Legal Reasoning:

Constitutional Law
 Legal Reasoning:
Constitutional Law
Introduction and Basics
Key Topics
• Why Constitution?
• Constitution vs. Constitutionalism
• Background of Formation of Indian Constitution
• Government of India Act, 1935
• Constituent Assembly-1947 to 1950
• Preamble
• Constitutional Morality
Why Constitution?
• The constitution is the supreme law of a country.
• It is a written document which lays down the framework demarcating
fundamental basic code, structure, procedures, powers, and duties of
Government and its organizations and rights & duties of the citizen.
• The Constitution gives due recognition to statutes, case law and customary
laws consistent in India.
• Statutes- Article 246 and Three Lists in Seventh Schedule
• Case Law- Article 141 (decisions of the Supreme Court are binding on all
Courts within the territory of India)
• Customary Law- Article 13, Special Provisions related to certain States
(Assam and Mizoram).
Constitution vs. Constitutionalism
• “With great power comes great responsibility.”
- Ben Parker
• “Power tends to corrupt and absolute power corrupts absolutely.”
- Lord Acton
Constitution vs. Constitutionalism
• Constitution- Written Document which lays down the framework of rights,
duties and systems of government.
• Constitutionalism- Limited Government
• Constitutionalism recognizes the need for government but insists upon
limitations being placed upon governmental powers.
• Constitutionalism provides checks and balances. In simple terms, the powers
of legislature and executive are put under some restraints so that they are not
uncontrolled and arbitrary. Unlimited powers jeopardize freedom of the
people.
• Mere existence of a Constitution, by itself, does not ensure constitutionalism
or a constitutional culture. (R.C. Poudyal v.Union Of India)
Constitution vs. Constitutionalism
• The State or public authorities act in exercise of their executive or legislative
power and therefore they are subject to the judicial review by Courts. (State of
Bihar v. Subhash Singh)
• Exercise of all public power, including constitutional power, shall not be
exercised in an arbitrary or mala fide manner. (Swaran Singh v.State of UP)
• The constitutionalism or constitutional system of Government hates
absolutism. (Rameshwar Prasad v.Union of India)
• Constitutionalism is based on the Rule of Law. Rule of law in simple terms
means supremacy of law. It states that no one should be above the law.
Background of Formation of Indian
Constitution
• Government of India Act, 1935
• Provided a federal system for governance in India
• Provided three lists to demarcate the law-making powers
• Introduced bicameral legislature- Upper House and Lower House
• Foundation for Federal Court
• Indian Independence Act, 1947
• Created two Independent Dominions- India and Pakistan
• Granted independence to India on 15th August, 1947
Background of Formation of Indian
Constitution-Constituent Assembly
• Constituent Assembly
• Formed by British Cabinet Mission in 1946
• Assembly constituted through Indirect Elections
• Composition
• Initially 389 members (292 from Provincial Legislative Assemblies, 93 from Indian
Princely States and 4 from Chief Commissioner’s provinces)
• Reduced to 299 members after the partition in 1947.
• First meeting on 09th December, 1946
• Time Spent in making the Constitution: 2 years, 11 months and 18 Days.
• Final Document as passed by Assembly: 22 Parts, 395 Articles and 8 Schedules.
• Current Position: 25 Parts, 448 Articles and 12 Schedules.
• Constitution was passed and adopted by the Assembly on 26th November, 1949.
• Last Session on 24th January, 1950
 Preamble
to the
Constitution of
India
Preamble
• Background
• Objectives Resolution by Pt. Jawaharlal Nehru in the Constituent Assembly
• This resolution contained philosophy and objectives for the Constitution
• Was adopted as Preamble to the Constitution by the Assembly on January 22, 1947.
• Part of the Basic Structure of the Constitution- Keshavananda Bharati v. State of Kerala.
• The Preamble does not grant substantive rights and is not enforceable in the courts.
• Two Key acronyms- SSSDR, JLEF
• Amendments to the Preamble. (42nd Amendment, 1976)
• Addition of words “Socialist”, “Secular”, “and integrity of the Nation”.
Constitutional Morality
• “Constitutional morality cannot be martyred at the altar of social morality and it is only
constitutional morality that can be allowed to permeate into the Rule of Law”

- Formed CJI, Dipak Misra in Navtej Johar v.Union of India

• Constitutional morality, means the morality that has inherent elements in the
constitutional norms and the conscience of the Constitution.
• Constitutional morality determines the mental attitude towards individuals and issues by
the text and spirit of the Constitution.
• In simple terms, rights and freedoms as provided under the Constitution need to be
protected. The Constitutional Courts have a duty to ensure that these rights and
freedoms are not restricted or violated by what the society considers right or wrong
(social morality).
Part I- THE UNION AND ITS
TERRITORY (Articles 1 to 4)
The Union and Its Territory
• Article 1 to 4 of the Constitution of India deals the Union and its Territories
• Article 1- India, that is Bharat, shall be a Union of States.
• List of States and Territories shall be the one that is provided under First Schedule
• Article 2- Admission or establishment of new States
• Admission or establishment is done by Parliament through Law
• Terms and Conditions as determined by the Parliament
• Popular Use: Sikkim
• Article 3- Formation of new States and alteration of areas, boundaries or names of existing
States
• It is done by Parliament through law
• Prior recommendation by President of India
• Types of Changes: (a) form a new State by separation of territory from any State or by
uniting two or more States or parts of States or by uniting any territory to a part of any
State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the
boundaries of any State; (e) alter the name of any State
• Examples where the provision was used: Jammu & Kashmir, Telangana
Part II- CITIZENSHIP
(Articles 5 to 11)
Citizenship
• Articles 5 to 11 of the Constitution of India deals with Citizenship in India.
• In addition to the Constitution, The Citizenship Act, 1955 also deals with Citizenship.
• Constitution is applicable on individuals before the commencement of the Constitution.
• The Citizenship Act deals with acquisition and loss of citizenship after the commencement of
the Constitution of India.
• Article 5 of the Constitution of India-
At the commencement of this Constitution, every person who has his domicile in the
territory of India and—
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years
immediately preceding such commencement, shall be a citizen of India.
Citizenship
• Article 6 of the Constitution of India:- Rights of Person who migrated to India from Pakistan
• A person migrating to India from the territory of Pakistan shall at the commencement of
the constitution be deemed to be a citizen of India, if he or either of his parents or any of
his grand-parents was born in India as defined in the Government of India Act, 1935
• Article 7 of the Constitution of India:- People who have migrated from the territory of India to
the territory now included in Pakistan shall not be deemed to be a citizen of India.
• Article 9 of the Constitution of India:- Prohibition on Dual Citizenship
• No person shall be a citizen of India or be deemed to be a citizen of India, if he has
voluntarily acquired the citizenship of any foreign State.
Modes of Acquisition of Citizenship

Birth

Incorporation
Descent
of Territory
Modes of
Acquisition
of
Citizenship

Naturalization Registration
Modes of Acquisition of Citizenship
• Citizenship by Birth- Section 3 of the Citizenship Act, 1955
• Citizenship is granted on the basis of the birth in India
• Citizenship by Descent- Section 4 of the Citizenship Act, 1955
• Person is not born in the territory of India
• Citizenship is granted on the basis of citizenship of Parents
• Citizenship by Registration- Section 5 of the Citizenship Act, 1955
• Any person not being an illegal migrant who is not already such citizen by virtue of the
Constitution
• A person of Indian origin who is ordinarily resident in India for seven years before
making an application for registration; or
• Person Married to an Indian Citizen
Modes of Acquisition of Citizenship
• Citizenship by Naturalisation- Section 6 of the Citizenship Act, 1955
• Through Application
• Conditions as provided under Third Schedule of the Act
• Resident of India, Part of the Service of Indian Government for a period of twelve
months immediately prior to such application
• Resident in India or been in the service of a Government in India, or partly the one or
partly another during the fourteen years immediately preceding the said period of
twelve month, for periods amounting in the aggregate to not less than eleven years
• Person should be of a good character
• Conditions can be waived- If in the opinion of the Central Government, the applicant
is a person who has rendered distinguished service to the cause of science,
philosophy, art, literature, world peace or human progress generally, it may waive all
or any of the conditions specified in the Third Schedule
• Citizenship by Incorporation of Territory- Section 7 of the Citizenship Act, 1955
• If any territory becomes a part of India, the persons by reason of their connection with
that territory shall be citizens of India.
Modes of Losing Citizenship

Renunciation

Modes of
Losing
Citizenship

Deprivation Termination
Modes of Losing Citizenship
• Renunciation of Citizenship
• Any citizen of India
• makes a declaration renouncing his Indian Citizenship
• Termination of Citizenship
• Based on Article 9 of the Constitution of India- Prohibition on Dual Citizenship
• Voluntarily acquisition of the citizenship of another country
• Upon such acquisition will cease to be a citizen of India
• Deprivation of Citizenship
• Person ceases to be an Indian Citizen by an order of the Central Government
• Order is passed if
• Person obtained certificate of registration through fraud
• Person is showing disloyalty or disaffection towards the Constitution of India
through his acts or speech
• Person is in communication or dealing with an enemy
• Person has been sentenced in any country to imprisonment for a term of not less
than two years- Within five years after registration or naturalization.
 Part III- FUNDAMENTAL
RIGHTS(Articles 12 to 32)
Fundamental Rights
• These are the most important rights available to an individual. These are essential to live a
dignified life.
• Origin: “Magna Carta (Great Charter)- Declaration of Rights”
• Fundamental Rights in the Indian Constitution:
• Recognized in Part III of the Indian Constitution
• Subject matter of these rights:
• General (Articles 12-13)
• Right to Equality (Articles 14-18)
• Right to Freedom (Articles 19-22)
• Right against Exploitation (Articles 23-24)
• Right to Freedom of Religion (Articles 24-28)
• Cultural and Educational Rights (Article 29-30)
• Right to Constitutional Remedies (Article 32)
Article 12
• Article 12 defines State:
• Government and Parliament of India
• Government and the Legislature of each of the States
• All local or other authorities within the territory of India or under the control of the
Government of India
• “Other authorities”
• University of Madras v. Shanta Bai (1954): Provision to be interpreted on the basis of
principle of ejusdem generis. Thus, other authorities would include only those
authorities that perform governmental or sovereign functions. This is a limited view of
the definitions of the State.
• Rajasthan Electricity Board v. Mohan Lal (1967): No need to follow ejusdem generis
principle. The phrase “other authorities” is wide enough to include every authority
created by the Constitution or a Statute and, on whom powers had been conferred upon
by law.
• Sukdev Singh v. Bhagat Ram (1975): Corporations like ONGC, IFC and LIC were
included in the definiton of State under Article 12 as these corporations were created by
Statutes. The test of instrumentatility of the State was laid down.
Article 12
• Instrumentatility of the State:
• It means that if an action has been done by a state’s instrumentality or agency, then it
would amount to State action.
• To determine whether an agency is an instrumentality of the State following factors are
relevant:
• Whether the State has financial and administrative control over the management and
policies of the agency.
• Whether the entity or instrumentality or agency is performing an essential public
function.
• Whether the entity or agency is carrying out business for the benefit of public or not.
• R.D. Shetty v International Airport Authority (1979): Five tests to determine whether the
other authority is a State:
• Entire share capital is owned or managed by State.
• Enjoys monopoly status.
• Department of Government is transferred to Corporation
• Functional character governmental in essence.
• Deep and pervasive State control.
• Object of Authority
Article 12
• Ajay Hasia v. Khalid Mujib (1981): The court laid down the following tests to determine
whether a body is an instrumentality of the government or not:
• If the entire share capital of the corporation is held by the government
• Where the financial assistance of the state is so much as to meet almost entire
expenditure of the corporation.
• Whether the corporation enjoys monopoly status, which is state conferred or state
protected.
• Existence of deep and pervasive state control.
• If the functions of the corporation are of public importance.
• If a department of government is transferred to corporation
• Pradeep Kumar Biswas v.Indian Institute of Chemical Biology & Ors (2002):
• It is not mandatory that all the tests must be answered positively. What is important is
the cumulative effect of such tests.
Article 13- Laws inconsistent with or in
derogation of the fundamental rights
• All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void.

