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INTRODUCTION TO THE
INDIAN CONSTITUTION
B.A. (PROGRAMME)/B.COM. (PROGRAMME)/B.A. (HONS.) ENGLISH
SEMESTER-II
GENERIC ELECTIVE (GE) POLITICAL SCIENCE

INTRODUCTION TO THE INDIAN CONSTITUTION

As per the UGCF - 2022 and National Education Policy 2020

DEPARTMENT OF DISTANCE AND CONTINUING EDUCATION DEPARTMENT OF DISTANCE AND CONTINUING EDUCATION
CAMPUS OF OPEN LEARNING, SCHOOL OF OPEN LEARNING CAMPUS OF OPEN LEARNING, SCHOOL OF OPEN LEARNING
UNIVERSITY OF DELHI UNIVERSITY OF DELHI
Introduction to the Indian Constitution

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 Introduction to the Indian Constitution

Reviewer
Dr. Sukanshika Vatsa

External Reviewer
Dr. Prashant Barthwal
(Sri Aurobindo College, University of Delhi)

This Study Material is duly recommended in the meeting of Standing Committee

held on 08/05/2023 and approved in Academic Council meeting held on 26/05/2023
Vide item no. 1014 and subsequently Executive Council Meeting held on 09/06/2023
vide item no. 14 {14-1(14-1-11)}

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Introduction to the Indian Constitution

SYLLABUS
Introduction to the Indian Constitution

Syllabus Mapping

Unit-I: Constitutional Antecedents and the making of the Constitution of Lesson 1: Constitutional Antecedents
India and Making of Constitution of India
(Pages 3–25)

Unit-II: Basic Features of the Indian Constitution Lesson 2: Basic Features of the
Indian Constitution
(Pages 29–46)

Unit-III: Fundamental Rights Lesson 3: Fundamental Rights

(Pages 49–64)

Unit-IV: Obligations of State and Duties of Citizens Lesson 4: Obligations of State and
Duties of Citizens
(Pages 67–82)

Unit-V: Organs of Constitutional Governance - Legislature, Lesson 5: Organs of Constitutional

Executive and Judiciary Governance: Legislative and Executive
(Pages 85–111);
Lesson 6: Organs of Constitutional
Governance: Judiciary
(Pages 113–142)

Unit-VI: Centre-State Relations and Decentralization Lesson 7: Centre State Relations

(Pages 145–160);
Lesson 8: Decentralization
(Pages 161–186)

© Department of Distance & Continuing Education, Campus of Open Learning,

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 Introduction to the Indian Constitution

CONTENTS

Unit I: Constitutional Antecedents and Making of Constitution of India

Lesson 1 Constitutional Antecedents and Making of Constitution of India 3–25

Unit II: Basic Features of the Indian Constitution

Lesson 2 Basic Features of the Indian Constitution 29–46

Unit III: Fundamental Rights

Lesson 3 Fundamental Rights 49–64

Unit IV: Obligations of State and Duties of Citizen

Lesson 4 Obligations of State and Duties of Citizens 67–82

Unit V: Organs of Constitutional Governance: Legislative,

Executive and Judiciary

Lesson 5 Organs of Constitutional Governance: Legislative and Executive 85–111

Lesson 6 Organs of Constitutional Governance: Judiciary 113–142

Unit VI: Centre-State Relations and Decentralization

Lesson 7 Centre State Relations 145–160

Lesson 8 Decentralization 161–186

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Unit I: Constitutional Antecedents and Making of Constitution
of India

