate jurisdictions for the Union Judiciary and the State Judiciary. That is, we cannot say that the State Courts are independent of the Union Court; meaning the Supreme Court cannot transgress into the working of the High Courts of respective states, and vice versa.  

The system that we observe is that the High Courts are governed and are bound by the rulings of the Supreme Court. Also, a citizen can appeal to the Supreme Court, in limited purview, challenging the order delivered by a High Court in India. This, add to the scope of the constitution being quasi-federal.

SUPREME COURT (Article 124-147)

Introduction

The Judiciary is an independent constitutional body, which is one of the pillar to democracy. Article 124(1) of the Constitution of India established the Supreme Court of India, appointing its head as the Chief Justice of India having its seat at New Delhi. The Supreme Court is the apex court of the country and is the protector of the Fundamental Rights guaranteed to every citizen of India. Apart from this function the Supreme Court also solves disputes between the States and the Centre, ultimately this court is the highest appellate body for all civil and criminal matters. The judicial strength of the Supreme Court is fixed at 31 judges.

Appeal by Special Leave

Under the provisions of Article 136 of our Constitution the Supreme Court also has the power to hear any appeal from any judgment, order, sentence (punishment), decree etc. passed by any court or tribunal in India. This power is exercised in nature of a residuary power, meaning thereby to meet the ends of justice such appeals are heard. No such appeals can be filed that arise from Armed Force Tribunal.

Advisory Jurisdiction

According to Article 143 of the Constitution, the President of India has the power to refer that question of law or fact, which has arisen or will arise in future, relating to public importance and the Supreme Court may after hearing such matter, refer to the President its opinion on the question of law or fact or both.

Power to do Justice

The Supreme Court in order to grant complete justice to the person before it, has the power under Article 142 of the Constitution to exercise its jurisdiction and pass any judgment or order in a matter pending before it for doing complete justice in the case.

Appointment of Judges

The Supreme Court of India is the highest judicial forum and final court of appeal under the Constitution of India, the highest constitutional court, with the power of judicial review. Consisting of the Chief Justice of India and a maximum of 31 other judges, it has extensive powers in the form of original, appellate and advisory jurisdictions. As the final court of appeal of the country, it takes up appeals primarily against verdicts of the high courts of various states of the Union and other courts and tribunals. 

Constitution of the Supreme Court

Initially the Constitution of India provided for a supreme court with a chief justice and 7 judges. In the early years, a full bench of the supreme court sat together to hear the cases presented before them. As the work of the court increased and cases began to accumulate, parliament increased the number of judges (including the CJI) from the original 8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008 (current strength). As the number of the judges has increased, they sit in smaller benches of two or three (referred to as a division bench) coming together in larger benches of five or more (referred to as a constitution bench) when required to settle fundamental questions of law. A bench may refer a case before it to a larger bench, should the need arise.

Eligibility of a judge of the Supreme Court: -

(1) A citizen of India not exceeding 65 years age as per Article 124.

(2) A High Court judge who has held the post for five years or longer.

(3) An advocate who has practiced in a High Court (or the Supreme Court) for ten years or longer.

Additionally, a distinguished jurist and technically this could include a scholar, though no judge has ever been appointed on this basis. The general rule of thumb when it comes to appointing existing High Court judges is seniority; more senior judges in these courts should be considered for elevation to the Supreme Court. However, where a particular judge has demonstrated exceptional ability or character, the order of superiority can be superseded. The reasons behind that particular judge being appointed need to be recorded in such cases.

Appointer of the Judges

Under this Article, the judges of the Supreme Court are to be appointed by the President of India. However, unlike the procedure followed in other countries, such as the USA, the appointment of Supreme Court judges in India happens with the involvement of the Judiciary. Article 124(2) says that the President shall appoint the judges.

For the appointment of any judge of the Supreme Court apart from the CJI, the Article also says that the Chief Justice of India must be consulted. Practically, collegium formed for the appointments of judges of high court and supreme court has the last say. Recommendations from collegium is like a carving on stone which is irrevocable.

Impeachment

There is a specific process allocated for impeachment/removal of judges of the Supreme Court. The process is a combination of the constitutional provisions and the Judges (Inquiry) Act, 1968, which is compiled as follows;

1.  A motion is presented to the President of India signed by atleast 100 members of the Lok Sabha or 50 members of the Rajya Sabha, thereafter being presented to the Speaker of the Chairman to the Parliament.

2.  An investigation report is to be generated a 3-member committee, being 2 sitting Supreme Court judges and 1 eminent jurist.

3.  The Judge can be impeached on two grounds being, misbehaviour and unsoundness of mind. If any of the same is concluded in the report, the said motion is raised in the parliament for vote.

4.  The motion has to be passed in special majority, that being atleast 2/3rd of the members being present and voting.

5.  If the motion stands passed the same is sent to the President for signing, if so done the impeachment process becomes final.

It is a point to observe that till date no judge has ever been impeached, but once in 1991-93 the motion was moved against Shri R. Ramaswamy of the Supreme Court.

Article 124-147

These articles are contained in the Chapter IV of the Constitution of India, under the heading of the Union Judiciary, the articles have the following headings;

a)   124 Establishment and constitution of Supreme Court.

b)  125 Salaries, etc., of Judges.

c)   126 Appointment of acting Chief Justice.

d)  127 Appointment of ad hoc judges.

e)   128 Attendance of retired Judges at sittings of the Supreme Court.

f)    129 Supreme Court to be a court of record.

g)   130 Seat of Supreme Court.

h)  131 Original jurisdiction of the Supreme Court.

i)    132 Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.

j)    133 Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to Civil matters.

k)  134 Appellate jurisdiction of Supreme Court in regard to criminal matters.

l)    134A Certificate for appeal to the Supreme Court.

m)135 Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court.

n)  136 Special leave to appeal by the Supreme Court.

o)   137 Review of judgments or orders by the Supreme Court.

p)  138 Enlargement of the jurisdiction of the Supreme Court.

q)   139 Conferment on the Supreme Court of powers to issue certain writs.

r)    139A Transfer of certain cases.

s)   140 Ancillary powers of Supreme Court.

t)    141 Law declared by Supreme Court to be binding on all courts.

u)  142 Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.

v)   143 Power of President to consult Supreme Court.

w) 144 Civil and judicial authorities to act in aid of the Supreme Court.

x)   145 Rules of Court, etc.

y)   146 Officers and servants and the expenses of the Supreme Court.

z)   147 Interpretation.

HIGH COURTS (Article 214-231)

There are 25 high courts at the state and union territory level of India, which together with the Supreme Court of India at the national level, comprise the country's judicial system. Each high court has jurisdiction over a state, a union territory or a group of states and union territories. Below the high courts is a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts and various other district courts. High courts are instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Indian constitution.

The high courts are the principal civil courts of original jurisdiction in each state and union territory. However, a high court exercises its original civil and criminal jurisdiction only if the subordinate courts are not authorized by law to try such matters for lack of pecuniary, territorial jurisdiction. High courts may also enjoy original jurisdiction in certain matters, if so designated specifically in a state or federal law.

However, the work of most high courts primarily consists of appeals from lower courts and writ petitions in terms of Article 226 of the constitution. Writ jurisdiction is also an original jurisdiction of a high court. The precise territorial jurisdiction of each high court varies. The appeal order is the following: tehsil/kotwali to criminal/civil courts to district court to high court to supreme court.

Each state is divided into judicial districts presided over by a district and sessions judge. He is known as district judge when he presides over a civil case, and sessions judge when he presides over a criminal case. He is the highest judicial authority below a high court judge. Below him, there are courts of civil jurisdiction, known by different names in different states. Under Article 141 of the constitution, all courts in India, including high courts, are bound by the judgments and orders of the Supreme Court of India by precedence.

Judges in a high court are appointed by the President of India in consultation with the Chief Justice of India and the governor of the state. High courts are headed by a chief justice. The chief justices rank fourteenth (within their respective states) and seventeenth (outside their respective states) on the Indian order of precedence. The number of judges in a court is decided by dividing the average institution of main cases during the last five years by the national average, or the average rate of disposal of main cases per judge per year in that High Court, whichever is higher.

The Calcutta High Court is the oldest high court in the country, established on 2 July 1862. High courts that handle a large number of cases of a particular region have permanent benches established there. Benches are also present in states which come under the jurisdiction of a court outside its territorial limits. Smaller states with few cases may have circuit benches established. Circuit benches (known as circuit courts in some parts of the world) are temporary courts which hold proceedings for a few selected months in a year. Thus, cases built up during this interim period are judged when the circuit court is in session. According to a study conducted by Bangalore-based NGO, Daksh, on 21 high courts in collaboration with the Ministry of Law and Justice in March 2015, it was found that average pendency of a case in high courts in India is 3 years.

List: High courts

The Madras High Court in Chennai, Bombay High Court in Mumbai, Calcutta High Court in Kolkata and Allahabad High Court in Allahabad are the oldest four high courts in India.

The following are the 25 high courts in India sorted by name, jurisdiction, principal seat (headquarters), permanent benches (subordinate to the principal seat), circuit benches of the high court.

Court

Jurisdiction

Principal seat

Benches

Allahabad High Court

Uttar Pradesh

Allahabad

Lucknow

 

Andhra Pradesh High Court

Andhra Pradesh

Amaravati

 

Bombay High Court

Goa, Dadra and Nagar Haveli, Daman and Diu, Maharashtra

Mumbai

Aurangabad, Nagpur, Panaji

 

Calcutta High Court

Andaman and Nicobar Islands, West Bengal

Kolkata

Port Blair, 
Jalpaiguri

 

Chhattisgarh High Court

Chhattisgarh

Bilaspur

 

Delhi High Court

National Capital Territory of Delhi

New Delhi

 

Gauhati High Court

Arunachal Pradesh, Assam, Mizoram, Nagaland

Guwahati

Aizawl, Itanagar, Kohima

 

Gujarat High Court

Gujarat

Ahmedabad

 

Himachal Pradesh High Court

Himachal Pradesh

Shimla

 

Jammu and Kashmir High Court

Jammu and Kashmir

Srinagar/Jammu

 

Jharkhand High Court

Jharkhand

Ranchi

 

Karnataka High Court

Karnataka

Bangalore

Dharwad, Gulbarga

 

Kerala High Court

Kerala, Lakshadweep

Kochi

 

Madhya Pradesh High Court

Madhya Pradesh

Jabalpur

Gwalior, Indore

 

Madras High Court

Pondicherry, Tamil Nadu

Chennai

Madurai

 

Manipur High Court

Manipur

Imphal

 

Meghalaya High Court

Meghalaya

Shillong

 

Orissa High Court

Odisha

Cuttack

 

Patna High Court

Bihar

Patna

 

Punjab and Haryana High Court

Chandigarh, Haryana, Punjab

Chandigarh

 

Rajasthan High Court

Rajasthan

Jodhpur

Jaipur

 

Sikkim High Court

Sikkim

Gangtok

 

Telangana High Court

Telangana

Hyderabad

 

Tripura High Court

Tripura

Agartala

 

Uttarakhand High Court

Uttarakhand

Nainital

 

 

Appointment of Judges

The essential qualifications/preconditions for appointment of a High Court Judge is provided under Article 217, which are as follows;

(1) A citizen of India not exceeding 62 years age as per Article 217.

(2) A judicial officer who has held the post for 10 years or longer at a subordinate post to that of a high court judge.

(3) An advocate who has practiced in a High Court for ten years or longer.

The process of appointment begins by the Chief Justice of the respective high court making a recommendation for the person so being appointed. Such recommendation must be approved by the Chief Justice of India. Thereafter, the President of India who is the constitutional authority to appoint judges (Article 143) shall appoint the judge by giving his assent.

Impeachment

There is a specific process allocated for impeachment/removal of judges of the High Court which is same as the Supreme Court. The process is a combination of the constitutional provisions and the Judges (Inquiry) Act, 1968, which is compiled as follows;

1.  A motion is presented to the President of India signed by atleast 100 members of the Lok Sabha or 50 members of the Rajya Sabha, thereafter being presented to the Speaker of the Chairman to the Parliament.

2.  An investigation report is to be generated a 3-member committee, being 2 sitting Supreme Court judges and 1 eminent jurist.

3.  The Judge can be impeached on two grounds being, misbehaviour and unsoundness of mind. If any of the same is concluded in the report, the said motion is raised in the parliament for vote.

4.  The motion has to be passed in special majority, that being atleast 2/3rd of the members being present and voting.

5.  If the motion stands passed the same is sent to the President for signing, if so done the impeachment process becomes final.

It is a point to observe that till date no High Court judge has ever been impeached.

Article 214-231

a)   214 High Courts for States.

b)  215 High Courts to be courts of record.

c)   216 Constitution of High Courts.

d)  217 Appointment and conditions of the office of a Judge of a High Court.

e)   218 Application of certain provisions relating to Supreme Court to High Courts.

f)    219 Oath or affirmation by Judges of High Courts.

g)   220 Restriction on practice after being a permanent Judge.

h)  221 Salaries, etc., of Judges.

i)    222 Transfer of a Judge from one High Court to another.

j)    223 Appointment of acting Chief Justice.

k)  224 Appointment of additional and acting Judges.

l)    224A Appointment of retired Judges at sittings of High Courts.

m)225 Jurisdiction of existing High Courts.

n)  226 Power of High Courts to issue certain writs.

o)   227 Power of superintendence over all courts by the High Court.

p)  228 Transfer of certain cases to High Court.

q)   229 Officers and servants and the expenses of High Courts.

r)    230 Extension of jurisdiction of High Courts to Union territories.

s)   231 Establishment of a common High Court for two or more States.

SUBORDINATE COURTS (Article 233-237)

The subordinate courts can be naively bifurcated into two parallel court systems- Civil Court and Criminal Courts. Just below the High Court, on the Civil side we have the District Court and on the Criminal side we have the Sessions Court. Likewise, there are Munsiff’s Courts in Tehsils and Judicial Magistrates in further lower hierarchy. At village level, we have Nayay Panchayats, Pachayat Adalat, Gram Kutchery and courts of similar nature that govern and handle disputes at the lowest level of Judiciary. We also have tribunals and forums who are right subordinate to the High Court like Consumer Protection Forum, Income Tax Appellate Tribunal, National Company Law Tribunal, Motor Vehicles Accidents Tribunal and many other as established by various acts.