• The State shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.

• “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law.

• [Nothing in this article shall apply to any amendment of this Constitution made under article
368.]- Added by 24th Amendment, 1971
Article 13- Related doctrines
• Doctrine of Eclipse:

Pre-Constitutional Laws Fundamental Rights Individuals possessing

Fundamental Rights
Article 13- Related doctrines
• Doctrine of Eclipse:
• It is applicable on pre-constitutional laws as mentioned in Article 13(1).
• The idea is that if the laws in force in territory of India, before the commencement of the
Constitution, are in conflict with or inconsistent with the Fundamental Rights- then they
are not struck down entirely. They are void only to the extent they are inconsistent.
• Bhikaji v.State of Madhya Pradesh (1955):
• Article 13(1) by reason of its language cannot be read as having obliterated the
entire operation of the inconsistent law or having wiped it out altogether from the
statute book.
• Such law existed for all past transactions and for enforcement of rights and liabilities
accrued before the date of the Constitution. The law continued in force, even after the
commencement of the Constitution, with respect to persons who were not citizens
and could not claim the fundamental right.
• The true position is that the impugned law became, as it were, eclipsed, for the time
being, by the fundamental right.
Article 13- Related doctrines
• Doctrine of Severability:
• This is applicable on post constitutional laws.
• If the law made by the State is in conflict with or contravenes the fundamental rights laid
down in Part III of the Constitution- then such a law is not struck down entirely. Only the
parts in conflict are declared null and void.
• Example: Section 66A of the Information Technology Act, 2000. Only this provision was
struck down by the Court on ground of violation of Article 19. The entire law was not
quashed.
• In simple terms, the idea of severability is to separate a law into infringing and non-
infringing parts. Only the infringing part is declared null and void.
• Exception: If the valid portion is so closely mixed up with invalid portion that it cannot be
separated without leaving an incomplete or more or less mingled remainder, then the courts
will hold the entire Act, void.
• Example: National Judicial Appointments Commission Act, 2014
Article 13- Related doctrines
• Judicial Review:
• Marbury v.Madison: Judgment by the United States Supreme Court
• Literal Interpretation: Power of the Courts to review any legislation to see if it is in
consonance with the Constitution.
• Power of judicial review is based in Article 13. This allows the Constitutional Courts to
declare a law as unconstitutional and struck down the same- if it is in violation of the
Fundamental Rights.
• Judicial Review is a part of basic structure of the Constitution of India. Therefore, the
Parliament cannot by law take this away from courts.
• Extent: Following actions can be reviewed
• Legislative Actions: Laws and regulations made by the Legislature
• Administrative Actions: Actions by Government Officials
• Executive Actions: Actions by President, Governor, Council of Ministers
Article 13- Amendments & Law
• Background: Due to Zamindari system need for land reforms was felt.

• First amendment to the constitution was passed which added Articles 31A and 31B and 9th
schedule to the Constitution.

• Articles 31A provided that any law providing for the land reforms and acquisition cannot be
challenged on the ground that it is violative of any of the fundamental rights guaranteed under
Constitution.

• Articles 31B gave blanket protection to those legislation which are inserted in the 9th schedule
making it beyond the scope of judicial review on the ground of its incompatibility with
fundamental rights.

• 9th Schedule: It contains legislation which are beyond the judicial review by Courts.
Article 13- Amendments & Law
• Shankari Prasad v.Union of India (1950)
• Constitutional validity of the first amendment challenged on ground that it violates
fundamental rights.
• Therefore, the law should be struck down under Article 13 as an amendment is also included
in the law.
• Supreme Court rejected the argument and held that there is a clear distinction between
amending power and general legislative power. Amending power of the parliament is to be
located in Article 368 of the Constitution. Article 13(2) merely deals with ordinary law
making powers of parliament and legislatures.
• The case validated the position of the government by saying that Parliament has authority to
amend all provisions of the constitution including fundamental rights.
• Similar ruling was followed in the case of Sajjan Singh v. State of Rajasthan. In this case, the
constitutional validity of Constitution 17th Amendment Act, 1964 was upheld.
Article 13- Amendments & Law
• I.C. Golaknath v.State of Punjab (1967)

• 11 Judge bench was constituted.

• The majority (6:5) was of the view that Article 368 of the constitution merely laid down the
amending procedure and does not deal with the power of amendment.
• The amending power of Parliament can be found in other provisions specially Articles 245,
246, 248 dealing with legislative powers.

• Parliament can, by the law of amendment or by ordinary law, abridge or restrict the
fundamental rights to the extent permitted in Part III.

• Though it cannot take away the fundamental rights, it can add to the list of fundamental
rights.
Article 13- Amendments & Law
• Post Golaknath Amendments

• Amendment to Article 368 to introduce the amending power of the Parliament.

• By virtue of this amendment, Parliament has the power to amend by way of addition,
variation or repeal any provision of this Constitution

• Article 368(3) was added. This provides that nothing in Article 13 shall apply to any
amendment made under this article.

• 24th, 25th & 29th amendments

• 24th Amendment- Any part of the constitution can be amended

• 25th Amendment- Supreme Court cannot review the amount of compensation

• 29th Amendment- Kerala Land Reforms legislation were placed in 9th Schedule
• Effect of these amendments- Limited judicial review, Amendments out of scope of Article 13;
Power to the Parliament to amend any provision to the Constitution.
Article 13- Amendments & Law
• Kesavananda Bharati v.State of Kerala (1973)
• 13 Judge bench was constituted.
• The majority (7:6) was of the view that Constitution of India has a basic structure that
cannot be altered even by a constitutional amendment. The court held that the Parliament's
amending power under Article 368 is not unlimited and that it cannot alter the basic
structure of the Constitution.
• Basic features or the Structure:
• Supremacy of the Constitution
• Separation of Powers between the legislature, the executive and the judiciary
• Republican and the democratic form of Government;
• Secular character of the Constitution
• Federal character of the constitution
• The dignity of the individual secured though Fundamental Rights
• The unity and integrity of the nation
• Parliamentary system
• Welfare state on the basis of the Directive Principles of State Policy
• Sovereignty of India
Article 13- Amendments & Law
• Post Kesavananda Amendments
• 42nd Amendment, 1976
• Sub-clause (4) & (5) were added to Article 368.
• Article 368 (4) states that no amendment of this Constitution (including the provisions of
Part III) shall be called in question in any court on any ground.
• Article 368 (5) states that 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.
• Minerva Mills v.Union of India (1980)
• Supreme court struck down clauses (4) and (5) of the Article 368 on the ground that these
clauses destroyed the essential feature of the basic structure of the constitution.
• It was ruled by the court that a limited amending power itself is a basic feature of the
Constitution.
• They also declared harmony and balance between fundamental rights and directive
principles is an essential feature of the basic structure of the Constitution.
Article 14- Equality before law
• The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India.
• “Equality before the Law”
• No one shall be above the law. Rule of law is important.
• This phrase is couched in negative terms. It prohibits the state from giving preferential
treatment to someone.
• “Equal protection of the laws”
• All persons have the right to equal treatment in similar circumstances both in the privileges
conferred and in the liabilities imposed by laws.
• It requires that equal laws should be applied to all in the same situation and that there
should be no discrimination between one person and another.
• “like should be treated alike and not that unlike should be treated alike.”
• Provides for reasonable classification
 Article 14- Reasonable Classification
• Two principles for reasonable classification:
• The classification must have some basis i.e. must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together from others left out of the
group.
• The differentia must have a nexus with the object sought to be achieved by the statute in
question.
• Examples of Reasonable Classification:
• Society for Unaided P.School of Rajasthan v. Union of India, (2012): Classification on the
basis of financial status.
• Purpose: Providing admissions to students from weaker sections
• Food Corporation of India v. Bhartiya Khadya Nigam Karmchari Sangh (2012):
Classification on the basis of educational qualification
• Purpose: Incentives to people obtaining Higher qualifications after joining the job
Article 14- Reasonable Classification
• Dharmendra Kirthal v. State Of UP (2013): Classification on the basis of nature of the
offence

• Purpose: Establishment of special courts for Uttar Pradesh Gangsters and Anti- Social
Activities (Prevention) Act, 1986

• Kishan Singh v.State of Rajasthan (1955): Classification on the basis of geographical area

• Purpose: To deal with specific circumstances prevailing in a particular area

• P V Shastri v.Union of India (1974): A single individual can be a class in himself.