Lesson 1: Constitutional Antecedents and Making of Constitution of India

Constitutional Antecedents and Making of Constitution of India

LESSON 1 NOTES

CONSTITUTIONAL ANTECEDENTS AND

MAKING OF CONSTITUTION OF INDIA

Dr. Duryodhan Nahak

Associate Professor, PGDAV College, DU

STRUCTURE
1.1 Learning Objectives
1.2 Introduction
1.3 Constitutional Development in India
1.4 Historical Trajectories
1.5 Constitutional Development in India from 1773 to 1947
1.5.1 Origin and Development of Indian Constitution (1773 – 1857)
1.5.2 Regulating Act (1773)
1.5.3 Pitt’s India Act (1784)
1.5.4 Various Charter Acts
1.5.5 Other Important Acts
1.5.6 Development of Indian Constitution - Current Status
1.6 Summary
1.7 Glossary
1.8 Answers to In-Text Questions
1.9 Self-Assessment Questions
1.10 References/Suggested Readings

1.1 LEARNING OBJECTIVES

After reading this lesson, students should be able to:

• Understand the historical development of the Constitution of India
• Discuss the foundational values
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 Introduction to the Indian Constitution

NOTES
1.2 INTRODUCTION

A constitution is the embodiment of rules and regulations that play a vital role
in the governance of a country. Most of the countries in the present world are
governed by a constitution. In the name of it, several revolutions and movements
have been launched in the past. The normative themes like rights, liberty, equality,
fraternity, and justice for all have been echoed and re-echoed by several great
movements in the international arena like the French Revolution of 1789. This
was again reinforced largely by the American declaration of rights like liberty,
equality and pursuit of happiness in 1791. Before this, the Glorious Revolution
of 1688 in Britain took place for three inalienable rights, i.e., life, liberty and
property, inspired by great a political philosopher, John Locke. In Magna Carta
whereby King John granted some rights to the barons in 1215. These events are
no doubt a watershed in the history of constitutional movements for the protection
of human rights in both world history and political science.
Broadly, a constitution may be of two types, written and unwritten. In the
case of Britain, an unwritten constitution has been in practice for the last several
years. Basically, a constitution comes into force in three circumstances, i.e., in
the case of a social revolution, the overthrow of a totalitarian regime or military
rule, or making the country free from foreign yoke. Undoubtedly, the Constitution
of India falls in the last category. After a protracted struggle led by Mahatma
Gandhi and other prominent leaders, the country was freed from British rule
on 15th August, 1947. The Constitution of India was framed within three years
between 1946 and 1949 under the pioneering guidance of Dr. B.R. Ambedkar, Pt.
Jawaharlal Nehru, Rajendra Prasad, Maulana Abul Kalam Azad, and other great
learned intellectuals, who played vital roles in making the constitution for India.
Although the framing of the Constitution was completed on 26th November 1949,
it came into force on 26th January 1950. As most of them possessed immense
knowledge and wisdom in the area of law, it helped them in drafting an effective
constitution for the country. Since then, India is being governed by constitution
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Constitutional Antecedents and Making of Constitution of India

fact that the constitution of India was framed between 1946 and1949, its seeds NOTES
were sown much before the Constituent Assembly came into force in December
1946. When India was being governed by colonial masters in the 18th and 19th
centuries, quite a few acts were passed by the British parliament for the smooth
governance of India. For example, the Regulating Act of 1773, the Judicature Act
of 1781, Pitts-India Act of 1784, Charter Acts of 1793, 1813, 1833, 1853 during
the period of East-India Company rule. The Regulating Act of 1773 is said to
have heralded an era of legislation ending the dual administration in Bengal. It
is to be noted that before the Regulating Act of 1773, the East-India Company
rulers were busy in fighting the wars and battles and looting the revenue for their
own sake. The Regulating Act of 1773 was brought as an attempt to control the
affairs of the East India Company and bring them under control of the British
Crown slowly. It created the provision of the Governor General of Bengal that
virtually ended the supremacy of the Governor General over Bombay and Madras.
It also unified the both the civil and revenue administrations of Bengal, Bihar, and
Odisha. The Pitt’s-India act of 1784 created provision of Board of Control which
was intended to regulate the activities of the East-India Company. The Charter Act
of 1813 is unique in several respects. Firstly, it ended the monopoly of the trade
by East-India Company in all areas other than tea and trade in China. Secondly,
it made the provision for spending one lakh rupees for promoting education
and other literary activities in India. It encouraged the Christian missionaries to
propagate religious activities in various parts of the country.
The Charter Act of 1833 made provision for the Governor General for
the whole country. It added the fourth member to the Governor General’s
council. Hence, Lord William Bentick was declared the first Governor General
of India. The 1853 act made the rule of East India Company extend over India
until further act of the British Parliament. Besides this, after India was being
completely taken over by British Government, a number of acts were passed in
the British parliament from 1861 to 1947. It includes, Indian Councils Acts of
1861, 1892, 1909 or Morley-Minto act of 1909, Montagu-Chelmsford Act of
1919, Government of India act of 1935, so on and so forth. In 1861, the Viceroy
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 Introduction to the Indian Constitution