Constitutionally, the relevance of subordinate courts is limited to appointment of District Judges and determination of class (types) of Magistrates, which is under the authority of the Governor. 

*******

CHAPTER-18

EMERGENCY PROVISIONS

Emergency Provisions Under the Constitution of India

The emergency provisions are contained in part XVIII of the constitution from Articles 352 to 360. The President of India has been given extraordinary power to declare an emergency to safeguard the sovereignty, unity, integrity and security of the country and the democratic political system. Those powers to President of India in Constitution are called emergency provisions. It is a unique feature of the Constitution which converts the federal structure into a unitary one without amending the constitution.  During declaration of emergency, the Central Government becomes the rider of the nation and the states go in complete control of the center.

The Constitution provides for three kinds of emergencies-

1.  National Emergency- (Article 352)

An emergency due to war, external aggression or armed rebellion may be referred to as national emergency. If the president of India is satisfied that a grave emergency exists whereby the security of India or any part is threatened whether by war or external aggression or an armed rebellion, then he may proclaim a state of national emergency for the whole of India or a part of it. National emergency maybe declared even before the actual occurrence of such a disturbance i.e. when threat to security is apprehended.

Where the Constitution simply uses the expression ‘Proclamation of Emergency’, it means National emergency under Article 352.

External and Internal Emergency

When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is declared on the ground of ‘armed rebellion’, it is known as ‘Internal Emergency’

Essentials for Proclamation

The President can proclaim this emergency only on a written recommendation of the Union cabinet headed by the Prime Minister. The proclamation made must be approved by both the houses of parliament i.e. the Lok Sabha and the Rajya Sabha within one month after the proclamation failing which it ceases to be in operation

Scope of Judicial Review

It means the right to challenge the proclamation of emergency in court of law. 42nd Amendment made the declaration of emergency immune from judicial review but this was removed by the 44th Amendment Act of 1978. Further, in the Minerva Mills case (1980), the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts or is absurd or perverse.

Duration of emergency

1.  The emergency continues for six months, when approved by both the house of Parliament.

2.  It can be extended to an indefinite period with an approval of the Parliament for every six months. It was added by the 44th Amendment Act of 1978. Before that, the emergency, once approved by the Parliament, could remain in operation as long as the cabinet desired.

3.  Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority that is,

(a) a majority of the total membership of that house, and

(b) a majority of not less than two-thirds of the members of that house present and voting.

This special majority provision was introduced by the 44th Amendment Act of 1978. Previously, such resolution could be passed by a simple majority of the Parliament.

Revocation of Proclamation

A proclamation of emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.

The President must revoke a proclamation if the Lok Sabha passes a resolution disapproving its continuation.

National Emergency Declared so far

This type of Emergency has been proclaimed three times so far in the years 1962, 1971 and 1975.

The first proclamation of National Emergency was issued in October 1962 on account of Chinese aggression in the NEFA (North-East Frontier Agency, now Arunachal Pradesh), and was in force till January 1968. Hence, a fresh proclamation was not needed at the time of war against Pakistan in 1965.

 

The second proclamation of national emergency was made in December 1971 in the wake of attack by Pakistan. Even when this Emergency was in operation, a third proclamation of National Emergency was made in June 1975 on the proposition that there is an imminent danger to the security of India being threatened by internal disturbances. Both the second and third proclamations were revoked in March 1977.

 

The first two proclamations were made on the ground of ‘external aggression’, while the third proclamation was made on the ground of ‘internal disturbance’.

Legal knowledge- It should be noted that after 1978, it is not possible to issue a Proclamation of Emergency on the ground of ‘internal disturbance’, short of an armed rebellion, because the words ‘internal disturbance’ have been substituted by the words ‘armed rebellion’ by the 44th Amendment Act of 1978.

2.  State Emergency (Article 356)

Article 356 provides that if the President, is satisfied that a situation has arisen in which the Government of the State cannot be carried on by the provisions of the Constitution, the President may issue proclamation of state emergency. Such emergency may be declared either on report of the Governor of the State or otherwise.

State emergency may also be proclaimed by the President where any state has failed to comply with or give effect to, any directions given by the Union, in exercise of its executive power to the State.

Declaration of emergency under Article 356 is also known as “President’s rule in the State” because the president assumes extraordinary powers and performs the functions of the State government.

Duration of State Emergency

1.  A proclamation imposing President’s Rule must be approved by both the Houses of Parliament within two months from the date of its issue.

2.  If approved by both the Houses of Parliament, the President’s Rule continues for six months. It can be extended for a maximum period of three years with the approval of the Parliament, every six months.

3.  Every resolution approving the proclamation of President’s Rule or its continuation can be passed by either House of Parliament only by a simple majority, that is, a majority of the members of that House present and voting.

Revocation of state emergency

A proclamation of President’s Rule may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval. The consequences of Presidents rule on proclamation of state emergency, the president may;

1.  Assume the functions of the state government and powers vested in the governor or any other executive authority in the state, except the high court

2.  Declare that the powers of the state legislature are to be exercised by the Parliament.

3.  Take all other necessary steps including the suspension of the constitutional provisions relating to anybody or authority in the state.

Example- President can dismiss the state council of ministers headed by the chief minister, it can either suspend or dissolve the state legislative assembly, it can pass the state legislative bills and the state budget.

Scope of Judicial Review

A nine judges bench of the Supreme Court in the case of S.R Bommai Vs Union of India (1994) has held that the validity of a Proclamation under Article 356 can be judicially reviewed to examine the following;

1.  Whether it was issued on the basis of any material

2.  Whether the material was relevant

3.  Whether it was issued mala fide.

State Emergency declared so far

For the first time, the President’s Rule was imposed in Punjab in 1951. Since then, the President’s Rule has been imposed on more than 100 occasions. Almost all the states have been brought under the President’s Rule, once or twice.

3.  Financial Emergency (Article 360)

Article 360 states that if the President is satisfied that a situation has arisen whereby the financial stability or the credit of India or any part thereof is threatened, President may declare a state of financial emergency.

Duration of financial emergency

1.  A proclamation declaring financial emergency must be approved by both the Houses of Parliament within two months from the date of its issue

2.  Once approved by both the Houses of Parliament, the Financial Emergency continues indefinitely till it is revoked i.e. there is no maximum period prescribed for its operation.

3.  A resolution approving the proclamation of financial emergency can be passed by either House of Parliament only by a simple majority, that is, a majority of the members of that house present and voting.

Revocation of financial emergency

A proclamation of Financial Emergency may be revoked by the president at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval. The Consequences of Financial Emergency can be held to be as;

1.  During the period such Proclamation is in operation, the executive authority of the Union extends to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions,

2.  Such a direction may include a provision requiring the reduction of salaries and allowances of all or any class of person serving a State or the Union

3.  All Money Bills or other Financial Bills may be reserved for the consideration of the president after they are passed by state legislature

Financial emergency declared so far

No emergency under article 360 has been declared so far, though there was a financial crisis in 1991.

***

 

 

CHAPTER-19

MISCELLANEOUS PROVISIONS & SCHEDULES TO THE CONSTITUTION

RIGHTS AND LIABILITIES OF THE GOVERNMENT AND PUBLIC SERVANTS

Constitutional Position

Our constitution views the Union and the States as juristic persons who are capable of making contracts, acquiring and owning property, carrying on trade or business, taking or defending legal actions in the same manner as a private person subject to modifications specified in the constitution.

Hence, there are certain features that are attached to the Government Units which are enumerated as follows:

1.  Power to acquire property- The Union and State can acquire property in several ways and forms such as through succession, Bona Vacantia, things underlying the ocean, compulsory acquisition or requisition by Law, acquisition under Executive power.

2.  Power to carry on trade- Article 298 provides that the Union or State government is competent to carry on any trade or business and make contract for that purpose, in exercise of its executive power. Such business shall, however, be subject to regulation by the competent legislature.  It also has the power to create a monopoly in its own favour in respect of any trade it carries out through legislation. The reasonableness of such law cannot be questioned by the courts.

3.  Power to borrow money- The Union and state government are also empowered to take loans.

4.  Government Contracts- Both Union and state government have the power to enter into contracts in a similar manner as private persons in relation to their respective spheres of executive powers. However, there is a definite procedure to be followed and the prerequisite formalities must be seen to. Otherwise, public funds may get depleted due to clandestine contracts. The formalities are laid down in Article 299.

5.  Suability of the Union and State- The Government of India may sue by the name of ‘Union of India’ while a State may sue by the name of that state, e.g., ‘State of Bihar’. Either government can bring a suit not just against private persons but also another government. As per article 131, the Union may bring a suit against one or more states; while the Union may sue another state or the Union. 

Tortious Liability of Government Servants

In England, there was the common law maxim that the’ king can do no wrong’.  This was superseded by the Crown Proceedings Act, 1947. However, since there was no such corresponding legislation, courts in India have no alternative other than following the existing case-law which is founded on the English theory of immunity of the state.

The existing law in India draws a distinction between sovereign and non-sovereign functions of the government. It holds that Government cannot be sued for torts committed by the government or its officers in exercise of a ‘sovereign function’ of a state. Few examples of sovereign functions are- commandeering of goods during war, improper arrest, negligence or trespass by police officers, loss of movables from government custody owing to negligence of officers.  However, gradually the supreme court has adopted a pro-people approach.

Case Laws

The Kasturi Lal case that propounded the theory of sovereign immunity has yielded to new theories and is no longer applicable since in the modern-day welfare state, the government functions are manifold and all of them cannot be said to be activities relating to exercise of sovereign power. 

In A Registered Society v. Union of India (1999) 6 SCC 667, the Supreme Court upheld the award of Rs. 10 lakhs by the High Court to a foreign passenger who was a victim of gang-rape committed by the railway employees in a room of a railway Yatri-Niwas booked in their name. Railways is a commercial activity. The employees deputed to run the railways and to manage the establishment that includes the railway stations and the Yatri Niwas are essential components of the government machinery carrying out commercial activity. If these employees commit a tort, the Union government will be held liable. The efficacy of Kasturi Lal case as a binding precedent has been eroded.

Placing the State above the law is unfair and unjust to the citizen. The ratio of Kasturi Lal case is applicable in limited and rare scenarios.

Suability of Public Servants

Though the state is immune from liability in certain cases owing to historical reasons, the Constitution does not grant any immunity to a public servant for his official acts which are unlawful under the ordinary law of the land. The only exception is that Article 361 grants limited immunity to the President and Governor for their political as well as personal acts while they are in office.  No such immunity is granted to ministers for any offence done in their personal capacity.

Civil Suits

The general law imposes certain conditions as regards liability of public servants given their peculiar position;

1.  If a contract made by a Government servant in his official capacity complies with the formalities laid down in Article 299, it is the government concerned which will be liable in respect of the contact and not the officer who executed the contact.

2.  In case of Torts, both the servant and Government will be held liable unless the act is an exercise of the sovereign functions of the state and unless -

3.  The act has been done, bona fide, in the performance of duties imposed by a statute;

4.  He is a judicial officer doing an act in discharge of his official duty.

Criminal Offences

In case of crimes, the criminal liability of a public servant is the same as that of an ordinary citizen except that-

1.  There is no liability for judicial acts or for acts done in pursuance of judicial orders. (ss. 77-78 Indian Penal Code)

2.  Officers, other than judicial, are also immune for any act which they, by reason of some mistake of law or fact, in good faith, believed themselves to be bound by law to do. (s. 76 Indian Penal Code)

3.  Where a public servant who is not removable from his office save by or with the sanction of the Central or State Government is accused of an offence, committed by him while acting or purporting to act in the discharge of his official duty, no court can take cognizance of such offence without the previous sanction of the Central government or the State Government, as the case may be. (Section 197, Criminal Procedure Code)

4.  For acts done for the maintenance or restoration of order in an area where martial law was in force, Parliament may exempt the officers concerned from liability by validating such acts by making an act of indemnity. (Article 34)

***

 

 

 

 

 

THE SERVICES AND PUBLIC SERVICE COMMISSIONS

Position of Civil Servants

A notable feature of parliamentary system of government is that while the policy of the administration is determined and laid down by the ministers responsible to the legislature, it is implemented and carried on ground by a large body of official who are politically neutral.

The officials form the ‘permanent executive’ as distinguished from the ministers who constitute the ‘political executive’. The political executive is chosen from the party in power and loses office as soon as its party loses majority but the permanent executive is appointed by a different procedure and doesn’t necessarily belong to the party in power. It helps to maintain the continuity of the administration and neutrality in politics that accounts for their efficiency.

The civil servants are experts in the technique of administration and details of administrative departments. They help in preventing the ministers from losing sight of the broader and serious questions of national urgency by getting involved into the details of day-to-day administration.

Power to prescribe conditions of service;

1.  The two matters pertaining to conditions of service which are substantively dealt with by our constitution are-

2.  Tenure of office of the public servants and disciplinary action against them;

3.  The constitution and functions of the Public Service Commissions, which are independent bodies to advise the Government on some of the vital matters relating to the services.

4.  Article 310(1) embodies the principle of service at pleasure. This means that any government employee may be dismissed at any time and on any ground, without giving rise to any cause of action for wrongful dismissal, except where the dismissal is in contravention of the constitutional safeguards. 

However, there are certain exceptions such as in case of some high officials such as Supreme Court judges, the Auditor General, the High court judges and the Chief Election Commissioner who shall not be removed from their offices except in the manner laid down in Articles 124, 148, 218 and 324, respectively.

Safeguards for Civil Servants

A civil servant shall not be dismissed or removed by any authority subordinate to that by which he was appointed. In other words, if he is to be removed from service, he is entitled to the consideration of his appointing authority or any other officer of corresponding rank before he is so removed.  The object of this provision (Article 311(1)) is to save a public servant from the caprices of officers of inferior rank.