• Purpose: To ensure personal safety of the Prime Minister and enable him to discharge
his official business promptly
Article 14- Fairness and Non-Arbitrariness
• E.P.Royappa v.State of Tamil Nadu:
• Equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice
of an absolute monarch..
• Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of
treatment.
• They require that State action must be based on relevant principles applicable alike to all
similarly situated.
• It must not be guided by any extraneous or irrelevant considerations because that would be
denial of equality.
• Principles of Natural Justice:
• Audi Altarem partem- No one shall be condemned unheard.
• Nemo debet judex in causa sua- No person shall be a judge in his own cause.
Article 15- Prohibition of discrimination.
• The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.
• No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regards to access to public shops
public restaurants, hotels and places of public entertainment; or the use of wells, tanks etc.

• Article 15(3)- Nothing in this article shall prevent the State from making any special provision for
women and children.
• Article 15(4) Special provision for the advancement of any socially and educationally backward
classes (SEBCs) of citizens or for the Scheduled Castes and the Scheduled Tribes. [Added in 1951]
• Article 15(5)- Special provisions for SEBCs or SC or ST with regards to admission to educational
institutions including private educational institutions. [Added in 2005]
• Not applicable to minority educational institutions referred in Article 30(1)
• Article 15(6)- Special Provision for the advancement of Economically Weaker Sections of the
Society other than SEBCs/SC/ST. [Added in 2019]
Article 16- Equality of opportunity in matters
of public employment.
• There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
• No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or
any of them, be ineligible for, or discriminated against in respect of, any employment or office
under the State.