NOTES this laid the foundation of legislative process in India. In addition to this, some
spectacular developments were nevertheless were instrumental in writing a
constitution for the country. Out of this, Government of India act (1935) deserves
a special mention as it provided bed-rock of Indian constitution of 1950. It
conducted the elections to all the provinces in 1935. Indian National Congress
won in most of the provinces. The federal form of government was introduced
in the provinces. Although there is wide ranging criticism whether constituent
assembly was a sovereign body or a representative body, later it was settled
that the constituent assembly was a representative of people of India, as it was
approved by the people in the first general elections of 1951-1952.
26th November, 1949, is one of the important dates in the Indian History,
which has laid down the milestone of the Independent India. No doubt, India
had gained its freedom from the British Raj in 1947 after nearly about 200
years of colonial rule but it was on this day, India adopted its Constitution and
subsequently, paved the path to walk independently.

The Constitutional Development of India

Government of India Act 1935 is the reflection of the country’s rudimentary
governance and the Republicanism of India. The Constitution reflects the ideas of
a nation, the state of a community. The development of Indian Constitution started
with the Regulating Act of 1773 until 1950. When the rules of a constitution
govern a country, the citizens must obey it. The Constitution may also guarantee
certain rights to its members and enshrine regulations for the governance.

1.3 CONSTITUTIONAL DEVELOPMENT IN INDIA

The Constitution of India contains principles and ethics that govern the state of
power across the nation. The parliament is the legislature that enacts laws for the
whole of the country and allows it to apply laws and programs for the benefit
of the citizens. Moreover, because of the Constitution, society can maintain a
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Constitutional Antecedents and Making of Constitution of India

condition and facilitate honourable conditions for the people living in the state. NOTES
The base of the Constitutional Development of India can be traced back
to the Regulating act of 1773 as follows:
• At the same moment, it also draws inspiration from other British laws
formulated in the Constituent assembly.
• However, there is a provision for amendment, which makes the
Constitutional Development of India an ongoing process: amendments
of Indian Constitution.
• It can be parted into different phases, including the historical background,
creating an overview of the Constitution.

1.4 HISTORICAL TRAJECTORIES

The administrations activities under Indian Constitution devised several ways

to deal with specific Indian concerns. Obviously, it had damaging impact on the
Indian Constitution.
• The constituent assembly laid the Constitution of India, which took 2 years,
11 months, and 17 days to complete the task.
• The constituent assembly met many times to prepare the draft of the
Constitution. They worked on several aspects of the Constitution, including
its composition, working of the assembly, committees for the assembly,
enactment of constitution, and enforcement of the Constitution.

1.5 CONSTITUTIONAL DEVELOPMENT IN INDIA

FROM 1773 TO 1947

The duration of historical British-India Constitutional development can be

characterized into two phases, which are as follows:
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 Introduction to the Indian Constitution

NOTES • Phase 1 (1773-1857): The survey of constitutional development during

the power of the East India Company.
• Phase 2 (1857-1947): Constitutional investigations under the British
Crown.