The other security which is guaranteed by the constitution is that no dismissal, removal, or reduction in rank shall be ordered against a civil servant unless he has been given a reasonable opportunity of being heard in respect of the charges brought against him.

Public Service Commissions for the Union and the States

Article 315 provides that – There shall be a Public Service Commission for the Union; and a Public Service Commission for each State or a Joint Public Service Commission for a Group of States if the Parliament provides for the establishment of such a Joint Public Service Commission in pursuance of a resolution to that effect being passed by the State Legislatures concerned.

The number of members and their conditions of service shall be determined;

a)   By the president in the case of union or Joint Commission.

b)  By the Governor of a State in case of State Commission.

As per Article 316, the appointment of the Chairman and members of the commission shall be made by the president in case of Union or Joint Commission and by the Governor of a state in case of State Commission.  Half of the members shall be persons who have held office under the Government of India or of a State for at-least ten years.

The term of service of a member shall be six years from the date of his entering upon office, or until he attains the age of sixty-five years in the case of Union Commission or of Sixty two years in the case of State or Joint Commission.

Independence of the commissions

The constitution seeks to maintain the independence of the Public Service Commission from the Executive in several ways-

1.  The Chairman or a member of a Commission can be removed from office only in the manner and on the grounds specified in the constitution.

2.  The conditions of service of a member of the PSC shall not be varied to his disadvantage after his appointment. (Proviso to Article 318)

3.  The expenses of the commission are charged on the consolidated fund of India or of the State. (Article 322)

4.  Certain disabilities are imposed upon the chairman and members of the Commission with respect to future employment under the Government. (Article 319)

Functions of Public Service Commissions

That the service commission has the following functions;

1.  To conduct examination for appointments to the services of the Union and State.

2.  To advise on any matter so referred to them and on any other matter which the President or Governor of a State may refer to the appropriate Commission. (Article 320)

3.  To exercise such additional functions as may be provided for by an act of Parliament or of the Legislature of a State. (Article 321)

4.  To present annually to the president or the governor a report as to the work done by the Union or the State commission. (Article 323)

5.  To assist the States, if requested, in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required. (Article 320(2))

***

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MINORITIES, SCHEDULED CASTES AND SCHEDULED TRIBES

Minority Sections

Our Constitution is based on the ideals of equality and justice. Thus, as a natural consequence, there are certain provisions in our constitution for the protection of the weaker sections of our society such as minorities, scheduled castes and scheduled tribes. They are socially and economically backward and have lack of opportunities. Hence, to level the playing field and to ensure that these weaker sections can live up to their full potential, it became necessary to include these provisions.

Provisions for protection of minorities

a)   Religious Freedom- our constitution does not contain any provision for the furtherance of any particular religion as may raise legitimate apprehensions in the minds of those who do not belong to that religion.

b)  Linguistic and Cultural Rights- Article 29(1) provides that- “Any section of the citizens of India having a distinct language, script, or culture of its own shall have the fundamental right to conserve the same.

c)   Facilities for Instruction in Mother Tongue-   Under Article 350A, the Constitution directs every state to provide adequate facilities for instruction in mother-tongue at the primary stage of education to children belonging to linguistic minority groups.

d)  No Discrimination in State Educational Institutions- Under Article 29(2), no citizen shall be denied admission into any educational institution maintained by the State or receiving State aid, on grounds only of religion, race, caste, language, or any of them.

e)   Right to Establish Educational Institutions of their Choice- As per article 30(1), all minorities, whether based on religion or language, shall have the fundamental right to establish and administer educational institutions of their choice.

f)    No Discrimination in State Aid to Educational Institutions- Article 30(2) mandates that the state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

g)   No Discrimination in Public Employment- As per Article 16(2), no person can be discriminated against in matter of public employment, on the ground of race, religion or caste.

SC’s, ST’s & OBC’s

Provisions for upliftment of the Scheduled Castes and Tribes and other Backward Classes-

a)   The constitution has included safeguards for the advancement of the backward classes among the residents of India in order to ensure holistic all-round development of the country. These provisions fulfil the assurance of ‘justice, social, economic and political” which is enshrined in the very preamble of our constitution.

b)  Measures for the advancement of the Scheduled Castes and Scheduled Tribes are exempted from the general ban against discrimination on the grounds of race, religion, gender and caste contained in article 15.

c)   Article 335 mandates that the claims of the members of the Scheduled Castes and Tribes shall be taken into consideration, consistently with the maintenance of the efficiency of administration, in the making of appointments to the services and posts in connection with the affairs of the Union or of a State.

d)  As per Article 338, there shall be a National commission for the Scheduled Castes to be appointed by the president. It shall be the duty of the commission to investigate all matters relating to the safeguards provided for the Scheduled Castes under this constitution and to report to the president upon the working of those safeguards annually or at such intervals as it may deem fit, and the president shall cause all such reports to be laid before each House of Parliament.  A similar provision is there for the Scheduled Tribes under Article 338A.

e)   Under Article 339(2), the executive power of the Union shall extend to the giving of directions to any such state as to the drawing up and execution of schemes specified in the direction to be essential for the welfare of the Scheduled Tribes in the States.

f)    Seats shall be reserved in the House of the People for SCs and STs and also in the legislative assembly of every state. (Article 330)

***

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROVISIONS RELATED TO LANGUAGES

In the Indian subcontinent, there are around 1,652 spoken languages, including 63 non-Indian languages. Languages offered a major problem to the makers of the Constitution because of the plurality of languages spoken. The makers of the constitution of India had the cumbersome task of selecting some of these numerous languages as the recognised medium of official communication in order to save the country from a hopeless confusion.

Part 17 of the Constitution of India (i.e. Articles 343 to 351) makes elaborate provisions dealing with the official language of the Republic of India.

22 languages that were spoken by a total of 91 percent of the population were easily picked up as the major languages and included in the 8th schedule of the Indian Constitution.  Out of these, Hindi, including its kindred variants Urdu and Hindustani, could claim 46 percent. Hindi Devanagari script was accordingly prescribed as the official language of the Union, and, for the development of the Hindi language as a medium of expression for all the elements of the composite culture of India, the assimilation of the expressions used in the other languages specified in the Eighth schedule was recommended. (Article 351)

Although Hindi was prescribed for the official purposes of the Union, the makers of the constitution sought to afford relief to regional linguistic groups by allowing the respective state legislatures (by article 345) and the president (by article 347) to recognise some language or languages other than Hindi as the languages for intra-state official transactions.

Official Language

Article 343 mandates that the official language of the Union shall be Hindi in Devanagari script. But, for a period of fifteen years from the commencement of this constitution, the English language shall continue to be used for all the official purposes of the Union for which it was being used immediately before such commencement. Even after the expiry of the above period of 15 years, parliament may provide for the use of following for any purpose through legislation, being the English language or Hindi in Devangari Script.

Official Language Commission

Under Article 344, the constitution provides for the appointment of a commission as well as a committee of parliament to advise the president as to certain matters relating to the official language. It is the duty of the commission to make recommendations to the president as to the following;

1.  The progressive use of Hindi language for any of the official purposes of the Union;

2.  Restrictions on the use of the English language for any of the official purposes of the Union;

3.  The language to be used for proceedings in the Supreme Court and the High Courts and the texts of legislative enactments of the Union and the States as well as subordinate legislation made thereunder;

4.  The form of numerals to be used for any of the official purposes of the Union;

5.  Any other matters referred to the Commission by the President as regards-

a)   The official language of the Union, and

b)  The language for communication between the union and the states or between one state and another.

Special Directives relating to Languages

The constitution has laid down certain special directives relating to languages such as through Article 351 by preventing the neglect of Sanskrit and enriching Hindi by drawing upon Sanskrit.

***

SCHEDULES TO THE CONSTITUTION

Indian Constitution originally had eight schedules. Four more schedules were added by different amendments, now making a total of twelve schedules to the constitution. Schedules are basically tables which contains additional details not mentioned in the Articles of the Constitution.

The 12 Schedules of Indian Constitution

First Schedule

List of States & Union Territories, along with their respective territorial demarcations.

Second Schedule

Salary of President, Governors, Chief Judges, Judges of High Court and Supreme court, Comptroller and Auditor General.

Third Schedule

Forms of Oaths and affirmations.

Fourth Schedule

Allocate seats for each state of India in Rajya Sabha (233 seats).

Fifth Schedule

Administration and control of scheduled areas and tribes.

Sixth Schedule

Provisions for administration of Tribal Area in Assam, Meghalaya, Tripura, Mizoram & Arunachal Pradesh.

Seventh Schedule

Gives allocation of powers and functions between Union & States. It contains 3 lists-

1.  Union List (For central Govt) 97 Subjects.

2.  States List (Powers of State Govt) 66 subjects

3.  Concurrent List (Both Union & States) 47 subjects.

Eighth Schedule

List of 22 languages of India recognized by Constitution-

1. Assamese

2. Bengali

3. Gujarati

4. Hindi

5. Kannada

6.Kashmiri

7. Manipuri

8. Malayalam

9. Konkani

10. Marathi

11. Nepali

12. Oriya

13. Punjabi

14. Sanskrit

15. Sindhi

16. Tamil

17. Telugu

18. Urdu

19. Santhali

20. Bodo

21. Maithili

22. Dogri

Sindhi was added in 1967 by 21 Amendment

Konkani, Manipuri ad Nepali were added in 1992 by 71 amendment Santhali, Maithili, Bodo and Dogri were added in 2003 by 92 amendment

Ninth Schedule

Added by 1st amendment in 1951. Contains acts & orders related to land tenure, land tax, railways, industries.

Tenth Schedule

Added by 52nd amendment in 1985. Contains provisions of disqualification of grounds of defection.

Eleventh Schedule

By 73rd amendment in 1992. Contains provisions of Panchayati Raj.

Twelfth Schedule

By 74thamendment in 1992. Contains provisions of Municipal Corporation (Urban and Local Governements).

*******

CHAPTER-20

IMPORTANT CASE LAWS

Importance of Precedence

The pronouncements of judicial orders and judgements are inherently interpretations of law. When a judge decides a controversy, he not only settles the facts to the dispute but also settles the position of law with respect to the facts and law that was placed before the court and was applicable to that case. Once, such a position of law is made clear, it can be well said that the position of law for those specific set of facts have been made clear and the courts shall follow the ruling so pronounced in that case, to all similar and like cases that shall arise in future.

This following of a same legal pattern and deciding cases in accordance to previous decisions in same set of facts, is stated to be a system of following precedence. Precedence are merely judgments or orders of the same court or a superior court what shall be binding and be followed in future cases as to maintain unanimity in decisions given by a court of law. Even though ever case is different, there may be legal similarities that has been previously settled by the court.

The judgments of the Supreme Court are superior, applicable and preside over all the courts in India being High Courts, District Courts, Tribunals or any other judicial institution. They have to be followed and have a binding value over all of India. The judgments of the High Courts in India have binding value over all the District Courts and subordinate courts in that State only, whereas the judgment of the High Court over another High Court only has persuasive value. Within one High Court there are benches, like single bench (one presiding judge), division bench (two presiding judges), full bench (three presiding judges) and similarly Constitutional Benches being presided by five, seven and all preceding odd numbers. The judgment pronounced by a larger bench has a binding value over benches subordinate to it.

Thus, all in all the precedential system of law being made applicable is to maintain an unanimity and consistent system of justice delivery system, so that it reduces discretion and uphold the position of law.

Important Case Laws

(Relating to the Constitution of India)

Case Name

Held (Supreme Court)

On Basic Structure of the Indian Constitution

Re Berubari’s Case

It was decided by the Supreme Court that the Preamble is not a part of the Constitution and it is merely an introduction to the nature of our constitution. Therefore, preamble cannot give rise to any substantive powers of adjudication.

Golakhnath vs. State of Punjab

It was clarified by the Supreme Court that the Parliament had no power to amend the Fundamental Rights given to its citizens under the Indian Constitution.

Keshavanand Bharti Sripadagalvaru vs. State of Kerala

The case of Golakhnath vs. State of Punjab was over-ruled in this case and it was stated that the parliament has the right to amend the constitution including the fundamental rights guaranteed to the citizens under the Constitution. Furthermore, it was held that he ‘basic structure’ of the constitution cannot be amended. 

Minerva Mills vs. Union of India

It was held that fundamental rights and directive principles of the state are to run complementing each other. Further, the court added that ‘Judicial Review’ is part of the basic structure of the Indian Constitution and cannot be taken away. The court annulled the 42nd amendment to this effect.

S.P. Gupta vs. Union of India

Also known as the Judges’ Transfer case, it was said by the court that disclosure of transfer and appointment of judges is not detrimental to or a matter of great public importance, upholding the independence of the Judicial wing of our constitution.  

On Reservation/Minority Rights/Judicial Activism

Indira Gandhi vs. Raj Narain

In this case the 39th amendment to the constitution was struck down, which led to declaration of emergency in the year 1975. The amendment was made to effect that the person holding the post of the Prime Minister, his election by which he becomes the member of the parliament cannot be challenged; it was declared to be unconstitutional.

S.R. Bommai Case

In this judgment, the Supreme Court held Secularism to be part of the basic structure of the constitution which cannot be altered. Also, dissolution of the State Assembly by the President, a power given under Article 356 of the constitution, cannot be outside the preview of Judicial Review (challengeable in court of law). 

Indira Sawhney vs. Union of India

Also called the ‘Mandal’ judgment, it provided for reservation to backward classes in our society. It further held that reservation can be provided but it should not give advantage to non-backward classes, also called the ‘creamy layer’ of our society.

T.M.A. Pai Foundation Case

The Supreme Court said that minorities exercising their fundamental rights have the power to establish, administer and grant admissions in institutions run by such minority. 

Mohd. Ahmed Khan vs. Shah Bano Begum

The Supreme Court provided the petitioner, Shah Bano winning rights and to other Muslim women the right to be maintained by their husbands even after divorce, which was in diversion to their personal family laws (refer to Muslim personal laws).

