THE CONSTITUTION OF INDIA
-An In-depth Analysis-
1. Historical development of the Constitution of India
2. Drafting of the Constitution of India
3. Characteristics and Features of the Constitution of India
4. Preamble to the Constitution of India
5. Indian Citizenship
6. Federalism under the Constitution of India
7. Territory of the Union
8. Fundamental Rights & Duties
9. Right to Constitutional Remedies
Principles of State Policy
Amendment Procedures under
the Constitution of India
Government of the Union
Government of the States
The State of Jammu &
a. Supreme Court
b. High Court
c. Subordinate Courts
a. Rights and Liabilities of Government/Public Servants
b. Public Service Commission
c. Minorities, Scheduled Castes & Scheduled Tribes
e. Schedules to the Constitution
Important Case Laws
Case Laws: Reference &
HISTORICAL DEVELOPMENT OF THE CONSTITUTION OF
The Indian constitution is not a product of a political revolution
in nations nor is imposed by a supreme authority or ruler to a state. The
Constitution of India can be very well said to be a product of administrative
adoption by the people of the state, themselves, choosing to be governed by a
specific set of rules and regulations that is by constituting a new state through
a constitution. Constitution can be defined to be a legal document by which a
new state or nation is formed by re-arrangement. The purpose of constitution in
context to the Indian sub-continent was to improve upon the currently existing
system of administration as was then at the time of British ruling in India. The
current act of constitution of the year 1949 has history with respect to its
birth and formation. The contents of our constitution appear to be compliances
of various constitution of the world. The basic ideology of the Constitution of
the India has been formulated by ransacking all the known constitution of the
world at the time of its inception. Alliteratively it can be very well argue
that the act of the Constitution of India, 1949 is work of wisdom and legal
acumen as for the length of time it has survived and has successfully regulated
the Indian democracy.
We shall now deal with legislation that
led to the final constitution of India as it is known today.
The Government of India Act, 1858
Historically, The Government of India Act 1858 is the first known
constitutional legislation and references point to the current constitution in
operation. By this Act of 1858 the British ground assumed sovereignty India, commencing
the British rule. The act of 1858 is legislative in nature where by the British
Crown established their rule in India, taking over control from the East India
The basic features of this act include the following-
1. Provides for absolute control and power in the hands of British
2. Provides for ruling and Administrative post, Executive the power
of the Crown in India.
3. Provides as the starting point of governmental administration of
society in geographically location that is, India.
4. Provides a hierarchy of power to govern a newly annexed state that
being India. The Crown being the head of hierarchy power followed by Secretary
of state of India, who assumes and executes the power of the Crown to govern
5. Provides for a Council of India whose members were to belong from
England. And the directors of East India Company. The role of Council was to
assist the Secretary of state of India.
6. Provides for Executive administration for the state of India,
where the geographically territory of India was divided into provinces. The
territory of India was to be governed by Governor-General assisted by the
Secretary of state of India. Under the Governor-General, the Indian provinces
were headed by a Governor, assisted by an Executive Council.
7. The Act of 1858 nowhere provided any provision to incorporate
Indian representation for administration of the territory of India.
8. Provides for complete supremacy of the British Crown, where the
supreme head was endowed with absolute power with respect to civil control,
Military, Executive, Legislative, Judicial powers.
Thus, in conclusion it can be stated that the Government of India
Act 1858 being the first legislation was merely a legal document were by
British Crown took control over the territory Indian from the hands of the East
The administrative hierarchy as provided under the Government of
India Act, 1858:
The British Crown
of State of India
The Indian Councils Act,
After enactment of the Government of India Act 1858, the common
notion amongst the Indian society was to influence representation of Indian
members as part of the ruling government, which was completely in the hands of
the British. This notion was the reason that led to the enactment of the Indian
Councils Act, 1861. The primary reason behind legislation of this Act was to
include non-official members to the Executive Council, which was responsible
for assisting and implementing state policies directly under the Governor to
the Province. These non-official members were exposed to limited aspects of
legislature and were appointed on basis of nomination. Further, these
non-official members though representative of local Indian thoughts and
governances had limited authority as the Governor-General had the superseding
authority to Veto any law passed by the provincial Government. None the less,
such non-official members were given representation both at central level and
It may be interesting to note that the Indian National Congress
(INC) was formed during the enforcement period of the Indian Councils Act, 1861
in the year 1885 under the control of the Moderates. The formation of the
Congress Political Party influenced the next enactment, Indian Councils Act,
Indian Councils Act, 1892
The subsequent enactment of the Indian Councils Act, 1892 led to
further improvements in the previous Act of 1861. The key improvements as
influences by the Indian National Congress (INC) are as follows;
1. The numbers of seats reserved for non-official members were considerably
increased providing more opportunity to persons of Indian society. Such
increase number of seats was carried out both at the central level and
state/province level in the Executive Council.
2. The non-official members were now to be elected by local bodies
such as universities, district boards, municipalities and other such bodies as
they were in existence at the prevalent time.
3. This enactment was landmark legislation as for the first-time
native residents and general people of the Indian society were allowed
representation in the Executive Council, both at central and state.
Thus, this act paved a platform for native Indian people to
represent themselves as part of the government. Although, it is pertinent to be
aware that even after giving an opportunity to the native Indian citizens, the
scope of power and area of administration remained limited. The majority of
control and power were still concentrated in the hands of British, which kept
the mutiny up-rolling against them.
Indian Councils Act, 1909
This Act was an outcome of the Morley-Minto reforms. Lord Morley
was the then Secretary to the State of India. Lord Minto was the then Viceroy
to India who was commissioned by the British Crown by way of delegating special
powers upon him. The main idea behind appointing Lord Minto as the Commissioner
to India was to amicably settle and solve the grievance of Indian political
leaders demanding fair and authoritative Indian representation in the British
government. The key changes and reform to the previous Indian Councils Act of
1892 as incorporated in the new act of 1909 are as follows;
1. The size of Executive Council both at central and provincial level
was increased in order to incorporate larger native members in to the council.
2. The scope of authority and power of legislation was enlarged and
was now to include important administrative sections such as budget, state
expenditure, infrastructural development and other money related matter.
3. Another important facet of this legislation was that this was the
first act to prove for reservation of seats for Muslim candidates. Clearly the
objective of the British was to sow seeds of religious discrimination and thus
the concept of Divide and Rule came into existence.
It is interesting to note that a political party in the name of
Muslim League was formed in the year 1906. Historically, it is without an iota
doubt that the Indian political environment stood divided in religious bias,
succumbing to British Rule.
The Government of India Act, 1915
The objective of the Government of India Act, 1915 was to
consolidate all preceding enactments and to compile in one document the
complete legislation to administer the British state of India. By this Act the
Legislative, Executive and the Judicial body stood compiled in one enactment.
Thus, it can be concluded that the mere objective behinds enactment of the Act
of 1915 was to put down a legislation compiling all preceding statues and law
in to one comprehensive document.
The Government of India Act, 1919
The Government of India Act, 1919 was an outcome of the Montagu-Chelmsford
report. Lord E.S. Montague was the then Secretary of the State of India and
Lord Chelmsford was the then Governor-General of India. The main features that
were recorded into the Act of 1919 are as follows;
1. The report suggested for a dual independent government at the
central and provincial level, as is federalism in its true sprite and essence.
2. The dual government policy was to separate and divide legislative
powers between the centre and province. The centre and the provinces were to
have separate subject matter for legislation which was not to be over-ridden by
either government, that being union and provincial government.
3. That even though the concept of dual government was executed on
basis of the Montagu-Chelmsford report, the final executive authority and power
to veto any legislation remained in hands of the British.
4. The end result was a formation of a Bicameral legislature and
increased in the number of Indian representation to the Executive Council.
The modification carried out on basis of the Montagu-Chelmsford
report failed miserably as the Act of 1919 failed to fulfill the aspirations
and demands of Indian political leaders. Essentially, the main point of combat
was that the supreme power to control the affairs of the state of India remains
in hands of the British Crown.
Due to aforesaid reasons, during this time period the ‘Swaraj’
movement took place under the leadership of Mahatma Gandhi. The objective of
the Swaraj movement was to attain self-government, which was to be achieved
through non-cooperation. During the same period in the year 1927 Lord Simon was
commissioned to India in order to facilitate and resolve grievance of Indian
political leaders. As known, the Simon commission failed which led to the
enactment of Government of India Act, 1935.
The Government of India Act, 1935
This Act of 1935 was the last legislative attempt by the British
Rulers, after which the Indian Independence Act, 1947 was enacted. The main
features of the Act of 1935 included;
1. The Indian states were to join together as a federation, which was
important not only for administrative purposes but it also provided for a
2. The central government was now to be a Diarchy that is the
Legislature was to be divided into two houses, Federal Assembly and Council of
3. The legislative power was separated between the center and states
with respect to subject allocation for law making. Likewise, today, the concept
of Federal List, Provincial list and concurrent list was adopted.
The reforms carried out under the Act 1935 failed to deliver the
‘Dominion Status’ as promised by the Simon Commission in the year 1929 to the
Indian political leaders. The sole objective of Indian freedom fighter since
the inception of the Government of India Act, 1858 was to achieve a dominant
position in governance of the affairs of state of India. This streak ended with
the enactment of the Indian Independence Act in the year 1947.
The Indian Independence Act, 1947
The British supremacy which had its colonial hands all over the
world was deeply affected at the end of World War-II. The state of India was
now turning difficult for the British to rule. Thus, the Indian Independence
Act was placed on 4th July, 1947 and received the Royal ascent by
the Crown on 18th July, 1947.
It is important to note that Indian Independence Act did not lay
down the constitution of India, but was merely legislated to declare India as
an independent entity. The act further provided 15th August, 1947 as
the date on which India and Pakistan shall be recognized as Independent
This Act gave absolute power to Indian law makers to repeal any
act enacted by the British parliament, which included the Indian Independence
Act, 1947 itself. The Governor-General and Governors to the provinces were to
remain as acting constitutional head to the union and to the states, until and
unless new administrative machinery is set in place. The Governor-General and
Governors to the provinces were now devoid any legislative powers are power to
veto any enactment made after the enforcement of Indian independence Act. In conclusion,
the Indian legislature was now independent of any foreign influence and India
was now a free and independent nation.
DRAFTING OF THE CONSTITUTION OF INDIA
As already discussed in the previous chapter, it was after the
World War-II in the year 1940 that the British Government decided to hand over
the territory of India to natives of the nation and giving them the right to
frame their own constitution. In multiple narratives, it is recorded that the
British around this time period were in a rush to hand over the ruling of the
state of India. This urgency can be concluded from the fact that the Royal
assent to the Indian Independence Act, 1947 was granted in a swift 14days from
the date it was placed.
Sir Stafford Cripps, who was a member of the British cabinet, was
commissioned to India in the year 1942 with the objective to zero down a draft
declaration for constitution of an independent India. The biggest challenge
before Sir Cripps was to reconcile and co-ordinate between the two major
political parties, Indian National Congress (INC) and Muslim league, in order
to form a mutual agreement between them in order to frame a new constitution.
The highlights of the recommendations are stated here in brief;
1. The constitution of India was to be framed by an elected
constituent assembly formed by native Indian representatives.
2. The territory of India was to have its own dominion status that is
at that point in time a combined geographical area of India and Pakistan.
3. Even though the state of India was to become an independent
dominion, the new formed nation was to be a part of the British Commonwealth.
4. As per the recommendation, India was to comprise of all provinces
that were in existence under the British rule. All states/Provinces which were
under the British control could not have voted out to not be a part of the
The Cripps Mission failed because of the dynamic Quit India
Movement and no fruitful result was achieved. The failure of the Cripps mission
led to the Shimla Conference under the administration of the then
Governor-General Lord Wavell. The objective of the conference was to amicably
settle the political differences between the Congress and Muslim League. Even
after considerable efforts the Conference failed to end in success.
Finally, the division of the territory of India into India and
Pakistan resolved the dispute between the two political ideologies. It was on
26th July, 1947 that a separate constituent assembly for Pakistan
After commencement of the Indian Independence Act 1947
It was on 15th August, 1947 that India stood to be an
autonomous and independent nation. India now was legislatively sovereign and
the humongous task of drafting of the constitution for India was the next land
mark step to be under taken.
Constituent Assembly of India
As discussed earlier, the urgent need for a new constitution was
being pressed by the British way before passing of the Independence Act of
1947. Thus, the first meeting of the constituent assembly was held on 9th
December 1946. The constituent assembly of India was to be elected by indirect
election within the Lower House that is the Provincial Legislative Assembly. It
was after separation of Pakistan from India that a constitution Drafting
Committee was formed under the chairmanship of Dr. B.R. Ambedkar, and the first
draft proposal of the constitution of India was presented on 26thFebruary,
1948. The drafting committee took 2 years, 11 months and 18 days to complete
drafting the constitution of India.
The newly framed constitution received the assent of the first
President of India 26th November, 1949 and it was declared passed.
The constitution actually came into force on 26th January, 1950
which is its date of commencement. It is interesting to note that even though a
major part of the constitution of India came into force on 26th
November, 1949 which was given immediate effect; but all parts of the
constitution happened to be enforced on 26th January, 1950. The day
which we commemorate as Republic Day, on which date our constitution was
adopted in its finality.
Sources of The Constitution of India
The Indian Constitution being the World’s lengthiest Constitution,
at its commencement, comprised of 395 Articles in 22 Parts and 8 Schedules. It
took precisely 2 years, 11 months and 18 days for the constituent drafting
assembly to come up with the final draft of this longest constitution, headed
by Dr. B. R. Ambedkar. The original Constitution of India was handwritten in
italics by Prem Behari Narain Raizada, which was signed on 24th
January, 1950 by 284 members of the Constituent Assembly, which included 15
women. Our constitution makers took inspiration from provisions of various
other constitutions of the world while drafting the constitution for our
country, which is why the Indian Constitution is often called a bag of
borrowings. Undoubtedly, our constitution is a well drafted document as it till
date supports and reflects the largest democracy of the world.
Some of the important sources of our Constitution are as follows-
Govt. of India Act 1935
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
Fundamental Rights, Impeachment of Supreme court and High court judges,
Independent Judiciary, Functions/Role of the Vice-President, Judicial Review
The Irish Constitution
Principles of State Policy, Nomination of members of Rajya Sabha, Method of
The Canadian Constitution
with strong centre, Residuary powers with centre, Appointment of Governors
(by centre), Review by the Supreme Court
The Australian Constitution
Concurrent list, Joint Sitting of Parliament, Principle of Co-operative
Federalism, Freedom of inter-state trade, commerce and trade
Weimar Constitution of Germany
of Fundamental Rights, Emergency provisions
Constitution of South Africa
for amendment of the constitution, Election of Members of the Rajya Sabha
Ideas of Republic and Liberty, Equality and Fraternity in the
The Russian Constitution
Duties, Idea of Social, Economic and Political Justice in Preamble
The Japanese Constitution
Established by Law
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
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
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.
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.
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.
& FEATURES OF THE CONSTITUTION OF INDIA
As per the Chairman of the drafting committee, Dr. B.R. Ambedkar,
he was of the opinion that different constitution of the world when reduced to
writing are similar in nature as for as its basic features are concerned. The
biggest challenge as per him is to remove the faults which have occurred in
that constitutional legislation due to efflux of time. After experimenting the
constitutional legislation on scale of time, there arises a need and demand of
the nation to accommodate fresh perspective in to the constitutional draft.
Our Indian constitution was drafted keeping in mind future
challenges and was document of great intellectual research. It has its own unique
characteristic and features; even though the Indian constitutional draft is a
compilation of multiple constitution of the world the documents so created was
a legally and socially stainable art work. Few features of the Indian
constitution are herein discussed below;
from different sources
Many authors and legal luminaries often debate upon the
intellectual input made to draft our constitution. It is further criticized for
being a document which is devoid of national merit, as barely any fresh
drafting has been included in the Constitution of India. Few scholars deem the
constitution to not have its own identity as it is copied in nature.
On the contrary its argued that it’s not an essay task to pick and
choose successful provision (in relation to time) from multiple constitutions
and thereafter compile it in such a fashion that the combination turns out to
be a successful legal draft on basis of which a nation could run. Although
concerning present time the constitution of India has had several amendments,
where by the 78th amendment carried out in the year 1996 has
practically re-casted the entire constitution. Hence, the original frame work
for all practical purposes has been substituted.
constitution of the world
Our constitution is both the lengthiest and most detailed
constitution of the world. The constitution initially had 395 Articles 8
Schedule which were in 22 Parts. Since then 122 amendment bills have been
presented in Indian parliament, out which 101 amendment bills have been passed
amending the constitution. As of March 22, 2018 the last bill that was passed
was the 122th bill which led to the enactment of The Goods and Services Tax
(GST) Act. At present there are 467 Articles, 12 Schedules and 5 Appendixes,
which are in 25 Parts. These numbers reflect the extremely comprehensive nature
of the document. Despite a bulky document our constitution is very flexible
which is clear from the fact that till today 101 amendment bills have been
passed, subsequently converting into law which has completely changed the face
our constitution. It is notable to observe that the concept of non-justiciable
right was included un our constitution, which shows intuitive characteristic of
that document. Non-justiciable rights are those which at the time of inception
are not executable meaning thereby they cannot be enforced. Thus, this depicts
the future planning done by the framers of the constitution.
The Indian constitution is frame for both the union and the states
of which it is comprised. The constitutional draft included inception and
administrative details for functioning of the union of Indian and governance of
its states. A federal state as a concept has different constitutional frame
work for the union and for all its states, individual and independent
constitution. The legislative right of which rests with the states themselves.
Like the United States of America, each state has its own constitution and even
the citizen hold dual citizenship, recognized by the state and the union,
respectfully. In India such is not the case. Further details are given under
the chapter of Federalism to this book.
An amendment to the constitution can be carried out as per the
provision entailed under Article 368, which provides flexibility the Indian
constitution. As already mentioned 101 constitutional amendments have been
carried out till date. Further provision in the constitution are made by which
administrative changes and procedural abnormalities can be mended without
carrying out a constitutional amendment. Topics such as name of the states,
boundary descriptions, abolition or creation of selective legislative bodies do
not require a constitutional amendment. Thus, even after our constitution being
extensive in nature it can be easily amended making it flexible.
5. Special Status to Jammu & Kashmir
Article 370 to the constitution of India has been a controversial
article and provides a special status for the state of Jammu Kashmir. The terms
special status refers to certain temporary provision with respect to state of
Jammu Kashmir which has been in corporate under Article 370 to the constitution
The Article said state that the provision relating to states as
established under the constitution shall not apply to the state of Jammu
Kashmir. Further, the power of parliament to make laws for the said state is
limited in nature. The subject as listed under the Union list and the
Concurrent list shall not pro-bone apply to the state of Jammu Kashmir, but
legislation power are limited to matters and subjects as specified under the
Instrument of Accession, subject to declaration made by the President by India.
The reason behind such special treatment being given to the state
of the Jammu Kashmir is Geo-political in nature. As of today the state of the
Jammu Kashmir derives governance from its own constitution. Which is so based
upon the Instrument of Accession. The Indian Union Parliament has limited power
to govern the state of affairs which limits themselves to subjects in relation
to Military, Defense, Communication and International relation. This list being
inclusive and exhaustive in nature.
6. Special Article dedicated to solve Regional problem
The framers of the constitution have minutely designed special
provision in order to address and solve regional issues keeping in mind the
diversity in culture that is spread across Indian states. These articles aim to
readdressed regional specifies problems that are concentrated in specific parts
of the Indian states.
Article 371 and Articles 371A to 371I are provision in own
constitution that is devices for the state of Maharashtra, Gujarat, Nagaland,
Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, and Goa.
Article 371 was included in the initial draft of the constitution whereas
Article 371A, to 371I were letter introduces relying on the initial Article and
7. Fundamental Rights & Constitutional Remedies
The concept of fundamental rights as introduces to are our constitution
guaranteed certain basic rights as to enable the citizen of India, to achieve
liberty, Liberty is a basic sense of freedom and personal connivance which
forms a necessity and essential requirement for living in any kind of legal
establishment in a nation.
The Fundamental Rights guaranteed under the constitution per se
forms part of the basic structure of the constitution and therefore cannot be
refused to persons receding in India. For its protection constitutional
remedies are provided in form of writ using which any individual whose
Fundamental Rights are violated can approach the High Court & the Supreme
Court as provided under Article 226 & Article 32 respectfully.
The writs available for protection are Habeas Corpus, Mandamus,
Certiorari, Quo-Warranto, and Prohibition.
It is important to note that Fundamental Right are not absolute in
nature but are subject to limitations. Such limitations are expressed in form
of Fundamental Duties which were introduces as part IV (A) to constitution vide
the 42nd Constitutional Amendments. These Fundamental Duties are read along
with Fundamental Rights where every citizen is aspect to conduct himself in a
prudent manner and his Fundamental Rights Can only be enforced if he has not
failed to perform his Fundamental Duties.
8. Judicial Review
It makes to the constitution enforceable and protects individual
beyond the heads of the legislature. Meaning judicial review is a mechanism
which keeper check on Arbitrary and Unconstitutional legalizations. Judicial review
form part of the basic features of the constitution as held in the case
“Keshwanand Bharati Vs state of Kerala”. The India Judiciary function as a
guardian to the Constitution and protects are Fundamental Rights.
Judicial review upholds the nation of check and balance between
the Legislature and its Unanimous supremacy. For example, a comparison between
the American constitution and the British Constitution shows how balanced the
Indian Constitution has been designed. The American constitution allows its
Supreme Court to pronounce judgment which are then treated as law of the land
and possess power to overturn the constitution as per convening. In the alternative,
the British Constitution holds the British parliament to be supreme i.e.; the
courts are not over and above the British Crown.
The examples demonstrate how balance the Indian scope of judicial
review is a combination of the American constitution and the British
constitution scriptures. Recently, the Supreme Court of India has expanded
itself into the realm of judicial legislation. The power of judicial review
cannot extend itself into law making but such powers have been exceeded in
recent times. It can be said so on the basis of Supreme Court issuing
guidelines, to regulate the observation of National Anthem in multimedia
complex and regulation of sell of liquor with respect to distance form National
Highway are clear example of judicial legislation being passed in the name of
9. Special and Dedicated Provisions for Social Equality
The Indian Constitution entails separate provisions for Scheduled
Caste, Scheduled Tribes and Anglo Indians providing for special provisions in
order to achieve the Constitutional Goal of promoting social equality. The
Indian Constitution even covers special provisions relating to abolition of
untouchability. These dedicated provisions are aimed at removing all and any
kind of discrimination between citizens on grounds of race, caste, creed and
other social features. Such provisions are not limited to the Constitution
itself, but the articles provide that the Government is at liberty to pass
legislation in aspect of promoting social equality, aiming specifically at
Scheduled Caste, Scheduled Tribes and Anglo Indian.
10. No Absolute Power Reserved for the Head of the State/Nation
The President is the first citizen of the nation and is the
highest dignitary of the State i.e. India. He is also the Head of the
Constitution and the country. Even though the President is the international
representative for our country, he cannot act beyond the advice given by his council
of ministers. Thus, no absolute power with respect to administrative or
executive functions lie with the President. For example, legislative decision
making, which requires the assent of the President is also not an absolute
power within the scope of the President as he can only Veto a legislation once
but has to pass the bill if it is placed for the second time, limiting his
power to only send back the legislation for reconsideration.
11. Geographical Outline
The Indian Constitution clearly defines the geographical reach of
India. Before the Constitution came into being India was divided in multiple
British Provinces and about 600 Indian States governed by autonomous rulers.
Integrating such a diverse geography with their consent was not an amicable
task in reality, but the Constitution in detail provided for such union. The
draft of the Constitution had to privatize the needs of individual units, which
came to be known as States within the Indian Territory. Such states were an
outcome of integration of British Provinces that were pre-existing during the
era of British Rule in India.