1.5.1 Origin and Development of Indian Constitution (1773 – 1857)

There are five constitutional developments that controlled the British East India
Company’s functioning and helped them rule over India from 1757 to 1857.
The Constitutional Development Acts were started in year 1773 under
the crown rule of East India Company. The first act which was been made
by colonial government is Regulating Act of year 1773. Pitts India Act was
implemented in year 1784, then later Charter Act of 1813, 1833 and of year
1853 were implemented.

1.5.2 Regulating Act (1773)

Centralization in India was formed through the Regulating Act of 1773. It was
the first Act towards Constitutional development in India introduced by the
British Parliament to manage and control the affairs of the East India Company
in India. According to this act:
• Governor-General was the Governor of Bengal.
• India’s first Governor-General (Bengal) was Warren Hastings.
• The Governors of Madras and Bombay were inferior to the Governor of
Bengal.
The power to create laws and statutes was in the hands of the Governor-General,
assisted by 4 members of the council. It includes:
• East India Company had a fixed number of directors, which was 4.
• The Governor-General had to obey the directives of the Company’s
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Constitutional Antecedents and Making of Constitution of India

1.5.3 Pitt’s India Act (1784) NOTES

In the development of the Indian constitution, this Act brought in many systematic
changes. As per Pitt’s India Act 1784, the colonies of East India Company were
called the “British Possessions in India.” According to this act:
• The Crown and company ran a mutual Government of British India and
had the supreme power of authority.
• A Court of Directors was created to oversee the trading operations, and 6
member board of control was designated for political affairs.
• The council of the Governor-general was decreased to 3 from 4 members,
appointed in Madras and Bombay.

1.5.4 Various Charter Acts

In this section, we will discuss various Charter Acts.

Charter Act (1813):

The Charter Act 1813 ended East India Company’s proprietorship by establishing
trade with India except for the Tea Trade.

Charter Act (1833):

East India Company ceased as a mere executive body; it was no longer a
commercial body. The Charter Act 1833 was the final step in the approach of
Centralization in India, which began with the Regulating Act of 1773. It was a
significant step in the development of Indian Constitution during colonial rule.
According to this act:
• Bengal Governor-General evolved as the Governor-General of India.
• The first Governor-General of India was Lord William Bentinck, who was
given full authority over earnings, military, and civil.

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NOTES Charter Act (1853):

The Act marked the introduction of competitive exams, including the civil service
examination, which helped recruit individuals into civil services. According to
this act:
• The legislative and executive processes of the Governor-General were
divided.
• There was an addition of 6 new members to the Legislative Council,
4 members were selected by the Provisional Governments of Bombay,
Madras, Agra, and Bengal.
• Central Legislative Council was the new name given to the Governor
General’s Legislative Council.
• It started operating as a Mini-Parliament and embraced the same guidelines
as the British.

1.5.5 Other Important Acts

Constitutional Development of India under British Crown Rule (1857-1947)

The period commenced the 2nd phase of the major landmarks in the constitutional
development of India under the British Crown.

Constitutional Development Act Year

Government of India Act 1858
Indian Council Act 1861
Indian Council Act 1892
Indian Councils Act, Morley Minto Reforms 1909
Government of India Act, Montagu Chelmsford Reforms 1919
Government of India Act 1935
Cripps Mission 1942
Cabinet Mission 1946
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Constitutional Antecedents and Making of Constitution of India

Government of India Act (1858) NOTES

The British parliament passed the Government of India Act 1858, marking
the end of East India Company rule. The authority was assigned to the British
Crown, which marked another change in the constitutional development of India.
According to this act:
• The powers of the ex-Court Directors were acquired by the Secretary of
State for India.
• They managed the administration through the Viceroy of India.
• The council of India was an advisory body of 15 members that helped the
Secretary of State for India.
• The Governor-General received the Crown of Viceroy of India.
• India’s first Viceroy was Lord Canning.