Cases on Right to Life and Personal Liberty

ADM Jabalpur vs. Shivakant Shukla

Also, known as the Habeas Corpus Case (now over-ruled) held that upon invocation of emergency, no person can approach the court to invoke Article 21 and claim his right to life and personal liberty.  

Maneka Gandhi vs. Union of India

The right to go abroad is part of fundamental right under Article 21. Also, personal liberty cannot be taken away without reasonable, fair and non-arbitrary deprivation procedures. 

D.K. Basu vs. State of West Bengal

Any form of inhuman torture, cruelty or degrading treatment to any human being was held to be violative of Article 21. 

M.C. Mehta vs. Union of India

In this case the Supreme Court recognized environmental rights being read into Article 21 and declared that industrial activities posing threat to the environment substantially affects right to life guaranteed to the citizens under the Indian Constitution. Such industrial activities have to be stopped which have the potential to cause such environmental losses.  

Mohini Jain vs. State of Karnataka

&

Unnikrishnan vs. State of Andhra Pradesh

Right to education was recognized as a fundamental right under Article 21, granting free and compulsory basic education till the age of 14. This right suffers from poor execution of the state educational bodies to uphold the quality of state run institutions. 

HussainaraKhatoon vs. State of Bihar

The right to speedy trial was included to be a part of Article 21, the fundamental right to life and personal liberty.

People’s Union for Democratic Rights vs. Union of India

It was held by the Supreme Court that it is a labour’s right to be paid not less than minimum wages granted to such workers under law, if so done it would be unconstitutional, against human rights and violative of Article 21.

Recent Deliveries

Triple Talaq Case (ShayaraBano vs. Union of India)

Justices Rohinton Nariman, Uday Lalit and Joseph Kurien ruled that triple talaq is unconstitutional. It was said that what cannot be true in theology cannot be protected by law. He added that triple talaqis not recognized by the Holy text of ‘Koran’ and hence it couldn't be a practice to be protected under the right to religion as guaranteed under the constitution.

Right to Privacy Case

(Justice K.S. Puttaswamy (Retd.) vs. Union of India)

It was held by a nine-judges’ bench that right to privacy is a fundamental right guaranteed under Article 21 of the constitution.

Ban on ‘Lal-batti’

It was held by the Supreme Court in the year 2013 that red beacons are synonymous with the “Raj mentality” and are the “antithesis of the concept of a Republic”, thus putting a ban on the same. It was implemented by the Modi government in the year 2017 holding that “every Indian is special; every Indian is a VIP”.

Recognition of Third Gender

In April 2014, the Supreme Court recognized transgender persons as a third gender and ordered the government to treat them as minorities. The court also ordered to recognize them as educationally backwards and offer an extension in jobs, education and other amenities.

Coal Scam Ruling

The 'Coalgate' was a massive political scandal that plagued the UPA government in 2012. The scam came to light after the Comptroller and Auditor General of India (CAG) accused the government of India for allocating 194 coal blocks to public and private enterprises for captive use in a fraudulent manner. In 2014, the Supreme court cancelled 214 of the 218 coal blocks allocations.

Ruling on Section 377 I.P.C.

In 2013, the apex court upheld Section 377 of the Indian Penal Code, which discriminates against a section of individuals on the basis of their sexual orientation; holding that removal of Section 377 of the Indian Penal Code would be against the public policy in India. 

Shani Shignapur Temple Ruling

The Shani Shignapur temple in western part of Maharashtra state earlier did not allow women to worship in the temple. The Mumbai High Court thereafter held that it was the fundamental right of women to enter any place of worship that allows men to enter and offer prayers.

*******

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER-21

IMPORTANT LAW DOCTRINES

CONSTITUTIONAL LAW DOCTRINES

1.  Doctrine of Basic Structure

The basic structure doctrine is a principle that states that there are certain basic provisions in the constitution of India that cannot be altered or destroyed by the parliament through amendments.

However, an explicit definition of what constitutes a basic feature and what does not have not been provided by the courts. It is decided on a case by case basis. But there are some provisions such as democracy, federalism, independence of judiciary and secularism that are clearly basic features.

The doctrine emerged from the landmark case of Kesavananda Bharti v. State of Kerala (1973) which was adjudicated by a 7-judge bench. This doctrine has protected the constitution from arbitrary exercise of power by the parliament and is an important component in the checks and balances system as envisioned and envisaged by our founding fathers.

2.  Doctrine of Harmonious Construction

The doctrine of harmonious construction is adopted when there is an overlap between the entries or subjects mentioned in one list with that of another list in the schedule 7 of the Constitution.

This doctrine has brought harmony between the various lists referred to in Schedule 7 of the Indian constitution. Various topics are listed in this schedule in various lists. However, there may be a situation in which a list entry may overlap with another list. This is the time this doctrine enters the picture. It helps the words of the entries to be given wide amplitude.

In the case of Tika Ramji vs. UP, the Supreme Court applied this doctrine for the first time.

3.  Doctrine of Eclipse

The doctrine states that if any law contradicts fundamental rights, it does not die forever but becomes inactive. The inactive law is revived once this fundamental right is omitted from the constitution, alternatively, the law will have no effect on the enforcement of fundamental right till it is in existence. If a court strikes a part of the law, it is not enforceable. Therefore, an' eclipse' would be cast on it. The law is invalid but it still exists.

The eclipse is removed if another (probably a higher court) re-establishes the law or amends it by means of law. In the case of Bhikaji vs. Madhya Pradesh State, the Supreme Court first applied this doctrine to pre-constitutional law. In the case of Dulare Lodh vs. ADJ Kanpur, an extension of post-constitutional law was stated.

4.  Doctrine of Pith and Substance

This doctrine comes into view when there is a conflict in different lists between the various subjects. There is an interpretation of List 1 and List 2 of the Constitution of India.

There may be a situation where a topic in a list touches the topic in another list. This doctrine is therefore applied. Pith and Substance mean the true nature of law. The real topic is challenged and not its effect on another field.

In India, the doctrine was also used to give a degree of flexibility in the otherwise rigid distribution of powers. The reason for adopting this doctrine is that if all legislation were declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically limited. The Supreme Court applied this in the Bombay Vs F.N Balasar case.

5.  Doctrine of Incidental or Ancillary Powers

This principle adds to the Pith and Substance doctrine. What it means is that the power to legislate on a subject also includes the power to legislate on matters reasonably related to that subject. The power to impose taxes, for example, would include the power to search and seize in order to prevent tax evasion. However, power in connection with banking cannot be extended to include power in connection with non-banking entities.

However, it cannot be said that a subject is an auxiliary matter if it is explicitly mentioned in a State or Union list. For example, the tax authority is specified in specific entries in the lists and therefore the tax authority cannot be claimed as ancillary to the power relating to any other entry of the lists.

As in the case of Rajasthan vs. G Chawla AIR 1959, the power to legislate on a subject includes the power to legislate on an auxiliary matter that can reasonably be said to be included in the subject.

This does not mean, however, that the scope of power can be expanded to an unreasonable extent. The Supreme Court has consistently warned against this prolonged construction. For example, in R M D Charbaugwala vs State of Mysore, AIR 1962, SC held that betting and gambling is a state subject as stated in Entry 34 of the State list but does not include the power to impose taxes on betting and gambling because it exists as a separate item in the same list as Entry 62.

6.  Doctrine of Colourable Legislation

This is applied when the legislature has transgressed its power as mentioned in the constitution while enacting a law. The expression “colourable legislation” simply means what cannot be done directly, cannot be done indirectly too. It is the inherent substance that is material and not the outward appearance.

Hence there are certain situations when it seems that a particular legislation is within the power of the legislature but actually is a transgression of powers. This is when this doctrine comes into the picture.

It was applied by the Supreme Court of India in the case State of Bihar vs Kameshwar Singh wherein it was held that the Bihar Land Reforms Act was invalid.

7.  Doctrine of Severability

According to this doctrine, if there is an offending part in a statute, only the offending part and not the entire statute is declared void. Article 13 states that only the invalid portion should be deleted and not the whole portion. The valid part can be maintained.

However, it should be remembered that the remainder should not become ambiguous even after separation. If the remaining part is ambiguous, the entire statute is declared void and useless.

Supreme Court in the RMDC vs. UOI case stated that the doctrine of severability places more importance on substance than on form.

8.  Doctrine of Territorial Nexus

Doctrine territorial nexus says that laws made by a state legislature are not applicable outside the state, except when there is a sufficient nexus between the state and its objective. A state legislature can do the same. Such laws cannot be declared invalid on the argument that they are extraterritorial according to Article 245(2).

To determine whether a particular legislation is within the territorial nexus or not, this doctrine is applied. Article 245(1) states that the Parliament of India can make laws for the whole or any territory of India and hence this doctrine will have no impression on the effectivity of national legislations.

Supreme Court applied this doctrine in the case of Tata Iron Steel vs. the State of Bihar.

9.  Doctrine of Laches

The term Laches means delay. The doctrine of laches is based on the maxim that, ‘equity aids the vigilant and not those who slumber on their rights’ as described in Black’s Law Dictionary.

The natural consequence of this doctrine is that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party. Elements of laches include knowledge of a claim, unreasonable delay, neglect, which taken together hurt the opponent. It is well known that one who seeks any kind of remedy must come before the court within a reasonable time. Lapse of time violates equity and it is against the concept of justice.

Hence the issue came up whether delay can be a ground to deny fundamental rights under Article 32. It was said that denial of fundamental rights just on the ground of delay is not justified as fundamental rights are very serious in nature and there is no excuse for violating it except in exceptional cases where public health, morality etc. are at risk.

Supreme Court, under the case of Ravindra Jain vs UOI, stated that remedy under article 32 can be denied on grounds of unreasonable delay. However, there has been no case to overrule the above-mentioned case law by any subsequent court order.

***

 

 

 

 

 

 

 

CHAPTER-22

CASE LAWS

ARTICLE WISE COMPILATION OF CASES

(STUDY REFERENCE & RESEARCH)

Article-2, 3 & 4

1.  R.C. Poudyal vs. Union of India, AIR 1993 SC 1804

 

The present case deals with the constitutional validity Article 371-F of the Constitution of India vis-a-vis power of the Parliament to admit new States into Union under Article 2 of the Constitution, after special provisions were made for the State of Sikkim when it attained full-fledged Statehood. The Hon’ble Supreme Court upholding the constitutional validity of the aforesaid provision held that the power of Parliament under Art 2 is very wide but the same does not confer an, “unreviewable and unfretted power immune from judicial scrutiny”.

 

2.  Mangal Singh vs. Union of India, AIR 1967 SC 944

 

The Hon’ble Supreme Court in the present case while elucidating the scope of power conferred upon the Parliament by Article 2, 3 and 4 of the Constitution has pointed out that the law referred to in Article 2, and 3 may alter or amend the first schedule to the Constitution which sets out the names of the States and descriptions of the territory thereof and Fourth schedule allotting the seats to the States in Rajya Sabha.

 

3.    Mullaperiyar Environmental Protection Forum vs. Union of India (2006) 3 SCC 643

 

The Hon’ble Supreme Court upheld the constitutional validity of Section 108 of the State Reorganisation Act, 1956 while adjudicating a dispute related to the Mullaperiyar dam between the State of Kerala and State of Tamil Nadu. The Hon’ble Court held that the power of the Parliament to make laws under Art 3 and 4 of the Constitution is plenary and is not subjected to nor fettered by Article 246 and Lists II and III of the Seventh Schedule of the Constitution.

 

4.  In reference on Berubari AIR 1960 SC 845

A reference was made to the Hon’ble Supreme Court in the year 1960 with regard to the implementation of agreement relating to Berubari union between India and Pakistan. The Hon’ble Supreme Court pointed out that the powers given to Parliament to re-organise State under Art 3 and 4 of the Constitution cannot be availed of by it to cede any Indian territory to a foreign country.

5.  Andhra Pradesh State Council of Higher Education vs. Union of India (2016) 6 SCC 635

During the bifurcation of the State of Andhra Pradesh into State of Andhra Pradesh and State of Telengana a dispute arose with regard to the apportionment of assets, rights and liabilities of the institutions between the two successor States. The Hon’ble Apex Court held that when an existing State is bifurcated to form two new States, there must be an equal bifurcation of assets and liabilities of statutory bodies among two successor State as well to ensure welfare of public at large residing within those territories.

 

Article 5-11

 

1.  Louin De Raedt vs. Union of India AIR 1991 SC 1886

 

In the present case, a foreigner had been living in India since 1937 and for more than 5 years preceding the Constitution and he claimed Indian citizenship under Art 5(e) of the Constitution. The question that arose for consideration was whether he had an intention of staying in India permanently. The Supreme Court rejecting his claim held that mere residence is not enough and since he was staying in India on foreign passport with the permission of Indian authorities there was nothing to remotely show his intention of residing permanently in India.

 

2.  D.P. Joshi vs. State of Madhya Bharat AIR 1955 SC 334

 

The Supreme Court while testing the Constitution validity of the new rule which exempted the student who were having domicile of Madhya Pradesh from payment of capitation fee held that domicile and citizenship are two different concepts. Art 5 makes it clear because having a domicile is by itself not sufficient to confer a citizenship on the person.  

 

3.  Kuldip Nayar vs. Union of India AIR 2006 SC 3127

 

The amendment to the Representation of People’s Act deleting the requirement of domicile in the concerned State for getting elected to its Council of States was challenged as being violative of the principle of Federalism and basic structure of the Constitution.  Rejecting all the grounds in the petition the Hon’ble Apex Court held that it is no part of federal principle that the representatives of state must belong to that state. The word ‘representative of each state’ only refers to the members and do not import any further concept or requirement of residence in the state.

 

4.  Pradeep Jain vs. Union of India AIR 1984 SC 1420

 

The Hon’ble Supreme Court in the present case while repudiating the concept of State domicile for the purpose of admission to educational institutions held that Article 5 of the Constitution recognized only one domicile namely domicile in the territory of India.