12. Basic Underlying Features and Principles of the Constitution
The Constitution of India is the supreme law of the land, which
not only establishes our nation, but also promises its dwellers certain rights
which are important for the survival of them and the nation. The basic idea of
any Constitution in the world is to establish administrative & executive policies
in way of institutionalizing them to unable to regulate and run a nation. Thus,
the source of legislation and governance in a nation draws its ideology from
Likewise, there are certain basic features of our Constitution
that cannot be amended as they resemble the basic idea of India; if so amended
the very concept of our Constitution will fail its objective. There has been
immense litigation on the subject that can the Constitution be completely
amended, disturbing the very basic structure on which it was built. Before
1967, the view taken by the Supreme Court of India was that the legislation had
the absolute power to amend the Constitution. Article 368 provides the
Parliament the power to amend any provision of the Constitution including
Article 368 itself. Subsequent to the case of Golakhnath vs. State of Punjab
(1967), the 11 Judge-Bench of the Supreme Court held that the Parliament is not
competent to amend the fundamental rights as provided in Part-IV of the
Constitution as it will fail the basic idea that the Indian Constitution was
set to achieve. The said judgment was overruled by a 13 Judge-Bench of the
Supreme Court in the case of Keshavananda vs. State of Punjab (1973), wherein
the Court held that the legislative power as contemplated under Article 368 is
absolute and cannot be disturbed. The Court further held that even though the
Courts cannot curtail the power of the legislature, the legislature has an
innate responsibility to protect the basic features and characteristic of the
Constitution and important articles relating to judicial review, essential
fundamental right of liberty federal system and Parliamentary System of
Government Formation cannot be altered completely. This came to be known as the
doctrine of basic features of the Constitution meaning thereby that certain
basic features cannot be amended and are immune from Parliamentary
interference. This stand of the Apex Court was reaffirmed later in the case of Minerva
Mills vs. Union of India (1980) and thereafter in cases of Sampat vs. Union of
India (1987) and Union of India vs. Raghubir (1989). Thus, in conclusion it can
be said that our Constitution is amiable but certain underlying features and
basic principles of the Constitution should remain untouched.
PREAMBLE THE CONSTITUTION OF INDIA
behind the Preamble
Preamble in ordinary parlance means the part of a document which
serves as introduction. As the meaning suggests, Preamble is an introduction to
the Indian Constitution which declares the aims and objectives of the
Constitution and for that matter of the Indian Union itself. It is generally
referred to as the heart and soul of the Indian Constitution and is basically a
declaration of our social, economic, religious and legal aspirations.
The Preamble is the living ideology to the Indian Constitution and
has been enshrined therein to draw the basis and pre-face to the Constitution
of India. The present text of our preamble has been an outcome of the 42nd
amendment, also known as the mini-constitution. To understand the spirit and
basic characteristics of our Preamble, it is pertinent to go through the text
of it which reads as follows-
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute
India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC and to secure
to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them
FRATERNITY assuring the dignity of the individual and the unity
and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November,
1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
Explanation of the bare text
The enacting words, “We, the people of India… in our constituent
assemble… do hereby adopt, enact and give to ourselves this constitution”,
throws light on the basic democratic principle that power ultimately rests in
the hands of the people of India. The phrase “we the people” emphasises the
concept of popular sovereignty as laid down by French Philosopher Rousseau “All
the power emanates from the people and the political system will be accountable
and responsible to the people.” In short, it enunciates the principle of
“Government OF the people, FOR the people and by the people.”
The distinguishable features of the Preamble to the Indian
Constitution are as under:-
It is relevant to note that the Preamble to the Constitution of
India has developed and gained clarification by multiple judicial
pronouncements by our Supreme Court and thus it has its own unique features,
which are herein discussed below;
The Preamble states the objectives of the Constitution which it
aims to achieve. It further acts as an introduction and lays down the ideology
that persist in our constitution. Also, the preamble entails a legal periphery
admits which the Constitution functions as whole.
The preamble provides for a legal interpretation of Constitution
and it also clarifies the ambiguity, if any, that it faced in judicial
interpretation of the Constitution. Meaning thereby, the preamble behaves like
a measuring yardstick providing a boundary within which the Constitution works.
The preamble stores the source of the Constitution of India, which
is the people of India. It expresses the fact the Constitution is adopted and
cultivated by the people of India themselves. The preamble indicates the union
of multiple states which have come together to constitute India. The preamble
as an introduction provides the idea of sovereignty as India being born as a
new nation is an independent and indivisible country.
The preamble though forms part of the Constitution guiding and
assimilating the ideology of the Constitution is not per se a legal impediment,
meaning the provisions of the preamble are not enforceable in the court of law.
The preamble forms part of the basic structure of the Constitution
of India and therefore the same cannot be amended that the basic spirit of the
preamble and the principles that guides the preamble cannot be altered by the
Concepts that have been embodied in the Preamble to the
Constitution of India are as follows:-
Before the 42nd Amendment
The word sovereign means Supreme. It means free from the control
of any foreign power and implies that India is not a dependency or a dominion
of any other nation, but an independent state. It enjoys external and internal
sovereignty, meaning thereby that externally it is free from the control of any
foreign power and internally it has a free government which is directly elected
by the people and makes laws that govern the people. Sovereignty allies in
peace and war. The Popular sovereignty is also one of the basic structures of
constitution of India. Hence, Citizens of India also enjoy sovereign power to
elect their representatives through elections held for the parliament, state
legislature and local bodies as well. People have supreme right to make decisions
on internal as well as external matters. No external power can dictate the
government of India. India’s membership of the commonwealth or of the United
Nations does not impose any external limit on her sovereignty. The Commonwealth
is a free association of sovereign Nation. The sovereignty empowers India to
either acquire a foreign territory or cede a part of its territory in favour of
a foreign state.
The word is similar in meaning to the word independent. The
independence of India is not a gift by the British, but is an earning of the
people of India and hence the word sovereign in meaning includes an independent
authority of a state having the power to legislate on any subject of
governance; India being independent of any external power or foreign state or
nation. Sovereignty also includes the duty to promote international peace which
has been inherently introduced into our preamble.
The first part of the preamble “We, the people of India” and, its
last part “give to ourselves this Constitution” clearly indicate the democratic
spirit involved even in the Constitution. India is a democracy. The people of
India elect their governments at all levels (Union, State and local) by a
system of universal adult franchise; popularly known as "one man one
vote". Every citizen of India, who is 18 years of age and above and not
otherwise debarred by law, is entitled to vote. Every citizen enjoys this right
without any discrimination on the basis of caste, creed, colour, gender,
Religious intolerance or education. The word 'democratic' not only refer to
political but also to social & economic democracy.
As defined, democracy is a system of governance in which the
people exercise their power directly or through elected representatives
belonging to their native geographical area in order to develop a governing
body to run and govern such democracy. India is a democratic republic, which
means though India is a democracy but the power to control is exercised by the
elected people; and it still has an elected head with such elected
representatives. The Indian democracy can be studied under two heads;
(a) Political democracy
The people of India exercise their sovereignty through the
parliament at the centre and legislature at state level. The democracy is
maintained through adult suffrage and further includes the essential
requirements such as representation of people, responsible government and
accountability/transparency of governance.
(b) Social Democracy
India is a welfare country which is also referred to as welfare
state, which means that the government is responsible and accountable for the
social well-being of the citizens of India. It further inspires the provisions
(Art.36-51) of Directive Principles of State Policy and adds a progressive
approach for the government to take steps in order to provide social justice to
citizens of India. The preamble also guarantees the basic fundamental rights to
its citizens in order to achieve social justice. The Supreme Court has also
strongly held that the fundamental rights (Art.14-32) form part of basic
structure to the Constitution and cannot be removed from the Constitution of India.
Social democracy also runs parallel to concept of equality amongst equal.
In a republic form of government, the head of the state is an
elected person and not a heredity monarch. The supreme power rests in the body
of citizens entitles to vote and is exercised by representatives chosen
directly or indirectly by them. This word denotes a government where no one
holds a public power as proprietary right. As opposed to a monarchy, in which
the head of state is appointed on hereditary basis for a lifetime or until he
abdicates from the throne, a democratic republic is an entity in which the head
of state is elected, directly or indirectly, for a fixed tenure. The President
of India is elected by an electoral college for a term of five years his post
not being hereditary. Every citizen of India is eligible to become the
President of the country.
The ideology of Justice enshrined in the Preamble draws
inspiration from the Russian constitution and that of Liberty, Equality and
Fraternity dates back to the French Revolution (1789).
It means the government of India as promised under Constitution is
formed by the people and for the people. In the simple terms, it means that no
foreign representative or any non-national can participate in formation of the
government which will govern India. The term republic also signifies that all
government offices and premises are open to all the citizens of India, being
available for redressal and services as extended by them.
Our constitution ensures and guarantees Social, Economic and
Political Justice to its citizens through different provisions like Fundamental
Rights and Directive Principles of State Policy. Social Justice denotes equal
treatment of all citizens without any distinction on the basis of caste, creed,
colour, race, religion or sex. It means absence of privileges or special
treatment being extended to any section of the society, and improvement in the
conditions of backward classes and women through positive discriminations.
Economic Justice on the other hand, refers to non-discrimination on the basis
of economic factors which involves elimination of glaring inequalities in
wealth, income and property. Political justice seeks to provide for equal
political rights, equal access to all political offices and equal voice in the
government to all its citizens.
The concept of justice can be further sub divided under three
heads of study, they being
(a) Political Justice
The term political justice guarantees equal opportunities to men
and women in public employment. Such Justice though forms part of equality is
an essential feature of political justice. Political Justice also includes
equal opportunity to all citizens of India to take part in election and
government formation. It further includes individual justice and guarantees one
man one vote. In relation to participation in adult suffrage.
(b) Economic justice
Economic Justice includes allocation of wealth and distribution of
state resources amongst equal classified segments of society. It aims to
achieve justice by promoting the ideology of welfare state.
(c) Social Justice
Social Justice can be inferred as social harmony, promoting peace
by way of remaining social discrepancy. It is also linked to the concept of
secularism where person belonging to different caste, creed, religion are not
discriminated. The most essential feature of social justice is that all the
citizens of are equal before law no advantage what so ever is is awarded to any
person, concerning law enforcement.
Liberty is an important tool in a democratic framework. It means
absence of restraints on the activities of individuals, and at the same time
provide opportunities for their development. Our preamble secures all its
citizens with liberty of thought, expression, belief, faith and worship through
the fundamental rights which are enforceable in nature. However, this does not
imply unrestricted liberty or arbitrary abuse of liberty and therefore
reasonable restrictions have also been provided in the constitution. The
concept of liberty as conceived by the Preamble is not absolute but qualified.
Liberty correspondents to free social existence that is grant of
basic or essential legal rights to its citizens for them to be able to enjoy
freedom. Liberty is not or is limited to freedom of
thought, expression, speech, faith or religion. But it essential backbone to
democracy, providing social security for living. Liberty has been inculcated in
state directive for public policy as it distinguishing factor between a
civilised and uncivilized society.
Liberty can be achieved by an individual only when he recognizes
his fundamental duties against other citizens of the state, the government
alone cannot achieve liberty, it needs the support of its citizens. For e.g
Art. 51A to the Constitution of India was introduced by 42nd amendment which
identifies and expresses the importance of introducing liberty as an essential
duty of state. Liberty in general is an hypothesis for the states as a whole.
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
It is interesting to note that the grant of liberty and
Fundamental Rights would be meaningless if the concept of equality is not
absolute as discussed, equality can only be exercised amongst equal and true
equality can be achieved video classification of section of society so that
equality can be impressed in that class. Similarly, equality guarantees that no
discrimination shall be exercised by the state. As Art. 15 guarantees
equality, in parallel it promotes political and social equality wherein
universal adult franchise and abolition of untouchability form part of the
concept of equality.
[G] Fraternity and Dignity-
The 42nd amendment to the constitution (1976) added the
words ‘and integrity’ in the sentence ‘Fraternity assuring the dignity of the
individual and the unity and integrity of the Nation’. This refers to a feeling
of brotherhood and a sense of belonging to each other leaving no room for
regionalism, communalism or caste-ism which hinders the unity of the State. The
preamble assures two-fold i.e. aspects of fraternity, meaning the dignity of
the individual and its unity and integrity of the nation. Also, the fundamental
duties enshrined under Article 51 provides that it shall be the duty of every
citizen to promote harmony and the spirit of common brotherhood amongst all the
people of India irrespective of the religious, linguistic, regional or
In simple terms the concept of fraternity promotes brotherhood
amongst the citizens of India, guaranteeing individuals one individuality.
Fraternity is basic is unity in diversity where the concept has led to the
development of introduction of the concept secular and welfare state, which was
so introduced after the 42nd amendment Act. Further dignity has been coupled
with fraternity and it promises protected livelihood to every citizens of
India. These concepts have been enshrined in IV of the Constitution of India
that is in Directive Principles of State Policy.
After the 42nd Amendment
Before the term was added by the 42nd Amendment to the
constitution of India in 1976, the Constitution had a socialist content in the
form of certain Directive Principles of State Policy. The term socialist here
means democratic socialism i.e. achievement of socialistic goals through
democratic, evolutionary and non-violent means. Democratic Socialism implies a
mixed economy in which both Public sector and Private sector run together as
two wheels of economic development. It includes inclusive growth in socialism
and welfare of society. The Supreme Court while considering the essence of the
word ‘socialist’ has held that the basic framework of socialism is to provide a
decent standard of life to the working people and especially provide security
from cradle to grave.
It was initiative by Congress government in the year 1975 in order
to promote or develop India into welfare state. There were many reasons behind
adding socialist into preamble, specifically to develop a socialist pattern of
society. The most acute reason was to increase state ownership in the Indian
economy consequently gaining control of the economic progress of India. Further
it was to take control of production, Industry and service organization under
state ownership. Management of trade and business was part of such business was
part of such control under the government of India as to enable them to strive
for a uniform growth of the citizens of India, not causing concentration of
national wealth into the hands of private industries and persons. The concept
of socialism was not an ideal concept as it also allows private entities to
participate and progress in socialistic economy.
Secular means the relationship between the government and the
people which is determined according to constitution and law. By the 42nd
Amendment to the constitution in 1976, the term "Secular" was also incorporated
in the Preamble. It means that the Government, its institutions and their
representatives should respect all religions meaning thereby that it does not
uplift or degrade any particular religion. In the light of Indian Secularism
it is said that India is neither religious, nor irreligious nor antireligious.
It implies that there is no such thing as a state religion for India. It stands
for the right to freedom of religion for all citizens. Explaining the meaning
of secularism as adopted by India, Alexander Owics has written,
"Secularism is a part of the basic of the Indian Constitution and it means
equal freedom and respect for all religions."
It promotes the concept of fraternity instilled in the preamble.
Apart from guaranteeing freedom of religion under Art. 25-28 it further gives
the citizens of India to the liberty and the right to choose, adopt and follow
any religion the individual proposes to choose. The state funded institutions
do not promote any religion that is to say that no state run institutions is a
religion specific. Therefore the state promote secularity by not promoting any
religion but by giving liberty to all citizens to follow any religion they so
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-
A person born and domiciled in the territory of India irrespective
of the nationality of his parents.
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.
A person who or whose father or mother was not born in India, but
(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.
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
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.
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
Acquisition of citizenship after January 26, 1950- The citizenship Act, 1955 provides for the following modes of
acquisition of Indian citizenship-
every person born in India on or after January 26, 1950, shall be
a citizen of India by birth.
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
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.
By Naturalisation- A foreigner can acquire Indian citizenship, on
application for naturalisation to the Government of India.
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-
Renunciation- a voluntary act by which a person who is a citizen
of more than one country abjures the citizenship of one of them.
Termination- by operation of law when a person acquires the
citizenship of another country.
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 UNDER THE CONSTITUTION OF INDIA
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
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
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.
Though there is no internationally accepted definition of
federalism or federal state, it simply means distribution of power to legislate
independently on subject matters as distributed between the union and that
states (unit of nation).
There are two systems of constitutional governance they being a
unitary system and a federal system.
(a) Unitary system
(b) Federal system
The unitary system is where the union or the central government is
in control of all its state or provinces belonging under the geography of that
nation. For e. g. South Africa follows the unitary system of Constitutional
governance. The second being the federal system where the legislative power is
distributed between the union and the state. For e.g. America is most
appropriate example of federal state.
The essential features of federalism as a concept are herein
discussed as follows;
1. Dual governance
The most outstanding features of federalism is that there are two
governments at the union level and at state level where the union Government
drafts legislation for the common interest of states and the State legislature
independently drafts legislation for the benefit of the citizens residing in
that state. Hence a dual form of government is one of most crucial element of a
2. Distribution of power
The second most obvious essential to federalism is that there has
to be a clear-cut division between the power of the union and the state. The
said division of power is purely the legislative power wherein the state and
the union exercise their function within the boundaries of such distributed
powers between them. Primarily such distribution of power has to be an
exclusive division but in practical cases it may be difficult to achieve the
same. Hence the division of the powers between the legislative authority of the
state union if absolute forms am essential part of federalism.
3. Law of the Land
Observing the supremacy of Constitution is outmost necessary as
federalism cannot exist until and unless the Constitution clearly distributes
and divides the legislative power between the union and its states. The
Constitution of any nation, whether written or observed has to essentially
recognize the division of power for federalism to be embodied as a concept in
4. Courts and judiciary
The primary responsibility of the judiciary is to protect the
Constitution and the rights of the citizens that has embedded in it. As a
matter of fact, judiciary presides over the states and the union with its
functional responsibility to carve out legislative disputes between them. Apart
from the challenging task of interpreting the Constitution, a judiciary belonging
to federal nation has an inherent liability to maintain distribution of
legislative powers between the states and union.
India as federal nation has its own reservation as the Indian
Constitution as interpreted by the Supreme Court until as recent as 2001 in the
case of Gangaram Moolchandani Vs State of Rajasthan has observed that although
the federal features have a striking impact and pressure in the Indian
Constitution, a few unitary features of Constitution governance have their
influence on our Constitution.
It can be said that India is a quasi-federal or semi-federal
nation. In understanding it can be concluded the basic features of federalism
have been incorporated into the Indian Constitution which has been further
balanced by few striking unitary features to produce a more effective from of
Federalist Properties of Indian Constitution: -
1. Inherent Nature
The Indian Constitution is neither federal nor purely unitary.
India is a case of Suits Generis case where it quasi federal as it has
selective combination of both system incorporated under constitutional
governance. It was so done by the framers of the Constitution as to aid needs
of the Indian Society right after Independence. Being a unique system in itself,
the center observes a dominance over the states as it enjoys financial hold
The Indian Constitution with reference to legislative powers have
distinguished a III list that being a Concurrent list which has legislative
subjects on which both center and the state can draft own legislation upon.
Everything there persists a state list and union list, over time we have
proceeded towards the unitary system of governance for e.g. the union has
greater financial powers and control over the state when it comes to state
The union further has greater powers in administrative
appointments over the state. Recently with the introduction of GST as a taxing
regime in India clearly establishes that the Indian Government is proceeding to
shape a unitary form of governance. Though the Supreme Court has held until as
late as 1994 in the case of S. R. Bommai vs Union of India that federalism
forms part to the basic structure of Constitution and therefore cannot be
completely ignored other taken away.
2. Adopted Federalism
In Indian history, the formation of the nation was integration of
multiple princely provinces who all came together to form India. These states
were autonomous bodies themselves and for the same reason were reluctant to
compromise their sovereignty. Hence Indian federalism was a necessary step to
achieve the formation of the nation. In totality, independent states came
together to form a federation and have to retain their independence at state
level therefore federalism was an necessary adopted concept.
This integration of states/provinces was relatively less
challenging as such states were already under the British rule, under their
unitary form of governance. Once freedom obtained by these states /provinces
were accustomed to central governance or domination and hence the Indian states
came out to be a federalist nation. It is relevant to note that few states like
Sikkim, Assam and Goa remained to be independent after the Indian Independence;
but subsequently such state merged into the Indian federalism.
3. Unequal State Representation
The representation of the states in the national council of states
(Rajya Sabha) is not equal and hence this feature is a domination from the
concept of federalism. The state representation in the Rajya Sabha is dependent
on the population density of each state and have all states have varying
representation at national level. The representative numbers vary from 1 to 31
and also includes 12 nominated members by The President of India; thus, it
lacks federalism nature.
Taking e.g. the states of Sikkim has been adopted under
Constitution of India as an associate state rather than being a member state to
the union of India. It was so done by 31st amendment in 1975 by insertion of
Art.2A to the Indian Constitution. Further it provides a special status to
state of Jammu & Kashmir to draw its own Constitution which again is a
significant deviation from the concept of federalism.
4. Lack of Dual Citizenship
Ideally a federalist state provides for a dual citizenship as it
is in the United States of America, where the citizens one independently issued
citizenship of the state and center separately.
Apart from duality of citizenship the Indian Constitution does not
recognize a federal court system. India, the judicial system follows a unitary
system where petitions can be appealed from the state judiciary to the union.
Whereas in a federal judiciary system the jurisdiction of court is specifically
differentiate in respect of matter arising out of state jurisdiction and the
union jurisdiction. In case of USA the state court or the federal courts have
dominance over disputes relating to the state issues whereas the Supreme Court
sits over matters of jurisdiction arising out of disputes in union subjects. Therefore,
the Supreme Court and High Court in India do not function independently and
hence lacks a federalist feature.
In respect of elections and state accounts, audits; our
Constitution does not provide for a completely bifurcated system but in fact
elections, accounts and audits are co-related to each other in practice.
5. Emergency Provisions
Another unique facet of the Indian Constitution that deviates from
federalist nature is that executive union has dominance over the states in
respect of declaring emergency on them; as the President can declare over a
state or a union territory, which is striking feature unitary system of
governance. In reference to the same it may be interesting to point out the
union parliament offers the power to alter and amend the boundaries of the
states without its prior consent or approval.
TERRITORY OF THE UNION
Territory of the
As it is already known that India as country is a union of states
and observers a federal system of governance. The Union of India that is a
Union of 29 states all together is known as BHARAT, which has been expressed in
Art. 1(1) of Constitution of India.
The Union of India is a different expression then that of the
territory of India. The Union includes only the state, whereas the territory of
India is inclusive of the states, Union territory and also such territories
that may be acquired by the Indian Government It is to note that such
acquisition of territory can be made by purchase, treaty, cession or conquest
as provided by the Constitution.
Formation of New States & Alterations of Boundaries
The Union Government that is the parliament has the absolute power
to alter and amend the territory /boundaries of the state without the states
consent of whose boundary is being altered. This power is a shift from the
federal ideology that has been adopted by framers of our Constitution. Hence in
totality the parliament has the supreme will to reorganize, dismantle or
integrate the territory outline of the states which form part of the Union of
It is interesting to note that such absolute power of
reorganization vested with the parliament is a historical development, as such
power was provided under The Government of India Acts as discusses in the
Procedure for Reorganization of States
The initiation of the procedure for alteration of state boundaries
is by the President, who shall introduce a bill in the parliament for such
amendment. No person except the President has the power to move such a bill.
The only requirement for tabling of such a bill is that the bill shall be
referred to the state legislature so that it can express its views with respect
to the alterations so being carried out. Thus, in totality the states territory
can be redistributed at will of the Union legislature.
Since the Commencement of the Constitution, The Foregoing power
has been used by Parliament to enact the following Acts/Legislatures, the
compilation is as per the recordings of the eminent constitutional author, Shri
Dr. D. D. Basu;
1. The Assam (Alteration of Boundaries) Act, 1951, altered the
boundaries of Assam by ceding a strip of territory from India to Bhutan.
2. The Andhra State Act, 1953, formed a new State named Andhra, by
taking out some territory from the State of Madras as it existed at the
commencement of the Constitution.
3. The Himachal Pradesh and Bilaspur (New State) Act, 1954, merged
the two Part-C States of Himachal Pradesh and Bilaspur to form one State, namely,
4.The States Reorganization Act, 1956, reorganized the boundaries
of the different States of India in order to meet local and linguistic demands.
Apart from transferring certain territories as between the existing States, it formed
the new State of Kerala and merged the former States of Madhya Bharat, Pepsu,
Saurashtra, Travancore Cochin, Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh
in other adjoining States.
5. The Rajasthan and Madhya Pradesh (Transfer of Territories) Act,
1959, transferred certain territories from the State of Rajasthan to that of Madhya
6.The State of Nagaland Act, 1962, formed the new Nagaland, with
effect from 1-2-1964, comprising the territory of the comprising the territory
of the ‘Naga Hills Tuensang Area which was previously a Tribal Area in the
sixth Schedule of the Constitution, forming part of the State of Assam.
7.The next change was introduced by the Punjab Reorganisation Act,
1966, by which the State of Punjab was split up into the State of Punjab and Haryana
and the Union Territory of Chandigarh with effect from 1-11.1966.
8. The Andhra Pradesh and Mysore (Transfer of Territory) Act,
9. The Bihar and Uttar Pradesh (Alteration of Boundaries) Act,
10. The Assam Reorganization (Meghalaya) Act, 1969, created an autonomous
sub-State named Meghalaya, within the State of Assam.
11. Himachal Pradesh was upgraded from the status of a Union Territory
to that of a State by the State of Himachal Pradesh Act, 1970.
12. The North-Eastern Areas (Reorganization) Act 1971, similarly,
brought up Manipur, Tripura and Meghalaya into the category of states, and
added Mizoram and Arunachala Pradesh to the list of Union territory.
13. The Haryana and Uttar Pradesh (Alteration of Boundaries) Act,
14. Mizoram which had been made a Union Territory by the Act of
1971, was elevated to the status of the State, by the State of Mizoram Act, 1986.