• Article 16(3)- Power of the parliament to make law to make any requirement of residence in
regard to a class or classes of employment or appointment to a government office.
• Article 16(4)- Reservation of appointments or posts in favour of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services under the State.
• Article 16(6)- Special Provision for the advancement of Economically Weaker Sections of the
Society other than SEBCs/SC/ST. This is pertaining to reservation in appointment. [Added in
2019]
Reservation
• Two types of Reservation: Horizontal and Vertical.
• Vertical Reservation: Reservation provided to SCs/STs/OBCs
• Horizontal Reservation: Reservation provided to Women, Physically Handicapped
• State of Madras v.Champakam Dorairajan (1951):
• State of Madras provided reservation in State Medical and Engineering colleges.
• The Supreme Court declared such reservation unconstitutional as it violated Article 15(1).
• To nullify the effect of this judgment, sub clause (4) was added to Article 15.
• M.R. Balaji v.State of Mysore (1963):
• Article 15(4) and Article 16(4) are in the nature of an exception to Article 15(1) and 16(1).
• This is a limited view.
• State of Kerala v.N.M.Thomas (1976):
• Article 16 is merely an incident of Article 14 and both these articles form a part of the
common system seeking to achieve the same end.
• Backwardness of the Weaker Sections of Society becomes one of the Form of Classification.
Reservation
• T.M.A.Pai Foundation v.State of Karnataka (2003):
• The State cannot insist on private educational institutions which receive no aid from the
State to implement State’s policy on reservation.
• To nullify this Clause (5) was added to Article 15 by 93rd Constitutional Amendment, 2005
• Ashoka Kumar Thakur v.Union of India (2005):
• Upheld the constitutional validity of 93rd Amendment with regards to state maintained
institutions and aided educational institutions.
• Article 15(4) is not an exception or proviso to Article 15(1).
• It is an instance of classification inherent in Article 15(1).
Article 17- Abolition of Untouchability
• “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of “Untouchability” shall be an offence punishable in accordance with law.
• Protection of Civil Rights Act, 1955
• Indian young lawyer association & ors. v.State of Kerala & ors
• CJI, D.Y. Chandrachud equated the practice of segregation of women with untouchability.
Article 18- Abolition of titles
• 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.
• No person who is not a citizen of India shall, while he holds any office of profit or trust under the
State, accept without the consent of the President any title from any foreign State.
• Article 18 does not prohibit the State from conferring military or academic distinctions like
Bharat Ratna, Padam Vibhushan, Padam Shri etc. They are conferred in recognition of good work
done by citizens in various fields.
Article 19- Protection of certain rights regarding
freedom of speech, etc.
• All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions [or co-operative societies];
(d) to move freely throughout the territory of India;
(e)to reside and settle in any part of the territory of India; [and]
[(f)* * * * *]
(g) to practise any profession, or to carry on any occupation, trade or business.
• Articles 19(2) to (6): Reasonable restrictions
• Article 19(2): sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation to contempt of court, defamation
or incitement to an offence.
• Article 19(3): sovereignty and integrity of India or public order, reasonable restrictions
• Article 19(4): sovereignty and integrity of India or public order or morality, reasonable
restrictions
Article 19- Reasonable Restrictions
• Article 19(5): reasonable restrictions on the exercise of any of the rights conferred by the Article
19(1)(d) & (e) either in the interests of the general public or for the protection of the interests of
any Scheduled Tribe.
• Article 19(6): interests of the general public, reasonable restrictions on the exercise of the right,
professional or technical qualifications.
• Article 19(6): carrying on by the State, or by a corporation owned or controlled by the State, of
any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens
or otherwise.
• “Reasonable restrictions”
• No abstract standard. or general pattern, of reasonableness can be laid down as applicable to
all cases.
• The nature of the right alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the time, are all relevant factors
to determine the reasonability of the restrictions. (State of Madras v.V.G. Row)
Article 19- Reasonable Restrictions
• “Reasonable restrictions”
• The limitation imposed on a the right should not be arbitrary or of an excessive nature.
• An arbitrary or excessive invasion of the right will not meet the test of reasonableness.
• Anuradha Bhasin v.Union of India (2020)
• Principle of proportionality is relevant to determine whether a restriction is reasonable or
not.
• Basic idea of “proportionality”- Use of least restrictive option/measure to achieve the object
of the legislation.
• Test of Proportionality:
• Goal behind the legislation must be legitimate.
• Availability of any alternative mechanism to achieve the said goal.
• Only the least restrictive measure can be resorted to by the State
• Necessity of the measure ultimately selected.
• Any decision/order should be based on sufficient material and is subject to judicial
review.
Article 19- Derived Rights
• Derived rights under Article 19(1)(a):
• Freedom of Press
• Broadcasting and Telecasting rights
• Right to information
• Use of advertisement to promote sale of goods
• Orderly demonstration. (Does not allow right to strike)
• Right to fly National Flag
• Freedom of Internet
 Article 20- Protection in respect of conviction
for offences
• Vidhan is a resident of India. Recently, he had an argument with a senior police official.
• The police official decided to teach him a lesson. So he decided to lodge a false case against
Vidhan. The case was filed under Section 66A of the Information Technology Act, 2000.
• The police arrested him and tortured him to confess for this crime.
• The trial began. The judge after reviewing the case dismissed the case as Section 66A was no
longer in force.
• Affected by the dismissal, the Police Officer decided to file another case against Vidhan under the
Indian Penal Code.
• Vidhan raised a plea that he has already been arrested and acquitted. So this new case must also
be dismissed.
• The trial court rejected this plea and continued hearing the case.
What are the key legal points/issues in the above facts scenario?
 Article 20- Protection in respect of conviction
for offences
• Article 20(1): No person shall be convicted of any offence except for violation of a law in force at
the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the commission of
the offence.
• This article deals with ex-post facto laws. It prohibits conviction and sentence under ex-post facto
laws.
• Prohibition against conviction: A person will face liability for an act- if the law in force on date of
the act made it a punishable offence.
• Prohibition against sentence: Penalty as existing on the date of the offence should be imposed.
This prevents a greater penalty being imposed on the convict. However, if penalty/punishment is
reduced then it is not barred under Article 20(1).
• Only applicable to criminal laws. Civil laws are not covered under this Article.
Article 20- Protection in respect of conviction
for offences
• Article 20(2): No person shall be prosecuted and punished for the same offence more than once.
• Article pertains to protection against Double Jeopardy.
• Essential conditions for invocation of the rule under Article 20(2):
(i) The person must be accused of an “offence”
(ii) The person must have been prosecuted and convicted before a court or a judicial tribunal.
• The protection is available in case of the same offence. A person cannot refer to this article if the
subsequent prosecution is for a new offence.
• Protection is not available in case the prosecution was dismissed/terminated by virtue of some
inherent defect or illegality affecting the validity of the trial itself, like lack of jurisdiction etc.
• Protection is not available if the person was prosecuted and acquitted.
Article 20- Protection in respect of conviction
for offences
• Article 20(3): No person accused of any offence shall be compelled to be a witness against
himself.
• Provides protection against self-incrimination.
• Right against self-incrimination protects an accused person from threats and torture from the
police authorities.
• The right is based on the fundamental principle of criminal law- A person is to be presumed
innocent until proven guilty.
• In order to avail the protection of Article 20(3) three conditions must be satisfied:
• Firstly, the person must be accused of an offence.
• Secondly, the element of compulsion to be a witness should be there; and
• Thirdly, it must be against himself.
• Right to remain silent is also included within the ambit of right against Self incrimination.
Right to Life
• Every human life has an inherent value. This value is recognized from legal, social as well as
religious perspectives.
• To fully cherish and preserve this inherent value, life itself need to be protected.
• Human rights are rights that people have simply because of our existence as human beings - they
are not granted by any state.
• These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic
origin, color, religion, language, or any other status.
• They range from the most fundamental - the right to life - to those that make life worth living,
such as the rights to food, education, work, health, and liberty.
• Preamble of Universal Declaration of Human Rights (UDHR): Whereas recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world.
Article 21- Protection of life and personal
liberty
• No person shall be deprived of his life or personal liberty except according to procedure
established by law.
• Key Components:-
• Person
• Deprive
• Life
• Personal Liberty
• Procedure established by law
• “Person”
• Scope of “Person” is very wide and includes everyone.
• Includes aliens as well.
• Covers prisoners, under trials etc.
• Hussainara Khatoon & Ors v. Home Secretary, State Of Bihar
Article 21- Protection of life and personal
liberty
• “Deprive”
• A.K. Gopalan v. State of Madras: Deprivation (total loss) of personal liberty, which inter alia
includes the right to eat or sleep when one likes or to work or not to work as and when one
pleases and sever- al such rights sought to be protected by the expression "personal liberty"
in Article 21.
• Kharak Singh v. State of Uttar Pradesh: The right of personal liberty in Article 21 implies a
right of an individual to be free from restrictions or encroachments on his person, whether
those restrictions or encroachments are directly imposed or indirectly brought about by
calculated measures.
• Kiran v. Government of AP: Court is not powerless to interfere in case there is an imminent
threat to the liberty of an individual.
• Ram Sharan v. Union of India: Protection under Article 21 is available against some direct,
overt and tangible act which threatens the fullness of his life or the lives of others in the
community.
Article 21- Protection of life and personal
liberty
• “Life”
• Francis Coralie Mullin vs Union Territory of Delhi: The right to life enshrined in Article 21
can not be restricted to mere animal existence. It means something much more than just
physical survival.
• Kharak Singh v. State of Uttar Pradesh: By the term "life" as here used something more is
meant than mere animal existence. The inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed.
• K.S. Puttaswamy v. Union of India: ‘Life’ within the meaning of Article 21 is not confined to
the integrity of the physical body. The right comprehends one’s being in its fullest sense. That
which facilitates the fulfilment of life is as much within the protection of the guarantee of life.
To live is to live with dignity. Dignity is the core which unites the fundamental rights because
the fundamental rights seek to achieve for each individual the dignity of existence.
• Shabnam v. Union of India: Human dignity is infringed if a person’s life, physical or mental
welfare is alarmed. It is in this context many rights of the accused derive from his dignity as a
human being.
Article 21- Protection of life and personal
liberty
• “Personal Liberty”
• A.K. Gopalan v.State of Madras (1950): "Personal liberty" would primarily mean liberty
of the physical body. This is a narrow interpretation.
• Maneka Gandhi v. Union of India: The expression 'personal liberty' in Article 21 is of the
widest amplitude and it covers a variety of rights which go to constitute the personal
liberty of man and some of them have been raised to the status of distinct fundamental
rights and given additional protection under Article 19.
• “Procedure established by law”
• Restriction has to be through Law made by Parliament/State
• Law made by President/Governor is also covered
• Due Process of Law v. Procedure Established by Law
• Maneka Gandhi v. Union of India: Law must be "'right and just and fair" and not
arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied. Laws made by Parliament has to stand
the test of reasonableness as provided under Article 14.
• Article 21 must ensure the principles of natural justice
Golden Trinity: Articles 14, 19 and 21
• The initial cases of the Supreme Court propounded the view that to judge the validity of a law
restricting fundamental rights, only the grounds provided under that article had to be
considered.
• A.K. Gopalan v. State of Madras: A law creating a restriction on Article 19 would be required
to answer the tests of reasonableness prescribed by clauses 2 to 6 of Article 19 and those
alone.
• Maneka Gandhi v. Union of India: The fundamental rights protected by Part III of the
Constitution, out of which Articles 14, 19 and 21 are the most frequently invoked, form tests of
the validity of executive as well as legislative actions when these actions are subjected to
judicial scrutiny.
Article 21: Bundle of Rights
• Right to Speedy Trial • Right to Food
• Right to Healthy Environment • Right to Reasonable accommodation
• Converting buses in Delhi to CNG • Right to Sleep peacefully
• Ban on Smoking in Public
• Right to go abroad
• Right to Livelihood • Right against arbitrary solitary confinement
• Right to Choose a life partner • Right to social justice and economic
• Right to Privacy empowerment
• Right to life with Dignity • Right against handcuffing
• Right to Legal Aid • Right against custodial death
• Right to Education • Right against delayed execution
• Right against Sexual Harassment • Right against public hanging
• Right to Medical Care • Right of every child to a full development
• Right to Shelter • Protection of under-trials
Article 21A- Right to Education
• The State shall provide free and compulsory education to all children of the age of six to
fourteen years in such manner as the State may, by law, determine.
• This was added by 86th Amendment, 2002. Through this amendment the Article 45 (DPSP) was
given effect to.
• To give effect to Article 21-A, the Parliament enacted “The Right of Children to Free and
Compulsory Education Act, 2009.
• Preamble of the Act: An Act to provide for free and compulsory education to all children of the
age of six to fourteen years.
Article 22- Protection against arrest and
detention in certain cases
• No person who is arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
• Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the magistrate and no such person shall
be detained in custody beyond the said period without the authority of a magistrate.
• Above two provisions are not applicable on an enemy alien or to any person who is arrested or
detained under any law providing for preventive detention.
• “Preventive Detention”
• Preventive detention means detention of a person without trial and conviction by a court,
merely on the basis of suspicion or reasonable probability in the mind of an executive
authority that the detenue has the potential of committing prejudicial act.
• Article 22(5) provides protection to a person detained under the preventive detention laws.
• Under Article 22(5), the detaining authority has to communicate the grounds of detention
and shall afford the detenue with the earliest opportunity of making a representation against
the order of preventive detention.
Articles 23 & 24- Right against Exploitation
• Article 23:
• Prohibits traffic in human beings and begar and other similar forms of forced labor
• It is a criminal offence and will be punished under law
• Laws enacted: Immoral Traffic (Prevention) Act, 1956; Bonded Labour System (Abolition)
Act, 1976
• Exception: State can impose compulsory service for public purposes such as teachers
working for educational survey, family planning, preparation of voters list, general elections,
etc.
• Article 24:
• No child below the age of fourteen years shall be employed to work in any factory or mine
or engaged in any other hazardous employment.
• Laws enacted: Child Labour (Prohibition and Regulation) Act, 1986
Articles 25 to 28: Right to Freedom of Religion
• Secularism:
• Basic Idea: Separation of State and Religion
• Positive Secularism: State believes and respects all religions, but does not favor any
particular religion.
• Negative Secularism: State shall not discriminate on the basis of religion.
• Indian Constitution is based on positive secularism. It follows the vedic concept of “Sarv
Dharma Sama Bhava”. This means “All religious are equal”
• Part of the basic structure of the Constitution of India.
• S.R. Bommai v.Union of India:
• Secularism is a part of the basic structure of the Constitution.
• The acts of a State Government which are calculated to subvert or sabotage secularism as
enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the
Government of the State cannot be carried on in accordance with the provisions of the
Constitution.
Articles 25 to 28: Right to Freedom of Religion
• Article 25:
• All persons are equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion.
• Conscience: Conscience refers to choice. Freedom of conscience implies the freedom to
entertain any belief which one wishes. It takes within its fold - to believe or not to believe in
religion; to have faith in old beliefs; to change one’s beliefs; to convert to some other belief or
other religion.
• Profess: Freely and openly profess and practice one’s religion or belief.
• Practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and
ideas
• Propagate: To transmit or spread from person to person or from place to place. This does
not include right to convert other person to one's own religion but to transmit or spread
one's religion by an exposition of its tenets.
• Right is subject to Public Order, Morality and Health, and Other Provisions of Part III.
• Does not limit the power of the State to make law:
• For regulating and restricting any economic, financial, political or other secular activity
associated with religious practice
• Providing for social welfare and reform
Articles 25 to 28: Right to Freedom of Religion
• Article 26: Following rights are guaranteed to religious denomination or any section thereof:
• Right to establish and maintain institutions for religious and charitable purposes;
• Right to manage its own affairs in matter of religion;
• Right to own and acquire movable and immovable property;
• Right to administer such property in accordance with law.
The above rights are also subject to public order, morality and health.
• Article 27: Freedom as to payment of taxes
• No person to be compelled to pay taxes which are collected for promotion or maintenance
of any particular religion or religious denomination.
• Article 28:
• No religious instruction shall be provided in any educational institution wholly maintained
out of State funds.
• If educational institution is established under a trust or endowment, religious instructions
can be imparted if the trust or endowment prescribes.
• In case of educational institutions which are aided or recognized by the State, no person can
be compelled to take part in religious instructions. However, voluntary participation is
allowed.
Articles 29 & 30: Cultural and Educational
Rights
• Article 29:
• Rights to preserve a distinct language, script or culture of its own
• Right available to any section of the citizens residing in the territory of India or any part
thereof
• Article 29(2) provides safeguards to all citizens including minorities against discrimination
in the matter of admission to State maintained or State aided educational institutions on the
grounds only of religion, race, caste or any of them
• Article 15(4) is an enabling provision and is in the nature of an exception to Article 29(2)
• Any such reservation mode under Article 15(4) should be reasonable and should not take
away the minority character of the institution
Articles 29 & 30: Cultural and Educational
Rights
• Article 30:
• All minorities shall have the right to establish and administer educational institutions of their
choice.
• Minority can be religious or linguistic.
• The State shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether
based on religion or language.
• “Minority”
• T.M.A. Pai Foundation v. State of Kerala: Criteria for determining minority shall be the
population of the state.
• Term minorities refer to those communities who are numerically less than 50% in a State on
the basis of state population.
• List of Minorities: Muslims, Sikhs, Bhudhists, Parsis and Christians. Jains were added in 2014.
This is for the purpose of central legislations.
Article 32: Right to Constitutional Remedies
• “If I was asked to name any particular Article in this Constitution as the most important an
Article without which this Constitution would be a nullity- I could not refer to any other Article
except this one. It is the very soul of the Constitution and the very heart of it”
- Dr. B.R. Ambedkar
• The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.
• Appropriate proceedings: Proceedings for the enforcement of fundamental rights.
• If the proceedings are for enforcement of fundamental rights, even a letter addressed to the
Supreme Court is enough to initiate proceedings.
• This is known as Public Interest Litigation.
• Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
• The right guaranteed by this article shall not be suspended except as otherwise provided for by
this Constitution.
• As per Article 359, the rights guaranteed under Part III (except Articles 20 & 21) can be
suspended by President during emergency.
Article 32: Writs
• Habeas Corpus (meaning 'you may have the body'):
• Issued in case a person is detained illegally. It is a direction to bring such person before the
Court and to let the Court know on what ground the person is confined.
• If there is no legal justification for the detention, the person is ordered to be released.
• Mandamus (meaning ‘we order'):
• Direction to a public body or court to perform a public duty
• If a Public authority or an officer violates or restricts fundamental rights by doing an act in
contravention of legal duty, the Court can issue writ of mandamus to that officer or authority.
• Quo Warranto (meaning ‘by what authority'):
• Deals with cases where a public office has been held without any authority.
• The object of this writ is to prevent a person who has wrongfully unsurped an office from
continuing in that office.
 Article 32: Writs
• Prohibition (meaning ‘to prohibit’):
• Deals with situation, where a lower court/inferior court is doing something it is not legally
competent to do.
• The Court can issue this writ to prevent the lower court from assuming or threatening to
assume jurisdiction which it does not possess.
• Applicable to both excess of jurisdiction and absence of jurisdiction.
• Certiorari (meaning ‘to certify'):
• This comes into picture when a lower court has already acted in illegal exercise of
jurisdiction or has violated principles of natural justice.
• It is a remedial writ issued to quash an order or decision which has been made without
jurisdiction or in violation of the principles of natural justice.
• Similar to writ of prohibition.
In some cases, both the writs can be issued.
Article 32: Writs
Fact situation: Vidhan was appointed to the post of District Secretary. Due to certain allegations
against him, he was suspended from his post. Aggrieved by this, he has approached the High Court.
He is asking for revocation of the suspension order. He is also asking for compensation for unlawful
suspension. As per the law, the High Court only has the authority to revoke suspension. In the initial
hearing, the High Court has directed the authorities to pay interim compensation. The Court has
then posted the case for next hearing to decide the issue of final compensation and revocation of
suspension order. Decide whether the actions taken by the High Court are correct. If not, which writ
can be issued by the Supreme Court?
Part IV- Directive Principles of
State Policy (Articles 36 to 51)
 Article 37: Application of the principles
contained in Part IV
• The provisions contained in this Part shall not be enforceable by any court.
• The principles laid down are nevertheless fundamental in the governance of the country.
• It shall be the duty of the State to apply these principles in making laws.
• Significance of the Directive Principles of State Policy:
• Minerva Mills v. Union of India (1980): The Indian Constitution is founded on the bed-
rock of the balance between Parts III and IV. To give absolute primacy to one over the other
is to disturb the harmony of the Constitution. This harmony and balance between
fundamental rights and directive principles is an essential feature of the basic structure of
the Constitution.
• Olga Tellis v. Bombay Municipal Corporation (1985): Directive Principles, which are
fundamental in the governance of the country, must serve as a beacon light to the
interpretation of the Constitutional provisions.
 Directive Principles of State Policy
• Article 38: State to secure a social order for the promotion of welfare of the people.
• Article 39: Certain principles of policy to be followed by the State such as securing- right to an
adequate means of livelihood; prevent concentration of wealth; equal pay for equal work for