 

 

5.  Smt Shanno Devi vs. Mangal Sain AIR 1961 SC 58

 

The Supreme Court while adjudicating an election petition interpreted the word ‘ordinary resident’ under Art 6(b)(i) of the Constitution to mean " resident during his period without any serious break ". The Court observed that it is not necessary that for every day of this period the person should have resided in India.

 

6.  Kulathil Mama vs. State of Kerala AIR 1966 SC 1614

 

The Supreme Court overruling its judgment in the case of Shanno Devi vs. Mangal Sain has interpreted the word ‘migration’ as envisaged in Art 6 and 7 of the Constitution in its broader sense to mean going or coming from one territory to another without bringing in the concept of domicile.

 

7.  State of Bihar vs. Amar Singh AIR 1955 SC 282

 

The Supreme Court held that a woman born and domiciled in India, going to Pakistan after March 1, 1947, would lose her India Citizenship under Art 7, even though her husband remained in India. Art. 7 of    the Constitution clearly overrides Art. 5. As the respondent had migrated from India to Pakistan after the 1st March, 1947, her case fell under Art. 7 of the Constitution  and that inasmuch  as  it was a case of an unauthorized issue  of  an invalid permit which had been properly cancelled the proviso to  Art. 7 did not apply and that therefore the respondent could not be deemed to be a citizen of India.

 

8.  State of Madhya Pradesh vs. Peer Mohd. AIR 1963 SC 645

 

The Hon’ble Supreme Court held that Art 9 of the Constitution applies to only those cases where a foreign citizenship has been acquired before and not after the commencement of the Constitution. The cases of acquisition of foreign citizenship post commencement of Constitution are dealt with under the provision of the Indian Citizenship Act, 1955.

 

9.  State Trading Corporation vs Commercial Tax Officer AIR 1963 SC 1811

 

The question which arose for consideration in this case was whether ‘Corporation” was a ‘citizen’ for the purpose of claiming freedom under Art 19(1)(g) of the Constitution. The Supreme Court answering the question in negative observed that the Constitution does not define citizenship. Art 5 to 9 of the Constitution deal with citizenship in certain circumstances only, but tenor of these Articles is such that they cannot apply to juristic person.

 

Article 12

 

1.  Rajasthan State Electricity Board vs. Mohan Lal & Ors 1967 AIR 1857 SC

 

The Hon’ble Supreme Court, while determining whether Rajasthan State Electricity Board can be held to be ‘State’ under Art 12 of the Constitution, held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions. It should-

(i) be created by the Constitution of India;

(ii) have power to make laws;

 

2.   Sukhdev Singh vs. Bhagat Ram AIR 1975 SC 1331

 

The Supreme Court while determining the controversy that whether the statutory corporations such as Oil and Natural Gas Corporation, Life Insurance Corporation, etc. are authorities within the meaning of Article 12 held these statutory corporations to be State as they were performing functions very close to governmental or sovereign functions. The Court observed that the Corporations are State when they enjoy

(i) Power to make regulations;

(ii) Regulations have force of law.

 

3.  Ramana Dayaram Shetty vs. The International Airport Authority 1979 AIR 1628 SC

 

The following five testes were laid down by the Hon’ble Supreme Court for an authority to be included in the definition of State under Art 12:

 (i) Entire share capital is owned or managed by State.

(ii) Enjoys monopoly status.

(iii) Department of Government is transferred to Corporation.

(iv) Functional character governmental in essence.

(v) Deep and pervasive State control

 

4.  Union of India & Ors vs R. C. Jain & Ors AIR 1981 SC 951

 

The Hon’ble Apex Court while determining whether the Delhi Development Authority is a ‘local authority’ under Article 12 of the Constitution laid down five tests. The Court held that to be a local authority, an authority must fulfill the following tests-

(i) Separate legal existence.

(ii) Function in a defined area.

(iii) Has power to raise funds.

(iv) Enjoys autonomy.

(v) Entrusted by a statute with functions which are usually entrusted to municipalities.

 

5.  A.R.Antulay vs. R.S.Nayak 1988 AIR 1531 SC

 

A seven-judge bench of the Hon’ble Supreme Court, while determining whether judiciary can be considered to a ‘State’ under Article 12 of the Constitution, observed that when rule making power of judiciary is concerned it is State but when exercise of judicial power is concerned it is not State. The Hon’ble Court held that, a judicial order which violates fundamental right is without jurisdiction and is therefore a nullity; and may be rectified by the Supreme Court which passed that order, in the exercise of its inherent jurisdiction.

 

Article 13

 

1.  Keshwa Madhava Menon v. State of Bombay, AIR 1951 SC 128

 

In the present case, the Supreme Court while testing the inconsistency of the Indian Press Emergency Powers Act, 1934 with the fundamental rights guaranteed under the Constitution has held that all laws in force at the commencement of the Constitution which are inconsistent with Part-III of the Constitution, shall be void to the extent of inconsistency. Article 13(1) had no retrospective effect but only prospective in its operation.

 

Doctrine of severability

 

2.  A.K. Gopalan v. State of Madras, AIR 1950 SC 27

 

The Hon’ble Supreme Court while applying the doctrine of severability in the preset case held that the preventive detention minus section 14 was valid as the omission of the Section 14 from the Act will not change the nature and object of the Act and therefore the rest of the Act will remain valid and effective.

 

3.  R.M.D.C. v. Union of India, AIR 1957 SC 628

 

The Supreme Court has laid down the following rules for the applicability of doctrine of severability in the present case:

(1) The intention of the legislature is the determining factor in determining whether the valid part of a statute is severable from the invalid parts.

(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid what remains is itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest had become unenforceable.

(3) Even when the provisions which are valid, are distinct and separate from those which are invalid if they form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.

(4) Likewise, when the valid and invalid parts of a Statute are independent and do not form part of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of legislature, then also it will be rejected in its entirety.

(5) The severability of the valid and invalid provisions of a Statute does not depend on whether provisions are enacted in same section or different section, it is not the form but the substance of the matter that is material and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein.

(6) If after the invalid portion is expunged from the Statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void as otherwise it will amount to judicial legislation.

(7) In determining the legislative intent on the question of severability, it will be legitimate to take into account the history of legislation, its object, the title and preamble of it.

 

Doctrine of Eclipse

 

4.  Bhikhaji v. State of M.P., AIR 1955 SC 781

 

The Supreme Court enunciated the doctrine of eclipse in the present case. In this case the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 though valid when enacted, but became void on the commencement of the Constitution in 1950 as they violated Article 19(1)(g) of the Constitution. However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st Amendment Act) so as to authorise the Government to monopolise any business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of such removal.

 

5.  K.K. Poonacha vs. State of Karnataka (2010) 9 SCC 671

 

The Supreme Court while testing the constitutional validity of Bangalore Development Authority Act, 1976 held that the doctrine of eclipse has been held to be applicable only to pre-Constitutional Laws which are governed by Article 13(1) and would not apply to post-Constitutional laws which are governed by Article 13(2).

 

Doctrine of Waiver of Fundamental Rights

 

6.  Bashesher Nath v. Income Tax Commissioner, AIR 1959 SC 149

 

The question that arose for consideration in the present case was whether or not, the assessee had waived his fundamental right under Article 14 by entering into the settlement with the Commissioner. The Hon’ble Supreme Court upheld unanimously that the petitioner could not waive his rights under Article 14 of the Constitution.

 

7.  Nar Singh Pal vs. Union of India AIR 2000 SC 1401

 

The Hon’ble Supreme Court held that fundamental rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppels against the exercise of Fundamental Right available under the Constitution.

 

Article 14

1.  Keshvananda Bharti vs. Union of India AIR 1973 SC 1461

 

The Hon’ble Apex Court in this landmark judgment opined that the Preamble to the Constitution emphasizes upon the principle of equality as basic to the Constitution. This means that even a constitutional amendment offending the right to equality will be declared invalid. Neither Parliament nor any State Legislature can transgress the principle of equality.

 

2.  Virendra Krishna Mishra vs. Union of India (2015) 2 SCC 712

 

The Hon’ble Supreme Court held that equality before law and equal protection of laws is the quintessence of Right to Equality, a Fundamental Right guaranteed under the Constitution of India. Equals cannot be treated unequally. Right to such equality cannot be arbitrarily denied to equals in the absence of a valid classification.

 

3.  Sri Srinivasa Theatre vs. Government of Tamil Nadu AIR 1992 SC 1004

 

The Hon’ble Supreme Court in the present case has explained that the two expressions ‘equality before law’ and ‘equal protection of law’ do not mean the same thing even if there may be much in common between the two things. Equality before law is a dynamic concept having many facets such as there shall be no privileged person or class and no one should be above law.

 

4.  S. Seshachalam vs. Bar Council of Tamil Nadu (2014) 16 SCC 72

 

It was held by the Hon’ble Apex Court in the present case that Article 14 forbids class legislation, it does not forbid reasonable classification of persons, object and transactions by legislature for purpose of achieving specific ends. Classification must not be arbitrary, artificial or evasive. When there is no reasonable basis for classification, such classification may be declared discriminatory.

 

5.  Subramanian Swamy vs. Raju (2014) 8 SCC 390

 

In the present case inclusion of all under the age of 18 year into a class called ‘juveniles’ under Juvenile Justice (Care and Protection of Children) Act, 2000 was held, valid as it provides separate scheme of investigation, trial and punishment for offences committed by them. Differences inter-se and within the under-18 category may exist, but so long as the broad feature of the categorization made are reasonably connected with the object targeted. Article 14 does not forbid such a classification.

 

6.  D.S. Nakara vs. Union of India AIR 1983 SC 130

 

In the present case the Government issued an office memorandum announcing a liberalised pension scheme for retired government servants but made it applicable to those who has retired after 31st March 1979. The Hon’ble Supreme Court held the fixing of cut-off date to be discriminatory as violating Article 14 on the ground that the division of pensioners into two classes on the basis of date of retirement was not based on any rational princip 

 

Article 15

 

1.  State of Madaras vs. Champakam Dorairajan AIR 1951 SC 226

 

In the present case, the Madras Government had reserved seats in State Medical and Engineering Colleges for different communities in certain proportion on the basis of religion, race and caste. The question that arose for consideration was that whether reservation of seats in Medical Colleges violated Article 15. The Hon’ble Apex Court held the law as violative of Article 15(1) because it classified student on the basis of caste and religion on the basis of merits. The court observed that the Directive Principles of State Policy cannot override the Fundamental Rights. Thus, the court gave liberal interpretation to the constitutional provision which led to the insertion of clause 4 to Article 15 enabling State to make special provisions for economically and socially backward classes.

 

2.  Balaji vs. State of Mysore AIR 1963 SC 649

 

In the present case, the question arose regarding the extent of Special Provision which States can make under Article 15(4) of the Constitution. On 13th July, 1962, the Mysore Government issued an order wherein 68% of the seats in all Engineering, Medical and Technical Colleges were reserved in favour of the SEBCs, SCs and STs and only 32% were left for general candidates. The order was challenged by the candidates who secured more marks than those admitted under the order and yet failed to get admission because of the government order. The Hon’ble Supreme Court held the order bad and said that it amounted to be a fraud upon the Constitution, plainly inconsistent with Article 15(4). While striking down the said Order the Court laid down the following principles:

a)   Clause (4) of Article 15 is a proviso or an exception to clause Article 15(1) and Article 29(2).

b)  For the purpose of Article 15(4) backwardness should be both social and educational and not either social or educational.

c)   The reservation made under Article 15(4) should be reasonable.

d)  A provision under Article 15(4) need not be in the form of legislation but can be made by an executive order.

e)   The further categorization of backward classes into backward and more backward is not warranted by Article 15(4)

 

3.  TMA Pai Foundation and Ors. Vs. State of Karnataka (2002) 8 SCC 481 

 

In the present case eleven judges bench of the Hon’ble Supreme Court looked into the question whether quotas are valid in Government aided and unaided minority institutions. In its ruling the bench held that quotas could be imposed for the benefit of “Weaker Sections” of society, but it did not specifically mention OBCs.

 

4.  PA Inamdar and Ors vs. State of Maharashtra and Ors (2005). 6 S.C.C. 537

 

The Supreme Court held that neither could the policy of reservation be enforced by the State nor any quota or percentage of admission carved out to be appropriated by the state in a minority or non-minority unaided educational institution. The judges opined that, “the state cannot insist on private educational institution which receives no aid from the state to implement State’s policy on reservation for granting admission on lesser percentage of marks i.e., on any criteria except merit.”

In order to nullify the aforesaid judgment the Parliament enacted the Constitutional 93rd Amendment, 2005, which added clause (5) to Article 15 of the Constitution.

 

5.  Ashok Kumar Thakur vs. Union of India (2007) 4 SCC 361

 

The Hon’ble Supreme Court upheld the constitutional validity of the 93rd Amendment as well as the Central Educational Institutions (Reservation in Admission) Act, 2006, enacted under Article 15(5) of the Constitution. The Court rejected the contention that Article 15(5) was contrary to Article 15(4) and also upheld the exclusion of minority educational institutions from the purview of Article 15(5). It also upheld adoption of “OBC” determined by National Commission of for Backward classes for the purpose of Article 16(4) as equally applicable to SEBCs in Article 15(5). The court also insisted for the exclusion of creamy layer from SEBCs as determined by the Commission for the purpose of Article 16(4). It declined to apply the creamy layer principle to Schedule Caste and Schedule Tribes. The court also suggested periodic review after every ten years. As far as the application of the Act to the private aided institution were concerned, Court left it undecided because it was not raised. 

 

Article 16

1.  K.C. Vasanth Kumar v. State of Karnataka AIR 1985 S.C. 1495

 

In the present case, the Hon’ble Supreme Court has suggested that the reservations in favor of backward classes must be based on mean test. It has been further suggested that the policy of reservations should be reviewed every five years or so and if a class has reached up to that level where it does not need reservation its name should be deleted from the list of backward classes.