15. Arunachala Pradesh a Union Territory was made a state by State
of Arunachal Pradesh Act, 1986.
16. Goa became a state by virtue of Goa, Daman and Diu
Reorganization Act, 1987, separating it from Daman and Diu with effect from
17. A new State of Chhattisgarh was created by carving out its territory
from that of territories of Madhya Pradesh by enacting the Madhya Pradesh
Reorganisation Act, 2000 (w.e.f. 1-11-2000).
18. The State of Uttaranchal came into being on 9-11-2000 by
separating its territory out of the territories of Uttar Pradesh vide the Uttar
Pradesh Reorganisation Act, 2000.
19. By enacting the Bihar Reorganisation Act, 2000, the State of
Jharkhand was created on 15-11-2000 by carving its territory out of the
territories of the Bihar State.
20. The Andhra Pradesh Reorganisation Act, 2014 formed the state
21. The Bihar and West Bengal (Transfer of territories) Act, 1956,
transferred certain territories from Bihar to West Bengal.
22. The Andhra Pradesh and Madras (Alteration of Boundaries) Act,
1959, made alterations in the boundaries of states of Andhra Pradesh.
23. The Bombay Reorganization Act, 1960, partitioned the State of
Bombay to form the new State of Gujarat and to name the residue of the Bombay
as Maharashtra. Thus, the State of Bombay was split up into two
States—Maharashtra and Gujarat.
24. The Acquired Territories (Merger) Act 1960, provided for the
merger into the State of Assam, Punjab and West Bengal of certain territories
acquired by agreements between the Government of India and Pakistan, in 1958
FUNDAMENTAL RIGHTS & DUTIES
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).
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
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
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
Equality of opportunities in matters of public employment (Article
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 says that all citizens shall have the right to freedom
of speech and expression. The right includes right to;
To assemble peacefully and without arms.
To form associations or unions.
To move freely throughout the territory of India.
To practice any profession or to carry on any occupation, trade or
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
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
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 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
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
Prohibition of employment of children in factories, etc. (Article
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;
To establish and maintain institutions for religious and charitable
To manage its affairs with respect to religion.
To own and acquire movable and immovable property.
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
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
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
Such writs are further discussed in detail below. Also, the High
Courts in States also can issue such writs under the provisions enshrined in
Article 226 of the Constitution of India.
Fundamental duties 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:
To abide by the
Constitution and respect the National Flag and the National Anthem;
To cherish and follow the
noble ideals which inspired our national struggle for freedom;
To uphold and protect the
sovereignty, unity and integrity of India;
To defend the country and
render national service when called upon to do so;
To promote harmony and the
spirit of common brotherhood amongst all the people of India;
To value and preserve the
rich heritage of our composite culture;
To protect and improve the
To develop the scientific
temper, humanism and the spirit of inquiry and reform;
To safeguard public
property and to abjure violence;
To strive towards
excellence in all spheres of individual and collective activity;
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
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
Conflict between Fundamental Rights & Fundamental Duties
The Fundamental Principles as covered under part IVA of the
Constitution, in subject to Fundamental Rights as embodied in part III of the
Constitution hold greater impotence and has wider relevance because of
Fundamental Rights can be directly enforced before the High Court and the
Supreme Court, where Fundamental Duties are non-justiciable have setting out
higher responsibility upon the citizens of India to confer upon themselves
moralistic and nationalistic responsibilities.
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 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:
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.
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
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
There must be an order or judgement passed by an Inferior Court,
tribunal or Quasi-judicial Authority.
Such court, tribunal or officer must have passed an order or judgement
acting without jurisdiction or in excess of the jurisdiction vested by law.
There must be an error of judgement in appreciating the facts of
It means to Stop. A writ of prohibition is a writ directing a
subordinate court to stop doing something which the law prohibits. It is
issued by the Supreme Court or a High Court to an inferior court forbidding the
latter to continue proceedings therein in excess of its jurisdiction or to
usurp a jurisdiction with which, it is legally not vested. When the writ is
issued, proceedings in the lower court are stayed i.e. Sub Judice. The writ is
issued in both cases where there is excess of jurisdiction and where there is
absence of jurisdiction.
The writ of prohibition differs from the writ of mandamus in the
sense that while mandamus commands activity, prohibition commands inactivity.
Further, mandamus is available against judicial as well as administrative
authorities, but writ of prohibition and certiorari are issued only against
judicial or quasi- judicial authorities.
To whom it is issued
It is issued to an Inferior Court, Tribunal or Quasi-judicial
Authority. It cannot be issued against a legislative or administrative body. Such
petition can be filed only by the aggrieved individual. The purpose of the
court is to prohibit the judicial/quasi-judicial body from proceeding further
with the case.
Essentials to issue of writ of Prohibition
There must be an on-going case in an Inferior Court, tribunal or
The writ can be issued only when the proceedings are pending in a
The writ can be issued at any stage of the proceeding.
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.
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
It should be a public office which must be created by statue or
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.
There must be a contravention of the constitution or a statue or
statutory instrument while appointing such person to that office.
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.
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
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.
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.
though the state directives are non-justiciable it is incumbent upon the state
to abide by the state directives in relation to policy matters and thereafter
execution of the same. Further, the impression embodied in the constitution, is
the idea of a welfare state and not a mere police state, which means that the
state is not only responsible to provide security to all citizens by
enforcement of law and order but is also responsible for providing basic and
convenient lifestyle to its citizens. The directive aims at establishing
economic, social, democratic balance amongst all its citizens as under the duty
as provided from Art. 36-51.
Classification of Directive Principles
Directive Principles may be classified under the following three
Ideals that the state ought to strive
Securing a social order through social, economic and political
justice along with minimising inequalities
Striving towards an equitable distribution pattern of resources
Securing decent living standards and social and cultural
opportunities to all
Working towards better health of the masses through improved
nutrition (Article 47)
Promoting international peace, security and amicable relations.
Directions for the exercise of
legislative and executive power-
Development of village panchayats towards self- government
Development of cottage industries (Article 43)
Securing a uniform civil code (Article 44)
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)
Working towards the modernisation of agriculture and animal
husbandry. (Article 48)
Protecting the environment and safeguarding of forests and
wildlife (Article 48A)
Protecting and maintaining historic sites and monuments (Article
Separating the judiciary from executive. (Article 50)
Rights of the citizens which the State
must aim towards securing-
Providing adequate means of livelihood for all citizens (Article
Equal pay for equal work for men and women. (Article 39)
Proper and humane working conditions (Article 42)
Reduction of the concentration of wealth from the hands of a few,
and distribution of community resources to serve the common good. (Article 39)
e. Providing free and compulsory primary education to children below
the age of 16 years (Article 45)
f. Providing equal opportunities for justice and free legal aid
g. Provision for government assistance in unemployment, illness,
disablement and old age (Article 41)
h. Provision of maternity leave (Article 42)
i. Securing the Participation of workers in management of the
industries (Article 43A)
Directives contained in other part of the constitution-
a. Besides the directives contained in part IV, there are certain
Directives in other parts of the Constitution, which are also not enforceable
but courts have given similar attention to them.
b. Article 350A-
Provision of facilities for instruction in mother tongue at primary stage of
education to children belonging to linguistic minority groups.
c. Article 351- Union
to promote Hindi Language and to develop it as to serve as a medium of
expression of culture of India.
d. Article 335- In
matters of appointments to services and posts of the Union and state, claims of
the members of the schedule castes and schedule tribes shall be taken into
Conflict Between State
Directives And Fundamental Rights
directive principles of state policy as entailed under part IV as Constitution
have a wider scope than that of fundamental rights as discussed under part III
of Constitution. As concluded, Fundamental Rights are directly enforceable
before the judiciary as provided under Art. 32 and Art. 226, whereas the
directive principles cannot be directly against the state. This dilemma in
itself is a contradiction as on one hand basic Fundamental Rights are
guaranteed to the citizens and on the other hand the responsibility of the
state as given under directive principles are not compulsory to be performed.
Thus, in such a situation the judiciary plays and important part in bridging
the difference between enforceable Fundamental Rights and non-enforceable state
directives. The state directive are non-enforceable on the condition that
economic capability of the state does not allow the state to comply with the
directives in its absolute meaning.
of State Directives
It is not
out of note to ponder upon the point that the state directives are merely
literature to the Constitution and because they cannot be enforced, it has no
meaning at all. It is incorrect to state that the state directives have no
force and no reference can be made to it while considering the of the state.
consideration of the same there are certain imperatives that the judiciary in
interpretation of state actions has developed overtime.
1. One of the eminent enforcement of the state directives is in
relation to management of natural and material resources available at the hands
of the government. The state has to exercise its duties cautiously to
ownership, control and distribution of natural resources of the country, so
that common good of people is kept in for most priority.
2. Multiple legislation have been enacted in enforcement of Art. 40
to the Constitution where matters relating to Panchayats have been considered
by the state. These bodies not only perform executive functions but are also
empowered with judicial powers.
3. In enforcement of Art. 45 to the Constitution of the India the
legislature has gone ahead to make primary calculation compulsory throughout
the territory of India. Even though the ground reality made differ from the
legislative intent, but the state directives can be propelled to execute the
legislations as drafted under Art. 45
4. The government has further taken initiative to form national and
state boards for various industries for promotion and development of these
sectors. Have, the state cannot be side lined for its initiative and
enforcement of state directives.
5. The state for developing and raising the living standard, of the
citizens of India, specifically those belonging to the rural population have
developed national schemes for promotion of their living conditions few
examples are Integrated Rural Development Program (IRDP) , National Rural
Employment Program (NREP) and Desert Development Program (DDP) amongst many
6. The state promotion of its duties further took steps to curtail
and end hazardous substances to human consumption, such as banning intoxicating
drinks, drugs and tobacco. The state promotes medical welfare of the nation and
example of which is setting up of new AIIMS like institution in every state of
AMENDMENT PROCEDURES UNDER THE CONSTITUTION OF
Procedure (Article 368)
Under Article 368 the procedure of amendment of the Constitution
is laid out, the highlights of which are produced below;
The parliament can amend the constitution by way of addition,
variation or repeal.
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.
There are special circumstances, when a bill is moved to amend
powers of the Union or the States, composition and structure of the Supreme
Court and the High Courts, the Seventh Schedule, and other such provisions as
per Article 368 clause (2), a special majority of two-third members voting for
the motion is required. Also, such majority is to be achieved in at least half
(50%) of the State Legislatures in India, and each State has to pass the bill
by a special majority.
Lastly, on basis of the Doctrine of Basic Structure,
certain basic features of the Indian Constitution cannot be amended as laid
down in the historic case of Kesavanandan Bharti vs. Union of India.
Fundamental Rights, objectives of the Preamble, federal structure of India,
judicial review, balance of Directive Principles to rights and odd, form part
of the basic structure to our Constitution, but the list is merely inclusive
and not exhaustive.
Article 368 in The Constitution of India 1949
Article 368. Power of Parliament to
amend the Constitution and procedure therefor;
(1) Notwithstanding anything in this Constitution, Parliament may
in exercise of its constituent power amend by way of addition, variation or
repeal any provision of this Constitution in accordance with the procedure laid
down in this article
(2) An amendment of this Constitution may be initiated only by the
introduction of a Bill for the purpose in either House of Parliament, and when
the Bill is passed in each House by a majority of the total membership of that
House present and voting, it shall be presented to the President who shall give
his assent to the Bill and thereupon the Constitution shall stand amended in
accordance with the terms of the Bill:
that if such amendment seeks to make any change in
Article 54, Article 55, Article 73, Article 162 or Article 241, or
Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
of the Lists in the Seventh Schedule, or
representation of States in Parliament, or
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
(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
(5) For the removal of doubts, it is hereby declared that there
shall be no limitation whatever on the constituent power of Parliament to amend
by way of addition, variation or repeal the provisions of this Constitution
under this article.
Till date our Parliament has passed 101 Constitutional amendments,
where the important amendments are differentiated in bold;
in Fundamental rights,
Special treatment to
educationally & socially
Readjusted the scale of
representation in Lok Sabha
on the basis of 1951 census
Transferred items of
List to Concurrent List
Property, Trade &
Extended scope of Article 31A,
Authorised the state to
nationalise any trade
Empowered the President
fix time limit for state
legislatures to express their
views on central laws affecting
the areas & boundaries of state
Included new subject in
Union list i.e. interstate sales tax
into 4 categories;
High Court jurisdiction
reservation of SC,
ST & Anglo Indians in
Lok Sabha for 10 years
Transfer of territory of
Berubari union to Pakistan
Dadra & Nagar Haveli in
Change in procedure of
election of Vice President
Incorporated Goa, Daman
& Diu in Indian Union
Special provision &
of state given to Nagaland
in Indian union;
Provided legislature & council
of ministers for union territories
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
Empowered states to
restriction on fundamental
rights related to sovereignty
& integrity of country;
Changes in the form of oath
Amended right to
Added more provisions
in 9th schedule
Related to the formation
of new state.
Abolished system of
Authorised High courts to hear
judges by adding new article 233A
Included Sindhi language
in 8th schedule
Creation of new
state of Meghalaya
Further 10 years
of reservation of SC, ST &
Anglo Indian seats in Lok Sabha
President to give
his assent on Constitutional
Affirmed the Right of Parliament
to amend any part of constitution
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
privileges of former rulers
of princely states
Made certain provisions
Arunachal Pradesh & Mizoram
privileges of IC
officers & empowered Parliament
to determine their service condition
Included Kerala land
in 9th schedule
Provisions related to
Court in civil cases
Raised the number
Lok Sabha seats from
525 to 545
to Andhra Pradesh
Provision related to the
resignation of MPs &
Included land reform
in 9th schedule
Protectorate status of
status to Sikkim
Council of ministers to
UT Arunachal Pradesh
Declaration of emergency
promulgation of ordinance
by President is non-justiciable
Vice President, Prime minister
& the Speaker beyond
scope of judiciary
Provisions related to
& maritime zone;
Included 64 central
laws in 9th schedule
Increase in retirement
of members of PSC from 60 to 62
& 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
Carried out by Janata
to nullify some changes introduced
by 42nd amendment;
Restored the jurisdiction of Supreme
Court & High Court with respect to
issue the writs
Deleted right to property from
Fundamental rights; Fundamental
rights guaranteed by article 20 and 21
cannot be suspended during
Further extension of 10
reserved seats of Lok Sabha
& state legislative assemblies
Related to tax reforms
Included land reforms
in 9th schedule
Related to President’s
autonomous district of Tripura
Empowered Parliament to
the Fundamental rights of the
person working in intelligence
Reservation of Lok Sabha
seats in Meghalaya,
on the grounds of defection
Added new article 371-G,
Constitutional Provision for
Changes in the
of salaries of Judges
Strength of legislative
of Arunachal Pradesh
Special provision in
for setting up of state of Goa
constituencies in certain
by delimitation commission
Empowered President to
under his authority the translation
of Constitution in Hindi
Extended Tenure of
President’s Rule in Punjab
Increased the ceiling of
21 to 18 years for Lok Sabha
as well as assembly election
Further extension of 10 years
the reserved seats in Lok Sabha
& state legislative assembly
Regarding Tenure of
President’s Rule in Punjab
Commission for SCs & STs
Place Lands Reform Act
Extended Tenure of
President’s Rule in Punjab
Special status to Delhi
designing as National Capital
Territory of Delhi
Nepali languages in 8th schedule
Reservation to STs in
State Legislative Assembly
Constitutional status to
Panchayati Raj institution,
Added part IX entitled
Added the 11th schedule
Constitutional status to
urban local bodies,
Added Part- IX A entitles
as The Municipalities,
Added 12th schedule
Tamil Nadu Reservation
Reservation of SCs &
in government Jobs
Place Lands Reforms Act
Extension of Reservation
SC, ST & Anglo Indians
Provided for an
for devolution of revenue between
centre and states
Ended 50% ceiling on
in backlog vacancies
of SC & ST for relaxation in
qualifying marks in any examination
No reservation in
SCs in Arunachal Pradesh
to SC & ST in government jobs
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
Made 2001 census the
delimitation of constituencies of
the Lok Sabha and state legislatures
Provision for service
Bifurcated the National
for Scheduled Castes & Scheduled
Tribes into two separate bodies –
National Commission for
Scheduled Castes (Article – 338) &
National Commission for Scheduled
Tribes (Article 338-A)
Reservation in Assam
relating to Bodoland Territory Area
Provisions to limit the
of Council of Ministers,
Article 75(1A), Article 75(1B),
Provision to debar defector
from holding public office.
The Provision of 10th
schedule (anti-defection law)
Bodo, Dongri, Maithili &
Santhali in 8th schedule
provisions for socially &
educationally backwards classes
& SC and STs in educational
institutions including private
institutions except for minority
Provision of Minister of
Welfare in newly created states
Extension of reservation
SCs & STs in Lok Sabha
Substituted ‘Odia’ for
Constitutional status to
Made the right to form
co-operative society a
For the promotion of
a new DPSP is added
under article 43-B,
Added new Part IX-B entitled as
‘The Co-operative societies’
Provided special provisions
Hyderabad-Karnataka region of
state of Hyderabad
Land boundary agreement
between India and Bangladesh
Amended 1st schedule of Constitution
Tax reforms act
Article 246(A), 269A, 279-A
Status to National Commission for Backward Classes
to the Economically Weaker Section of General Category Class by amending
Article 15 & 16
Article 368 to the Constitution of India provides for an absolute
power to the parliament to amend any part of the Constitution, without any limitation.
This view was uniformly adopted by the judiciary until 1967.
The initial cases that challenged the power of the parliament as
contemplated under Art. 368 were of the opinion that the legislature has
unchallengeable and qualified power to amend and reorganize the provisions of
the Constitution in any manner, what so ever.
It the case of Shankari Prasad Vs Union of India, 1952 the Supreme
Court had categorically recorded its judgement that the union legislature has
the absolute freedom to amend or alter any part of the Constitution, to the
extent of replacing the entire Constitution as a whole. Thereafter in the year
1965 in the case Sajjan Singh Vs State of Rajasthan the Supreme Court of India
followed the principle as laid down in the case of Shankari Prasad Vs Union of
India. Thus, the initial judicial interpretation of Art. 368 was purely textual
in nature and hence it was unanimously concluded that the power of the
legislature 368 is unquestionable and absolute, falling out of the preview of
In the year 1967, Supreme Court overruled its previous judgment as
given in the case of Shankari Prasad Vs Union of India and in Sajjan Singh Vs
State of Rajasthan The Supreme Court ruled in the case of I. C. Golakhnath Vs
State of Punjab held that the Parliament had the absolute power under Art. 368
but the said power could not transgress upon the Fundamental Rights. This case
held that the Fundamental Rights are essential provisions to the Constitution
as they guarantee basic living rights to its citizens; without which the whole
purpose of forming the Constitution of India would fail. Hence, this was the
first time that the judiciary in its interpretation of Art. 368 has
categorically held the powers under the said Article are restricted and could
not withdraw the Fundamental Rights as provided under the Constitution.
The judiciary thereafter in the year 1973 in the case of
Keshvanand Bharti Vs State of Kerala modified and overruled its previous
judgement as given in Golakhnath Nath Vs State of Punjab. The Supreme opined
that the parliament in exercise of its power under Article 368 can amend the
Constitution but it cannot disturb the basic features of the Constitution. This
is a case from where Doctrine of Basic Structure developed, wherein the court
had held that certain basic and essential features of the Constitution cannot
be amended as it would defeat the purpose of the Constitution.
Therefore, the powers under Art. 368 to amend the Constitution is
limited to the doctrine of basic structure, which is that the basic features of
the Constitution cannot be amended. It is relevant to mention that the term
basic features are not an exhaustive list but is open to judicial review and
interpretation. For e.g. the preamble and the Fundamental Rights form part of
the basic structure to the Constitution. However, any amendment proposed to
amend the Constitution cannot be sustained if it tampers with the ideology and
basic purpose of formation of the Constitution itself.
The law as laid down in noted case has been followed and upheld in
the Minerva Mills Vs Union of India 1980 and the position of the legal
interpretation of Art. 368 has been constant since then.
GOVERNMENT OF THE UNION
[A] The Union
 The President
The President, the Lok Sabha and the Rajya Sabha are collectively
called as the Indian Parliament.
The President is the first citizen of India and is also the head
of the Union of India. The President is appointed for a term of 5 years on the
qualifications being, a citizen of India, having completed 35 years of age,
elected member of the Lok Sabha and should not be holding any office of profit
under the state or central government. The President can be removed from office
on his death, resignation or by way of invoking impeachment process. On his absence,
the Vice President hold the office of the President until the new President is
Powers of the President
The President has the following powers as bestowed upon him by the
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.
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.
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.
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.
 The Prime
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.
 Council of
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.
 Attorney General
He is the first Law Officer of India. The appointment to this post
is made by the President of India on having the required qualifications that
being to be eligible to hold the post of a Supreme Court Judge. The role of the
Attorney General is to provide advice to the Central Government on legal matter
and issues from time to time. He is also an integral part of the parliament but
does not have the right to vote.
[B] The Union
The federal structure of India rests upon the principle of
Parliamentary form of government which makes the executive accountable to the
legislature. At the top of the Indian polity lies the Parliament as the supreme
Legislative body of the Republic of India. Besides functioning as the highest
law-making body in India, the Parliament has also functioned as a watch dog for
the nation and has proved that for the balanced and peaceful development of the
country there is no better form of government than the parliamentary form of
government. The Parliament of India comprises of the President and the two
Houses known respectively as the Lok Sabha (the House of People) and the Rajya
Sabha (the Council of States). The two houses of the Parliament came into being
in the year 1952 after the first General Election that were held in the year
1952 under the new Constitution adopted by the Constituent Assembly. The
Parliament is a deliberative and a legislative body which performs multiple
functions which are divisible under the following heads:
1) Legislation: The major function of the Parliament is to make
law. The Parliament since its inception has been constantly involved in the
process of making law according to the continuous changing socio-economic needs
of the Indian Society. In India since the inauguration of the Constitution the
volume of legislation is steadily rising in order to carry out the manifold
development and other measures required for establishing a welfare State.
2) Financial Control: The Parliament is responsible for
controlling all the public finances which includes grant of money to the
administration for expenses on public services, imposition of taxes and
authorization of loans. This is the most important function of the Parliament.
3) Deliberation and Discussion: The Houses of the Parliament are
constantly engaged in discussion, deliberation, debating public issues, shaping
and influencing the government policy and ventilating public grievances. This
is constantly done through legislation, control of public finances, and debate
on the President's address.
4) Control of the Executive: According to parliamentary form of
government executive is responsible to the parliament for its acts and
policies. Hence parliament exercises control by various measures like
committees, question hour, zero hour etc. ministers are collectively
responsible to the Parliament.
5) Providing and exercising control over cabinet: Our
Parliamentary system blends the legislative and the executive organs of the
State in as much as the executive power is held and used by a group of Members
of the Legislature who command majority in the Lok Sabha. In other words, the
government functions through various Ministries under the charge of different
Ministers. The Parliament provides the Ministers and holds them responsible to
the elected representatives of the people. The Ministers could be Member of
either of the two Houses of the Parliament. The actual execution of government
policies as decided by the Parliament is carried out by the bureaucracy headed
by a Secretary of the Department.
6) Critical assessment of the Cabinet and Individual Members: In
modern times both executive and the legislative policies are initiated by the
Cabinet and the importance of the Legislative function of Parliament has, to
that extent, diminished from historical point of view. The Parliament provides
the forum through which is ensured that the Cabinet remains in power only as
long as it commands majority support in the Lok Sabha which comprises elected representatives
of the people. It is one of the most important functions of the Parliament to
bring about discussions and critical assessments of the performance of the
7) Constituent functions: The power to amend the Constitution vests
with the Parliament. Constitutional amendments have to be passed by each house
by a majority of total membership as well as by two-third majority of members
present in voting. In some cases, amendments need ratification from half of the
Legislative assemblies of the States.
 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.
250 members, where 238 members from States and Union Territories and 12 members
nominated by the President.
are elected by the members of the State Legislature.
years. One-third members retire every 2 years. The Rajya Sabha can never be
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.
of 552 members where 530 members are State representatives, 20 members
represent the Union Territories and 2 Anglo-Indians are nominated members by
are directly elected by the people of India by way of National Elections or
Universal Adult Franchise (18 years being the voting age).
years. It can be dissolved earlier by the President or be extended during the
term of emergency.
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.
Legislative procedure is initiated in the form of a bill, when the
Bill is passed by both Houses of Parliament and assented by the President, it
becomes a law. Bills introduced in the Indian Parliament can be classified into
4 types of bills. They are as follows:
1. Money Bills
These are defined in Article 110. These Bills deal with the taxes,
borrowings, consolidated and contingency funds, audit and accounting, etc. Article
109 of Indian Constitution gives special procedure regarding Money Bills.