Indian Council Act (1861)

Under this act, the citizens of India were designated non-official members of the
Legislative Council of Viceroy for the first time. According to this act:
• Provinces established the Legislative Councils.
• It led to the restoration of Madras and Bombay’s legislative powers.
• Legislative Councils began in Bengal, Punjab, and North-Western Frontier
Province (NWFP).

Indian Council Act (1892)

The Act caused the Legislative Council size to increase. The council has the power
to reflect on the budget and could put up inquiries to the executive. According
to this act:
• It led to the beginning of indirect elections in India for the first time.
• As per the Act’s provisions, the principle of representation was initiated.

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NOTES Indian Councils Act – Morley Minto Reforms (1909)

The Act is popularly known as Morley Minto Reforms. In the development of
the Indian Constitution, this act resulted in the introduction of direct elections
for the councils. According to this act:
• Imperial Legislative Council was a different name given to Central
Legislative Council.
• A new system was started that gave reserved seats to only Muslims by
providing them with a separate electorate, known as the Communal
representation system, where only Muslims could contest and Muslims
would vote.
• The law member from India was Satyendra Sinha.
• Indian members were assigned to the Executive Council of Viceroy.

Government of India Act, Montagu Chelmsford Reforms (1919)

The Act introduced Bicameralism in the constitutional development of India.
The central and provincial issues were divided. It made provisions for placing
a statutory board after ten years to examine the working of the Government.
According to this act:
• A scheme of quasi Governance: Dyarchy, was presented in the Provincial
Subjects; subjects were divided into transferred subjects and reserved
subjects.
• The transferred list included subjects like health, education, agriculture,
and local government supervision.
• The Government of Ministers held the transferred list accountable to the
Provincial Council.
• The reserved list contained foreign affairs, communications, and defence
under the rule of the Viceroy.
• The Viceroy’s Executive Council comprised 6 members, and 3 were
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Constitutional Antecedents and Making of Constitution of India

• The Government of India Act 1919 provided the Public Service Commission NOTES
in India.
• Communal Representation extended to Anglo-Indians, Christians, and
Sikhs.

Government of India Act (1935)

The Act was the last and the most extensive constitutional development
established by British India. It resulted from multiple round table conferences
and a declaration by the Simon Commission. According to this act:
• Bicameralism was proposed in 6 states (Assam, Bihar, Bengal, Bombay,
Madras, and United Provinces) out of 11.
• The powers diverged into Provincial List, Federal List, and Concurrent
List.
• Provincial independence was started in the states by cancelling the Dyarchy.
• The Act provided provisions for establishing the Federal Court and Reserve
Bank of India (RBI).
• The Act launched the All India Federation consisting of Provinces and
the Princely States as units.

Cripps Mission (1942)

Under the supervision of Sir Stafford Cripps, Cripps Mission was sent to India
in 1942. Almost all the parties and factions rejected the recommendations given
by the Cripps Mission. According to this mission:
• As per the mission’s proposals, after the 2nd World War, India would receive
the status of Dominion. It was a desperate measure to receive India’s help
in the war.
• An elected body would be appointed in India to structure the Constitution of
India (constituent assembly), the constitution would be drafted by Indians
entirely. Cripps mission was a crucial turning point in India’s struggle for
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 Introduction to the Indian Constitution

NOTES Cabinet Mission (1946)

Some of the leading suggestions of the Cabinet Mission plan was:
• The British Indian Provinces and the Indian States would unite to form
the Union of India (Dominion status).
• A representative body or Constituent Assembly would be constituted,
comprising 389 members.
• 14 members would create a provisional government (interim government)
from the main parties.
• Until the Constitution was self imposed the Constituent Assembly would
work as the Dominion Legislature.