 

2.   Indira Sawhney & OR’s v. Union of India AIR 1993 SC 477

 

This case is famously known as the Mandal Commission case. In the present case the Hon’ble Apex Court:

a)   Upheld Implementation of separate reservation for other backward classes in central government jobs.

b)  Ordered to exclude Creamy layer of other backward classes from enjoying reservation facilities.

c)   Ordered to restrict reservations within 50% limit.

d)  Declared separate reservations for economically poor among forward castes as invalid.

 

3.  State of Kerala V. N.M. Thomas AIR 1976 SC 490

 

The Supreme Court in the present case held that it was permissible to give preferential treatment to Scheduled Castes/Tribes under Article 16(1) outside Article 16(4) of the Constitution of India. The Court ruled that Article 16(1) being a facet of Article 14, would permit reasonable classification and, thus, envisaged equality between the members of the same class of employees but not equality between members of a separate, independent class. Classification on the basis of backwardness did not fall within Article 16(2) and was legitimate for the purposes of Article 16(1). The present case marked the beginning of a new judicial thinking on Article 16 and lead to greater concessions to SC, ST and other backward persons. If the Supreme Court had stuck to the view propagated in earlier cases that Article 16(4) was an exception to Article 16(1), then no reservation for any other class, such as army personnel, freedom fighters, physically handicapped, could have been made in services.

 

4.  T. Devadasan v. Union of India AIR 1964 SC 179

 

In the present case the Hon’ble Supreme Court struck down the “carry forward rule” as unconstitutional on the ground that the power vested in the government cannot be so exercised so as to deny reasonable equality of opportunity in matters of public employment for the members of classes other than backward classes. In this case reservation of posts to the members of backward classes had exceeded 50% and had gone up to 68% due to “carry forward rule.”

 

Article 17 and 18

1.  State of Karnataka v. Appa Bala Ingale AIR 1993 SC 1126

 

This was the first case which came before Supreme Court under this Article. In this case Harijan community was threatened with use of gun to show about their social disability. Supreme Court in this case convicted the respondents.

 

2.  Peoples Union for Democratic Rights vs. Union of India AIR 1982 SC 1473

 

The Hon’ble Supreme Court held that whenever a Fundamental Right contained in Article 17, 23 or 24 was being violated by a private individual, it would be the constitutional obligation of the State to take necessary steps to interdict such violation and ensure that such person should respect that right.

 

3.  State of M.P. vs. Ram Krishna Balothia AIR 1995 SC 1198

 

The validity of Section 18 of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 which excludes the application of Section 438 of Cr.P.C., 1974 to cases arising under the Act was challenged. Section 438 of Cr.P.C. empowers a Court of Sessions and the High Court to grant anticipatory bail in cases of anticipated accusations of non-bailable offences. In the present case the Apex Court upheld the validity of Section 18 of the Act.

 

4.  Balaji Raghavan vs. Union of India, AIR 1996 SC 770

 

A five judges Constitutional Bench of the Supreme Court has held that National Awards do not amount to titles within the meaning of Article 18(1). They should not be used as suffixes or prefixes. The Court directed that a high level committee should be appointed to look into the existing guidelines for conferring these National Awards.

 

Article 19

1.  Hamdard Dawakhana vs. Union of India AIR 1960 SC 554

 

The validity of the Drug and Magic Remedies (Objectionable Advertisement) Act, which put restrictions on advertisement of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases was challenged on the ground that the restriction on advertisement abridged the freedom. The Supreme Court held that an advertisement is no doubt a form of speech but every advertisement was held to be dealing with commerce or trade and not for propagating ideas.

 

2.  People’s Union for Civil Liberties vs. Union of India AIR 1997 SC 568

 

In this case, public interest litigation was filed under Article 32 of the Indian Constitution by PUCL, against the frequent cases of telephone tapping. The validity of Section 5(2) of The Indian Telegraph Act, 1885, which permits the interception of messages in accordance with the provision of the Section, was challenged. It was observed that “occurrence of public emergency” and “in the interest of public safety” is the sine qua non for the application of the provisions of Section 5(2). If any of these two conditions are not present, the government has no right to exercise its power under the said section.

 

3.  Indian Express Newspapers vs. Union of India 1985 2 SCC 434

The Hon’ble Supreme Court, in this case, observed that, Article 19 of the Indian Constitution does not use the phrase “freedom of press” in its language, but it is contained within Article 19(1) (a). There cannot be any interference with the freedom of press in the name of public interest. The purpose of the press is to enhance public interest by publishing facts and opinions, without which a democratic electorate cannot take responsible decisions.

4.  A. Abbas v. Union of India AIR 1971 SC 481

The case is one of the firsts in which the issue of prior censorship of films under Article 19(2) came into consideration of the Supreme Court of India. Under the Cinematograph Act, 1952, films are divided into two categories- ‘U’ films for unrestricted exhibition, and ‘A’ films that can be shown to adults only. The petitioner’s film was refused the ‘U’ certificate, and he challenged the validity of censorship as violative of his fundamental right of freedom of speech and expression. He contended that no other form of speech and expression was subject to such prior restraint, and therefore, he demanded equality of treatment with such forms. The Court, however, held that motion pictures are able to stir emotions more deeply than any other form of art. Hence, pre- censorship and classification of films between ‘U’ and ‘A’ was held to be valid and was justified under Article 19(2) of the Constitution.

 

5.  Bennet Coleman and Co. v. Union of India AIR 1973 SC 106

In this case, the validity of the Newsprint Control Order was challenged. The Order fixed the maximum number of pages which a newspaper could publish, and this was said to be violative of Article 19(1) (a) of the Indian Constitution. The government raised the contention that fixing the newsprint would help in the growth of small newspapers as well as prevent monopoly in the trade. It also justified its order of reduction of page level on the ground that big dailies devote a very high percentage of space to advertisements, and therefore, the cut in pages will not affect them. The Court held the newsprint policy to be an unreasonable restriction, and observed that the policy abridged the petitioner’s right of freedom of speech and expression. The Court also held that the fixation of page limit will have a twofold effect- first, it will deprive the petitioners of their economic viability, and second, it will restrict the freedom of expression as compulsorily reducing the page limit will lead to reduction of circulation and area of coverage for news and views.

 

6.  Bijoe Emmanuel v. State of Kerala 1986 3 SC 615

In the present case three children belonging to Jehovah’s witnesses were expelled from the school for refusing to sing the national anthem, although they stood respectfully when the same was being sung. They challenged the validity of their expulsion before the Kerala High Court which upheld the expulsion as valid and on the ground that it was their fundamental duty to sing the national anthem. On appeal, the Supreme Court held that the students did not commit any offence under the Prevention of Insults to National Honour Act, 1971. Also, there was no law under which their fundamental right under Article 19(1) (a) could be curtailed. Accordingly, it was held that the children’s expulsion from the school was a violation of their fundamental right under Article 19(1) (a), which also includes the freedom of silence.

Subsequently the Hon’ble Apex Court in the case of Shyam Narayan Chouksey vs. Union of India and Ors. Made it mandatory for all the cinema hall throughout the country to play 52 seconds National Anthem before starting of any movie. This order has subsequently been modified by the Hon’ble Supreme Court and now it is optional for the cinema halls to play the National Anthem before the movie.

7.  Kanhaiya Kumar v. State of Nct of Delhi  P. (CRL)558/2016

In the present case the students of Jawaharlal Nehru University organized an event on the Parliament attack convict Afzal Guru, who was hanged in 2013. The event was a protest through poetry, art, and music against the judicial killing of Afzal Guru. Allegations were made that the students in the protest were heard shouting anti-Indian slogans. A case therefore filed against several students on charges of offence under Sections124-A, 120-B, and 34 of the Indian Penal Code. The University’s Students Union president Kanhaiya Kumar was arrested after allegations of ‘anti-national’ sloganeering were made against him. Kanhaiya Kumar was released on bail by the Delhi High Court as the police investigation was still at nascent stage, and Kumar’s exact role in the protest was not clear.

 

Article 20

1.  Dayal Singh vs. State of Rajasthan AIR 2004 SC 2608

The Hon’ble Supreme Court held that the term ‘offence’ as ‘an act or omission made punishable by any law for the time being in force’. Thus, something would be an offence only if that thing is made punishable by a law in force. Further the Court ruled that penal statute modifying the rigours of law would be prospective and that a person could be punished for an offence committed by him in accordance with law as it existed on the date on which the offence was committed.

 

2.  Kedar Nath vs. State of West Bengal AIR 1953 SC 404

The Hon’ble Supreme Court while examining the enhanced penalty under the Criminal Law (Special Courts) Amendment Act, 1949 which amended the Prevention of Corruption Act, held that the enhanced punishment prescribed by the amended law, which came in force in 1949 could not be imposed on the accused for the offence committed in 1947, because of the prohibition contained in the second part of clause (1) of Article 20.

 

3.  Thomas Dana vs. State of Punjab AIR 1959 SC 375

It was held by the Hon’ble Apex Court that in order to claim protection of Article 20(2), it is necessary to show that:

a)   There was a previous prosecution;

b)  As a result of that prosecution, the accused was punished and

c)   The accused is being punished for the same offence again.

Unless all the three conditions are fulfilled, the Article does not become operative.

4.  Nandani Satpathy vs. P.L. Dani AIR 1978 SC 1025

The Supreme Court held that Section 160(1) of Cr.P.C., which barred the calling of a woman to police station was violated in this case. Further the question related to the scope of the protection contained in Article 20(3). The Court ruled that Article 20(3) extended back to the stage of police investigation not commencing in court only, since such inquiry was of an accusatory nature and could not end in prosecution. The ban on self-accusation and right to remain silent while an investigation or trial was underway, the Court viewed, extended beyond that case and protected the accused in regard to other offences, pending or imminent, which might deter him from voluntary disclosure of criminatory matter.

 

5.  State of Bombay vs. Kathikalu Oghad AIR 1961 SC 1808

Under Article 20(3) what is prohibited is compulsive evidence, compulsion is duress. In the present case, the Court observed that duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment or by threat of being killed, suffering some grievous bodily harm or being unlawfully imprisoned. ‘Duress’ also includes threatening, beating or imprisonment of wife, parent or child of a person.

 

Article 21

1.  Maneka Gandhi v. Union of India AIR 1978 SC 597

In the present case, the Supreme Court gave a new dimension to Art. 21 and held that the right to live the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. After this case Article 21 now protects the right of life and personal liberty of citizens not only from the Executive action but from Legislative actions also. A person can be deprived of his life and personal liberty if two conditions are complied with: a) there must be a law and b) there must be a procedure prescribed by that law, provided that procedure is just, fair and reasonable.

 

2.  Peoples Union for Democratic Rights v. Union of India 1983 SCR (1) 456

The Hon’ble Supreme Court held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the Constitution.

 

3.  Olga Tellis vs. Bombay Municipal Corporation AIR 1997 SC 301

This case is popularly known as ‘Pavement Dwellers case’ whereby a five-judge bench of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. 

 

4.  U.P. Avas Vikas Parishad vs. Friends Coop. Housing Society Limited AIR 1996 SC 114

In the present case, the right to shelter has been held to be a fundamental right which spring from the right to residence secured in article 19(1)(e) and the right to life guaranteed by article 21. To make the right meaningful to the poor, the state has to provide facilities and opportunities to build houses.

 

5.  Vincent vs. Union of India 1987 SCR (2) 468

The Supreme Court in the present case emphasized that a healthy body is the very foundation of all human activities Art. 47, a directive Principle of State Policy in this regard lays stress note on improvement of public health and prohibition of drugs injurious to health as one of primary duties of the state.

 

6.  P. Rathinam vs. Union of India 1994 SCC (3) 394

In the present case a Division Bench of the Supreme Court, took cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court supporting the decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his detriment disadvantage or disliking. The court argued that the word life in Art. 21 means right to live with human dignity and the same does not merely connote continued drudgery. Thus, the court concluded that the right to live of which Art. 21 speaks of can be said to bring in its trail the right not to live a forced life.

 

7.  Gian Kaur vs. State of Punjab 1996 SCC (2) 648

The Hon’ble Supreme Court overruled the decision of the Division Bench in the case of P. Rathinam and has put an end to the controversy and ruled that Art.21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life’ be read to be included in protection of life. The Supreme Court in the present case has also distinguished between Euthanasia and attempt to commit suicide. The court held that death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death that has already commenced.

 

8.  Kharak Singh vs. State of U.P. AIR 1963 SC 1295

The Hon’ble Supreme Court in the present case held that ‘personal liberty’ was not only limited to bodily restraint or confinement to prison only, but was used as a compendious term including within itself the variety of rights which go to make up the personal liberty of a man other than those dealt within Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in Article 21 takes in and compromises the residue.

9.  A.R. Antulay vs. R.S. Nayak AIR 1992 SC 170

A Constitution Bench of five judges of the Supreme Court dealt with the question and laid down certain guidelines for ensuring speedy trial of offences such as:

a)   Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried speedily.

b)  Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, appeal, revision and retrial.

c)   The concerns underlying the right of speedy trial from the point of view of the accused are:

d)  The period of remand and pre-conviction detention should be as short as possible.

e)   The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, enquiry or trial should be minimal; and

f)    Undue delay may well result in impairment of the ability of the accused to defend him.

10.       Unni Krishnan vs. State of Andhra Pradesh AIR 1993 SC 1858

A five judges Constitutional Bench of the Hon’ble Supreme Court held that right to education is implicit in the right to life and personal liberty guaranteed by Article 21 in the context of Article 45. Court further held that after the age of 14 years this right is circumscribed by limits of economic capacity of the State.

Article 22

1.  A.K. Roy vs. Union of India AIR 1982 SC 710

Popularly known as the NSA case, the Hon’ble Supreme Court in the present case by a majority of 4:1 upheld the constitutional validity of the National Security Act, 1947 and the Ordinance which preceded the Act. The Court held that the Act was neither vague nor arbitrary in its provisions providing for detention of persons on certain grounds, as acting in a manner prejudicial to the ‘defence of India’, ‘security of India’ and to ‘relations with a foreign power’. However, the Court issued a number of directions to safeguard the interest of detenues detains under the Act.