A money Bill can originate only in Lok Sabha after the
recommendations of the President. Through the Bill is sent to Rajya Sabha also
but even Rajya Sabha rejects/returns the Bill, the Bill is deemed to be passed.
The Appropriation Bill and Annual Financial Bill (Budget) are Money Bills.
2. Financial Bills
Any Bill dealing with revenues or expenditure but not certified as
Money Bill by the Speaker is a Financial Bill. Financial Bill can only be
introduced in Lok Sabha on the recommendations of the President & should be
passed by both Houses of Indian Parliament (Lok Sabha or Rajya Sabha)
by Simple majority.
3. Constitutional Amendment Bills
Under Article 368 of Indian Constitution with the powers of
parliament to amend the constitution, this bill can be introduced in any of the
two Houses without recommendations of the President. Such Bills must be passed
by each house (Lok Sabha and Rajya Sabha) separately with a special
majority (two third of the members present and voting which must be more
than absolute majority).
By 24th Constitution amendment Act, 1971 it is obligatory for
the president to give his assent to the Constitutional Amendment Bills.
4. Ordinary Bills
Ordinary bills are concerned with any matter other than Financial
Bills, money Bills and Constitutional Amendment Bills.
Such Bills can be introduced in either House of Indian Parliament
(Lok Sabha or Rajya Sabha) without the recommendations of President of India.
These bills are passed by Simple Majority in both Houses.
GOVERNMENT OF THE STATES
[A] The State
 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
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.
 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.
 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
Like the Central Government, our State Government also is of the
Parliamentary type and follows closely the model of the Central Government. The
Constitution of India provides for a legislature in each State and entrusts it
with the responsibility to make laws for the state. However, the composition of
a state Legislature can be different in different states. It can be either
bicameral or unicameral. Presently, only six states (Andhra Pradesh, Bihar,
J&K, Karnataka Maharashtra and UP) have bi-cameral legislatures. Twenty-Two
States and Two Union Territories (Delhi and Puducherry) have uni-cameral
In case of a bicameral state legislature, the upper house is known
as State Legislative Council (Vidhan Parishad) and the lower house as the State
Legislative Assembly (Vidhan Sabha). Where there is only one House of the State
Legislature, it is known as the State Legislative Assembly.
State legislature have exclusive powers over subjects enumerated
in List II of the Seventh Schedule of the Constitution and concurrent powers
over those enumerated in List III. Financial powers of legislature include
authorization of all expenditure, taxation and borrowing by the state
government. Legislative assembly alone has power to originate money bills.
Legislative council can make only recommendations in respect of changes it
considers necessary within a period of fourteen days of the receipt of money
bills from Assembly. Assembly can accept or reject these recommendations.
The Governor of a state may reserve any Bill for the consideration
of the President. Bills relating to subjects like compulsory acquisition of
property, measures affecting powers and position of High Courts and imposition
of taxes on storage, distribution and sale of water or electricity in
Inter-State River or river valley development projects should necessarily be so
reserved. No Bills seeking to impose restrictions on inter-state trade can be
introduced in a state legislature without previous sanction of the President.
State legislatures, apart from exercising the usual power of
financial control, use all normal parliamentary devices like questions,
discussions, debates, adjournments and no-confidence motions and resolutions to
keep a watch over day-to-day work of the executive. They also have their
committees on estimates and public accounts to ensure that grants sanctioned by
legislature are properly utilized.
 Vidhan Parishad
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.
not exceeding 1/3rd members of the Vidhan Sabha, and cannot be less
than 40 members.
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
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.
years. One-third members retire every 2 years.
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.
 Vidhan Sabha
Vidhan Sabha is also
called the Lower House of the State.
not exceeding 500 members, and cannot be less than 60 members.
are directly elected by the citizens of that state by way of National Elections
or Universal Adult Franchise (18 years being the voting age).
years, subject to early dissolution or extended term due to invocation of state
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.
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.
The territory of Delhi until 1991 and before the 69th
Constitutional amendment was a Union Territory, after which it was declared to
be the National Capital Territory of Delhi, famously known as the Delhi-NCR. It
is administrated by a specially appointed post of Lieutenant Governor. The
Union Territories of Andaman & Nicobar Islands and Puducherry is also
administered by a Lieutenant Governor.
List of Union Territories in India
There are 7 Union Territories recognized by the Union of India,
Dadra and Nagar Haveli
Daman and Diu
Andaman and Nicobar
NCT of Delhi
THE STATE OF JAMMU & KASHMIR
Article 370 of the Constitution of India is a 'temporary
provision' which grants special autonomous status to the State of Jammu and
Kashmir. According to Article 370, except defence, external affairs and
communication, the Parliament needs the concurrence of the State Government for
applying all other laws. All the provisions of the Constitution which are
applicable to the other States are not applicable to the State of Jammu and
Thus, the residents of Jammu and Kashmir live under a separate set
of laws, including those related to citizenship, ownership of property, and
fundamental rights, as compared to other Indians. As a result of this
provision, Indian citizens from other States cannot purchase property in the
State of Jammu and Kashmir. Article 370 embodied six special provisions for
Jammu and Kashmir, which are as follows;
1. It exempted the State from the complete applicability of the
Constitution of India. The State was allowed to have its own Constitution.
2. Central legislative powers over the State were limited, at the
time of framing, to the three subjects of defence, foreign affairs and
3. Other constitutional powers of the Central Government could be
extended to the State only with the concurrence of the State Government.
4. The 'concurrence' was only provisional. It had to be ratified by
the State's Constituent Assembly.
5. The State Government's authority to give 'concurrence' lasted only
until the State Constituent Assembly was convened. Once the State Constituent
Assembly finalized the scheme of powers and dispersed, no further extension of
powers was possible.
6. The Article 370 could be abrogated or amended only upon the
recommendation of the State's Constituent Assembly.
The State of Jammu and Kashmir's original accession, like all
other princely states, was on three matters: defence, foreign affairs and
communications. All the Princely States were invited to send representatives to
India's Constituent Assembly, which was formulating a Constitution for the whole
In the case of Jammu and Kashmir, the representatives to the
Constituent Assembly requested that only those provisions of the Indian
Constitution that corresponded to the original Instrument of Accession should
be applied to the State. Accordingly, the Article 370 was incorporated into the
Indian Constitution, which stipulated that the other articles of the
Constitution that gave powers to the Central Government would be applied to
Jammu and Kashmir only with the concurrence of the State's constituent
assembly. This was a "temporary provision" in that its applicability
was intended to last till the formulation and adoption of the State's
constitution. However, the State's constituent assembly dissolved itself on 25
January 1957 without recommending either abrogation or amendment of the Article
370. Thus, the Article has become a permanent feature of the Indian
constitution, as confirmed by various rulings of the Supreme Court of India and
the High Court of Jammu and Kashmir.
In exercise of the powers conferred by clause (1) of article 370
of the Constitution, the President, with the concurrence of the Government of
the State of Jammu and Kashmir made a series of orders, which are as follows:
specified the subjects and articles of the Indian Constitution that
corresponded to the Instrument of Accession as required by the clause b(i) of
the Article 370.
order of 1952
issued on 15 November 1952, at the request of the state government. It
amended the Article 370, replacing the phrase "recognized by the
President as the Maharaja of Jammu and Kashmir" by "recognized by
the President on the recommendation of the Legislative Assembly of the State
as the Sadr-i-Riyasat". The amendment represented the abolition of the
monarchy of Jammu and Kashmir.
order of 1954
a comprehensive order seeking to implement the 1952 Delhi Agreement. The provisions implementing the Delhi Agreement were:
1. Indian citizenship was extended to the 'permanent residents' of
Jammu and Kashmir (formerly called 'state subjects').
2. The fundamental rights of
the of Indian were extended to the state. However, the State Legislature was
empowered to legislate on preventive detention for the purpose of internal
3. The jurisdiction of the Supreme Court of India was extended to the State.
4. The Central Government was given power to declare national emergency in the event of external aggression. However, its power to
do so for internal disturbances could be exercised only with the concurrence
of the State Government.
addition, the following provisions which were not previously decided in the
Delhi Agreement were also implemented:
1. Financial relations between the Centre and the State were placed
on the same footing as the other States.
2. Decisions affecting the disposition of the State could be made
by the Central Government, but only with the consent of the State Government.
to the Presidential Order 1954, forty-seven Presidential orders have been
issued between 11 February 1956 and 19 February 1994, making various other
provisions of the Constitution of India applicable to Jammu and Kashmir. All
these orders were issued with the 'concurrence of the Government of the State'
without any Constituent Assembly. The effect of these orders has been to
extend 94 of the 97 subjects in the Union List (the powers of the Central
Government) to the State of Jammu and Kashmir, and 260 of the 395 Articles of
the Constitution of India
Panchayats and Municipalities are units of local
self-administration. While Panchayats operate in villages, Municipalities
operate in towns.
The bedrock of the present local self-government in India was laid
by the Panchayati Raj System. The history of Panchayati Raj starts from the
self-sufficient and self-governing village communities. In the time of
the Rig-Veda (1700 BC), evidence suggests that self-governing village
bodies called ‘sabhas’ existed. With the passage of time, these bodies became
panchayats (i.e. council of five persons).
Panchayats were functional institutions of grassroots governance
in almost every village. They endured the rise and fall of empires in the past,
to the current highly structured system. Village Panchayats and Municipalities
resulted from the increasing demand by Indian leaders for autonomy at the
national level. They were basically concessions to assuage the growing pressure
and these bodies still had to work under government control and supervision. It
was provided through various enactments. The Government of India Act, 1935
also vested various powers of administration in the hands of panchayats.
The makers of the Constitution of Independent India were not
satisfied with the working of these bodies and therefore they included the
following directive in Article 40 of the Constitution:
“The state shall take steps to organize village panchayats and
endow them with such powers and authority as may be necessary to enable them to
function as units of self-government.”
However, not much attention was paid to holding elections in these
local units of representative democracy. This changed during the time of Prime
Minister Rajiv Gandhi. The state legislatures were spurred to enact detailed
laws pertaining to the working and organization of these local units by
insertion of specific provisions in the constitution. The provisions were inserted
through the 73rd and 74th Constitutional Amendment Acts, 1992 which inserted
part IX and IXA into the Constitution.
Local self-government implies the trickling down of the power to
rule to the lowest rungs of the political order. It is a form of democratic
decentralization where the participation of even the grass root level of the
society is ensured in the process of administration.
Special Features of The New System:
The new system contained the following novel provisions- direct
elections by the people, reservation of seats for women, an Election Commission
to conduct election, a Finance Commission to ensure financial viability.
These provisions were only guidelines which are to be supplemented
by laws enacted by the state legislatures who have to decide the powers and
functions of these bodies and other details. This is because ‘local government’
is a subject under the State list. The Union just outlined the scheme that had
to be implemented by the states by making laws, or amending their existing laws
to bring them into conformity with the provisions inserted through the 73rd and
Elections to panchayats and municipalities have taken place in
most of the states after laws to implement the guidelines in the provisions
were enacted by the states. However, these amendments do not apply to Jammu
& Kashmir, Meghalaya, Nagaland and National Capital Territory of Delhi.
Part IX of the constitution envisions the following three-tier
system of Panchayats:
1. At the village level;
2. The District Panchayat at the district level;
3. The Intermediate Panchayat which stands between the villages and
district Panchayats in states where the population is above 20 lakhs.
The seats in the panchayats are required to be filled by persons
chosen by direct elections from territorial constituencies in the Panchayat
area. The electorate is termed as the ‘Gram Sabha’.
The Sarpanch or the chairperson of each panchayat shall be elected
according to the law passed by a state. Representation of Chairpersons of
village panchayats and intermediate panchayats shall be ensured at the district
level panchayats and of members of state and union legislature in panchayats of
village level by the same law.
Article 243D provides for reservation for Scheduled Castes and
Scheduled Tribes in proportion to their population. For instance, If SCs
constitute 30% population and STs 16% of the population, then 30% and 16% seats
respectively will be reserved for them. 1/3rd of these reserved seats shall be
for women belonging to SC or ST.
1/3rd of the seats shall be reserved for women. The state also has
the option of ensuring reservation for the post of Chairperson of the
panchayats by enacting a law.
Every Panchayat continues for 5 years after its first meeting.
However, it can be dissolved earlier as per state law. Elections must take
place before the expiry of the said period. Elections must take place within
six months of dissolution in case it happens. A reconstituted panchayat can
only operate for the remainder of the period.
Article 243F provides that all members qualified to be MLAs are
qualified to be members of Panchayats with the difference that a person aged 21
is also eligible to be a member although he is not eligible to be an MLA.
Powers and Responsibilities
Articles 243G-243H provide the state government with the power to
confer upon the panchayats such powers and authority as may be necessary to
enable them to function as institutions of self-governance. They may be
entrusted with following responsibilities-
1. Preparing plans for economic development and social justice.
2. Implementation of schemes for the above.
3. Responsibilities pertaining to matters listed in the Eleventh
Schedule that contains 29 items such as land improvement, minor irrigation,
animal husbandry, fisheries, education, women and child development etc.
4. A state may also authorize a Panchayat to levy, collect and
appropriate taxies, duties and tolls through legislation that lays down the
procedure to be followed as well as the limits of these exactions.
Finance Commission & Relevance
The state government appoints a Finance Commission every 5 years
to review the financial position of the Panchayats and to make recommendations
as to the distribution between the state and the Panchayats of the net proceeds
of taxes, duties, tolls and fees leviable by the state which may be divided between
them and how allocation would be made among various levels of Panchayats. Other
features for consideration is what taxes, duties, tolls and fees may be
assigned to the Panchayats and grant-in-aid to the Panchayats.
State Election Commission
Article 243K provides for the constitution of a State Election
Commission headed by a State Election Commissioner appointed by the governor.
This is to ensure free and fair election to the panchayats.
Powers of superintendence, direction and control of elections to
the panchayats and preparation of electoral rolls for it are vested in the
State Election Commission. To ensure independence of the Commission, it is laid
down that the State Election Commissioner can be removed only in the same
manner and on the same grounds as a Judge of the High Court.
Bar to Interference by Courts
Article 329 provides that courts shall have no jurisdiction to
scrutinize the validity of a law relating to determination of constituencies or
the allotment of seats, made under Article 243K. An election to a panchayat can
be only called into question through an election petition that needs to be
presented to appropriate authority as prescribed by law enacted by the State.
Part IXA gives constitutional foundation to local self-government
units in urban areas. It came into force on 1-6-1993. Some of its provisions
are similar to Part IX such as Reservation of seats, Finance and Election
It provides for two types of bodies:
a) Institutions of self-government. (Article 243Q)
b) Institutions for planning (Article 243ZX and 243ZE)
Municipalities come under the category ‘Institutions of self-government’.
They are of 3 types:
a) Nagar Panchayat, for areas that are being converted from rural to
b) Municipal Council for a smaller urban area.
c) Municipal Corporation for a larger Urban area.
Article 243Q makes it mandatory for the states to constitute such
units. However, in case an Industrial establishment in the area provides or
proposes to provide municipal services, then the governor, after consideration
of size of the area and other factors, can specify the area as an industrial
township. It is not necessary to constitute a municipality in such an area.
The members are elected by direct elections. The state can enact a
law to provide representation of the following:
a) Persons having special knowledge or experience of municipal
b) Members of Lok Sabha, State Assembly, Rajya Sabha and Legislative
c) The chairpersons of committees constituted under clause 5 of
d) The chairperson is elected in the manner prescribed by the
A municipality can have one or more territorial areas with a
population of 3 lacs or more that are called wards. For such areas, it is
obligatory to constitute a ward committee. The State legislature can make
provision for its composition, territorial area and the manner in which the
seats are filled.
The state legislature has the prerogative to constitute committees
in addition to the wards committees.
Reservations in favour of Scheduled Castes and Scheduled Tribes
are required to be made in every municipality as provided by Part IX.
1/3rd of the seats that are filled by direct election need to be
reserved for women that includes the quota for women belonging to SCs and STs.
The state can also make reservation to the office of chairperson
through enacting legislation for the same. All reservations for SCs and STs for
the office of chairperson shall expire when the period specified in Article 334
comes to an end.
Every municipality has a term of 5 years commencing from the date
of its first meeting. It can be dissolved earlier as well according to law.
Article 243Q prescribes that a reasonable opportunity to be heard must be given
to the municipality before it is dissolved.
Elections to the municipality must be completed before the expiry
of its earlier term. In case the municipality that was constituted earlier is
dissolved, elections to constitute a new one must be held within 6 months of
dissolution. Such newly constituted municipality shall only continue for the
remainder of the term.
Article 243V provides that all members qualified to be MLAs are
qualified to be members of a Municipality with the important difference that a
person aged 21 is also eligible to be a member of a municipality although he is
not eligible to be an MLA.
Powers and Responsibilities
Article 243W has conferred the power of enabling the
municipalities with all such powers and authority as may be necessary to enable
them to function as institutions of self-government. More specifically, it has
been mentioned that they may be given the responsibility of:
a) Preparation of plans for economic development and social justice,
b) implementation of schemes as may be entrusted to them, and
c) governance in regard to matters listed in the 12th schedule. (This
schedule contains 18 items such as Urban Planning, Regulation of Land Use,
Roads and Bridges, Water Supply, Public Health, Fire Services, Urban Forestry,
The state legislature can also authorize a municipality to levy,
collect and appropriate taxes, duties, tolls etc. Limits on such practice and
the appropriate procedure can be laid down by the law. Various taxes, duties etc.
collected by the State Government can also be delegated to the Municipalities.
Grants-in-aid is given to municipalities from the consolidated fund of the
A Finance Commission is appointed under Article 243-I by the State
Government to review the financial position of the municipalities and make
recommendations as to-
a) The distribution between the state and the Municipalities of the
net proceeds of taxes, duties, tolls and fees leviable by the state which may
be divided between them and how allocation would be made among various levels
b) What taxes, duties, tolls and fees may be assigned to the
c) Grant-in-aid to the Municipalities.
d) The measures needed to improve the financial position of the
e) any other matter that may be referred to it by the governor.
State Election Commission
Article 243K provides for the constitution of a State Election
Commission headed by a State Election Commissioner appointed by the governor.
This is to ensure free and fair election to the municipalities.
Powers of superintendence, direction and control of elections to
the municipalities and preparation of electoral rolls for it are vested in the
State Election Commission. To ensure independence of the Commission, it is laid
down that the State Election Commissioner can be removed only in the same
manner and on the same grounds as a Judge of the High Court.
Bar to Interference by the Courts in Electoral Matters
The courts shall have no jurisdiction to examine the validity of a
law relating to delimitation of constituencies or the allotment of seats made
under Article 243ZA. An election to a municipality can only be called into
question through an election petition that is presented to the appropriate
authority in the manner prescribed by the law enacted by the state legislature.
The 74th Amendment lays down that in every state two committees
shall be constituted:
a) At the district level a District Planning Committee. (Article
b) In every metropolitan area, a Metropolitan Planning Committee.
The composition and manner in which the seats are filled are
required to be provided by a law to be enacted by the State Legislature.
However, it has been laid down that-
In case of the District Planning Committee at least 4/5th of the
members shall be elected by the elected members of the district level Panchayat
and of the Municipalities in the district from amongst themselves. Their
proportion would be in accordance with the ratio of urban and rural population
of the district.
In case of Metropolitan Planning Committee at least 2/3rd of the
members of the committee shall be elected by the members of the Municipalities
and Chairpersons of the Panchayats in the Metropolitan area from amongst
themselves. The proportion of seats to be shared by them would be based on the
ratio of the population of the Municipalities and of the Panchayats in the
The state legislature needs to make provision regarding:
a) The functions relating to district planning that may be assigned
to the district committees, and
b) the manner in which the chairperson of a district committee may be
c) The committee is required to prepare and forward the proposed plan
of action to the state government.
d) The state is required to make provision for the following when it
comes to the Metropolitan Planning Committee:
e) the representation of the Central and State governments and of
such organizations and institutions as may be deemed necessary,
f) the functions relating to planning and co-ordination for the
g) the manner in which the Chairpersons of such committees shall be
In conclusion, local self-government is one of the most innovative
and forward-thinking governance change processes our country has gone through.
The noble idea of taking the governance of a country to the grass root level is
However, like every system in the world, this system also has its
share of hits and misses. Problems of maladministration and misappropriation of
funds are recurring. But this shall not stand in the way of efficient
governance; and if these ill practices are rooted out, there would be no
comparisons around the world to our system of local self-government. India has
established a model system for the rest of the countries to follow.
Constitutionally, we do not have a federal system of judiciary,
but it is based on unitary system. This can be concluded as unlike the United
States of America, which is purely federal, we do not have separate
jurisdictions for the Union Judiciary and the State Judiciary. That is, we
cannot say that the State Courts are independent of the Union Court; meaning
the Supreme Court cannot transgress into the working of the High Courts of
respective states, and vice versa.
The system that we observe is that the High Courts are governed
and are bound by the rulings of the Supreme Court. Also, a citizen can appeal
to the Supreme Court, in limited purview, challenging the order delivered by a
High Court in India. This, add to the scope of the constitution being
SUPREME COURT (Article 124-147)
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.
According to Article 143 of the Constitution, the President of
India has the power to refer that question of law or fact, which has arisen or
will arise in future, relating to public importance and the Supreme Court may
after hearing such matter, refer to the President its opinion on the question
of law or fact or both.
Power to do Justice
The Supreme Court in order to grant complete justice to the person
before it, has the power under Article 142 of the Constitution to exercise its
jurisdiction and pass any judgment or order in a matter pending before it for
doing complete justice in the case.
Appointment of Judges
The Supreme Court of India is the highest judicial forum
and final court of appeal under the Constitution of India, the highest
constitutional court, with the power of judicial review. Consisting of
the Chief Justice of India and a maximum of 31 other judges, it has
extensive powers in the form
of original, appellate and advisory jurisdictions. As
the final court of appeal of the country, it takes up appeals
primarily against verdicts of the high courts of various states of the Union
and other courts and tribunals.
Constitution of the Supreme Court
Initially the Constitution of India provided for a supreme court
with a chief justice and 7 judges. In the early years, a full
bench of the supreme court sat together to hear the cases presented before
them. As the work of the court increased and cases began to accumulate,
parliament increased the number of judges (including the CJI) from the original
8 in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008
(current strength). As the number of the judges has increased, they sit in
smaller benches of two or three (referred to as a division bench) coming
together in larger benches of five or more (referred to as a constitution
bench) when required to settle fundamental questions of law. A bench may refer
a case before it to a larger bench, should the need arise.
Eligibility of a judge of the Supreme Court: -
(1) A citizen of India not exceeding 65 years age as
per Article 124.
(2) A High Court judge who has held the post for five years or
(3) An advocate who has practiced in a High Court (or the Supreme
Court) for ten years or longer.
Additionally, a distinguished jurist and technically this could
include a scholar, though no judge has ever been appointed on this basis. The
general rule of thumb when it comes to appointing existing High Court judges is
seniority; more senior judges in these courts should be considered for
elevation to the Supreme Court. However, where a particular judge has
demonstrated exceptional ability or character, the order of superiority can be
superseded. The reasons behind that particular judge being appointed need to be
recorded in such cases.
Appointer of the Judges
Under this Article, the judges of the Supreme Court are to be
appointed by the President of India. However, unlike the procedure followed in
other countries, such as the USA, the appointment of Supreme Court judges in
India happens with the involvement of the Judiciary. Article 124(2) says that
the President shall appoint the judges.
For the appointment of any judge of the Supreme Court apart from
the CJI, the Article also says that the Chief Justice of India must be
consulted. Practically, collegium formed for the appointments of judges of high
court and supreme court has the last say. Recommendations from collegium is
like a carving on stone which is irrevocable.
There is a specific process allocated for impeachment/removal of
judges of the Supreme Court. The process is a combination of the constitutional
provisions and the Judges (Inquiry) Act, 1968, which is compiled as follows;
A motion is presented to
the President of India signed by atleast 100 members of the Lok Sabha or 50
members of the Rajya Sabha, thereafter being presented to the Speaker of the Chairman
to the Parliament.
An investigation report is
to be generated a 3-member committee, being 2 sitting Supreme Court judges and
1 eminent jurist.
The Judge can be impeached
on two grounds being, misbehaviour and unsoundness of mind. If any of the same
is concluded in the report, the said motion is raised in the parliament for
The motion has to be
passed in special majority, that being atleast 2/3rd of the members
being present and voting.
If the motion stands
passed the same is sent to the President for signing, if so done the
impeachment process becomes final.
It is a point to observe that till date no judge has ever been
impeached, but once in 1991-93 the motion was moved against Shri R. Ramaswamy
of the Supreme Court.
