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

Study Material

CONSTITUTIONAL LAW

Constitution of India: A brief history

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.

Source of the Indian Constitution-

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

 

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.

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

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:-

[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.

[B] 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.

[C] 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."

[D] 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.

[E] 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).

[F] 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.

[G] 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.

[H] 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.

[I] 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 casteism 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.

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

2.             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.

3.             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.

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

5.             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.

 

 

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, the Union government and 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.

 

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.

*******

 

 

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 toan 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.

*******

 

 

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.

Classification of Directive Principles

Directive Principles may be classified under the following three categories:

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

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

2.    Striving towards an equitable distribution pattern of resources

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

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

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

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

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

2.    Development of cottage industries (Article 43)

3.    Securing a uniform civil code (Article 44)

4.    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)

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

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

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

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

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

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

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

3.    Proper and humane working conditions (Article 42)

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

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

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

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

8.    Provision of maternity leave (Article 42)

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

Directives contained in other part of the constitution-

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.

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

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

3.    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.

*******

 

 

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.

 

 

 

EMERGENCY PROVISIONS

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 emergencyto 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.

Durationof 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 declaredso far, though there was a financial crisis in 1991.

*******

 

AMENDMENT PROCEDURES (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 atleast half (50%) of the State Legislatures in India, and each State has to pass the bill by a special majority.

4.    Lastly, the basis structure 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. 

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 concerning law competitive examinations 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

2016

 

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

123rd
Amendment
Bill

2017

Seeks to grant constitutional status
to National Commission on
Backward classes
(not passed by Parliament)

*******

 

 

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).

*******

 

 

JUDICIAL SYSTEMS

SUPREME COURT

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.

HIGH COURTS

High Courts are one subordinate courts to the Supreme Court and are bound by the decisions of the Apex Court. It has jurisdiction to try cases within a State and Union Territories. There are 24 High Courts in India and 17 benches to such courts. It is the supreme judicial body in a State.

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 Article 214 of the Indian Constitution.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.

*******

 

 

UNION AND STATE LEGISLATURE

[A] Union Legislature

[1] The Parliament

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

The President

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.    

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.  

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. 

[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. 

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

[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] 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.  

[4] 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.  

*******

[C] 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 ofUnion 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

*******

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

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.

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

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.

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. 

Hussainara Khatoon 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 (Shayara Bano 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 talaq is 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.

*******