 

2.  D.K. Basu vs. State of West Bengal (1997) Cr. LJ 743 (SC)

In this case Supreme Court took serious note of the custodial violence and deaths in police lock up. The Hon’ble Supreme Court laid down certain guidelines to be followed in all cases of arrest and detention, till legal provisions are made as a measure to prevent custodial violence and death in police lock up, such as:

a) Clear identification of the police officer

b) Preparation of memo of arrest and attesting the same by a witness

c) Relatives and friends of the accused to be informed

d) Legal Assistance cannot be denied to the accused

e) Communication regarding the arrest to be sent to the other Headquarters within 12 hours of arrest

3. Joginder Kumar vs. State of Uttar Pradesh (1994) 4 SCC 260

The Supreme Court has laid down guidelines governing arrest of a person during investigation. The Court has held that person is not liable to arrest merely on the suspicion of complexity of the offence. There must be some reasonable justification in the opinion of the police officer effecting the arrest that such arrest was necessary and justified. This is intended to strike a balance between the needs of the police on one hand and the protection of human rights of citizens from oppression and injustice at the hands of the law enforcing agencies on the other.

 

Article 23-24

1.  Sanjit Roy vs. State of Rajasthan AIR 1983 SC 328

In this case it as been held that payment of wages lower than minimum wages to the person employed in Famine Relief Work is violative of Article 23. Whenever any labour or service is taken by the State from any person who is affected by drought and scarcity condition the State cannot pay him less wage than the minimum wage on the ground that it is given them to meet famine situations.

 

2.  Deena vs. Union of India AIR 1983 SC 1155

 

In this case it was held that labour taken from prisoners without paying proper remuneration was ‘forced labour’ and violative of Article 23 of the Constitution. The prisoners are entitled to payment of reasonable wages for the work taken from them and the court is under the duty to enforce their claims.

 

3.  M.C. Mehta vs. State of Tamil Nadu AIR 1997 SC 699

 

The Supreme Court has held that children below the age of 14 years cannot be employed in any hazardous industry, mines or other works and has laid down exhaustive guidelines as to how the State authorities should protect the social, economic and humanitarian right of millions of children working illegally in public and private sectors.

 

Article 25-28

 

1.  S.R. Bommai vs. Union of India AIR 1994 SC 1918

       

The Supreme Court held that “secularism is a basic feature of the Constitution of India”. The State treats equally to all the religions and religious denominations. Religion is a matter of faith and cannot be mixed with secular activities. Secular activities can be regulated by State by making a law.

 

2.  Sri Jagannath temple, Puri Management Committee vs. Chintamani Khuntia AIR 1997 SC 3839

 

The Court held that the management of a temple or maintenance of discipline and order inside the temple can be controlled by the State. Taking over management of a temple by law does not infringe Article 25 and 26. It is a secular Act.

 

3.  Ismail Farooqui vs. Union of India (1994) 6 SCC   360

Popularly known as the Babri Masjid Case the matter was referred to the Supreme Court for its advisory opinion by the President. The dispute that arose was that the Union Government had acquired the whole property surrounding the mosque and this was challenged as being violate of Article 25 and 26 of the Constitution. The Supreme Court held the Act valid as it does not interfere with the essential elements of religion. Further it was held by a majority that the State can, in exercise of its sovereign power acquire places of worship like mosques, churches, temples etc., which is independent of Article 300 A of the Constitution and per se does not violate Article 25 and 26 of the Constitution.

 

4.  N. Adityan vs. Travincore Devaswom Board (2002) 8 SCC 106.

The issue that arose in this case was that whether non-Brahmin can be appointed as Pujari in the Temple. The Supreme Court held that the Brahmins do not have monopoly over performing puja in a Temple and that not Brahmin can be appointed as a pujari if he is properly trend and well versed with rituals. Further, the Court observe that there is no justification in insisting that a Brahmin or Malyali Brahmin alone can perform the rites and rituals in the temple as part of the rights and freedom guarantee under Article 25 of the Constitution and further claim that any deviation would tantamount to violation of such guarantee under the Constitution.

 

5.     Rati Lal Panachand Gandhi vs. State of Bombay AIR 1954 SC 388

In the present case, the Bombay Public Trusts Act 1950 which provided for appointment, by a court, of the charity commissioner as a sole trusty of religious public trust was struck down as being violative of the rights of religious denominations under Article 26 (d) of the Constitution. The Hon’ble Supreme Court held that Article 26 does not interfere with the right of the State to acquire property. Also, the right to own the acquire property under Article 26 (c) is not a part of the basic feature of the Constitution.

 

1.  Arona Roy vs. Union of India AIR 2002 SC 3176.

In the present case, the validity of the New National Education Policy, 2002 which provided for value based education to school children bases of all religions was challenged as being violative of Article 28 and being anti-secular. The Court held that study of religions in school education is not against the secular philosophy of the Constitution. Further, it was held that Article 28 (1) did not prohibit education of religion dissociated from tenants, rituals, observances, ceremony, and modes of worship of a particular sect or denomination the Court distinguished between the “religious instructions” and “study of religion”.

 

Article 29 to 30

1.  Re, Kerala Educational Bill 1958 SC 956

 

The Supreme Court In the present case said that the fundamental right given to all minority under Article 30 (1) to establish and administer educational administration of their choice does not militate against the claim of the State to insist that in granting aid the state may not prescribed reasonable regulations to ensure the excellence of the institutions. Accordingly, the court in this case upheld certain conditions designed to protection and security to the ill-paid teachers who were rendering service to the nation and to protect backward classes as permissible restrictions, which the State can impose on minorities as a condition for granting aid to their educational institutions. However, the condition for granting aid should not be imposed in such a manner so as to take away the rights of the minority guaranteed by Article 30 (1).

 

2.  Frank Anthony Public School Employees Association vs. Union of India. (1986) 4 SCC 707.

 

The Supreme Court held that the statutory measures regulating terms and conditions of service of teachers and other employees of minority educational institution for maintaining educational standard and excellence are not violative of the fundamental rights of the minority who administer educational institution of their choice under Article 30 (1) of the Constitution.

 

3.  T.M.A. Pai Foundation vs. State of Karnataka, 2002 (8) SCC 712.

 

The Hon’ble Apex Court by a majority of 6:5 held that;

 

a.   The right to establish and administer educational institutions is guarantee to all citizens and minorities specifically under Article 30.

b.  The State is to be regarded as the unit for determining both linguistic as well as religious minority.

c.   Admission of students to un-aided minority institution cannot be regulated by the State or a University but it can provide the qualifications and minimum conditions of eligibility in the interest of academic standards.

d.  An aided minority educational institution has the right to admit students belonging to the minority but it may be required by the State Government to admit a reasonable number of non-minority students.

e.   Un-aided institution can charge any fees but no institution can charge capitation fees (The law laid down in Unnikrishnan vs. State of Andhra Pradesh was partly overruled)

f.    The basic ratio of St. Stephens College Case is correct, but rigid percentage cannot be stipulated.

 

4.  P.A. Inamdar vs. State of Maharashtra AIR 2005 SC 3226

 

In this case the Apex court made effort to clarify and settled to issues not settled by T.M.A. Pai case and Islamic Academic Case. A seven Judge Bench of Hon’ble Apex Court held as follows:

 

a.    In un-aided private professional institution, the scheme for reservation of seats is violative of Article 30 and 19 (1) (g).

b.  Private un-aided professional institution can have its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly or in any form.

c.    Legal provisions made by the State legislatures to monitor the admission procedure and fee fixation do not violate the right of minorities under Article 30 (1) or the right of minorities and non-minorities under Article 19 (1) (g) and they are in nature of reasonable restrictions in the interest of the minority.

d.  Capitation fee is not to be permitted.

e.   As regards the admission procedure of private un-aided institution there is nothing wrong in holding an entrance test for one group of institution imparting same the similar education.

f.    The right conferred by Article 30 is a nature of protection of minorities. No doubt, it protects minority institution from the regulatory legislations framed under Article 19 (6) but they are not immune from regulatory control.

g.   To establish an educational institutional as a fundamental right

h.  The pre-dominance of linguistic students hailing from the State in which the minority educational institution established should be present. The same principle applies to the religious minority also.

 

This judgment of the Hon’ble Apex Court led Parliament to in Act Article 15 (5) where Government has right to reserve sheets for socially and educationally backward classes

 

Article 32

2.  Fertilizer Corporation Kamgar Union vs. Union of India AIR 1991 SC 344

 

The Hon’ble Apex Court observed that the question whether a person has the locus to file a proceeding depends mostly and often whether he possesses a legal guide and that right is violated. But in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligation to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or Article of the Constitution.

 

 

3.  Balco Employees Union (Regd.) vs. Union of India AIR 2002 SC 350

 

In the present case, the Apex Court laid down the following parameters for the invocation of the remedy by way of public interest litigation:

 

a.    Where the concerns underlying a petition are not individualist but are share widely by a large number of people.

b.    Where the affected persons belong to the disadvantaged Sections of the Society.

c.    Where judicial law making is necessary to avoid exploitation.

d.    Where judicial intervention is necessary for the protection of the sanctity of democratic institution.

e.    Where administrative decisions related to development are harmful to the resources such as air or water.

 

4.  Trilokchand Motichand vs. H.B. Munshi AIR 1970 SC 898

 

The question that arose before the Apex Court was that whether there is any period of limitation prescribed within which the remedy under Article 32 can be invoked. The Hon’ble Court rejected the petitioner’s writ petition on the grounds of delay but the judges deferred on the question as to what should be the reasonable time for invoking the remedy under Article 32. Mittar J. favoured the application of limitation Act (3 years), Sikri J. favoured the limitation of (1 year), Hegde J. took the view that there should be no prescribed period of limitation and Hidayatullah C.J. felt that no hard and fast rule can be adopted in this matter.

 

5.  S.A. Khan vs. State of Haryana AIR 1993 SC 1152

 

In this case it was held that when the statutory alternative remedy was available to the petitioner against the order of suspension the writ petition under Article 32 was not maintainable.

 

6.  State of Karnataka vs. State of Tamil Nadu (2017) 3 SCC 362

 

The Court in the present case held that it is the duty of Supreme Court to provide a protective umbrella for the sustenance of fundamental right of the citizen of India. The protection of fundamental right has to be interpreted keeping in mind the social, economic and environmental issues. Though Article 262 of the Constitution read with the Inter-state Water Dispute Act 1956 bars exercise of jurisdiction under Article 32, the said bar is not absolute in certain amount of scope still exists for exercise of jurisdiction under Article 32.

 

Article 33 & 34

1.  Ram Sarup vs. Union of India AIR 1965 SC 247

In this case, the Petitioner who was subject to the Army Act, 1950, was tried by the general Court-martial and sentenced to death. The sentence was confirmed by the Central Government. He filed a petition before the Supreme Court under Article 32 contending that the provisions of the Army Act infringe Article 14 and his trial was vitiated under Article 22 (1). The Supreme Court rejected his petition and held the provision of Army Act valid on two alternative ground: (a) They did not infringe Article 14; (b) Even if they did, they would be valid under Article 33.

2.  Prithi Pal Singh Bedi vs. Union of India AIR 1982 SC 1413

 

In this case certain provisions of Army Act, 1950 were challenged as being violative of Article 21. Rejecting the challenge, the Supreme Court ruled that under Article 33, Parliament has the power to restrict or abrogate any of the fundamental right in their application to member of the Armed Forces so as to ensure the proper discharged of duties and maintenance of discipline amongst them.

 

3.  Naga Peoples Movement of Human Right vs. Union of India AIR 1998 SC 431

 

In the present case, the Armed Forces (Assam and Manipur) Special Powers Act, 1958, was held to be Constitution valid. Thus, Hon’ble Supreme Court held that the Act has been enacted to confer certain powers to the Armed Forces when deploy in aid of civil power to deal with situation of internal disturbance in disturbed areas

 

Article 36-38

7.  Minerva Mills vs Union of India (AIR 1980 SC 1789)

 

The question that arose before the court was whether the directive principles of State policy enshrined in Art IV can have primacy over the fundamental rights conferred by Part III of the Constitution. The Hon’ble Court considered the meaning of Socialism as to crystallize a socialistic state securing to its people socio-economic justice by interplay of Fundamental Rights and the Directive Principles. Further the Court held that the doctrine of harmonious construction should be applied because neither of the two has precedence to each other. Both are complementary therefore they are needed to be balanced. 

 

8.  Unnikrishnan vs State of Andhra Pradesh 1993 SCC (1) 645

 

In the present case the Court was of the view that Fundamental Rights and Directive Principles are not exclusive to each other therefore they should not be read in exclusion. Moreover, the Court said that the Fundamental Rights are the means through which the goals enumerated in Part IV are achieved.

 

9.  State of Madaras vs. Champakam Dorairajan AIR 1951 SC 226

 

In this case a Government order which was passed in pursuance of Article 49 of the Constitution was held to be violative of Fundamental right guaranteed under Article 29(2) of the Constitution of India and hence invalid. The court ruled that the Fundamental Rights were enforceable and the Directive Principles are not, and so the law made to implement the Directive Principle could not take away the Fundamental right. The Directive Principles should confirm, and run as subsidiary, to the Fundamental Rights.

 

10.              Lala Ram vs. Union of India (2015) 5 SCC 813

 

The Hon’ble Supreme Court held that “Salus populi (est) suprema lex”, means that the welfare of the people is supreme law. A State instrumentality must serve society as a whole and must not grant unwarranted favours to a particular class of people without any justification, at the cost of others. Article 38 and 39 of the Constitution provide that the State must strive to promote the welfare of the people of the State, especially the young, the old, the women and the weaker section of the society bu protecting their economic, political and social life.

 

11.              Indian Handicrafts Emporium and Ors. Vs. Union of India and Ors., (2003) 7 SCC 589

 

The Hon’ble Supreme Court while dealing with the case of a total prohibition reiterated that ‘regulation’ includes ‘prohibition’ and in order to determine whether total prohibition would be reasonable, the Court has to balance the direct impact on the fundamental right of the citizens as against the greater public or social interest sought to be ensured. Implementation of the Directive Principles contained in Part IV is within the expression of ‘restriction in the interests of the general public’.