These articles are contained in the Chapter IV of the Constitution
of India, under the heading of the Union Judiciary, the articles have the
a) 124 Establishment and constitution of Supreme Court.
b) 125 Salaries, etc., of Judges.
c) 126 Appointment of acting Chief Justice.
d) 127 Appointment of ad hoc judges.
e) 128 Attendance of retired Judges at sittings of the Supreme Court.
f) 129 Supreme Court to be a court of record.
g) 130 Seat of Supreme Court.
h) 131 Original jurisdiction of the Supreme Court.
i) 132 Appellate jurisdiction of Supreme Court in appeals from High
Courts in certain cases.
j) 133 Appellate jurisdiction of Supreme Court in appeals from High
Courts in regard to Civil matters.
k) 134 Appellate jurisdiction of Supreme Court in regard to criminal
l) 134A Certificate for appeal to the Supreme Court.
m)135 Jurisdiction and
powers of the Federal Court under existing law to be exercisable by the Supreme
n) 136 Special leave to appeal by the Supreme Court.
o) 137 Review of judgments or orders by the Supreme Court.
p) 138 Enlargement of the jurisdiction of the Supreme Court.
q) 139 Conferment on the Supreme Court of powers to issue certain
r) 139A Transfer of certain cases.
s) 140 Ancillary powers of Supreme Court.
t) 141 Law declared by Supreme Court to be binding on all courts.
u) 142 Enforcement of decrees and orders of Supreme Court and orders
as to discovery, etc.
v) 143 Power of President to consult Supreme Court.
w) 144 Civil and judicial authorities to act in aid of the Supreme
x) 145 Rules of Court, etc.
y) 146 Officers and servants and the expenses of the Supreme Court.
z) 147 Interpretation.
HIGH COURTS (Article 214-231)
There are 25 high courts at the state and union
territory level of India, which together with the Supreme Court
of India at the national level, comprise the country's judicial
system. Each high court has jurisdiction over a state, a union
territory or a group of states and union territories. Below the high
courts is a hierarchy of subordinate courts such as the civil courts, family
courts, criminal courts and various other district courts. High courts are
instituted as constitutional courts under Part VI, Chapter V, Article
214 of the Indian constitution.
The high courts are the principal civil courts of original
jurisdiction in each state and union territory. However, a high court
exercises its original civil and criminal jurisdiction only if the subordinate
courts are not authorized by law to try such matters for lack of pecuniary,
territorial jurisdiction. High courts may also enjoy original jurisdiction in
certain matters, if so designated specifically in a state or federal law.
However, the work of most high courts primarily consists of
appeals from lower courts and writ petitions in terms of Article 226 of the
constitution. Writ jurisdiction is also an original jurisdiction of a high
court. The precise territorial jurisdiction of each high court varies. The appeal
order is the following: tehsil/kotwali to criminal/civil courts to district
court to high court to supreme court.
Each state is divided into judicial districts presided over by a
district and sessions judge. He is known as district judge when he presides over
a civil case, and sessions judge when he presides over a criminal case. He is
the highest judicial authority below a high court judge. Below him, there are
courts of civil jurisdiction, known by different names in different states.
Under Article 141 of the constitution, all courts in India, including high
courts, are bound by the judgments and orders of the Supreme Court of India by
Judges in a high court are appointed by the President of
India in consultation with the Chief Justice of India and
the governor of the state. High courts are headed by a chief justice. The
chief justices rank fourteenth (within their respective states) and seventeenth
(outside their respective states) on the Indian order of precedence. The
number of judges in a court is decided by dividing the average institution of
main cases during the last five years by the national average, or the average
rate of disposal of main cases per judge per year in that High Court, whichever
The Calcutta High Court is the oldest high court in the
country, established on 2 July 1862. High courts that handle a large number of
cases of a particular region have permanent benches established there. Benches
are also present in states which come under the jurisdiction of a court outside
its territorial limits. Smaller states with few cases may have circuit benches
established. Circuit benches (known as circuit courts in some parts
of the world) are temporary courts which hold proceedings for a few selected
months in a year. Thus, cases built up during this interim period are judged
when the circuit court is in session. According to a study conducted
by Bangalore-based NGO, Daksh, on 21 high courts in collaboration with
the Ministry of Law and Justice in March 2015, it was found that average
pendency of a case in high courts in India is 3 years.
List: High courts
The Madras High Court in Chennai, Bombay High
Court in Mumbai, Calcutta High
Court in Kolkata and Allahabad High
Court in Allahabad are the oldest four high courts in India.
The following are the 25 high courts in India sorted by name,
jurisdiction, principal seat (headquarters), permanent benches (subordinate to
the principal seat), circuit benches of the high court.
Allahabad High Court
Andhra Pradesh High Court
Bombay High Court
Goa, Dadra and Nagar Haveli, Daman and
Aurangabad, Nagpur, Panaji
Calcutta High Court
Andaman and Nicobar Islands, West Bengal
Chhattisgarh High Court
Delhi High Court
National Capital Territory of Delhi
Gauhati High Court
Arunachal Pradesh, Assam, Mizoram, Nagaland
Aizawl, Itanagar, Kohima
Gujarat High Court
Himachal Pradesh High Court
Jammu and Kashmir High Court
Jammu and Kashmir
Jharkhand High Court
Karnataka High Court
Kerala High Court
Madhya Pradesh High Court
Madras High Court
Pondicherry, Tamil Nadu
Manipur High Court
Meghalaya High Court
Orissa High Court
Patna High Court
Punjab and Haryana High Court
Chandigarh, Haryana, Punjab
Rajasthan High Court
Sikkim High Court
Telangana High Court
Tripura High Court
Uttarakhand High Court
Appointment of Judges
The essential qualifications/preconditions for appointment of a
High Court Judge is provided under Article 217, which are as follows;
(1) A citizen of India not exceeding 62 years age as
per Article 217.
(2) A judicial officer who has held the post for 10 years or
longer at a subordinate post to that of a high court judge.
(3) An advocate who has practiced in a High Court for ten years or
The process of appointment begins by the Chief Justice of the
respective high court making a recommendation for the person so being
appointed. Such recommendation must be approved by the Chief Justice of India.
Thereafter, the President of India who is the constitutional authority to
appoint judges (Article 143) shall appoint the judge by giving his assent.
There is a specific process allocated for impeachment/removal of
judges of the High Court which is same as the Supreme Court. The process is a
combination of the constitutional provisions and the Judges (Inquiry) Act,
1968, which is compiled as follows;
A motion is presented to
the President of India signed by atleast 100 members of the Lok Sabha or 50
members of the Rajya Sabha, thereafter being presented to the Speaker of the
Chairman to the Parliament.
An investigation report is
to be generated a 3-member committee, being 2 sitting Supreme Court judges and
1 eminent jurist.
The Judge can be impeached
on two grounds being, misbehaviour and unsoundness of mind. If any of the same
is concluded in the report, the said motion is raised in the parliament for
The motion has to be
passed in special majority, that being atleast 2/3rd of the members
being present and voting.
If the motion stands
passed the same is sent to the President for signing, if so done the
impeachment process becomes final.
It is a point to observe that till date no High Court judge has
ever been impeached.
a) 214 High Courts for States.
b) 215 High Courts to be courts of record.
c) 216 Constitution of High Courts.
d) 217 Appointment and conditions of the office of a Judge of a High
e) 218 Application of certain provisions relating to Supreme Court to
f) 219 Oath or affirmation by Judges of High Courts.
g) 220 Restriction on practice after being a permanent Judge.
h) 221 Salaries, etc., of Judges.
i) 222 Transfer of a Judge from one High Court to another.
j) 223 Appointment of acting Chief Justice.
k) 224 Appointment of additional and acting Judges.
l) 224A Appointment of retired Judges at sittings of High Courts.
m)225 Jurisdiction of
existing High Courts.
n) 226 Power of High Courts to issue certain writs.
o) 227 Power of superintendence over all courts by the High Court.
p) 228 Transfer of certain cases to High Court.
q) 229 Officers and servants and the expenses of High Courts.
r) 230 Extension of jurisdiction of High Courts to Union territories.
s) 231 Establishment of a common High Court for two or more States.
SUBORDINATE COURTS (Article 233-237)
The subordinate courts can be naively bifurcated into two parallel
court systems- Civil Court and Criminal Courts. Just below the High Court, on
the Civil side we have the District Court and on the Criminal side we have the
Sessions Court. Likewise, there are Munsiff’s Courts in Tehsils and Judicial
Magistrates in further lower hierarchy. At village level, we have Nayay
Panchayats, Pachayat Adalat, Gram Kutchery and courts of similar nature that
govern and handle disputes at the lowest level of Judiciary. We also have
tribunals and forums who are right subordinate to the High Court like Consumer
Protection Forum, Income Tax Appellate Tribunal, National Company Law Tribunal,
Motor Vehicles Accidents Tribunal and many other as established by various
Constitutionally, the relevance of subordinate courts is limited
to appointment of District Judges and determination of class (types) of
Magistrates, which is under the authority of the Governor.
Emergency Provisions Under
the Constitution of India
The emergency provisions are contained in part XVIII of the
constitution from Articles 352 to 360. The President of India has been given
extraordinary power to declare an emergency to safeguard the sovereignty,
unity, integrity and security of the country and the democratic political
system. Those powers to President of India in Constitution are called emergency
provisions. It is a unique feature of the Constitution which converts the
federal structure into a unitary one without amending the constitution. During
declaration of emergency, the Central Government becomes the rider of the
nation and the states go in complete control of the center.
The Constitution provides for three kinds of emergencies-
1. National Emergency- (Article 352)
An emergency due to war, external aggression or armed rebellion
may be referred to as national emergency. If the president of India is
satisfied that a grave emergency exists whereby the security of India or any
part is threatened whether by war or external aggression or an armed rebellion,
then he may proclaim a state of national emergency for the whole of India or a
part of it. National emergency maybe declared even before the actual occurrence
of such a disturbance i.e. when threat to security is apprehended.
Where the Constitution simply uses the expression ‘Proclamation of
Emergency’, it means National emergency under Article 352.
External and Internal Emergency
When a national emergency is declared on the ground of ‘war’ or
‘external aggression’, it is known as ‘External Emergency’. On the other hand,
when it is declared on the ground of ‘armed rebellion’, it is known as
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
The emergency continues
for six months, when approved by both the house of Parliament.
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
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
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
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.
State Emergency (Article
Article 356 provides that if the President, is satisfied that a
situation has arisen in which the Government of the State cannot be carried on
by the provisions of the Constitution, the President may issue proclamation of
state emergency. Such emergency may be declared either on report of the
Governor of the State or otherwise.
State emergency may also be proclaimed by the President where any
state has failed to comply with or give effect to, any directions given by the
Union, in exercise of its executive power to the State.
Declaration of emergency under Article 356 is also known as
“President’s rule in the State” because the president assumes extraordinary
powers and performs the functions of the State government.
Duration of State Emergency
A proclamation imposing
President’s Rule must be approved by both the Houses of Parliament within two months
from the date of its issue.
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.
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;
the functions of the state government and powers vested in the governor or any
other executive authority in the state, except the high court
that the powers of the state legislature are to be exercised by the Parliament.
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
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
Whether it was issued on the basis of any material
Whether the material was relevant
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.
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
Duration of financial emergency
A proclamation declaring financial emergency must be approved by
both the Houses of Parliament within two months from the date of its issue
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.
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;
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,
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
Money Bills or other Financial Bills may be reserved for the consideration of
the president after they are passed by state legislature
Financial emergency declared so far
No emergency under article 360 has been declared so far, though
there was a financial crisis in 1991.
MISCELLANEOUS PROVISIONS & SCHEDULES TO THE
RIGHTS AND LIABILITIES OF THE GOVERNMENT AND PUBLIC SERVANTS
Our constitution views the Union and the States as juristic
persons who are capable of making contracts, acquiring and owning property,
carrying on trade or business, taking or defending legal actions in the same
manner as a private person subject to modifications specified in the
Hence, there are certain features that are attached to the
Government Units which are enumerated as follows:
1. Power to acquire property- The Union and State can acquire
property in several ways and forms such as through succession, Bona Vacantia,
things underlying the ocean, compulsory acquisition or requisition by Law,
acquisition under Executive power.
2. Power to carry on trade- Article 298 provides that the Union or
State government is competent to carry on any trade or business and make
contract for that purpose, in exercise of its executive power. Such business
shall, however, be subject to regulation by the competent legislature. It also
has the power to create a monopoly in its own favour in respect of any trade it
carries out through legislation. The reasonableness of such law cannot be
questioned by the courts.
3. Power to borrow money- The Union and state government are also
empowered to take loans.
4. Government Contracts- Both Union and state government have the
power to enter into contracts in a similar manner as private persons in
relation to their respective spheres of executive powers. However, there is a
definite procedure to be followed and the prerequisite formalities must be seen
to. Otherwise, public funds may get depleted due to clandestine contracts. The
formalities are laid down in Article 299.
5. Suability of the Union and State- The Government of India may sue
by the name of ‘Union of India’ while a State may sue by the name of that
state, e.g., ‘State of Bihar’. Either government can bring a suit not just
against private persons but also another government. As per article 131, the
Union may bring a suit against one or more states; while the Union may sue
another state or the Union.
Tortious Liability of Government Servants
In England, there was the common law maxim that the’ king can do
no wrong’. This was superseded by the Crown Proceedings Act, 1947. However,
since there was no such corresponding legislation, courts in India have no
alternative other than following the existing case-law which is founded on the
English theory of immunity of the state.
The existing law in India draws a distinction between sovereign
and non-sovereign functions of the government. It holds that Government cannot
be sued for torts committed by the government or its officers in exercise of a
‘sovereign function’ of a state. Few examples of sovereign functions are-
commandeering of goods during war, improper arrest, negligence or trespass by police
officers, loss of movables from government custody owing to negligence of
officers. However, gradually the supreme court has adopted a pro-people
The Kasturi Lal case that propounded the theory of sovereign
immunity has yielded to new theories and is no longer applicable since in the
modern-day welfare state, the government functions are manifold and all of them
cannot be said to be activities relating to exercise of sovereign power.
In A Registered Society v. Union of India (1999) 6 SCC 667, the
Supreme Court upheld the award of Rs. 10 lakhs by the High Court to a foreign
passenger who was a victim of gang-rape committed by the railway employees in a
room of a railway Yatri-Niwas booked in their name. Railways is a commercial activity.
The employees deputed to run the railways and to manage the establishment that
includes the railway stations and the Yatri Niwas are essential components of
the government machinery carrying out commercial activity. If these employees
commit a tort, the Union government will be held liable. The efficacy of
Kasturi Lal case as a binding precedent has been eroded.
Placing the State above the law is unfair and unjust to the
citizen. The ratio of Kasturi Lal case is applicable in limited and rare scenarios.
Suability of Public Servants
Though the state is immune from liability in certain cases owing
to historical reasons, the Constitution does not grant any immunity to a public
servant for his official acts which are unlawful under the ordinary law of the
land. The only exception is that Article 361 grants limited immunity to the
President and Governor for their political as well as personal acts while they
are in office. No such immunity is granted to ministers for any offence done
in their personal capacity.
The general law imposes certain conditions as regards liability of
public servants given their peculiar position;
1. If a contract made by a Government servant in his official
capacity complies with the formalities laid down in Article 299, it is the
government concerned which will be liable in respect of the contact and not the
officer who executed the contact.
2. In case of Torts, both the servant and Government will be held
liable unless the act is an exercise of the sovereign functions of the state
and unless -
3. The act has been done, bona fide, in the performance of duties
imposed by a statute;
4. He is a judicial officer doing an act in discharge of his official
In case of crimes, the criminal liability of a public servant is
the same as that of an ordinary citizen except that-
1. There is no liability for judicial acts or for acts done in
pursuance of judicial orders. (ss. 77-78 Indian Penal Code)
2. Officers, other than judicial, are also immune for any act which
they, by reason of some mistake of law or fact, in good faith, believed
themselves to be bound by law to do. (s. 76 Indian Penal Code)
3. Where a public servant who is not removable from his office save
by or with the sanction of the Central or State Government is accused of an
offence, committed by him while acting or purporting to act in the discharge of
his official duty, no court can take cognizance of such offence without the
previous sanction of the Central government or the State Government, as the
case may be. (Section 197, Criminal Procedure Code)
4. For acts done for the maintenance or restoration of order in an
area where martial law was in force, Parliament may exempt the officers
concerned from liability by validating such acts by making an act of indemnity.
THE SERVICES AND PUBLIC SERVICE COMMISSIONS
Position of Civil Servants
A notable feature of parliamentary system of government is that
while the policy of the administration is determined and laid down by the
ministers responsible to the legislature, it is implemented and carried on
ground by a large body of official who are politically neutral.
The officials form the ‘permanent executive’ as distinguished from
the ministers who constitute the ‘political executive’. The political executive
is chosen from the party in power and loses office as soon as its party loses
majority but the permanent executive is appointed by a different procedure and
doesn’t necessarily belong to the party in power. It helps to maintain the
continuity of the administration and neutrality in politics that accounts for
The civil servants are experts in the technique of administration
and details of administrative departments. They help in preventing the
ministers from losing sight of the broader and serious questions of national
urgency by getting involved into the details of day-to-day administration.
Power to prescribe conditions of service;
1. The two matters pertaining to conditions of service which are
substantively dealt with by our constitution are-
2. Tenure of office of the public servants and disciplinary action
3. The constitution and functions of the Public Service Commissions,
which are independent bodies to advise the Government on some of the vital
matters relating to the services.
4. Article 310(1) embodies the principle of service at pleasure. This
means that any government employee may be dismissed at any time and on any
ground, without giving rise to any cause of action for wrongful dismissal,
except where the dismissal is in contravention of the constitutional
However, there are certain exceptions such as in case of some high
officials such as Supreme Court judges, the Auditor General, the High court
judges and the Chief Election Commissioner who shall not be removed from their
offices except in the manner laid down in Articles 124, 148, 218 and 324,
Safeguards for Civil Servants
A civil servant shall not be dismissed or removed by any authority
subordinate to that by which he was appointed. In other words, if he is to be
removed from service, he is entitled to the consideration of his appointing
authority or any other officer of corresponding rank before he is so removed.
The object of this provision (Article 311(1)) is to save a public servant from
the caprices of officers of inferior rank.
The other security which is guaranteed by the constitution is that
no dismissal, removal, or reduction in rank shall be ordered against a civil
servant unless he has been given a reasonable opportunity of being heard in
respect of the charges brought against him.
Public Service Commissions for the Union and the States
Article 315 provides that – There shall be a Public Service
Commission for the Union; and a Public Service Commission for each State or a
Joint Public Service Commission for a Group of States if the Parliament
provides for the establishment of such a Joint Public Service Commission in
pursuance of a resolution to that effect being passed by the State Legislatures
The number of members and their conditions of service shall be
a) By the president in the case of union or Joint Commission.
b) By the Governor of a State in case of State Commission.
As per Article 316, the appointment of the Chairman and members of
the commission shall be made by the president in case of Union or Joint
Commission and by the Governor of a state in case of State Commission. Half of
the members shall be persons who have held office under the Government of India
or of a State for at-least ten years.
The term of service of a member shall be six years from the date
of his entering upon office, or until he attains the age of sixty-five years in
the case of Union Commission or of Sixty two years in the case of State or
Independence of the commissions
The constitution seeks to maintain the independence of the Public
Service Commission from the Executive in several ways-
1. The Chairman or a member of a Commission can be removed from
office only in the manner and on the grounds specified in the constitution.
2. The conditions of service of a member of the PSC shall not be
varied to his disadvantage after his appointment. (Proviso to Article 318)
3. The expenses of the commission are charged on the consolidated
fund of India or of the State. (Article 322)
4. Certain disabilities are imposed upon the chairman and members of
the Commission with respect to future employment under the Government. (Article
Functions of Public Service Commissions
That the service commission has the following functions;
1. To conduct examination for appointments to the services of the
Union and State.
2. To advise on any matter so referred to them and on any other
matter which the President or Governor of a State may refer to the appropriate
Commission. (Article 320)
3. To exercise such additional functions as may be provided for by an
act of Parliament or of the Legislature of a State. (Article 321)
4. To present annually to the president or the governor a report as
to the work done by the Union or the State commission. (Article 323)
5. To assist the States, if requested, in framing and operating
schemes of joint recruitment for any services for which candidates possessing
special qualifications are required. (Article 320(2))
MINORITIES, SCHEDULED CASTES AND SCHEDULED TRIBES
Our Constitution is based on the ideals of equality and justice.
Thus, as a natural consequence, there are certain provisions in our
constitution for the protection of the weaker sections of our society such as
minorities, scheduled castes and scheduled tribes. They are socially and
economically backward and have lack of opportunities. Hence, to level the
playing field and to ensure that these weaker sections can live up to their
full potential, it became necessary to include these provisions.
Provisions for protection of minorities
a) Religious Freedom- our constitution does not contain any provision
for the furtherance of any particular religion as may raise legitimate
apprehensions in the minds of those who do not belong to that religion.
b) Linguistic and Cultural Rights- Article 29(1) provides that- “Any
section of the citizens of India having a distinct language, script, or culture
of its own shall have the fundamental right to conserve the same.
c) Facilities for Instruction in Mother Tongue- Under Article 350A,
the Constitution directs every state to provide adequate facilities for
instruction in mother-tongue at the primary stage of education to children
belonging to linguistic minority groups.
d) No Discrimination in State Educational Institutions- Under Article
29(2), no citizen shall be denied admission into any educational institution
maintained by the State or receiving State aid, on grounds only of religion,
race, caste, language, or any of them.
e) Right to Establish Educational Institutions of their Choice- As
per article 30(1), all minorities, whether based on religion or language, shall
have the fundamental right to establish and administer educational institutions
of their choice.
f) No Discrimination in State Aid to Educational Institutions-
Article 30(2) mandates that the state shall not, in granting aid to educational
institutions, discriminate against any educational institution on the ground
that it is under the management of a minority, whether based on religion or
g) No Discrimination in Public Employment- As per Article 16(2), no
person can be discriminated against in matter of public employment, on the
ground of race, religion or caste.
SC’s, ST’s & OBC’s
Provisions for upliftment of the Scheduled Castes and Tribes and
other Backward Classes-
a) The constitution has included safeguards for the advancement of
the backward classes among the residents of India in order to ensure holistic
all-round development of the country. These provisions fulfil the assurance of
‘justice, social, economic and political” which is enshrined in the very
preamble of our constitution.
b) Measures for the advancement of the Scheduled Castes and Scheduled
Tribes are exempted from the general ban against discrimination on the grounds
of race, religion, gender and caste contained in article 15.
c) Article 335 mandates that the claims of the members of the
Scheduled Castes and Tribes shall be taken into consideration, consistently
with the maintenance of the efficiency of administration, in the making of
appointments to the services and posts in connection with the affairs of the
Union or of a State.
d) As per Article 338, there shall be a National commission for the
Scheduled Castes to be appointed by the president. It shall be the duty of the
commission to investigate all matters relating to the safeguards provided for
the Scheduled Castes under this constitution and to report to the president
upon the working of those safeguards annually or at such intervals as it may
deem fit, and the president shall cause all such reports to be laid before each
House of Parliament. A similar provision is there for the Scheduled Tribes
under Article 338A.
e) Under Article 339(2), the executive power of the Union shall
extend to the giving of directions to any such state as to the drawing up and
execution of schemes specified in the direction to be essential for the welfare
of the Scheduled Tribes in the States.
f) Seats shall be reserved in the House of the People for SCs and STs
and also in the legislative assembly of every state. (Article 330)
PROVISIONS RELATED TO LANGUAGES
In the Indian subcontinent, there are around 1,652 spoken
languages, including 63 non-Indian languages. Languages offered a major problem
to the makers of the Constitution because of the plurality of languages spoken.
The makers of the constitution of India had the cumbersome task of selecting
some of these numerous languages as the recognised medium of official
communication in order to save the country from a hopeless confusion.
Part 17 of the Constitution of India (i.e. Articles 343 to 351)
makes elaborate provisions dealing with the official language of the Republic
22 languages that were spoken by a total of 91 percent of the
population were easily picked up as the major languages and included in the 8th
schedule of the Indian Constitution. Out of these, Hindi, including its
kindred variants Urdu and Hindustani, could claim 46 percent. Hindi Devanagari
script was accordingly prescribed as the official language of the Union, and,
for the development of the Hindi language as a medium of expression for all the
elements of the composite culture of India, the assimilation of the expressions
used in the other languages specified in the Eighth schedule was recommended.
Although Hindi was prescribed for the official purposes of the
Union, the makers of the constitution sought to afford relief to regional
linguistic groups by allowing the respective state legislatures (by article
345) and the president (by article 347) to recognise some language or languages
other than Hindi as the languages for intra-state official transactions.