both men and women; health and strength of the workers; children and youth shall not be
exploited.
• Law enacted to give effect to these principles: Mahatma Gandhi National Rural Employment
Guarantee Act; Child Labour (Prohibition and Regulation) Act 1986; Labour Laws and
Labour Code.
• Article 39A: Equal justice and free legal aid. Legal recognition through Legal Services Authorities
Act, 1987
• Article 40: Organization of village panchayats. Given effect through 73rd Constitutional
Amendment, 1992.
• Article 41: Right to work, to education and to public assistance.
• Article 42: Provision forjust and humane conditions of work and maternity relief. Legal
recognition done through Maternity Benefits Act, 1961
 Directive Principles of State Policy
• Article 43: Living wage, etc., for workers. State shall endeavor to provide a living wage,
conditions of work ensuring a decent standard of life and full enjoyment of leisure and social
and cultural opportunities.
• Law enacted: Minimum Wages Act of 1948
• Article 43A: Participation of workers in management of industries. (Added by 42nd Amendment,
1976)
• Article 43B: Promotion of co-operative societies. (97th Constitutional Amendment, 2011).
• Some of the changes introduced by this amendment has been declared unconstitutional by
the Supreme Court.
• Article 44: Uniform civil code for the citizens.—The State shall endeavor to secure for the
citizens a uniform civil code throughout the territory of India.
• Article 45: Provision for early childhood care and education to children below the age of six
years. (Substituted by 86th Constitutional Amendment, 2002) Position before the amendment
dealt with age six to fourteen years.
 Directive Principles of State Policy-Article 44
• India is a secular nation. This has lead to different laws to govern the personal matters of citizens
in India. There exists separate laws for Hindus, Muslims, Christians and Secular laws as well
(Special Marriage Act, Indian Succession Act). The article places an obligation upon the state to
take steps to bring an uniform civil code throughout the territory of India.
• Goa is the only state in India with a UCC. It is also known as Portuguese Civil Code.
• Shah Bano Begum v. Union of India (1985): It is also a matter of regret that Article 44 of our
Constitution has remained a dead letter…It is the State which is charged with the duty of securing
a uniform civil code for the citizens of the country and, unquestionably, it has the legislative
competence to do so.
• Sarla Mudgal v. Union of India (1995): “One wonders how long will it take for the Government
of the day to implement the mandate of the framers of the Constitution under Article 44 of the
Constitution of India.” The Court requested the government to have a fresh look at Article 44 of
the Constitution of India and "endeavour to secure for the citizens a uniform civil code
throughout the territory of India.
• Latest Position: Law Commission is deliberating on need and implementation of UCC.
 Directive Principles of State Policy
• Article 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled
Tribes and other weaker sections. Legal effect given through the provisions for reservation in
Article 15 & 16.
• Article 47: Duty of the State to raise the level of nutrition and the standard of living and to
improve public health. In particular, State shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and of drugs which are
injurious to health.
• Laws enacted: NDPS Act, Gujarat Prohibition Act
• Article 48: Organization of agriculture and animal husbandry. Steps for preserving and improving
the breeds, and prohibiting the cow slaughter.
• Article 48A: Protection and improvement of environment and safeguarding of forests and wild
life. Implemented through various environment legislation such as Environment Protection Act,
1986, The Water (Prevention and Control of Pollution) Act, 1974, Air Pollution Act, 1981 and
Noise Pollution Rules etc.
• Article 49: Protection of monuments and places and objects of national importance.
Implemented through Ancient monuments and archaeological sites and remains act, 1958.
 Directive Principles of State Policy
• Article 50: Separation of judiciary from executive.—The State shall take steps to separate the
judiciary from the executive in the public services of the State.
• The Code of Criminal Procedure, 1973 provides this separation by creating two categories
of Magistrate- Executive and Judicial Magistrate.
• Article 51: Promotion of international peace and security.—The State shall endeavour to:
(a) promote international peace and security;
(b) maintain just and honorable relations between nations;
(c)foster respect for international law and treaty obligations in the dealings of organized
peoples with one another; and
(d) encourage settlement of international disputes by arbitration.
Part IVA- Fundamental
Duties (Article 51A)
 Fundamental Duties
• Added by 42nd Amendment, 1976.
• On the basis of recommendation of Swaran Singh Committee. Borrowed from the Constitution of
erstwhile USSR.
• Article 51A contains 11 fundamental duties. The latest fundamental duties was added by 86th
Amendment in 2002.
• Fundamental duties are non justiciable.
• It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and
the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e)to promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women;
 Fundamental Duties
• It shall be the duty of every citizen of India—
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievement;
(k) who is a parent or guardian to provide opportunities for education to his child or, as the
case may be, ward between the age of six and fourteen years.
Part V- The Union (Articles
52-151)
 Chapters in Part V
• Chapter I: The Executive
• President and the Vice President
• Council of Ministers
• Attorney General of India
• Chapter II: The Parliament
• Officers of the Parliament
• Powers, Privileges and Immunities
• Legislative Procedure
• Chapter III: Legislative Powers of the President (Power to make ordinances)
• Chapter IV: The Union Judiciary (Constitution, Jurisdiction and Powers)
• Chapter V: Comptroller and Auditor General of India
 The Executive- President
• Article 52: There shall be a President of India.
• President is indirectly elected through an electoral college consisting of elected members of
both Houses of Parliament; and the elected members of the Legislative Assemblies of the States.
• Election by proportional representation by single transferrable vote.
• Tenure: Five years from the date he/she enters office unless he resigns or is impeached under
Article 61. Resignation is addressed to the Vice President.
Grounds for Removal of President under Article 61:Violation of the Constitution
• Qualifications: A citizen of India, completed the age of thirty-five years, and is qualified for
election as a member of the House of the People. Should not hold an office of profit under the
Government of India or the Government of any State or under any local or other authority
subject to the control of any of the said Governments.
• Powers of the President:
• Article 72: Pardoning Powers.
• Article 123: Law making powers
 Powers of the President
• Pardoning Powers of the President: The President shall have the power to grant pardons,
reprieves, respites or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence:
• in all cases where the punishment or sentence is by a Court Martial;
• in all cases where the punishment or sentence is for an offence against any law relating
to a matter to which the executive power of the Union extends;
• in all cases where the sentence is a sentence of death.
• Pardon: Completely absolves the liability. Both the conviction and the sentence are removed.
• Reprieve: Stay of the execution of a sentence for a temporary period. Ordinarily granted to
enable the convict to approach the President for obtaining pardon.
• Respite: Award of a lesser sentence in place of one originally awarded. This is done in light of
some special facts such as convict being physically disabled; or due to pregnancy of a female
convict.
• Remission: Reducing the period of sentence without changing its character. For ex: Changing 10
years of rigorous imprisonment to 5 years of rigorous imprisonment.
• Commutation: Substituting one form of punishment with a lighter form. Example: Death
penalty to Life imprisonment to Rigorous Imprisonment to Simple Imprisonment.
 Powers of the President
• Legislative Powers of the President: The President can promulgate (issue) an ordinance in case:
• Both the houses of the Parliament are not in session; or
• Either of the houses of the Parliament are not in session
• President is satisfied that circumstances exist which render it necessary for him to take
immediate action.
• The satisfaction is obtained on the basis of aid and advice of the Council of Ministers.
• Ordinance has same effect as law made by the Parliament. President cannot make an ordinance
on any subject matter which the Parliament is not competent to make. Any ordinance is
violation of this rule shall be void.
• Ordinance shall cease to operate within 6 weeks from reassembly of the Parliament; or if
resolution for disapproving the ordinance is passed by both the Houses.
• Maximum validity for an ordinance is 6 months +6 weeks.
 The Executive- Vice President
• Article 63: There shall be a Vice-President of India.
• Vice-President is an ex-officio Chairman of the Council of States (Rajya Sabha). He acts as
President in case of vacancy in President’s office due to death, resignation or removal, or
otherwise.
• Vice-President is elected through an electoral college consisting of elected members of both
Houses of Parliament. Election by proportional representation by single transferrable vote.
• Qualifications: A citizen of India, completed the age of thirty-five years, and is qualified for
election as a member of the Council of States. Should not hold an office of profit under the
Government of India or the Government of any State or under any local or other authority
subject to the control of any of the said Governments.
• Tenure: Five years from the date he/she enters office unless he resigns or is removed by
resolution of Council of States passed by a majority of all the then members of the Council and
agreed to by the House of the People. Resignation is addressed to the President.
• Acting President: In case of any vacancy in the office of the President by reason of his death,
resignation or removal, or otherwise, the Vice-President shall act as President.
 The Executive- Council of Ministers and
Attorney General
• Article 74: Council of Ministers to aid and advise President
(1) Council of Ministers with the Prime Minister at the head to aid and advise the President
(2) President has to act in accordance with such advice
(3) Proviso: President may require the Council of Ministers to reconsider such advice, either
generally or otherwise. Once such advice is rendered again, the President is bound to follow
it. [Added after 44th Amendment, 1978]
(4) The question whether any, and if so what, advice was tendered by Ministers to the President
shall not be inquired into in any court.
• Article 76: Attorney General of India
• Appointed by the President
• Qualification: Eligible to be appointed as a Judge of the Supreme Court
• Duty to give advice to Government of India on legal matters
• Tenure: Hold office during the pleasure of the President
• Attorney-General shall have right of audience in all courts in the territory of India
 The Parliament
• Constitution: President + House of People (Lok Sabha) + Council of States (Rajya Sabha)
• Officers of the Parliament: The Chairman and Deputy Chairman of the Council of States and the
Speaker and the Deputy Speaker of the House of the People.
• Composition of Lok Sabha: 530 Members to represent states (Directly Elected) + 20 Members
to represent Union Territories.
• Composition of Rajya Sabha: 238 Members to represent the States and the Union territories +
12 Members Nominated by the President from the field of Literature, science, art and social
service.
• Duration of both the Houses:
• Lok Sabha: 5 years unless dissolved sooner. In case of emergency, tenure can be extended by
1 year at a time. Once proclamation comes to an end- will not extend beyond the period of 6
months.
• Rajya Sabha: Permanent body. 1/3rd of the members are retired every 2 years.
 The Parliament- Officers
• Officers for Lok Sabha:
• Speaker
• Selected by the House of People
• Removed by a resolution of the House of the People passed by a majority of all
the then members of the House
• Deputy Speaker
• Selected by the House of People
• Removed by a resolution of the House of the People passed by a majority of all
the then members of the House
• Officers for Rajya Sabha:
• Chairman: Vice President (Ex-Officio)
• Deputy Chairman
 The Parliament- Powers, Privileges and
Immunities
• Article 105: Parliamentary Privileges
• Freedom of Speech in Parliament (Subject to Constitution and rules and standing orders)
• No member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given in Parliament or any Committee
• No person shall be so liable in respect of the publication by or under the authority of either