 

 

Article 39

 

12.              Madhu Kishwar vs. State of Bihar AIR 1996 SC 1870

 

In this landmark case, the Hon’ble Supreme Court ruled that on the death of the last male holder in an agricultural tribal family, the dependent family female member will have the constitutional remedy of continuing to hold the land so long as they remain dependent on it to earn their livelihood. This was done with a view to protect the economic interests of the tribal women who are dependent on agriculture for their livelihood. The Court came to this conclusion on the basis of Article 39(a) which obligates the State to secure to all men and women equally the right to an adequate means of livelihood

 

13.              Sanjeev Coke Manufacturing Company vs. Bharat Coking Company Limited AIR 1983 SC 239

 

In the present case the constitutional validity of the Coking Coal Mines (Nationalization) Act, 1972 and the Coal Mines (Taking Over of Management) Act, 1972 was under challenge. The Hon’ble Apex Court said that when Article 39(b) refers to material resources of the community, it does not refer only to the resources owned by the community as a whole but it refers also to the resources owned by individual members of the community.

 

14.              United India Insurance Company Limited vs. Manubhai Dharmasinhbhai (2008) 10 SCC 404

 

Post the enactment of the Insurance Regulatory and Development Authority Act, 1999 the monopoly over the business of insurance was ended and the insurance companies were required to compete with others in the field, but the same did not mean that the public-sector insurance company must have a level playing field with the private insurance companies. The Apex Court observed that as a matter of policy, the insurance companies are bound to regulate all the contracts of insurance having the statement of Directive Principles in mind but fairness and reasonableness on the part of insurance company must appear in all of its dealings.

 

15.              State of Kerala vs. B. Renjith Kumar (2008) 12 SCC 219

 

The Hon’ble Supreme Court while holding that State Government cannot differentiate between in the matter of pay scale between officers presiding over Industrial Tribunal and District judge, the Court said that although the doctrine of “equal pay for equal work” was originally propounded as a part of the Directive Principles of State Policyas enshrined in Article 39(d) of the Constitution of India, having regard to the mandate of equality and inhibition against discrimination in Arrticle 14 and 16, in service jurisprudence, the doctrine as assumed the status of Fundamental Right.

 

16.              Bandhua Mukti Morcha vs. Union of India AIR 1984 SC 802

 

The Hon’ble Supreme Court read Article 21 and 23 with such Directive Principles as Article 39€ and (f) and Article 41 and 42 to secure the release of bonded labourers and free them from exploitation, the court observed that the right to live with human dignity enshrined in Article 21 of the Constitution derives its life breath from the Directive Principles of State Policy and particularly Article 41 and 42.

 

17.              Hussainara Khatoon v. State of Bihar 1980 (1) SCC 81.

 

The Hon’ble Supreme Court of India in this landmark judgment held that legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possible eventuality.

 

Article 41

 

1.   AIIMS Students Union vs. AIIMS AIR 2001 SC 3262

 

The Supreme Court noted the possible conflict between Article 46 on one hand and Article 41 and 47 on the other in the matter of education. Any reservation in favour of one under Article 46, to the extent of the reservation is an inroad on the right of the others to work and to learn under Article 41 and 47.

 

2.  Radhakrishna Mills vs. SIR AIR 1954 Mad 686

 

The Madras High Court held that the Article 41 does not obligate the State to render compensation to the workers whose continuous employment suffers as a result of a governmental action eg. shortage of supply of electricity.

 

3.  Indian Drugs and Pharmaceuticals Ltd. Vs. Workmen (2007) 1 SCC 408

 

 The Supreme Court has included right to livelihood as a part to right to life under Article 21 of the Constitution. In this case the Supreme Court has held that this does not mean that the State may be compelled by affirmative action to provide adequate means of livelihood or work to the citizens. The ground reality is that the number of available jobs is limited and hence the Courts must take realistic view of the matter and must exercise self-restraint.

 

Article 42

 

1.  DBM Patnaik vs. State of Andhra Pradesh AIR 1974 SC 65

 

The Supreme Court has suggested that the Article 42 may benevolently be extended to living conditions in jails.

 

2.  Mohini Jain vs. State of Karnataka AIR 1992 SC 1858

 

The Supreme Court has sought to give a very broad connotation to the right to education. The Supreme Court has observed that the State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens.

 

3.  Unnikrishnan vs State of Andhra Pradesh 1993 SCC (1) 645

 

In this case the Supreme Court invoking Article 45 of the Constitution has restricted the right to education upto the age of 14 years which was adopted in Article 21A of the Constitution of India

 

Article 42 and 43

 

1.  DS Nakara vs. Union of India AIR 1983 SC 130

 

The Constitutional Bench of the Supreme Court has held that the pension not only compensation for the loyal service rendered in the past, but also  by the broad significance it is social welfare measure rendering socio-economic justice by providing economic security in the fall of life when physical and mental prowess is ebbing corresponding to the ageing process and, therefore one is required to fall back upon savings.

 

2.  Hindustan antibiotics vs. Workmen AIR 1967 SC 948

 

The Supreme Court has rejected the argument that the pattern of wage fixation in case of government companies in public sector should necessarily be different from companies in private sector, arguing that Article 39 and 43 would be disobeyed if the distinction is made between the same. class of labourers on the ground that some of them are placed in the state enterprise and others in private enterprise.

 

Article 44

 

1.  Vishwa Lochan Madan v. Union of India and others (2014) 7 SCC 707

 

In this case the Supreme Court issued notices to the central government, State governments, All India Muslim Personal Law Board (AIMPLB) and Darul Uloom, an Islamic seminary, in the matter of the existence of parallel Islamic and Shariat Courts in the country, which are posing a challenge to the Indian judicial system. A direction from the court was also sought to restrain these organizations from interfering with the marital status of Indian Muslim citizens or passing any judgments, remarks, fatwas or deciding matrimonial disputes amongst Muslims.

 

2.  Md. Ahmed Khan v. Shah Bano Begum 1985 (1) SCALE 767

 

In this case, a Muslim woman claimed for maintenance form her husband under S.125 of Cr.P.C. after she was given triple talaq pronouncements by her husband. The Supreme Court held that Muslim Women have a right to get maintenance from her husband under s.125 and commented that Art.44(3) of the Constitution of India has remained in the dead light. However, the then Rajiv Gandhi led government has overturned the Shah Bano case decision by Muslim Women (Right to Protection on Divorce) Act, 1890 which curtailed the right to maintenance of a Muslim Woman.

 

3.  Sarla Mudgal v. Union of India AIR 1995 SC 1531

 

In this case the question arose whether a Hindu husband by embracing Islam can solemnise a second marriage. The court held that this would amount to nothing but merely abusing the personal laws. It was held that a Hindu marriage can be dissolved under the Hindu Marriage Act, 1955 only and by converting into Islam and marrying again does not dissolve the marriage under Hindu Marriage Law and thus, it would be an offence under S.494(5) of The Indian Penal Code, 1860. The judge in this case opined that it is high time that a uniform civil code be introduced and that Art.44 be taken out of cold-storage.

 

Article 45-50

 

1.  Ashok Kumar Thakur vs. Union of India

(2008) 6 SCC 1

 

In this case it has been held that social empowerment is not a measure for only socially and educationally backward classes but has to be for the socially and economically backward classes.

 

2.  Unnikrishnan vs State of Andhra Pradesh 1993 SCC (1) 645

 

In this case the court reprimanded the government institutions for being reluctant with the enforcement of article 45 and held that every child who is deprived of the right to education can issue a writ of mandamus against the appropriate authority for the enforcement of their deprived right. Though the issue in both the cases were related to higher education, the end result of these cases was that free and compulsory primary education was held to be a fundamental right flowing from Article 21 of the Constitution. Another fascinating aspect of the Unnikrishnan case is that the court traced the source of the right to education not only from Article 41, 45 and 46 of the DPSP but also from the International Covenant for Economic Social and Cultural Rights.

 

3.  Consumer Education and Research Center vs. Union of India AIR 1995 SC 922

 

The Supreme Court in this case has brought occupational health hazards to workers within the coverage of Article 21 by reading Article 21, 39(c), 41, 43, 48-A. Accordingly, health and medical care to protect the health and vigour of a worker while in service or post retirement has been held to be a Fundamental Right.

 

4.  State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534

 

The Supreme Court in the present case upheld that a total ban on the slaughter of cows of all ages and calves of cow and calves of she-buffaloes, male and female, is quite reasonable and valid and in consonance with the Directive principles.

 

5.  MC Mehta vs. Union of India AIR 1997 SC 734

 

In this case the Supreme Court has issued several directions in order to protect the Taz Mahal from deterioration on account of environmental pollution.

 

Article 51-A

 

1. AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC 428

 

In this case a three-Judge Bench of the Hon’ble Apex Court made it clear that fundamental duties, though not enforceable by writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In case of doubt, peoples' wish as expressed through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. The fundamental duties must be given their full meaning as expected by the enactment of the Forty-second Amendment. The Court further held that the State is, in a sense, 'all the citizens placed together' and, therefore, though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is, collectively speaking, the duty of the State.

 

2. Mohan Kumar Singhania & Ors. v. Union of India & Ors., 1992 Supp (1) SCC 594

 

In this case a governmental decision to give utmost importance to the training programme of the Indian Administrative Service selectees was upheld by deriving support from Article 51-A(j) of the Constitution, holding that the governmental decision was in consonance with one of the fundamental duties.

 

3. State of U.P. v. Yamuna Shanker Misra & Ors., (1997) 4 SCC 7

 

The Hon’ble Supreme Court interpreted the object of writing the confidential reports and making entries in the character rolls by deriving support from Article 51-A(j) which enjoins upon every citizen the primary duty to constantly endeavour to strive towards excellence, individually and collectively.

 

4. Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar Pradesh & Ors., 1986 (Supp) SCC 517

 

In this case a complete ban and closing of mining operations carried on in the Mussoorie hills was held to be sustainable by deriving support from the fundamental duty as enshrined in Article 51-A(g) of the Constitution. The Court held that preservation of the environment and keeping the ecological balance unaffected is a task which not only Governments but also every citizen must undertake. It is a social obligation of the State as well as of the individuals.

 

5. T.N. Godavarman Thirumalpad v. Union of India & Ors., (2002) 10 SCC 606

 

In this case a three-Judge Bench of the Apex Court Court read Article 48-A and Article 51-A together as laying down the foundation for a jurisprudence of environmental protection and held that "Today, the State and the citizens are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wild life and to have compassion for living creatures". 

 

Article 52-62

 

1. S.K. Singh vs. VV Giri AIR 1970 SC 2097

 

Originally the elected members of the Legislative Assembly were not included in electoral college to elect the President. In the present case, the Hon’ble Supreme Court ruled that the term ‘State’ in Article 54 did not include Union Territories. After this pronouncement, the Constitutional (Seventh Amendment) Act 1992 added an explanation to Article 54 saying that the term ‘State’ in Article 54 and 55 includes the National Capital territory of Delhi and Union Territory of Pondicherry.

Further in this case it was held that requirement laid down by Parliament that very person must be  nominated  by  two electors   as proposer  and  seconder is a reasonable requirement relating to regulation of election to the office of  President and cannot be held to be a curtailment of      the right  of a candidate to stand as candidate under Article 58

 

2. Narayan Bhasker Khare v. The Election Commission of India AIR 1957 SC 694

 

The Hon’ble Supreme Court has held that it would not entertain any petition challenging the Presidential election before the completion of electoral process and declaration of the results. The reason for this is that if a doubt or dispute arising in connection with the election of the President is brought before the court before the whole election process is concluded then conceivable the entire election may be held up till the expiry of five years term which will involve a non-compliance of the mandatory provision of Article 62. Further it was held that a person who is neither a candidate nor an elector could not file a petition to challenge the Presidential election.

 

3. Jaya Bacchan vs. Union of India AIR 2006 SC 2119

 

The Hon’ble Supreme Court held that it was well settled that where the office carries with it certain emoluments or the order of the appointment states that the person appointed was entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments and stated that what was relevant was whether pecuniary gain is ‘receivable’ in regard to the office and not whether pecuniary gain, in fact, received or received negligibly.

 

4. re. Presedential Poll AIR 1974 SC 1682

 

The Hon’ble Supreme Court in its advisory jurisdiction ruled that the election of the President can be held when a State Assembly has been dissolved under Article 356 and its members are unable to participate in the election. The election to the office of the President must be held, before the expiration of the term of the President notwithstanding the fact that at the time of such election the Legislative Assembly of a State is dissolved. The election to fill the vacancy in the office of the President is to be held and completed having regard to Articles 62(1).

 

5. Purno Agitok Sangma vs. Pranab Mukherjee AIR 2013 SC 372

 

The Hon’ble Supreme Court held that in order for an office to be an office of profit, the office must carry various pecuniary benefits or must be capable of yielding pecuniary benefits.

 

6. Baburao Patel and ors. vs. Zakir Hussain and ors. AIR 1968 SC 904

 

In this case the election of Dr. Zakir Hussain as the President of India in the year 1967 was challenged on the round that the 17 candidates who were nominated for the elections did not subscribe to the oath required under Article 84(a) of the Constitution read with Article 58(1)(c) thereof. The Presidential election was upheld as being valid on the ground that some qualifications which may be necessary for election to the House of the People, they need not necessarily apply to the election for the office of the President, where there is a specific provision in Article 58(1) itself. Thus, in the view of specific provision being provided under Article 58(1) (a) and (b), the sub-clauses (a) and (b) of Article 82 should not be unnecessarily applied.

 

Article 72

1. Kehar Singh vs. Union of India AIR 1989 SC 653

The Hon’ble Supreme Court in this case unanimously held that the powers under Article 72 of the Constitution are of widest amplitude and it may not be possible to lay down any precise, clearly defined and sufficiently channelized guidelines for the same and it can contemplate myriad kind of cases with facts and situations varying from each case to case. Further the court observed that the President’s power under Article 72 falls squarely within the judicial domain and can be examined by the Court by way of judicial r