Article 343 mandates that the official language of the Union shall
be Hindi in Devanagari script. But, for a period of fifteen years from the
commencement of this constitution, the English language shall continue to be
used for all the official purposes of the Union for which it was being used
immediately before such commencement. Even after the expiry of the above period
of 15 years, parliament may provide for the use of following for any purpose
through legislation, being the English language or Hindi in Devangari Script.
Official Language Commission
Under Article 344, the constitution provides for the appointment
of a commission as well as a committee of parliament to advise the president as
to certain matters relating to the official language. It is the duty of the
commission to make recommendations to the president as to the following;
1. The progressive use of Hindi language for any of the official
purposes of the Union;
2. Restrictions on the use of the English language for any of the
official purposes of the Union;
3. The language to be used for proceedings in the Supreme Court and
the High Courts and the texts of legislative enactments of the Union and the
States as well as subordinate legislation made thereunder;
4. The form of numerals to be used for any of the official purposes
of the Union;
5. Any other matters referred to the Commission by the President as
The official language of
the Union, and
The language for
communication between the union and the states or between one state and
Special Directives relating to Languages
The constitution has laid down certain special directives relating
to languages such as through Article 351 by preventing the neglect of Sanskrit
and enriching Hindi by drawing upon Sanskrit.
SCHEDULES TO THE CONSTITUTION
Indian Constitution originally had eight schedules. Four more
schedules were added by different amendments, now making a total of twelve
schedules to the constitution. Schedules are basically tables which contains
additional details not mentioned in the Articles of the Constitution.
The 12 Schedules of Indian Constitution
List of States & Union Territories, along with their
respective territorial demarcations.
Salary of President, Governors, Chief Judges, Judges of High
Court and Supreme court, Comptroller and Auditor General.
Forms of Oaths and affirmations.
Allocate seats for each state of India in Rajya Sabha (233
Administration and control of scheduled areas and tribes.
Provisions for administration of Tribal Area in Assam,
Meghalaya, Tripura, Mizoram & Arunachal Pradesh.
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.
List of 22 languages of India recognized by Constitution-
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
Added by 1st amendment in 1951. Contains acts &
orders related to land tenure, land tax, railways, industries.
Added by 52nd amendment in 1985. Contains provisions of
disqualification of grounds of defection.
By 73rd amendment in 1992. Contains provisions of Panchayati
By 74thamendment in 1992. Contains provisions of Municipal
Corporation (Urban and Local Governements).
IMPORTANT CASE LAWS
The pronouncements of judicial orders and judgements are
inherently interpretations of law. When a judge decides a controversy, he not
only settles the facts to the dispute but also settles the position of law with
respect to the facts and law that was placed before the court and was
applicable to that case. Once, such a position of law is made clear, it can be
well said that the position of law for those specific set of facts have been
made clear and the courts shall follow the ruling so pronounced in that case,
to all similar and like cases that shall arise in future.
This following of a same legal pattern and deciding cases in
accordance to previous decisions in same set of facts, is stated to be a system
of following precedence. Precedence are merely judgments or orders of the same
court or a superior court what shall be binding and be followed in future cases
as to maintain unanimity in decisions given by a court of law. Even though ever
case is different, there may be legal similarities that has been previously
settled by the court.
The judgments of the Supreme Court are superior, applicable and
preside over all the courts in India being High Courts, District Courts,
Tribunals or any other judicial institution. They have to be followed and have
a binding value over all of India. The judgments of the High Courts in India
have binding value over all the District Courts and subordinate courts in that
State only, whereas the judgment of the High Court over another High Court only
has persuasive value. Within one High Court there are benches, like single
bench (one presiding judge), division bench (two presiding judges), full bench
(three presiding judges) and similarly Constitutional Benches being presided by
five, seven and all preceding odd numbers. The judgment pronounced by a larger
bench has a binding value over benches subordinate to it.
Thus, all in all the precedential system of law being made
applicable is to maintain an unanimity and consistent system of justice
delivery system, so that it reduces discretion and uphold the position of law.
Important Case Laws
(Relating to the Constitution of India)
Basic Structure of the Indian Constitution
Re Berubari’s Case
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
Golakhnath vs. State of
clarified by the Supreme Court that the Parliament had no power to amend the
Fundamental Rights given to its citizens under the Indian Constitution.
Sripadagalvaru vs. State of Kerala
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
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
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
Reservation/Minority Rights/Judicial Activism
Indira Gandhi vs. Raj
case the 39th amendment to the constitution was struck down, which
led to declaration of emergency in the year 1975. The amendment was made to
effect that the person holding the post of the Prime Minister, his election
by which he becomes the member of the parliament cannot be challenged; it was
declared to be unconstitutional.
S.R. Bommai Case
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
called the ‘Mandal’ judgment, it provided for reservation to backward classes
in our society. It further held that reservation can be provided but it
should not give advantage to non-backward classes, also called the ‘creamy
layer’ of our society.
T.M.A. Pai Foundation
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
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
on Right to Life and Personal Liberty
ADM Jabalpur vs.
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
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
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
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
Unnikrishnan vs. State
of Andhra Pradesh
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.
State of Bihar
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
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.
Triple Talaq Case
(ShayaraBano vs. Union of India)
Rohinton Nariman, Uday Lalit and Joseph Kurien ruled that triple talaq
is unconstitutional. It was said that what cannot be true in theology cannot
be protected by law. He added that triple talaqis not recognized by
the Holy text of ‘Koran’ and hence it couldn't be a practice to be protected
under the right to religion as guaranteed under the constitution.
Right to Privacy Case
(Justice K.S. Puttaswamy
(Retd.) vs. Union of India)
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’
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
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
'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
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
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.
IMPORTANT LAW DOCTRINES
CONSTITUTIONAL LAW DOCTRINES
1. Doctrine of Basic Structure
The basic structure doctrine is a principle that states that there
are certain basic provisions in the constitution of India that cannot be altered
or destroyed by the parliament through amendments.
However, an explicit definition of what constitutes a basic
feature and what does not have not been provided by the courts. It is decided
on a case by case basis. But there are some provisions such as democracy,
federalism, independence of judiciary and secularism that are clearly basic
The doctrine emerged from the landmark case of Kesavananda Bharti
v. State of Kerala (1973) which was adjudicated by a 7-judge bench. This
doctrine has protected the constitution from arbitrary exercise of power by the
parliament and is an important component in the checks and balances system as
envisioned and envisaged by our founding fathers.
2. Doctrine of Harmonious Construction
The doctrine of harmonious construction is adopted when there is
an overlap between the entries or subjects mentioned in one list with that of
another list in the schedule 7 of the Constitution.
This doctrine has brought harmony between the various lists
referred to in Schedule 7 of the Indian constitution. Various topics are listed
in this schedule in various lists. However, there may be a situation in which a
list entry may overlap with another list. This is the time this doctrine enters
the picture. It helps the words of the entries to be given wide amplitude.
In the case of Tika Ramji vs. UP, the Supreme Court applied this
doctrine for the first time.
3. Doctrine of Eclipse
The doctrine states that if any law contradicts fundamental
rights, it does not die forever but becomes inactive. The inactive law is
revived once this fundamental right is omitted from the constitution,
alternatively, the law will have no effect on the enforcement of fundamental
right till it is in existence. If a court strikes a part of the law, it is not
enforceable. Therefore, an' eclipse' would be cast on it. The law is invalid
but it still exists.
The eclipse is removed if another (probably a higher court)
re-establishes the law or amends it by means of law. In the case of Bhikaji vs.
Madhya Pradesh State, the Supreme Court first applied this doctrine to pre-constitutional
law. In the case of Dulare Lodh vs. ADJ Kanpur, an extension of
post-constitutional law was stated.
4. Doctrine of Pith and Substance
This doctrine comes into view when there is a conflict in different
lists between the various subjects. There is an interpretation of List 1 and
List 2 of the Constitution of India.
There may be a situation where a topic in a list touches the topic
in another list. This doctrine is therefore applied. Pith and Substance mean
the true nature of law. The real topic is challenged and not its effect on
In India, the doctrine was also used to give a degree of
flexibility in the otherwise rigid distribution of powers. The reason for
adopting this doctrine is that if all legislation were declared invalid on the
grounds that it encroached powers, the powers of the legislature would be
drastically limited. The Supreme Court applied this in the Bombay Vs F.N
5. Doctrine of Incidental or Ancillary Powers
This principle adds to the Pith and Substance doctrine. What it
means is that the power to legislate on a subject also includes the power to
legislate on matters reasonably related to that subject. The power to impose
taxes, for example, would include the power to search and seize in order to
prevent tax evasion. However, power in connection with banking cannot be
extended to include power in connection with non-banking entities.
However, it cannot be said that a subject is an auxiliary matter
if it is explicitly mentioned in a State or Union list. For example, the tax
authority is specified in specific entries in the lists and therefore the tax
authority cannot be claimed as ancillary to the power relating to any other
entry of the lists.
As in the case of Rajasthan vs. G Chawla AIR 1959, the power to
legislate on a subject includes the power to legislate on an auxiliary matter
that can reasonably be said to be included in the subject.
This does not mean, however, that the scope of power can be
expanded to an unreasonable extent. The Supreme Court has consistently warned
against this prolonged construction. For example, in R M D Charbaugwala vs
State of Mysore, AIR 1962, SC held that betting and gambling is a state subject
as stated in Entry 34 of the State list but does not include the power to
impose taxes on betting and gambling because it exists as a separate item in
the same list as Entry 62.
6. Doctrine of Colourable Legislation
This is applied when the legislature has transgressed its power as
mentioned in the constitution while enacting a law. The expression “colourable
legislation” simply means what cannot be done directly, cannot be done
indirectly too. It is the inherent substance that is material and not the
Hence there are certain situations when it seems that a particular
legislation is within the power of the legislature but actually is a
transgression of powers. This is when this doctrine comes into the picture.
It was applied by the Supreme Court of India in the
case State of Bihar vs Kameshwar Singh wherein it was held that the
Bihar Land Reforms Act was invalid.
7. Doctrine of Severability
According to this doctrine, if there is an offending part in a
statute, only the offending part and not the entire statute is declared void. Article
13 states that only the invalid portion should be deleted and not the whole
portion. The valid part can be maintained.
However, it should be remembered that the remainder should not
become ambiguous even after separation. If the remaining part is ambiguous, the
entire statute is declared void and useless.
Supreme Court in the RMDC vs. UOI case stated that the doctrine of
severability places more importance on substance than on form.
8. Doctrine of Territorial Nexus
Doctrine territorial nexus says that laws made by a state
legislature are not applicable outside the state, except when there is a
sufficient nexus between the state and its objective. A state legislature can
do the same. Such laws cannot be declared invalid on the argument that they are
extraterritorial according to Article 245(2).
To determine whether a particular legislation is within the
territorial nexus or not, this doctrine is applied. Article 245(1) states that
the Parliament of India can make laws for the whole or any territory of India
and hence this doctrine will have no impression on the effectivity of national
Supreme Court applied this doctrine in the case of Tata Iron Steel
vs. the State of Bihar.
9. Doctrine of Laches
The term Laches means delay. The doctrine of laches is based on
the maxim that, ‘equity aids the vigilant and not those who slumber on their
rights’ as described in Black’s Law Dictionary.
The natural consequence of this doctrine is that a legal right or
claim will not be enforced or allowed if a long delay in asserting the right or
claim has prejudiced the adverse party. Elements of laches include knowledge of
a claim, unreasonable delay, neglect, which taken together hurt the opponent. It
is well known that one who seeks any kind of remedy must come before the court
within a reasonable time. Lapse of time violates equity and it is against the
concept of justice.
Hence the issue came up whether delay can be a ground to deny
fundamental rights under Article 32. It was said that denial of fundamental
rights just on the ground of delay is not justified as fundamental rights are
very serious in nature and there is no excuse for violating it except in
exceptional cases where public health, morality etc. are at risk.
Supreme Court, under the case of Ravindra Jain vs UOI, stated
that remedy under article 32 can be denied on grounds of unreasonable delay.
However, there has been no case to overrule the above-mentioned case law by any
subsequent court order.
ARTICLE WISE COMPILATION OF CASES
(STUDY REFERENCE & RESEARCH)
Article-2, 3 & 4
1. R.C. Poudyal vs. Union of India, AIR 1993 SC 1804
The present case deals with the constitutional validity Article
371-F of the Constitution of India vis-a-vis power of the Parliament to admit
new States into Union under Article 2 of the Constitution, after special
provisions were made for the State of Sikkim when it attained full-fledged
Statehood. The Hon’ble Supreme Court upholding the constitutional validity of
the aforesaid provision held that the power of Parliament under Art 2 is very
wide but the same does not confer an, “unreviewable and unfretted power immune
from judicial scrutiny”.
2. Mangal Singh vs. Union of India, AIR 1967 SC 944
The Hon’ble Supreme Court in the present case while elucidating
the scope of power conferred upon the Parliament by Article 2, 3 and 4 of the
Constitution has pointed out that the law referred to in Article 2, and 3 may
alter or amend the first schedule to the Constitution which sets out the names
of the States and descriptions of the territory thereof and Fourth schedule
allotting the seats to the States in Rajya Sabha.
3. Mullaperiyar Environmental Protection Forum vs. Union of India
(2006) 3 SCC 643
The Hon’ble Supreme Court upheld the constitutional validity of
Section 108 of the State Reorganisation Act, 1956 while adjudicating a dispute
related to the Mullaperiyar dam between the State of Kerala and State of Tamil
Nadu. The Hon’ble Court held that the power of the Parliament to make laws
under Art 3 and 4 of the Constitution is plenary and is not subjected to nor
fettered by Article 246 and Lists II and III of the Seventh Schedule of the
4. In reference on Berubari AIR 1960 SC 845
A reference was made to the Hon’ble Supreme Court in the year 1960
with regard to the implementation of agreement relating to Berubari union
between India and Pakistan. The Hon’ble Supreme Court pointed out that the
powers given to Parliament to re-organise State under Art 3 and 4 of the
Constitution cannot be availed of by it to cede any Indian territory to a
5. Andhra Pradesh State Council of Higher Education vs. Union of
India (2016) 6 SCC 635
During the bifurcation of the State of Andhra Pradesh into State
of Andhra Pradesh and State of Telengana a dispute arose with regard to the
apportionment of assets, rights and liabilities of the institutions between the
two successor States. The Hon’ble Apex Court held that when an existing State
is bifurcated to form two new States, there must be an equal bifurcation of
assets and liabilities of statutory bodies among two successor State as well to
ensure welfare of public at large residing within those territories.
1. Louin De Raedt vs. Union of India AIR 1991 SC 1886
In the present case, a foreigner had been living in India since
1937 and for more than 5 years preceding the Constitution and he claimed Indian
citizenship under Art 5(e) of the Constitution. The question that arose for
consideration was whether he had an intention of staying in India permanently.
The Supreme Court rejecting his claim held that mere residence is not enough
and since he was staying in India on foreign passport with the permission of
Indian authorities there was nothing to remotely show his intention of residing
permanently in India.
2. D.P. Joshi vs. State of Madhya Bharat AIR 1955 SC 334
The Supreme Court while testing the Constitution validity of the
new rule which exempted the student who were having domicile of Madhya Pradesh
from payment of capitation fee held that domicile and citizenship are two
different concepts. Art 5 makes it clear because having a domicile is by itself
not sufficient to confer a citizenship on the person.
3. Kuldip Nayar vs. Union of India AIR 2006 SC 3127
The amendment to the Representation of People’s Act deleting the
requirement of domicile in the concerned State for getting elected to its Council
of States was challenged as being violative of the principle of Federalism and
basic structure of the Constitution. Rejecting all the grounds in the petition
the Hon’ble Apex Court held that it is no part of federal principle that the
representatives of state must belong to that state. The word ‘representative of
each state’ only refers to the members and do not import any further concept or
requirement of residence in the state.
4. Pradeep Jain vs. Union of India AIR 1984 SC 1420
The Hon’ble Supreme Court in the present case while repudiating
the concept of State domicile for the purpose of admission to educational
institutions held that Article 5 of the Constitution recognized only one
domicile namely domicile in the territory of India.
5. Smt Shanno Devi vs. Mangal Sain AIR 1961 SC 58
The Supreme Court while adjudicating an election petition
interpreted the word ‘ordinary resident’ under Art 6(b)(i) of the Constitution
to mean " resident during his period without any serious break ". The
Court observed that it is not necessary that for every day of this period the
person should have resided in India.
6. Kulathil Mama vs. State of Kerala AIR 1966 SC 1614
The Supreme Court overruling its judgment in the case of Shanno Devi
vs. Mangal Sain has interpreted the word ‘migration’ as envisaged in Art 6 and
7 of the Constitution in its broader sense to mean going or coming from one
territory to another without bringing in the concept of domicile.
7. State of Bihar vs. Amar Singh AIR 1955 SC 282
The Supreme Court held that a woman born and domiciled in India,
going to Pakistan after March 1, 1947, would lose her India Citizenship under
Art 7, even though her husband remained in India. Art. 7 of the
Constitution clearly overrides Art. 5. As the respondent had migrated from
India to Pakistan after the 1st March, 1947, her case fell under Art. 7 of the Constitution
and that inasmuch as it was a case of an unauthorized issue of an invalid
permit which had been properly cancelled the proviso to Art. 7 did not apply
and that therefore the respondent could not be deemed to be a citizen of India.
8. State of Madhya Pradesh vs. Peer Mohd. AIR 1963 SC 645
The Hon’ble Supreme Court held that Art 9 of the Constitution
applies to only those cases where a foreign citizenship has been acquired
before and not after the commencement of the Constitution. The cases of
acquisition of foreign citizenship post commencement of Constitution are dealt
with under the provision of the Indian Citizenship Act, 1955.
9. State Trading Corporation vs Commercial Tax Officer AIR 1963 SC
The question which arose for consideration in this case was
whether ‘Corporation” was a ‘citizen’ for the purpose of claiming freedom under
Art 19(1)(g) of the Constitution. The Supreme Court answering the question in
negative observed that the Constitution does not define citizenship. Art 5 to 9
of the Constitution deal with citizenship in certain circumstances only, but
tenor of these Articles is such that they cannot apply to juristic person.
1. Rajasthan State Electricity Board vs. Mohan Lal & Ors 1967
AIR 1857 SC
The Hon’ble Supreme Court, while determining whether Rajasthan
State Electricity Board can be held to be ‘State’ under Art 12 of the
Constitution, held that to be State, it is not necessary that the authority
must be performing governmental or sovereign functions. It should-
(i) be created by the Constitution of India;
(ii) have power to make laws;
2. Sukhdev Singh vs. Bhagat Ram AIR 1975 SC 1331
The Supreme Court while determining the controversy that whether
the statutory corporations such as Oil and Natural Gas Corporation, Life
Insurance Corporation, etc. are authorities within the meaning of Article 12
held these statutory corporations to be State as they were performing functions
very close to governmental or sovereign functions. The Court observed that the
Corporations are State when they enjoy
(i) Power to make regulations;
(ii) Regulations have force of law.
3. Ramana Dayaram Shetty vs. The International Airport Authority 1979
AIR 1628 SC
The following five testes were laid down by the Hon’ble Supreme
Court for an authority to be included in the definition of State under Art 12:
Entire share capital is owned or managed by State.
(ii) Enjoys monopoly status.
(iii) Department of Government is transferred to Corporation.
(iv) Functional character governmental in essence.
(v) Deep and pervasive State control
4. Union of India & Ors vs R. C. Jain & Ors AIR 1981 SC 951
The Hon’ble Apex Court while determining whether the Delhi
Development Authority is a ‘local authority’ under Article 12 of the Constitution
laid down five tests. The Court held that to be a local authority, an authority
must fulfill the following tests-
(i) Separate legal existence.
(ii) Function in a defined area.
(iii) Has power to raise funds.
(iv) Enjoys autonomy.
(v) Entrusted by a statute with functions which are usually
entrusted to municipalities.
5. A.R.Antulay vs. R.S.Nayak 1988 AIR 1531 SC
A seven-judge bench of the Hon’ble Supreme Court, while
determining whether judiciary can be considered to a ‘State’ under Article 12
of the Constitution, observed that when rule making power of judiciary is
concerned it is State but when exercise of judicial power is concerned it is
not State. The Hon’ble Court held that, a judicial order which violates
fundamental right is without jurisdiction and is therefore a nullity; and may
be rectified by the Supreme Court which passed that order, in the exercise of
its inherent jurisdiction.
1. Keshwa Madhava Menon v. State of Bombay, AIR 1951 SC 128
In the present case, the Supreme Court while testing the
inconsistency of the Indian Press Emergency Powers Act, 1934 with the
fundamental rights guaranteed under the Constitution has held that all laws in
force at the commencement of the Constitution which are inconsistent with
Part-III of the Constitution, shall be void to the extent of inconsistency.
Article 13(1) had no retrospective effect but only prospective in its operation.
Doctrine of severability
2. A.K. Gopalan v. State of Madras, AIR 1950 SC 27
The Hon’ble Supreme Court while applying the doctrine of
severability in the preset case held that the preventive detention minus
section 14 was valid as the omission of the Section 14 from the Act will not
change the nature and object of the Act and therefore the rest of the Act will
remain valid and effective.
3. R.M.D.C. v. Union of India, AIR 1957 SC 628
The Supreme Court has laid down the following rules for the
applicability of doctrine of severability in the present case:
(1) The intention of the legislature is the determining factor in
determining whether the valid part of a statute is severable from the invalid
(2) If the valid and invalid provisions are so inextricably mixed
up that they cannot be separated from one another, then the invalidity of a
portion must result in the invalidity of the Act in its entirety. On the other
hand, if they are so distinct and separate that after striking out what is
invalid what remains is itself a complete code independent of the rest, then it
will be upheld notwithstanding that the rest had become unenforceable.
(3) Even when the provisions which are valid, are distinct and
separate from those which are invalid if they form part of a single scheme
which is intended to be operative as a whole, then also the invalidity of a
part will result in the failure of the whole.
(4) Likewise, when the valid and invalid parts of a Statute are
independent and do not form part of a Scheme but what is left after omitting
the invalid portion is so thin and truncated as to be in substance different
from what it was when it emerged out of legislature, then also it will be
rejected in its entirety.
(5) The severability of the valid and invalid provisions of a
Statute does not depend on whether provisions are enacted in same section or
different section, it is not the form but the substance of the matter that is
material and that has to be ascertained on an examination of the Act as a whole
and of the setting of the relevant provisions therein.
(6) If after the invalid portion is expunged from the Statute what
remains cannot be enforced without making alterations and modifications
therein, then the whole of it must be struck down as void as otherwise it will
amount to judicial legislation.
(7) In determining the legislative intent on the question of
severability, it will be legitimate to take into account the history of
legislation, its object, the title and preamble of it.
Doctrine of Eclipse
4. Bhikhaji v. State of M.P., AIR 1955 SC 781
The Supreme Court enunciated the doctrine of eclipse in the
present case. In this case the provisions of C.P. and Berar Motor Vehicles
(Amendment) Act 1948 though valid when enacted, but became void on the
commencement of the Constitution in 1950 as they violated Article 19(1)(g) of
the Constitution. However, in 1951 Clause (6) of Article 19 was amended by the
Constitution (1st Amendment Act) so as to authorise the Government to
monopolise any business. The Supreme Court held that the effect of the
amendment was to remove the shadow and to make the impugned Act free from
infirmity. It became enforceable against citizens as well as non-citizens after
the constitutional impediment was removed. This law was eclipsed for the time
being by the fundamental rights. As soon as the eclipse is removed, the law
begins to operate from the date of such removal.
5. K.K. Poonacha vs. State of Karnataka (2010) 9 SCC 671
The Supreme Court while testing the constitutional validity of
Bangalore Development Authority Act, 1976 held that the doctrine of eclipse has
been held to be applicable only to pre-Constitutional Laws which are governed
by Article 13(1) and would not apply to post-Constitutional laws which are governed
by Article 13(2).
Doctrine of Waiver of Fundamental Rights
6. Bashesher Nath v. Income Tax Commissioner, AIR 1959 SC 149
The question that arose for consideration in the present case was
whether or not, the assessee had waived his fundamental right under Article 14
by entering into the settlement with the Commissioner. The Hon’ble Supreme
Court upheld unanimously that the petitioner could not waive his rights under
Article 14 of the Constitution.
7. Nar Singh Pal vs. Union of India AIR 2000 SC 1401
The Hon’ble Supreme Court held that fundamental rights under the
Constitution cannot be bartered away. They cannot be compromised nor can there
be any estoppels against the exercise of Fundamental Right available under the
1. Keshvananda Bharti vs. Union of India AIR 1973 SC 1461
The Hon’ble Apex Court in this landmark judgment opined that the
Preamble to the Constitution emphasizes upon the principle of equality as basic
to the Constitution. This means that even a constitutional amendment offending
the right to equality will be declared invalid. Neither Parliament nor any
State Legislature can transgress the principle of equality.