House of Parliament of any report, paper, votes or proceedings
• Privileges also applicable on any person who have a right to speak in, and otherwise to take
part in the proceedings of, a House of Parliament or any committee thereof
• Example: Attorney General
 The Parliament- Legislative Procedure
• Bills: Can be introduced in either house of the Parliament except in case of Money Bill. A money
bill is only introduced in Lok Sabha.
• Joint Sitting: If the Bill is passed by one house and is pending approval in the other House, the
President may call for joint sitting of both the houses. [Not available in case of Money Bill.]
• Joint sitting cannot be called for in case of a Constitutional Amendment Bill.
• Money Bill: Can only be introduced in Lok Sabha. Once the bill is sent to Rajya Sabha, it has to be
approved by it within a period of 14 days. If no response from Rajya Sabha within the 14 days,
the bill is deemed to be passed.
• Rajya Sabha can give recommendations but they are not binding on Lok Sabha
• If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of
the House of the People thereon shall be final.
• Assent to Bills: Once a bill is passed by both the houses, it is send to the President for his assent.
President shall declare either that he assents to the Bill, or that he withholds assent therefrom.
• President can send the bill back to reconsideration. Once the bill is sent again, the President
has to give his assent to the bill. [Money Bill cannot be sent back for reconsideration]
 The Union Judiciary
• Article 124: Establishment and constitution of Supreme Court.— There shall be a Supreme
Court of India consisting of a Chief Justice of India and not more than [thirty three] other Judges.
[Initially the number was seven judges]
• Qualifications: A Citizen of India and person
• has been for at least five years a Judge of a High Court or of two or more such Courts in
succession; or
• has been for at least ten years an advocate of a High Court or of two or more such Courts in
succession; or
• is, in the opinion of the President, a distinguished jurist
• Tenure: The judge shall hold office till the age of 65 years unless he resigns or is removed from
his office.
• Grounds for removal: Proven misbehavior or incapacity
• Process: By an order of President supported by majority of the total membership of that House
and by a majority of not less than two-thirds of the members of that House present and voting.
 Process of Appointment of Judges
• Article 124(2): Every judge of Supreme Court to be appointed by President after consultation
with such of the Judges of the Supreme Court as the President may deem necessary for the
purpose. Provided that in the case of appointment of a Judge other than the Chief Justice, the
Chief Justice of India (CJI) shall always be consulted.
• Consultation v.Concurrence- Perspective of the makers of the Constitution
• S.P.Gupta v.Union of India (1981): Also known as the First Judges Case.
• A Seven Judge bench of the Supreme Court held that as Article 124(2) only consultation
with CJI is required. This consultation does not mean concurrence.
• The opinion of the Union Government will prevail. With this judgment, the Government got
the power in appointment of Supreme Court judges.
• Supreme Court Advocates on Record Association v Union of India (1993): Also known as
the Second Judges Case.
• A Nine Judge bench (7:2) of the Supreme Court overruled the First judges case and held
that the opinion of the CJI should be given primacy in matters of appointment of Supreme
Court and High Court judges.
• The decision is to be taken by CJI in consultation with the two senior most judges of the
Supreme Court. (First version of the Collegium)
• Senior most Supreme Court Judge shall be normally appointed as Chief Justice of India
 Process of Appointment of Judges
• In Re-Presidential Reference (1998): Also known as the Third Judges Case.
• A reference was made under Article 143 to the Supreme Court to obtain clarification over
the appointment process.
• A Nine Judge bench of the Supreme Court observed that consultation with the CJI mean
consultation with the plurality of the judges.
• Consultation does not mean sole opinion of Chief Justice of India. Before making
recommendation, the CJI has to consult with four senior most puisne judges of the
Supreme Court. [Updated version of the Collegium]
• For appointment of High Court judges, the Collegium shall constitute CJI plus two senior
most puisne judges of the Supreme Court.
• Views of the judges shall be in writing and given to the Government along with the
recommendations.
• Judgment gave primacy to the views of the Supreme Court Collegium.
 Process of Appointment of Judges
• National Judicial Appointment Commission Act, 2014
• 99th Constitutional Amendment was passed by both the houses. With this the Article 124
and 217 of the Constitution were amended. The position became- The Judges shall be
appointed by President on the recommendation of the National Judicial Appointments
Commission (NJAC) under Article 124A.
• Composition of NJAC shall be CJI, two senior most judges of the Supreme Court, the Law
Minister and two eminent persons to be nominated by the Committee consisting of Chief
Justice of India, Prime Minister of India and Leader of Opposition.
• Supreme Court Advocates on Record Association v. Union of India (2015): Also known as
the Fourth Judges Case.
• Constitutional Validity of the 99th Amendment Act was challenged.
• The Supreme Court by a majority of 4:1 struck down the amendment on the ground that it
affected independence of judiciary and thus violated the basic structure of the Constitution
of India.
• The judgment upheld the collegium system for appointment of judges.
• Justice Chelameswar gave the dissenting opinion.
 Jurisdiction of the Supreme Court
• Article 32: Writ Jurisdiction
• Article 131: Original Jurisdiction of the Supreme Court in disputes between
• Government of India and one or more States; or
• Government of India and any State or States on one side and one or more other States on
the other; or
• Two or more States
Nature of the dispute: Dispute involves any question (whether of law or fact) on which the
existence or extent of a legal right depends
• Article 132 to 134A: Appellate jurisdiction of the Supreme Court in Civil and Criminal Matters.
• Article 136: Special Leave to Appeal
• Supreme Court may, in its discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India.
• Does not apply to any judgment made by any court or tribunal related to Armed Forces
• Article 143: Advisory Jurisdiction- Presidential Reference in case a question of fact or law has
arisen which is of such a nature that it is expedient to obtain the opinion of the Supreme Court.
• Epistolary Jurisdiction: Jurisdiction in matters where Public Interest Litigation (PIL) is filed.
 Powers of the Supreme Court
• Article 129: Supreme Court is a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.
• Article 141: Law declared by the Supreme Court shall be binding on all courts within the
territory of India.
• Article 142: Power to issue order or decree as is necessary for doing complete justice in any
cause or matter pending before it. This is referred to as Plenary power of the Supreme Court.
 Comptroller and Auditor General of India
• Article 148: There shall be a Comptroller and Auditor General of India.
• Appointed by President of India
• Grounds and Process of Removal is similar to that of a Judge of the Supreme Court
• Not eligible for further appointment after he has ceased to hold his office:
• under the Government of India; or
• under the Government of any State
• Article 149: Power and duties in relation to the accounts of the Union and of the States are
prescribed by law made by Parliament.
• Tenure: Term of Six years or He attains the age of Sixty Five years
Part VI- The States
(Articles 152-237)
 Chapters in Part VI
• Chapter II: The Executive
• Governor
• Council of Ministers
• Advocate General for the State
• Chapter III: State Legislature
• Officers of the State Legislature
• Powers, Privileges and Immunities
• Legislative Procedure
• Chapter IV: Legislative Powers of the Governor (Power to make ordinances)
• Chapter V: The High Courts in the States (Constitution, Jurisdiction and Powers)
• Chapter VI: Subordinate Courts
 The Executive- Governor
• Article 153: There shall be a Governor for each state. Governor can be same for two or more
states.
• Example: Om Prakash Kohli was Governor of Gujarat between 2014 and 2019. He also held
additional charge as Governor of Madhya Pradesh from 2016 to 2018.
• Appointed by President.
• Tenure: Governor shall hold office during the pleasure of the President. Subject to this-Governor
holds his position for 5 years from the date he assumes office.
• Qualifications: A citizen of India, completed the age of thirty-five years.
• Not be a member of the either house of the Parliament or house of the State Legislature.
• Not hold any office of profit
• Powers of the Governor:
• Article 161: Pardoning Powers.
• Article 213: Law making powers
 Powers of the Governor
• Pardoning Powers of the Governor: The Governor of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any offence against any law relating to a matter to which the
executive power of the State extends.
• Legislative Powers of the Governor: The Governor can promulgate (issue) an ordinance in case:
• Legislative Assembly of a State is not in session; or
• In states where legislative council is there, both the houses are not in session
• Governor is satisfied that circumstances exist which render it necessary for him to take
immediate action.
• The satisfaction is obtained on the basis of aid and advice of the Council of Ministers.
• Ordinance has same effect as law made by the State Legislature. Governor cannot make an
ordinance on any subject matter which the State Legislature is not competent to make. Any
ordinance is violation of this rule shall be void.
• Ordinance shall cease to operate within 6 weeks from reassembly of the Legislative Assembly;
or if resolution for disapproving the ordinance is passed by both the Houses.
• Maximum validity for an ordinance is 6 months +6 weeks.
 The Executive- Council of Ministers and
Advocate General
• Article 163: Council of Ministers to aid and advise Governor
(1) Council of Ministers with the Chief Minister at the head to aid and advise the Governor
(2) Governor has to act in accordance with such advice except in cases where he has to act in
accordance with his discretion
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor
shall not be inquired into in any court.
• Article 165: Advocate General for the State
• Appointed by the Governor
• Qualification: Eligible to be appointed as a Judge of the High Court
• Duty to give advice to Government of State on legal matters
• Tenure: Hold office during the pleasure of the Governor
 The State Legislature
• Constitution: Governor + Legislative Assembly
• Exception: Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu,
Telangana and Uttar Pradesh. In these states Legislative Council is also there so State
Legislature includes Governor + Legislative Assembly + Legislative Council
• Update as on March, 2024: The State of Madhya Pradesh and Tamil Nadu no longer have a
legislative council. These councils were abolished by a law made by the Parliament.
Currently six states have Legislative Council: Andhra Pradesh, Bihar, Maharashtra,
Karnataka, Telangana and Uttar Pradesh
• Composition of Legislative Assembly: Members can be in the range of 60 to 500 in number.
• Composition of Legislative Council: Shall not exceed one-third of the total number of members
in the Legislative Assembly of that State. Provided it shall not be less than 40.
• Duration of both the Houses:
• Legislative Assembly: 5 years unless dissolved sooner. In case of emergency, tenure can be
extended by 1 year at a time. Once proclamation comes to an end- will not extend beyond
the period of 6 months.
• Legislative Council: Permanent body. 1/3rd of the members are retired after every 2 years.
 The State Legislature- Powers, Privileges and
Immunities
• Article 194: Privileges for House of State Legislature
• Freedom of Speech in Legislature of every State (Subject to Constitution and rules and
standing orders)
• No member of Legislature of every State shall be liable to any proceedings in any court in
respect of anything said or any vote given in Legislature or any Committee
• No person shall be so liable in respect of the publication by or under the authority of either
House of Legislature of any report, paper, votes or proceedings
• Privileges also applicable on any person who have a right to speak in, and otherwise to take
part in the proceedings of Legislature of every State or any committee thereof
 The State Legislature- Legislative Procedure
• Bills: Can be introduced in either house of the Legislature except in case of Money Bill. A money
bill is only introduced in Legislative Assembly.
• No provision for Joint Sitting in case of deadlock between Legislative Assembly and
Legislative Council. In case of any deadlock, the will of the lower House (Legislative
Assembly) shall ultimately prevail.

• Money Bill: Can only be introduced in Legislative Assembly. Once the bill is sent to Legislative
Council, it has to be approved by it within a period of 14 days. If no response from Legislative
Council within the 14 days, the bill is deemed to be passed.

• Legislative Council can give recommendations but they are not binding on Legislative
Assembly

• If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of
the Legislative Assembly thereon shall be final.
 The State Legislature- Legislative Procedure
• Assent to Bills: Once a bill is passed by both the houses or from Legislative Assembly (in States
where only Legislative Assembly exists), it is send to the Governor for his assent.
Governor shall declare either that he assents to the Bill, or that he withholds assent therefrom.

• Governor can send the bill back to reconsideration. Once the bill is sent again, the Governor
has to give his assent to the bill. [Governor cannot send the bill back for reconsideration
in case of Money Bill]

• Governor shall reserve bills for President’s assent any bill which in the opinion of the
Governor would, if it became law, derogate from the powers of the high court under
the Constitution.
 The High Courts in the States
• Article 214: High Court for each states. It shall consist of Chief Justice and such number of
judges as the President may from time to time deem it necessary to appoint.
• Qualifications: A Citizen of India and person
• has for at least ten years held a judicial office in the territory of India; or
• has been for at least ten years an advocate of a High Court or of two or more such Courts in
succession; or
• is, in the opinion of the President, a distinguished jurist [removed by 44th Constituional
Amendment, 1978]
• Tenure: The judge shall hold office till the age of 62 years unless he resigns or is removed from
his office.
• Grounds for removal: Proven misbehavior or incapacity
• Process: By an order of President supported by majority of the total membership of that House
and by a majority of not less than two-thirds of the members of that House present and voting.
 Jurisdiction of the High Court
• Article 226: Writ Jurisdiction
• Every High Court shall have power, throughout the territories in relation to which it
exercises jurisdiction,
• to issue to any person or authority, including in appropriate cases, any Government, within
those territories
• directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them,
• for the enforcement of any of the rights conferred by Part III and for any other purpose.
 Powers of the High Court
• Article 215: Every High Court shall be a court of record and shall have all the powers of such a
court including the power to punish for contempt of itself.
• Article 227: Power of superintendence over all courts by the High Court:
• Every High Court shall have superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction
• Exception: Any court or tribunal constituted by or under any law relating to the Armed
Forces.
 Subordinate Courts
• Article 233: Appointment of District Judges:
• Appointments of persons to be, and the posting and promotion of, district judges in any
State shall be made by the Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State.
• Qualifications: To be appointed a district judge a person should have been for not less than
seven years an advocate or a pleader and is recommended by the High Court for appointment.
 Part XI- RELATIONS
BETWEEN THE UNION AND
THE STATES
(Articles 245-263)
 Legislative Relations
• Article 245: Extent of laws made by Parliament and Legislature of States
• Parliament can make laws for the entire territory of India (Whole or any part)
• Legislature of a State may make laws for the whole or any part of the State
• No law made by Parliament shall be deemed to be invalid on the ground that it would have
extra-territorial operation
• Doctrine of Territorial Nexus
• As per Constitution, the State legislature is authorized to make law for a State.
• In some cases, it is possible that the law made by the State impacts peoples/entities outside
the territory of particular state.
• These laws have an extra-territorial operation.
• As per the doctrine, these laws will be valid only if they have sufficient nexus with object of
the law made by the State.
 Legislative Relations-Doctrine of territorial
Nexus
• State of Bombay v.R. M. D. C. (1957):
• State of Bombay made a law to tax lotteries and prize competitions
• This tax was also levied on a newspaper company.
• The newspaper was printed and published in Bangalore. However, it had wide circulation
in Bombay. The information about lotteries and prize competitions was shared through
these newspapers.
• The Supreme Court upheld the validity of the tax on the basis of doctrine of territorial
nexus.
• The doctrine of territorial nexus was a well-established doctrine and could apply only
when (1) the territorial connection between the persons sought to be taxed and the
legislating State was real and not illusory and (2) the liability sought to be imposed was
pertinent to that connection.
 Legislative Relations-Doctrine of territorial
Nexus
• Fact Situation: To deal with the increasing number of black money in its territory, the State of
Madhya Pradesh enacted a law. The law provided for imposition of penalty on people found in
possession of such money in the State of Madhya Pradesh. The police were also given power to
search the premises if they believed that black money arising out of State is kept in the
premises. Recently, action was taken against Vidhan, a resident of Rajasthan, a neighboring State
to Madhya Pradesh. The police searched his house in Rajasthan as they believed that Vidhan
holds black money in connection with the activities in Madhya Pradesh. After discovery of
money in Rajasthan, the State of Madhya Pradesh imposed penalty on Vidhan. Decide whether
the law and penalty is valid?
 Legislative Relations- Subject Matter of Laws
• Article 246: Subject-matter of laws made by Parliament and by the Legislatures of States
• List I (Union List): Parliament has exclusive power to make laws [Article 246(1)]
• List III (Concurrent List): Parliament and State Legislature has exclusive power to make
laws [Article 246(2)]
• List II (State List): State Legislature has exclusive power to make laws [Article 246(3)]
• This is subject to Article 246(1) & 246(2)
• Article 246(4): Power of the Parliament to make laws for Union territories
• Article 248: Residuary powers of legislation
• Parliament has exclusive power for any matter not falling within the Concurrent List and
State List
• Article 254: Inconsistency between laws made by Parliament and laws made by the Legislatures
of States.
• In case of Inconsistency between law made by Parliament (under List I and List III) and law
made by State (under List II and List III)
• State law can be saved by assent of the President
 Legislative Relations- Related Doctrines
• Doctrine of Pith and Substance
• “within their respective spheres the state and the union legislatures are made supreme,
they should not encroach upon the sphere demarcated for the other”
• Pith: “true nature”
• Substance: “essential part of something”
• Doctrine is applicable when law made by a particular legislature encroaches/ is in overlap
with the legislative power of the other legislature.
• Ex: Law made by Parliament is in overlap with or dealing with a subject matter available to
State (List II)
• To adjudge the validity of the particular law, the Courts look into the pith and substance of
the law.
• If the substance of the law falls within the legislative competence, then such law will not be
declared invalid merely because it overlaps with or also deals with a subject matter from
domain of State legislature.
 Legislative Relations- Related Doctrines
• Doctrine of Harmonious Construction
• Deals with interpretation of entries provided in the Seventh Schedule
• Sometimes the entry provided in the each list or in different lists may overlap or be in
conflict with each other. Ex: Preventive Detention [Present in List I and List III]
• In case of such conflict, the Courts have a duty to interpret these entries in such a manner
that a harmony is maintained
• To maintain such harmony- Each entry is to be interpreted in a broad and liberal manner
• Prem Chand Jain v.R. K. Chabra (1984):
• Entries incorporated in the lists covered by Schedule VII are not powers of legislation
but `fields' of legislation.
• Wide interpretation should be given to include all ancillary or subsidiary matter related
to the entry
 Legislative Relations- Related Doctrines
• Doctrine of Colorable legislation
• Deals with power of the legislature to enact a particular law
• Based on the maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliquum”
• Literal translation: What cannot be done directly, cannot also be done indirectly
• With regards to Seventh Schedule, it means that if legislature is not empowered to enact a
particular law directly, then it cannot make such a law indirectly
• A law will be declared constitutionally valid, if the Parliament or State Legislature had the
authority to enact such law.
• In the absence of such authority, the law will be declared invalid.
• To determine the Colourability of a legislation, true nature and character of the legislation is
determined.
• If the purpose, nature or object of the law is within the law making power of the state, it
will be declared valid
• However, if the true nature and character of a legislation shows that legislature did not
possess the power to enact such a law- it will be a colorable legislation- Invalid.
 Part XIVA- Tribunals
(Articles 323A- 323B)
 Tribunals
• Article 323A and 323B were added by 42nd Amendment, 1976
• Article 323A- Parliament may provide for establishment of Administrative Tribunal to
adjudicate disputes for administrative matters (disputes and complaints with respect to
recruitment and conditions of service)
• Article 323B- Parliament may provide for establishment of tribunals for adjudication or trial of
any disputes, complaints, or offences for matters under Article 323B(2) (labour, tax, rent and
tenancy etc.)
• Need for tribunals
• The courts in India are extremely burdened leading to delay in justice
• Judges lacked expertise in complex subject matter such as IPR, Taxation, Insolvency and
Bankruptcy matters, Debt Recovery matters etc.
• Issues with the establishment of the tribunals
• Executive interference in the appointment of members of the tribunals
• Qualifications for the members were not uniform
• Violation of principles of separation of power
• Quality of infrastructure not enough to expedite the process of ensuring justice
• Excluded the jurisdiction of the High Court and Supreme Courts
 Judicial Approach to the Tribunals
• S.P.Sampath Kumar and Ors. v.Union of India (1987):
• Constitutional Validity of 42nd Amendment was challenged.
• Judicial review is a basic and essential feature of the Constitution and no law passed by
Parliament in exercise of its constituent power can abrogate it or take it away.
• However, an alternate mechanism to High Court can be provided by law. But this should be
similar to the review mechanism similar to High Court
• Idea is to establish- equally effective alternative authority
• Person taking the position in these tribunals should be equal in position to that of a Judge of
a High Court
• L. Chandra Kumar v.The Union of India (1997):
• Reiterated- Judicial Review is a basic and essential feature of the Constitution
• All the legislations (enacted under Article 323A and 323B) which provide for exclusion of
jurisdiction of the High Courts and the Supreme Courts were struck down by the Court.
Part XVIII- Emergency
Provisions
(Articles 352-360)
 Emergency Provisions-Overview
• Provisions borrowed from Weimar Republic (German Constitution)
• Types of Emergency:
• National Emergency (Article 352)
• State Emergency (Article 356)
• Financial Emergency (Article 360)
• Instances of Emergency:
• National Emergency: Indo-China War (1962); India-Pakistan War (1971); Internal
Disturbance (1975-77)
• State Emergency: 134 Times since 1950
• Financial Emergency: Zero
• Landmark Cases:
• A.D.M. Jabalpur v. Shivkant Shukla (1975)
• State of Rajasthan v. Union of India (1977)
• Minerva Mills v. Union of India (1980)
• S.R. Bommai v. Union of India (1994)
 Types of Emergency
• National Emergency:
• If President is satisfied that grave emergency exists and security of India or any part is
threatened.
• This threat is due to:
• War; or
• external aggression; or
• Armed rebellion (substituted for “internal disturbance” by 44th Amendment, 1978)
• Proclamation is to be issued only after receiving a written recommendation from the cabinet
• President will issue a proclamation declaring emergency in whole of India or a particular
territory
• Every proclamation shall be laid before each house of Parliament and shall cease to operate
at the expiration of one month after the proclamation is laid before the Parliament
• Unless it has been approved by both the Houses
• Duration: Six months from the date of approval of resolutions. Can be extended by Six
months by resolutions of the Parliament.
 Types of Emergency
• State Emergency:
• Emergency is imposed in case of Failure of Constitutional Machinery.
• President is satisfied on the basis of report of Governor or is otherwise satisfied
• Government of the State cannot be carried on in accordance with the provisions of this
Constitution
• Every proclamation shall be laid before each house of Parliament and shall cease to operate
at the expiration of two month after the proclamation is laid before the Parliament
• Unless it has been approved by both the Houses
• Duration: Six months from the date of issue of proclamation. Can be extended by Six months
by resolutions of the Parliament.
• Limitation on the power of Parliament to extend the operation of the
Proclamation: Three years
• Financial Emergency
• President is satisfied that there exists threat to Financial Stability or Credit of India or any
Part of it
• Duration: Two months unless approved by both the houses of the Parliament
 Effect of Emergency
• Effect of Emergency:
• The president assumes to himself the powers exercisable by the Governor or any body or
authority in the State other than the Legislature of the State
• Law making powers of State shall be exercisable by the Parliament
• President is empowered to alter the distribution of revenues
• Tenure of Lok Sabha and State Assemblies can be extended by a period of one year at a time
• Suspension of the enforcement of the rights conferred by Part III (Except Article 20 & 21)
 Landmark Case Laws
• A.D.M. Jabalpur v.Shivkant Shukla (1975):
• Also known as Habeus Corpus Case
• Primary Issue: Whether proclamation of emergency leads to suspension of right to approach
Court for enforcement of Right to Life?
• The Court by majority (4:1) held that during emergency-right to life and personal liberty
could be suspended.
• State of Rajasthan v.Union of India (1977):
• President’s satisfaction under Article 356 is not completely immune from judicial review
• If satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the Court
would have jurisdiction to examine it
• Minerva Mills v.Union of India (1980):
• The Court cannot go into the question of correctness or adequacy of the facts and
circumstances on which the satisfaction of the Central Government is based.
• S.R. Bommai v.Union of India (1994):
• Introduced various safeguards in case of State Emergency
• The President’s power is not absolute and should be used sparingly
• Imposition of state emergency is subject to Judicial Review
 Schedules to the
Constitution of India
 SCHEDULE SUBJECT MATTER

First Schedule List of States and Union Territories

Provisions related to emoluments (benefits) for Presidents and

Second Schedule
Governors

Forms of oaths or affirmations including Supreme Court judged,

Third Schedule
President, Members of Parliament etc.

Number of seats allocated to each state or union territory in the Council

Fourth Schedule
of States (Rajya Sabha)

Fifth Schedule Administration and control of Scheduled Areas and Scheduled Tribes

Deals with administration of Tribal Areas in the States of Assam,

Sixth Schedule
Meghalaya, Tripura, and Mizoram

Three lists for determining the legislative authority for various subject
Seventh Schedule
matters
 SCHEDULE SUBJECT MATTER

Eighth Schedule List of Recognized Languages in India

• Added by 1st Amendment, 1951

• To protect certain acts and regulations from being declared void on
Ninth Schedule
the ground that they violate the fundamental rights provided
under Part III of the Constitution

• Added by 52nd Amendment, 1985

Tenth Schedule • Provisions related to Disqualification members of Parliament and
State Legislatures on the ground of defection

• Added by 73rd Amendment, 1992

Eleventh Schedule
• Powers, Authority, and Responsibilities of Panchayats

• Added by 74th Amendment, 1992

Twelfth Schedule
• Powers, Authority, and Responsibilities of Municipalities
Major Constitutional
Amendments
 AMENDMENT CHANGE DONE

• Amendment to Article 15- Introduced reservation for SEBCs/SCs/STs

1st Constitutional
• Addition of 9th Schedule to the Constitution
Amendment, 1951 • Grounds of Restriction were added to Article 19
7th Constitutional
• Provided for reorganization of States
Amendment, 1956
• Amendment to Article 368- To introduce amending power of the
24th Constitutional
Parliament
Amendment, 1971 • Mandatory for the President to assent to Constitutional Amendment Bill
36th Constitutional
• Sikkim was made a full fledged Indian State
Amendment, 1975:
 AMENDMENT CHANGE DONE

• Added new words to the Preamble

42nd Constitutional • Added Part-IVA: Fundamental Duties
Amendment, 1976 • Made the advice of Council of Ministers binding on the President
• Constitutional Amendments were placed outside the scope of Judicial Review

• Deletion of Right to Property as a Fundamental Right

• Right to Property was made a legal rights under Article 300A of the
Constitution
44th Constitutional
• Replaced “internal disturbance” with “armed rebellion” in Article 352 of the
Amendment, 1978 Constitution of India
• Provided that fundamental rights under Article 20 and 21 cannot be
suspended during national emergency

52nd Constitutional
• Added 10th Schedule to the Constitution of India
Amendment, 1985

73rd Constitutional
• Part-IX and 11th Schedule were added to recognize Panchayati Raj Systems
Amendment, 1992
 AMENDMENT CHANGE DONE

74th Constitutional
• Part IX-A and 12th Schedule were added to recognize Municipal Corporations
Amendment, 1992

86th Constitutional • Article 21A was added to provide “Right to Education” as fundamental right
Amendment, 2002 • A new fundamental duty was added to Article 51A

91st Constitutional • Limit on Strength of Central Council of Ministers- Shall not exceed 15% of
Amendment, 2003 the total strength of Lok Sabha

• Added Clause (5) to Article 15

93rd Constitutional • Toenable state to provide reservation to SEBCs/SCs/STs in educational
institutions
Amendment, 2005 • This included private educational institutions (whether aided or
unaided by the state), except the minority educational institutions
 AMENDMENT CHANGE DONE
• Amended Article 124 and 217 of the Constitution- Toreplace collegium
99th Constitutional
system with National Judicial Appointment Commission
Amendment, 2014 • Declared unconstitutional by Supreme Court in 2015

101st Constitutional
• Added Article 246A to introduce Goods and Service Tax
Amendment, 2016

103rd Constitutional • Added Clause (6) to Article 15 & 16

Amendment, 2019 • Introduced reservations for Economically and Weaker Sections

106th Constitutional • Introduced 33% reservation for Women in Lok Sabha, State Legislative
Amendment, 2023 Assembly and Union Territory of Delhi