2. Virendra Krishna Mishra vs. Union of India (2015) 2 SCC 712
The Hon’ble Supreme Court held that equality before law and equal
protection of laws is the quintessence of Right to Equality, a Fundamental
Right guaranteed under the Constitution of India. Equals cannot be treated
unequally. Right to such equality cannot be arbitrarily denied to equals in the
absence of a valid classification.
3. Sri Srinivasa Theatre vs. Government of Tamil Nadu AIR 1992 SC
The Hon’ble Supreme Court in the present case has explained that
the two expressions ‘equality before law’ and ‘equal protection of law’ do not
mean the same thing even if there may be much in common between the two things.
Equality before law is a dynamic concept having many facets such as there shall
be no privileged person or class and no one should be above law.
4. S. Seshachalam vs. Bar Council of Tamil Nadu (2014) 16 SCC 72
It was held by the Hon’ble Apex Court in the present case that
Article 14 forbids class legislation, it does not forbid reasonable
classification of persons, object and transactions by legislature for purpose
of achieving specific ends. Classification must not be arbitrary, artificial or
evasive. When there is no reasonable basis for classification, such
classification may be declared discriminatory.
5. Subramanian Swamy vs. Raju (2014) 8 SCC 390
In the present case inclusion of all under the age of 18 year into
a class called ‘juveniles’ under Juvenile Justice (Care and Protection of
Children) Act, 2000 was held, valid as it provides separate scheme of
investigation, trial and punishment for offences committed by them. Differences
inter-se and within the under-18 category may exist, but so long as the broad
feature of the categorization made are reasonably connected with the object targeted.
Article 14 does not forbid such a classification.
6. D.S. Nakara vs. Union of India AIR 1983 SC 130
In the present case the Government issued an office memorandum
announcing a liberalised pension scheme for retired government servants but
made it applicable to those who has retired after 31st March 1979.
The Hon’ble Supreme Court held the fixing of cut-off date to be discriminatory
as violating Article 14 on the ground that the division of pensioners into two
classes on the basis of date of retirement was not based on any rational
1. State of Madaras vs. Champakam Dorairajan AIR 1951 SC 226
In the present case, the Madras Government had reserved seats in
State Medical and Engineering Colleges for different communities in certain
proportion on the basis of religion, race and caste. The question that arose
for consideration was that whether reservation of seats in Medical Colleges
violated Article 15. The Hon’ble Apex Court held the law as violative of
Article 15(1) because it classified student on the basis of caste and religion
on the basis of merits. The court observed that the Directive Principles of
State Policy cannot override the Fundamental Rights. Thus, the court gave
liberal interpretation to the constitutional provision which led to the
insertion of clause 4 to Article 15 enabling State to make special provisions
for economically and socially backward classes.
2. Balaji vs. State of Mysore AIR 1963 SC 649
In the present case, the question arose regarding the extent of
Special Provision which States can make under Article 15(4) of the
Constitution. On 13th July, 1962, the Mysore Government issued an
order wherein 68% of the seats in all Engineering, Medical and Technical
Colleges were reserved in favour of the SEBCs, SCs and STs and only 32% were
left for general candidates. The order was challenged by the candidates who
secured more marks than those admitted under the order and yet failed to get
admission because of the government order. The Hon’ble Supreme Court held the
order bad and said that it amounted to be a fraud upon the Constitution,
plainly inconsistent with Article 15(4). While striking down the said Order the
Court laid down the following principles:
Clause (4) of Article 15
is a proviso or an exception to clause Article 15(1) and Article 29(2).
For the purpose of Article
15(4) backwardness should be both social and educational and not either social
The reservation made under
Article 15(4) should be reasonable.
A provision under Article
15(4) need not be in the form of legislation but can be made by an executive
The further categorization
of backward classes into backward and more backward is not warranted by Article
3. TMA Pai Foundation and Ors. Vs. State of Karnataka (2002) 8 SCC
In the present case eleven judges bench of the Hon’ble Supreme
Court looked into the question whether quotas are valid in Government aided and
unaided minority institutions. In its ruling the bench held that quotas could
be imposed for the benefit of “Weaker Sections” of society, but it did not
specifically mention OBCs.
4. PA Inamdar and Ors vs. State of Maharashtra and Ors (2005). 6
The Supreme Court held that neither could the policy of
reservation be enforced by the State nor any quota or percentage of admission
carved out to be appropriated by the state in a minority or non-minority unaided
educational institution. The judges opined that, “the state cannot insist on
private educational institution which receives no aid from the state to
implement State’s policy on reservation for granting admission on lesser
percentage of marks i.e., on any criteria except merit.”
In order to nullify the aforesaid judgment the Parliament enacted
the Constitutional 93rd Amendment, 2005, which added clause (5) to
Article 15 of the Constitution.
5. Ashok Kumar Thakur vs. Union of India (2007) 4 SCC 361
The Hon’ble Supreme Court upheld the constitutional validity of
the 93rd Amendment as well as the Central Educational Institutions
(Reservation in Admission) Act, 2006, enacted under Article 15(5) of the
Constitution. The Court rejected the contention that Article 15(5) was contrary
to Article 15(4) and also upheld the exclusion of minority educational
institutions from the purview of Article 15(5). It also upheld adoption of
“OBC” determined by National Commission of for Backward classes for the purpose
of Article 16(4) as equally applicable to SEBCs in Article 15(5). The court
also insisted for the exclusion of creamy layer from SEBCs as determined by the
Commission for the purpose of Article 16(4). It declined to apply the creamy
layer principle to Schedule Caste and Schedule Tribes. The court also suggested
periodic review after every ten years. As far as the application of the Act to
the private aided institution were concerned, Court left it undecided because
it was not raised.
1. K.C. Vasanth Kumar v. State of Karnataka AIR 1985 S.C. 1495
In the present case, the Hon’ble Supreme Court has suggested that
the reservations in favor of backward classes must be based on mean test. It
has been further suggested that the policy of reservations should be reviewed
every five years or so and if a class has reached up to that level where it
does not need reservation its name should be deleted from the list of backward
2. Indira Sawhney & OR’s v. Union of India AIR 1993 SC 477
This case is famously known as the Mandal Commission case. In the
present case the Hon’ble Apex Court:
a) Upheld Implementation of separate reservation for other backward
classes in central government jobs.
b) Ordered to exclude Creamy layer of other backward classes from
enjoying reservation facilities.
c) Ordered to restrict reservations within 50% limit.
d) Declared separate reservations for economically poor among forward
castes as invalid.
3. State of Kerala V. N.M. Thomas AIR 1976 SC 490
The Supreme Court in the present case held that it was permissible
to give preferential treatment to Scheduled Castes/Tribes under Article 16(1)
outside Article 16(4) of the Constitution of India. The Court ruled that
Article 16(1) being a facet of Article 14, would permit reasonable
classification and, thus, envisaged equality between the members of the same
class of employees but not equality between members of a separate, independent
class. Classification on the basis of backwardness did not fall within Article
16(2) and was legitimate for the purposes of Article 16(1). The present case
marked the beginning of a new judicial thinking on Article 16 and lead to
greater concessions to SC, ST and other backward persons. If the Supreme Court
had stuck to the view propagated in earlier cases that Article 16(4) was an
exception to Article 16(1), then no reservation for any other class, such as
army personnel, freedom fighters, physically handicapped, could have been made
4. T. Devadasan v. Union of India AIR 1964 SC 179
In the present case the Hon’ble Supreme Court struck down the
“carry forward rule” as unconstitutional on the ground that the power vested in
the government cannot be so exercised so as to deny reasonable equality of
opportunity in matters of public employment for the members of classes other
than backward classes. In this case reservation of posts to the members of
backward classes had exceeded 50% and had gone up to 68% due to “carry forward
Article 17 and 18
1. State of Karnataka v. Appa Bala Ingale AIR 1993 SC 1126
This was the first case which came before Supreme Court under this
Article. In this case Harijan community was threatened with use of gun to show
about their social disability. Supreme Court in this case convicted the
2. Peoples Union for Democratic Rights vs. Union of India AIR 1982 SC
The Hon’ble Supreme Court held that whenever a Fundamental Right
contained in Article 17, 23 or 24 was being violated by a private individual,
it would be the constitutional obligation of the State to take necessary steps
to interdict such violation and ensure that such person should respect that
3. State of M.P. vs. Ram Krishna Balothia AIR 1995 SC 1198
The validity of Section 18 of the Schedule Caste and Schedule
Tribes (Prevention of Atrocities) Act, 1989 which excludes the application of
Section 438 of Cr.P.C., 1974 to cases arising under the Act was challenged.
Section 438 of Cr.P.C. empowers a Court of Sessions and the High Court to grant
anticipatory bail in cases of anticipated accusations of non-bailable offences.
In the present case the Apex Court upheld the validity of Section 18 of the
4. Balaji Raghavan vs. Union of India, AIR 1996 SC 770
A five judges Constitutional Bench of the Supreme Court has held
that National Awards do not amount to titles within the meaning of Article
18(1). They should not be used as suffixes or prefixes. The Court directed that
a high level committee should be appointed to look into the existing guidelines
for conferring these National Awards.
1. Hamdard Dawakhana vs. Union of India AIR 1960 SC 554
The validity of the Drug and Magic Remedies (Objectionable
Advertisement) Act, which put restrictions on advertisement of drugs in certain
cases and prohibited advertisements of drugs having magic qualities for curing
diseases was challenged on the ground that the restriction on advertisement
abridged the freedom. The Supreme Court held that an advertisement is no doubt
a form of speech but every advertisement was held to be dealing with commerce
or trade and not for propagating ideas.
2. People’s Union for Civil Liberties vs. Union of India AIR 1997 SC
In this case, public interest litigation was filed under
Article 32 of the Indian Constitution by PUCL, against the frequent cases
of telephone tapping. The validity of Section 5(2) of The Indian Telegraph
Act, 1885, which permits the interception of messages in accordance with the
provision of the Section, was challenged. It was observed that “occurrence of
public emergency” and “in the interest of public safety” is the sine
qua non for the application of the provisions of Section 5(2).
If any of these two conditions are not present, the government has no right to
exercise its power under the said section.
3. Indian Express Newspapers vs. Union of India 1985 2 SCC 434
The Hon’ble Supreme Court,
in this case, observed that, Article 19 of the Indian Constitution does not use
the phrase “freedom of press” in its language, but it is contained within
Article 19(1) (a). There cannot be any interference with the freedom of press
in the name of public interest. The purpose of the press is to enhance public
interest by publishing facts and opinions, without which a democratic
electorate cannot take responsible decisions.
4. A. Abbas v. Union of India AIR 1971 SC 481
The case is one of the firsts in which the issue of prior
censorship of films under Article 19(2) came into consideration of the Supreme
Court of India. Under the Cinematograph Act, 1952, films are divided into two
categories- ‘U’ films for unrestricted exhibition, and ‘A’ films that can be shown
to adults only. The petitioner’s film was refused the ‘U’ certificate, and he
challenged the validity of censorship as violative of his fundamental right of
freedom of speech and expression. He contended that no other form of speech and
expression was subject to such prior restraint, and therefore, he demanded
equality of treatment with such forms. The Court, however, held that motion
pictures are able to stir emotions more deeply than any other form of art. Hence,
pre- censorship and classification of films between ‘U’ and ‘A’ was held to be
valid and was justified under Article 19(2) of the Constitution.
5. Bennet Coleman and Co. v. Union of India AIR 1973 SC 106
this case, the validity of the Newsprint Control Order was challenged. The
Order fixed the maximum number of pages which a newspaper could publish, and
this was said to be violative of Article 19(1) (a) of the Indian Constitution.
The government raised the contention that fixing the newsprint would help in
the growth of small newspapers as well as prevent monopoly in the trade. It
also justified its order of reduction of page level on the ground that big
dailies devote a very high percentage of space to advertisements, and
therefore, the cut in pages will not affect them. The Court held the newsprint
policy to be an unreasonable restriction, and observed that the policy abridged
the petitioner’s right of freedom of speech and expression. The Court also held
that the fixation of page limit will have a twofold effect- first, it will
deprive the petitioners of their economic viability, and second, it will
restrict the freedom of expression as compulsorily reducing the page limit will
lead to reduction of circulation and area of coverage for news and views.
6. Bijoe Emmanuel v. State of Kerala 1986 3 SC 615
In the present case three children belonging to Jehovah’s
witnesses were expelled from the school for refusing to sing the national
anthem, although they stood respectfully when the same was being sung. They
challenged the validity of their expulsion before the Kerala High Court which
upheld the expulsion as valid and on the ground that it was their fundamental
duty to sing the national anthem. On appeal, the Supreme Court held that the
students did not commit any offence under the Prevention of Insults to National
Honour Act, 1971. Also, there was no law under which their fundamental right
under Article 19(1) (a) could be curtailed. Accordingly, it was held that the
children’s expulsion from the school was a violation of their fundamental right
under Article 19(1) (a), which also includes the freedom of silence.
Hon’ble Apex Court in the case of Shyam Narayan Chouksey vs. Union of India
and Ors. Made it mandatory for all the cinema hall throughout the country
to play 52 seconds National Anthem before starting of any movie. This order has
subsequently been modified by the Hon’ble Supreme Court and now it is optional
for the cinema halls to play the National Anthem before the movie.
7. Kanhaiya Kumar v. State of Nct of Delhi P. (CRL)558/2016
In the present case
the students of Jawaharlal Nehru University organized an event on the
Parliament attack convict Afzal Guru, who was hanged in 2013. The event was a
protest through poetry, art, and music against the judicial killing of Afzal
Guru. Allegations were made that the students in the protest were heard
shouting anti-Indian slogans. A case therefore filed against several students
on charges of offence under Sections124-A, 120-B, and 34 of the Indian Penal
Code. The University’s Students Union president Kanhaiya Kumar was arrested
after allegations of ‘anti-national’ sloganeering were made against him.
Kanhaiya Kumar was released on bail by the Delhi High Court as the police
investigation was still at nascent stage, and Kumar’s exact role in the protest
was not clear.
1. Dayal Singh vs. State of Rajasthan AIR 2004 SC 2608
The Hon’ble Supreme
Court held that the term ‘offence’ as ‘an act or omission made punishable by
any law for the time being in force’. Thus, something would be an offence only
if that thing is made punishable by a law in force. Further the Court ruled
that penal statute modifying the rigours of law would be prospective and that a
person could be punished for an offence committed by him in accordance with law
as it existed on the date on which the offence was committed.
2. Kedar Nath vs. State of West Bengal AIR 1953 SC 404
The Hon’ble Supreme
Court while examining the enhanced penalty under the Criminal Law (Special
Courts) Amendment Act, 1949 which amended the Prevention of Corruption Act,
held that the enhanced punishment prescribed by the amended law, which came in
force in 1949 could not be imposed on the accused for the offence committed in
1947, because of the prohibition contained in the second part of clause (1) of
3. Thomas Dana vs. State of Punjab AIR 1959 SC 375
It was held by the
Hon’ble Apex Court that in order to claim protection of Article 20(2), it is
necessary to show that:
a) There was a previous prosecution;
b) As a result of that prosecution, the accused was punished and
c) The accused is being punished for the same offence again.
Unless all the three conditions are fulfilled, the Article does
not become operative.
4. Nandani Satpathy vs. P.L. Dani AIR 1978 SC 1025
The Supreme Court held that Section 160(1) of Cr.P.C., which
barred the calling of a woman to police station was violated in this case.
Further the question related to the scope of the protection contained in
Article 20(3). The Court ruled that Article 20(3) extended back to the stage of
police investigation not commencing in court only, since such inquiry was of an
accusatory nature and could not end in prosecution. The ban on self-accusation
and right to remain silent while an investigation or trial was underway, the
Court viewed, extended beyond that case and protected the accused in regard to
other offences, pending or imminent, which might deter him from voluntary
disclosure of criminatory matter.
5. State of Bombay vs. Kathikalu Oghad AIR 1961 SC 1808
Under Article 20(3)
what is prohibited is compulsive evidence, compulsion is duress. In the present
case, the Court observed that duress is where a man is compelled to do an act
by injury, beating or unlawful imprisonment or by threat of being killed,
suffering some grievous bodily harm or being unlawfully imprisoned. ‘Duress’
also includes threatening, beating or imprisonment of wife, parent or child of
1. Maneka Gandhi v. Union of India AIR 1978 SC 597
In the present case, the Supreme Court gave a new dimension to
Art. 21 and held that the right to live the right to live is not merely a physical
right but includes within its ambit the right to live with human
dignity. After this case Article 21 now protects the right of life and
personal liberty of citizens not only from the Executive action but from
Legislative actions also. A person can be deprived of his life and personal
liberty if two conditions are complied with: a) there must be a law and b)
there must be a procedure prescribed by that law, provided that procedure is
just, fair and reasonable.
2. Peoples Union for Democratic Rights v. Union of India 1983 SCR (1)
The Hon’ble Supreme
Court held that non-payment of minimum wages to the workers employed in
various Asiad Projects in Delhi was a denial to them of their right to live
with basic human dignity and violative of Article 21 of the Constitution.
3. Olga Tellis vs. Bombay Municipal Corporation AIR 1997 SC 301
This case is
popularly known as ‘Pavement Dwellers case’ whereby a five-judge bench of the
Court now implied that ‘right to livelihood’ is borne out of the ‘right to
life’, as no person can live without the means of living, that is, the means of
4. U.P. Avas Vikas Parishad vs. Friends Coop. Housing Society Limited
AIR 1996 SC 114
In the present case, the right to shelter has been held to be a
fundamental right which spring from the right to residence secured in article
19(1)(e) and the right to life guaranteed by article 21. To make the right
meaningful to the poor, the state has to provide facilities and opportunities
to build houses.
5. Vincent vs. Union of India 1987 SCR (2) 468
The Supreme Court in the present case emphasized that a healthy
body is the very foundation of all human activities Art. 47, a directive
Principle of State Policy in this regard lays stress note on improvement of
public health and prohibition of drugs injurious to health as one of primary
duties of the state.
6. P. Rathinam vs. Union of India 1994 SCC (3) 394
In the present case a Division Bench of the Supreme Court, took
cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art.
21. The Court supporting the decision of the High Court of Bombay
in Maruti Sripati Dubal’s Case held that the right to life embodies
in Art. 21 also embodied in it a right not to live a forced life, to his
detriment disadvantage or disliking. The court argued that the word life in
Art. 21 means right to live with human dignity and the same does not merely
connote continued drudgery. Thus, the court concluded that the right to live of
which Art. 21 speaks of can be said to bring in its trail the right not to live
a forced life.
7. Gian Kaur vs. State of Punjab 1996 SCC (2) 648
The Hon’ble Supreme Court overruled the decision of the Division
Bench in the case of P. Rathinam and has put an end to the controversy and
ruled that Art.21 is a provision guaranteeing protection of life and personal
liberty and by no stretch of imagination can extinction of life’ be read to be
included in protection of life. The Supreme Court in the present case has also
distinguished between Euthanasia and attempt to commit suicide. The court held
that death due to termination of natural life is certain and imminent and the
process of natural death has commenced. These are not cases of extinguishing
life but only of accelerating conclusion of the process of natural death that
has already commenced.
8. Kharak Singh vs. State of U.P. AIR 1963 SC 1295
The Hon’ble Supreme Court in the present case held that ‘personal liberty’
was not only limited to bodily restraint or confinement to prison only, but was
used as a compendious term including within itself the variety of rights which
go to make up the personal liberty of a man other than those dealt within
Article 19(1). In other words, while Article 19(1) deals with particular
species or attributes of that freedom, ‘personal liberty’ in Article 21 takes
in and compromises the residue.
9. A.R. Antulay vs. R.S. Nayak AIR 1992 SC 170
A Constitution Bench
of five judges of the Supreme Court dealt with the question and laid down
certain guidelines for ensuring speedy trial of offences such as:
a) Fair, just and reasonable procedure implicit in Article 21 creates
a right in the accused to be tried speedily.
b) Right to speedy trial flowing from Article 21 encompasses all the
stages, namely the stage of investigation, inquiry, appeal, revision and
c) The concerns underlying the right of speedy trial from the point
of view of the accused are:
d) The period of remand and pre-conviction detention should be as
short as possible.
e) The worry, anxiety, expense and disturbance to his vocation
and peace, resulting from an unduly prolonged investigation, enquiry or
trial should be minimal; and
f) Undue delay may well result in impairment of the ability of the
accused to defend him.
10. Unni Krishnan vs. State of Andhra Pradesh AIR 1993 SC 1858
A five judges Constitutional Bench of the Hon’ble Supreme Court
held that right to education is implicit in the right to life and personal
liberty guaranteed by Article 21 in the context of Article 45. Court further
held that after the age of 14 years this right is circumscribed by limits of
economic capacity of the State.
1. A.K. Roy vs. Union of India AIR 1982 SC 710
Popularly known as the NSA case, the Hon’ble Supreme Court in the
present case by a majority of 4:1 upheld the constitutional validity of the
National Security Act, 1947 and the Ordinance which preceded the Act. The Court
held that the Act was neither vague nor arbitrary in its provisions providing
for detention of persons on certain grounds, as acting in a manner prejudicial
to the ‘defence of India’, ‘security of India’ and to ‘relations with a foreign
power’. However, the Court issued a number of directions to safeguard the
interest of detenues detains under the Act.
2. D.K. Basu vs. State of West Bengal (1997) Cr. LJ 743 (SC)
In this case Supreme Court took serious note of the custodial
violence and deaths in police lock up. The Hon’ble Supreme Court laid down
certain guidelines to be followed in all cases of arrest and detention, till
legal provisions are made as a measure to prevent custodial violence and death
in police lock up, such as:
a) Clear identification of the police officer
b) Preparation of memo of arrest and attesting the same by a
c) Relatives and friends of the accused to be informed
d) Legal Assistance cannot be denied to the accused
e) Communication regarding the arrest to be sent to the other Headquarters
within 12 hours of arrest
3. Joginder Kumar vs. State of Uttar Pradesh (1994) 4 SCC 260
The Supreme Court has laid down guidelines governing arrest of a
person during investigation. The Court has held that person is not liable to
arrest merely on the suspicion of complexity of the offence. There must be some
reasonable justification in the opinion of the police officer effecting the
arrest that such arrest was necessary and justified. This is intended to strike
a balance between the needs of the police on one hand and the protection of
human rights of citizens from oppression and injustice at the hands of the law
enforcing agencies on the other.
1. Sanjit Roy vs. State of Rajasthan AIR 1983 SC 328
In this case it as been held that payment of wages lower than
minimum wages to the person employed in Famine Relief Work is violative of
Article 23. Whenever any labour or service is taken by the State from any
person who is affected by drought and scarcity condition the State cannot pay
him less wage than the minimum wage on the ground that it is given them to meet
2. Deena vs. Union of India AIR 1983 SC 1155
In this case it was held that labour taken from prisoners without
paying proper remuneration was ‘forced labour’ and violative of Article 23 of
the Constitution. The prisoners are entitled to payment of reasonable wages for
the work taken from them and the court is under the duty to enforce their
3. M.C. Mehta vs. State of Tamil Nadu AIR 1997 SC 699
The Supreme Court has held that children below the age of 14 years
cannot be employed in any hazardous industry, mines or other works and has laid
down exhaustive guidelines as to how the State authorities should protect the
social, economic and humanitarian right of millions of children working
illegally in public and private sectors.
1. S.R. Bommai vs. Union of India AIR 1994 SC 1918
The Supreme Court held that “secularism is a basic feature of the
Constitution of India”. The State treats equally to all the religions and
religious denominations. Religion is a matter of faith and cannot be mixed with
secular activities. Secular activities can be regulated by State by making a
2. Sri Jagannath temple, Puri Management Committee vs. Chintamani
Khuntia AIR 1997 SC 3839
The Court held that the management of a temple or maintenance of
discipline and order inside the temple can be controlled by the State. Taking
over management of a temple by law does not infringe Article 25 and 26. It is a
3. Ismail Farooqui vs.
Union of India (1994) 6 SCC 360
Popularly known as the Babri Masjid Case the matter was referred
to the Supreme Court for its advisory opinion by the President. The dispute
that arose was that the Union Government had acquired the whole property
surrounding the mosque and this was challenged as being violate of Article 25
and 26 of the Constitution. The Supreme Court held the Act valid as it does not
interfere with the essential elements of religion. Further it was held by a
majority that the State can, in exercise of its sovereign power acquire places
of worship like mosques, churches, temples etc., which is independent of
Article 300 A of the Constitution and per se does not violate Article 25
and 26 of the Constitution.
4. N. Adityan vs.
Travincore Devaswom Board (2002) 8 SCC 106.
The issue that arose in this case was that whether non-Brahmin can
be appointed as Pujari in the Temple. The Supreme Court held that the Brahmins
do not have monopoly over performing puja in a Temple and that not Brahmin can
be appointed as a pujari if he is properly trend and well versed with rituals.
Further, the Court observe that there is no justification in insisting that a
Brahmin or Malyali Brahmin alone can perform the rites and rituals in the
temple as part of the rights and freedom guarantee under Article 25 of the
Constitution and further claim that any deviation would tantamount to violation
of such guarantee under the Constitution.
5. Rati Lal Panachand Gandhi vs. State of Bombay AIR 1954 SC
In the present case, the Bombay Public Trusts Act 1950 which
provided for appointment, by a court, of the charity commissioner as a sole
trusty of religious public trust was struck down as being violative of the
rights of religious denominations under Article 26 (d) of the Constitution. The
Hon’ble Supreme Court held that Article 26 does not interfere with the right of
the State to acquire property. Also, the right to own the acquire property
under Article 26 (c) is not a part of the basic feature of the Constitution.
1. Arona Roy vs. Union of India AIR 2002 SC 3176.
In the present case, the validity of the New National Education
Policy, 2002 which provided for value based education to school children bases
of all religions was challenged as being violative of Article 28 and being
anti-secular. The Court held that study of religions in school education is not
against the secular philosophy of the Constitution. Further, it was held that
Article 28 (1) did not prohibit education of religion dissociated from tenants,
rituals, observances, ceremony, and modes of worship of a particular sect or
denomination the Court distinguished between the “religious instructions” and
“study of religion”.
Article 29 to 30
1. Re, Kerala Educational Bill 1958 SC 956
The Supreme Court In the present case said that the fundamental
right given to all minority under Article 30 (1) to establish and administer
educational administration of their choice does not militate against the claim
of the State to insist that in granting aid the state may not prescribed
reasonable regulations to ensure the excellence of the institutions.
Accordingly, the court in this case upheld certain conditions designed to
protection and security to the ill-paid teachers who were rendering service to
the nation and to protect backward classes as permissible restrictions, which
the State can impose on minorities as a condition for granting aid to their
educational institutions. However, the condition for granting aid should not be
imposed in such a manner so as to take away the rights of the minority
guaranteed by Article 30 (1).
2. Frank Anthony Public School Employees Association vs. Union of
India. (1986) 4 SCC 707.
The Supreme Court held that the statutory measures regulating
terms and conditions of service of teachers and other employees of minority
educational institution for maintaining educational standard and excellence are
not violative of the fundamental rights of the minority who administer
educational institution of their choice under Article 30 (1) of the
3. T.M.A. Pai Foundation vs. State of Karnataka, 2002 (8) SCC 712.
The Hon’ble Apex Court by a majority of 6:5 held that;
The right to establish and
administer educational institutions is guarantee to all citizens and minorities
specifically under Article 30.
The State is to be
regarded as the unit for determining both linguistic as well as religious
Admission of students to
un-aided minority institution cannot be regulated by the State or a University
but it can provide the qualifications and minimum conditions of eligibility in
the interest of academic standards.
An aided minority
educational institution has the right to admit students belonging to the
minority but it may be required by the State Government to admit a reasonable
number of non-minority students.
Un-aided institution can
charge any fees but no institution can charge capitation fees (The law laid
down in Unnikrishnan vs. State of Andhra Pradesh was partly overruled)
The basic ratio of St.
Stephens College Case is correct, but rigid percentage cannot be stipulated.
4. P.A. Inamdar vs. State of Maharashtra AIR 2005 SC 3226
In this case the Apex court made effort to clarify and settled to
issues not settled by T.M.A. Pai case and Islamic Academic Case. A seven Judge
Bench of Hon’ble Apex Court held as follows:
In un-aided private
professional institution, the scheme for reservation of seats is violative of
Article 30 and 19 (1) (g).
professional institution can have its own fee structure subject to the
limitation that there can be no profiteering and no capitation fee can be
charged directly or indirectly or in any form.
Legal provisions made by
the State legislatures to monitor the admission procedure and fee fixation do
not violate the right of minorities under Article 30 (1) or the right of
minorities and non-minorities under Article 19 (1) (g) and they are in nature
of reasonable restrictions in the interest of the minority.
Capitation fee is not to
As regards the admission
procedure of private un-aided institution there is nothing wrong in holding an
entrance test for one group of institution imparting same the similar
The right conferred by
Article 30 is a nature of protection of minorities. No doubt, it protects
minority institution from the regulatory legislations framed under Article 19
(6) but they are not immune from regulatory control.
To establish an
educational institutional as a fundamental right
The pre-dominance of
linguistic students hailing from the State in which the minority educational
institution established should be present. The same principle applies to the
religious minority also.
This judgment of the Hon’ble Apex Court led Parliament to in Act
Article 15 (5) where Government has right to reserve sheets for socially and
educationally backward classes
2. Fertilizer Corporation Kamgar Union vs. Union of India AIR 1991 SC
The Hon’ble Apex Court observed that the question whether a person
has the locus to file a proceeding depends mostly and often whether he
possesses a legal guide and that right is violated. But in an appropriate case,
it may become necessary in the changing awareness of legal rights and social
obligation to take a broader view of the question of locus to initiate a
proceeding, be it under Article 226 or Article of the Constitution.
3. Balco Employees Union (Regd.) vs. Union of India AIR 2002 SC 350
In the present case, the Apex Court laid down the following
parameters for the invocation of the remedy by way of public interest
a. Where the concerns underlying a petition are not individualist but
are share widely by a large number of people.
b. Where the affected persons belong to the disadvantaged Sections of
c. Where judicial law making is necessary to avoid exploitation.
d. Where judicial intervention is necessary for the protection of the
sanctity of democratic institution.
e. Where administrative decisions related to development are harmful
to the resources such as air or water.
4. Trilokchand Motichand vs. H.B. Munshi AIR 1970 SC 898
The question that arose before the Apex Court was that whether
there is any period of limitation prescribed within which the remedy under
Article 32 can be invoked. The Hon’ble Court rejected the petitioner’s writ
petition on the grounds of delay but the judges deferred on the question as to
what should be the reasonable time for invoking the remedy under Article 32.
Mittar J. favoured the application of limitation Act (3 years), Sikri J.
favoured the limitation of (1 year), Hegde J. took the view that there should
be no prescribed period of limitation and Hidayatullah C.J. felt that no hard
and fast rule can be adopted in this matter.
5. S.A. Khan vs. State of Haryana AIR 1993 SC 1152
In this case it was held that when the statutory alternative
remedy was available to the petitioner against the order of suspension the writ
petition under Article 32 was not maintainable.
6. State of Karnataka vs. State of Tamil Nadu (2017) 3 SCC 362
The Court in the present case held that it is the duty of Supreme
Court to provide a protective umbrella for the sustenance of fundamental right
of the citizen of India. The protection of fundamental right has to be
interpreted keeping in mind the social, economic and environmental issues.
Though Article 262 of the Constitution read with the Inter-state Water Dispute
Act 1956 bars exercise of jurisdiction under Article 32, the said bar is not
absolute in certain amount of scope still exists for exercise of jurisdiction
under Article 32.
Article 33 & 34
1. Ram Sarup vs. Union of India AIR 1965 SC 247
In this case, the Petitioner who was subject to the Army Act,
1950, was tried by the general Court-martial and sentenced to death. The
sentence was confirmed by the Central Government. He filed a petition before
the Supreme Court under Article 32 contending that the provisions of the Army
Act infringe Article 14 and his trial was vitiated under Article 22 (1). The
Supreme Court rejected his petition and held the provision of Army Act valid on
two alternative ground: (a) They did not infringe Article 14; (b) Even if they
did, they would be valid under Article 33.
2. Prithi Pal Singh Bedi vs. Union of India AIR 1982 SC 1413
In this case certain provisions of Army Act, 1950 were challenged
as being violative of Article 21. Rejecting the challenge, the Supreme Court
ruled that under Article 33, Parliament has the power to restrict or abrogate
any of the fundamental right in their application to member of the Armed Forces
so as to ensure the proper discharged of duties and maintenance of discipline
3. Naga Peoples Movement of Human Right vs. Union of India AIR 1998
In the present case, the Armed Forces (Assam and Manipur) Special
Powers Act, 1958, was held to be Constitution valid. Thus, Hon’ble Supreme
Court held that the Act has been enacted to confer certain powers to the Armed
Forces when deploy in aid of civil power to deal with situation of internal
disturbance in disturbed areas
7. Minerva Mills vs Union of India (AIR 1980 SC 1789)
The question that arose before the court was whether the directive
principles of State policy enshrined in Art IV can have primacy over the
fundamental rights conferred by Part III of the Constitution. The Hon’ble Court
considered the meaning of Socialism as to crystallize a socialistic state
securing to its people socio-economic justice by interplay of Fundamental
Rights and the Directive Principles. Further the Court held that the doctrine
of harmonious construction should be applied because neither of the two has
precedence to each other. Both are complementary therefore they are needed to
8. Unnikrishnan vs State of Andhra Pradesh 1993 SCC (1) 645
In the present case the Court was of the view that Fundamental
Rights and Directive Principles are not exclusive to each other therefore they
should not be read in exclusion. Moreover, the Court said that the Fundamental
Rights are the means through which the goals enumerated in Part IV are
9. State of Madaras vs. Champakam Dorairajan AIR 1951 SC 226
In this case a Government order which was passed in pursuance of
Article 49 of the Constitution was held to be violative of Fundamental right
guaranteed under Article 29(2) of the Constitution of India and hence invalid.
The court ruled that the Fundamental Rights were enforceable and the Directive
Principles are not, and so the law made to implement the Directive Principle
could not take away the Fundamental right. The Directive Principles should
confirm, and run as subsidiary, to the Fundamental Rights.
Lala Ram vs. Union of
India (2015) 5 SCC 813
The Hon’ble Supreme Court held that “Salus populi (est) suprema
lex”, means that the welfare of the people is supreme law. A State
instrumentality must serve society as a whole and must not grant unwarranted favours
to a particular class of people without any justification, at the cost of
others. Article 38 and 39 of the Constitution provide that the State must
strive to promote the welfare of the people of the State, especially the young,
the old, the women and the weaker section of the society bu protecting their
economic, political and social life.
Emporium and Ors. Vs. Union of India and Ors., (2003) 7 SCC 589
The Hon’ble Supreme Court while dealing with the case of a total
prohibition reiterated that ‘regulation’ includes ‘prohibition’ and in order to
determine whether total prohibition would be reasonable, the Court has to
balance the direct impact on the fundamental right of the citizens as against
the greater public or social interest sought to be ensured. Implementation of
the Directive Principles contained in Part IV is within the expression of ‘restriction
in the interests of the general public’.
Madhu Kishwar vs. State of
Bihar AIR 1996 SC 1870
In this landmark case, the Hon’ble Supreme Court ruled that on the
death of the last male holder in an agricultural tribal family, the dependent
family female member will have the constitutional remedy of continuing to hold
the land so long as they remain dependent on it to earn their livelihood. This
was done with a view to protect the economic interests of the tribal women who
are dependent on agriculture for their livelihood. The Court came to this
conclusion on the basis of Article 39(a) which obligates the State to secure to
all men and women equally the right to an adequate means of livelihood
Sanjeev Coke Manufacturing
Company vs. Bharat Coking Company Limited AIR 1983 SC 239
In the present case the constitutional validity of the Coking Coal
Mines (Nationalization) Act, 1972 and the Coal Mines (Taking Over of Management)
Act, 1972 was under challenge. The Hon’ble Apex Court said that when Article
39(b) refers to material resources of the community, it does not refer only to
the resources owned by the community as a whole but it refers also to the
resources owned by individual members of the community.
United India Insurance
Company Limited vs. Manubhai Dharmasinhbhai (2008) 10 SCC 404
Post the enactment of the Insurance Regulatory and Development
Authority Act, 1999 the monopoly over the business of insurance was ended and
the insurance companies were required to compete with others in the field, but
the same did not mean that the public-sector insurance company must have a
level playing field with the private insurance companies. The Apex Court
observed that as a matter of policy, the insurance companies are bound to
regulate all the contracts of insurance having the statement of Directive
Principles in mind but fairness and reasonableness on the part of insurance
company must appear in all of its dealings.
State of Kerala vs. B.
Renjith Kumar (2008) 12 SCC 219
The Hon’ble Supreme Court while holding that State Government
cannot differentiate between in the matter of pay scale between officers
presiding over Industrial Tribunal and District judge, the Court said that
although the doctrine of “equal pay for equal work” was originally propounded
as a part of the Directive Principles of State Policyas enshrined in Article
39(d) of the Constitution of India, having regard to the mandate of equality
and inhibition against discrimination in Arrticle 14 and 16, in service
jurisprudence, the doctrine as assumed the status of Fundamental Right.
Bandhua Mukti Morcha vs. Union
of India AIR 1984 SC 802
The Hon’ble Supreme Court read Article 21 and 23 with such
Directive Principles as Article 39€ and (f) and Article 41 and 42 to secure the
release of bonded labourers and free them from exploitation, the court observed
that the right to live with human dignity enshrined in Article 21 of the
Constitution derives its life breath from the Directive Principles of State
Policy and particularly Article 41 and 42.
Hussainara Khatoon v.
State of Bihar 1980 (1) SCC 81.
The Hon’ble Supreme Court of India in this landmark judgment held
that legal aid is really nothing else but equal justice in action. Legal aid is
in fact the delivery system of social justice. If free legal services are not
provided to such an accused, the trial itself may run the risk of being
vitiated as contravening Article 21 and we have no doubt that every State
Government would try to avoid such a possible eventuality.
1. AIIMS Students Union vs. AIIMS AIR 2001 SC 3262
The Supreme Court noted the possible conflict between Article 46
on one hand and Article 41 and 47 on the other in the matter of education. Any
reservation in favour of one under Article 46, to the extent of the reservation
is an inroad on the right of the others to work and to learn under Article 41
2. Radhakrishna Mills vs. SIR AIR 1954 Mad 686
The Madras High Court held that the Article 41 does not obligate
the State to render compensation to the workers whose continuous employment
suffers as a result of a governmental action eg. shortage of supply of
3. Indian Drugs and Pharmaceuticals Ltd. Vs. Workmen (2007) 1 SCC 408
The Supreme Court has included right to livelihood as a part to
right to life under Article 21 of the Constitution. In this case the Supreme
Court has held that this does not mean that the State may be compelled by
affirmative action to provide adequate means of livelihood or work to the
citizens. The ground reality is that the number of available jobs is limited
and hence the Courts must take realistic view of the matter and must exercise self-restraint.
1. DBM Patnaik vs. State of Andhra Pradesh AIR 1974 SC 65
The Supreme Court has suggested that the Article 42 may
benevolently be extended to living conditions in jails.
2. Mohini Jain vs. State of Karnataka AIR 1992 SC 1858
The Supreme Court has sought to give a very broad connotation to the
right to education. The Supreme Court has observed that the State is under a
constitutional mandate to provide educational institutions at all levels for
the benefit of the citizens.
3. Unnikrishnan vs State of Andhra Pradesh 1993 SCC (1) 645
In this case the Supreme Court invoking Article 45 of the
Constitution has restricted the right to education upto the age of 14 years
which was adopted in Article 21A of the Constitution of India
Article 42 and 43
1. DS Nakara vs. Union of India AIR 1983 SC 130
The Constitutional Bench of the Supreme Court has held that the
pension not only compensation for the loyal service rendered in the past, but
also by the broad significance it is social welfare measure rendering
socio-economic justice by providing economic security in the fall of life when
physical and mental prowess is ebbing corresponding to the ageing process and,
therefore one is required to fall back upon savings.
2. Hindustan antibiotics vs. Workmen AIR 1967 SC 948
The Supreme Court has rejected the argument that the pattern of
wage fixation in case of government companies in public sector should
necessarily be different from companies in private sector, arguing that Article
39 and 43 would be disobeyed if the distinction is made between the same. class
of labourers on the ground that some of them are placed in the state enterprise
and others in private enterprise.
1. Vishwa Lochan Madan v. Union of India and others (2014) 7 SCC 707
In this case the Supreme Court issued notices to the central
government, State governments, All India Muslim Personal Law Board (AIMPLB) and
Darul Uloom, an Islamic seminary, in the matter of the existence of parallel
Islamic and Shariat Courts in the country, which are posing a challenge to the
Indian judicial system. A direction from the court was also sought to restrain
these organizations from interfering with the marital status of Indian Muslim
citizens or passing any judgments, remarks, fatwas or deciding matrimonial
disputes amongst Muslims.
2. Md. Ahmed Khan v. Shah Bano Begum 1985 (1) SCALE 767
In this case, a Muslim woman claimed for maintenance form her
husband under S.125 of Cr.P.C. after she was given triple talaq pronouncements
by her husband. The Supreme Court held that Muslim Women have a right to get
maintenance from her husband under s.125 and commented that Art.44(3) of the
Constitution of India has remained in the dead light. However, the then Rajiv
Gandhi led government has overturned the Shah Bano case decision by Muslim
Women (Right to Protection on Divorce) Act, 1890 which curtailed the right to
maintenance of a Muslim Woman.
3. Sarla Mudgal v. Union of India AIR 1995 SC 1531
In this case the question arose whether a Hindu husband by
embracing Islam can solemnise a second marriage. The court held that this would
amount to nothing but merely abusing the personal laws. It was held that a
Hindu marriage can be dissolved under the Hindu Marriage Act, 1955 only and by
converting into Islam and marrying again does not dissolve the marriage under
Hindu Marriage Law and thus, it would be an offence under S.494(5) of The
Indian Penal Code, 1860. The judge in this case opined that it is high time
that a uniform civil code be introduced and that Art.44 be taken out of
1. Ashok Kumar Thakur vs. Union of India
(2008) 6 SCC 1
In this case it has been held that social empowerment is not a
measure for only socially and educationally backward classes but has to be for
the socially and economically backward classes.
2. Unnikrishnan vs State of Andhra Pradesh 1993 SCC (1) 645
In this case the court reprimanded the government institutions for
being reluctant with the enforcement of article 45 and held that every child
who is deprived of the right to education can issue a writ of mandamus against
the appropriate authority for the enforcement of their deprived right. Though
the issue in both the cases were related to higher education, the end result of
these cases was that free and compulsory primary education was held to be a
fundamental right flowing from Article 21 of the Constitution. Another
fascinating aspect of the Unnikrishnan case is that the court traced the source
of the right to education not only from Article 41, 45 and 46 of the DPSP but
also from the International Covenant for Economic Social and Cultural Rights.
3. Consumer Education and Research Center vs. Union of India AIR 1995
The Supreme Court in this case has brought occupational health
hazards to workers within the coverage of Article 21 by reading Article 21,
39(c), 41, 43, 48-A. Accordingly, health and medical care to protect the health
and vigour of a worker while in service or post retirement has been held to be
a Fundamental Right.
4. State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat (2005) 8
The Supreme Court in the present case upheld that a total ban on
the slaughter of cows of all ages and calves of cow and calves of
she-buffaloes, male and female, is quite reasonable and valid and in consonance
with the Directive principles.
5. MC Mehta vs. Union of India AIR 1997 SC 734
In this case the Supreme Court has issued several directions in
order to protect the Taz Mahal from deterioration on account of environmental
1. AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC 428
In this case a three-Judge Bench of the Hon’ble Apex Court made it
clear that fundamental duties, though not enforceable by writ of the court, yet
provide valuable guidance and aid to interpretation and resolution of
constitutional and legal issues. In case of doubt, peoples' wish as expressed
through Article 51-A can serve as a guide not only for resolving the issue but
also for constructing or moulding the relief to be given by the courts. The
fundamental duties must be given their full meaning as expected by the
enactment of the Forty-second Amendment. The Court further held that the State
is, in a sense, 'all the citizens placed together' and, therefore, though
Article 51A does not expressly cast any fundamental duty on the State, the fact
remains that the duty of every citizen of India is, collectively speaking, the
duty of the State.
2. Mohan Kumar Singhania & Ors. v. Union of India & Ors.,
1992 Supp (1) SCC 594
In this case a governmental decision to give utmost importance to
the training programme of the Indian Administrative Service selectees was
upheld by deriving support from Article 51-A(j) of the Constitution, holding
that the governmental decision was in consonance with one of the fundamental
3. State of U.P. v. Yamuna Shanker Misra & Ors., (1997) 4 SCC
The Hon’ble Supreme Court interpreted the object of writing the
confidential reports and making entries in the character rolls by deriving
support from Article 51-A(j) which enjoins upon every citizen the primary duty
to constantly endeavour to strive towards excellence, individually and collectively.
4. Rural Litigation and Entitlement Kendra & Ors. v. State of
Uttar Pradesh & Ors., 1986 (Supp) SCC 517
In this case a complete ban and closing of mining operations
carried on in the Mussoorie hills was held to be sustainable by deriving support
from the fundamental duty as enshrined in Article 51-A(g) of the Constitution.
The Court held that preservation of the environment and keeping the ecological
balance unaffected is a task which not only Governments but also every citizen
must undertake. It is a social obligation of the State as well as of the
5. T.N. Godavarman Thirumalpad v. Union of India & Ors.,
(2002) 10 SCC 606
In this case a three-Judge Bench of the Apex Court Court read
Article 48-A and Article 51-A together as laying down the foundation for a
jurisprudence of environmental protection and held that "Today, the State
and the citizens are under a fundamental obligation to protect and improve the
environment, including forests, lakes, rivers, wild life and to have compassion
for living creatures".
1. S.K. Singh vs. VV Giri AIR 1970 SC 2097
Originally the elected members of the Legislative Assembly were
not included in electoral college to elect the President. In the present case,
the Hon’ble Supreme Court ruled that the term ‘State’ in Article 54 did not
include Union Territories. After this pronouncement, the Constitutional
(Seventh Amendment) Act 1992 added an explanation to Article 54 saying that the
term ‘State’ in Article 54 and 55 includes the National Capital territory of
Delhi and Union Territory of Pondicherry.
Further in this case it was held that requirement laid down by
Parliament that very person must be nominated by two electors as proposer
and seconder is a reasonable requirement relating to regulation of election to
the office of President and cannot be held to be a curtailment of the
right of a candidate to stand as candidate under Article 58
2. Narayan Bhasker Khare v. The Election Commission of India AIR 1957 SC 694
The Hon’ble Supreme Court has held that it would not entertain any
petition challenging the Presidential election before the completion of
electoral process and declaration of the results. The reason for this is that
if a doubt or dispute arising in connection with the election of the President
is brought before the court before the whole election process is concluded then
conceivable the entire election may be held up till the expiry of five years
term which will involve a non-compliance of the mandatory provision of Article
62. Further it was held that a person who is neither a candidate nor an elector
could not file a petition to challenge the Presidential election.
3. Jaya Bacchan vs. Union of India AIR 2006 SC 2119
The Hon’ble Supreme Court held that it was well settled that where
the office carries with it certain emoluments or the order of the appointment
states that the person appointed was entitled to certain emoluments, then it
will be an office of profit, even if the holder of the office chooses not to
receive/draw such emoluments and stated that what was relevant was whether
pecuniary gain is ‘receivable’ in regard to the office and not whether
pecuniary gain, in fact, received or received negligibly.
4. re. Presedential Poll AIR 1974 SC 1682
The Hon’ble Supreme Court in its advisory jurisdiction ruled that
the election of the President can be held when a State Assembly has been
dissolved under Article 356 and its members are unable to participate in the
election. The election to the office of the President must be held, before the
expiration of the term of the President notwithstanding the fact that at the
time of such election the Legislative Assembly of a State is dissolved. The
election to fill the vacancy in the office of the President is to be held and
completed having regard to Articles 62(1).
5. Purno Agitok Sangma vs. Pranab Mukherjee AIR 2013 SC 372
The Hon’ble Supreme Court held that in order for an office to be
an office of profit, the office must carry various pecuniary benefits or must
be capable of yielding pecuniary benefits.
6. Baburao Patel and ors. vs. Zakir Hussain and ors. AIR 1968 SC
In this case the election of Dr. Zakir Hussain as the President of
India in the year 1967 was challenged on the round that the 17 candidates who
were nominated for the elections did not subscribe to the oath required under
Article 84(a) of the Constitution read with Article 58(1)(c) thereof. The
Presidential election was upheld as being valid on the ground that some
qualifications which may be necessary for election to the House of the People,
they need not necessarily apply to the election for the office of the
President, where there is a specific provision in Article 58(1) itself. Thus,
in the view of specific provision being provided under Article 58(1) (a) and
(b), the sub-clauses (a) and (b) of Article 82 should not be unnecessarily
1. Kehar Singh vs. Union of India AIR 1989 SC 653