Mountbatten Plan – Indian Independence Act (1947)

Lord Mountbatten, India’s last viceroy proposed a plan in 1947. According to
this plan, provinces were to be declared independent successor states with the
power to choose whether to join the Indian constituent assembly or not.
The purpose of this plan was speedy transfer of power by the then British
PM Clement Atlee.
The Indian leaders vehemently opposed it because they believed it would
lead to Balkanization of the country.
British India was partitioned into two dominions: India and Pakistan on
14 August, 1947 which made two countries namely Pakistan (West and east
Pakistan) and India, which got independence on 15th of August, 1947. This
act in the development of the Indian Constitution granted absolute legislative
power to the Constituent Assembly, and the provinces and states formulated
their Governments.
After the dominions were created, the British parliament could not enact
any law there.

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Constitutional Antecedents and Making of Constitution of India

1.5.6 Development of Indian Constitution - Current Status NOTES

The Indian Constitution guides the country’s supreme law. As per the
Constitution, the Government’s core political principles are enacted, along with
their rights, authority, and responsibility. Since the constituent assembly drafted
the Constitution, it confers constitutional supremacy instead of parliamentary
supremacy. The parliament can hardly override the Constitution of India.

Constitutional Development in India Highlights

The constituent assembly drew up the current Constitution of India . The assembly
met for the first time on 9 December, 1946. The proposal to create committees
for the Constitution was laid down on 14 August, 1947.
• After this, the drafting committee was established on 29 August 1947, after
which the process of writing the Constitution started.
• The first draft of the Constitution was prepared in February 1948 by our
first President, Dr Rajendra Prasad.
• After that, the Constitution was adopted on 26 November, 1949.
• After adopting the Constitution, it was enacted on 26 January, 1950, making
India a Republic.
• The Constitution of India is the biggest and longest-written Constitution
in the world since it contains over 395 articles and 12 schedules.

Constituents Assembly Debates

Constituent Assembly Debates are the reiterations of accounts of all the debates
and conversations that took place during the process of solidifying the draft of
the Indian Constitution. These are the conversations of the Indian Constituent
Assembly. The Constituent Assembly Debates are important due to the fact that
they give us a peek into the deliberations and reflections of the members of the
Indian Constituent Assembly while drafting the constitution.

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 Introduction to the Indian Constitution

NOTES The Indian Constituent Assembly came into actuality being in December
1946. The drafting of Indian constitution started in December, 1946. After
protracted debate and deliberation, the framing of constitution was completed
on 26th November, 1949. The contents of the constituent assembly debates were
mainly focused on several key areas that continue affecting people till today.
The fundamental rights, federalism, the menace of untouchability, preamble,
directive principles of state policy, languages of Indian states and the union,
functioning of governor, judiciary so on and so forth dominated the discourse
on constitution largely.
As mentioned earlier, Constituent Assembly first assembled on 9th
December, 1946 and initiated the process of drafting the Indian constitution.
Though several Constitutional Assembly Debates held for over 165 days, the
constitution draft was eventually made. The draft was for nearly three times before
it was formally adopted in November, 1949. It’s important to go through the
background of Indian Constitution to get the complete idea of how the supreme
law of the land came into force.

Constituent Assembly Debates Summary

The Constituent Assembly Debates are an excellent way of gaining insight into
the process which continued for three years while drafting the constitution of
India. The knowledge and experience also played a significant part in making
useful recommendations to the clauses of the draft constitution.

Preliminary 9th December, 1946 - Union Powers Committee & the Committee
Stage 27th January, 1948 on Fundamental Rights and Minorities gave
recommendations for the guidelines to be
followed. A drafting committee was also
formed.

The first reading after debate on Constitution of India happened from 4

November, 1948 to 9 November, 1948 in which the draft of the constitution was
introduced in the Assembly. The Second Reading was held from 15 November,
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1948 to 17 October, 1949 in which the draft constitution was discussed with each

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Constitutional Antecedents and Making of Constitution of India

of its clauses given attention. The Third reading of the Constituent Assembly NOTES
Debates happened on 14 November, 1949 to 26 November, 1949, here the
Constituent Assembly was done with all the readings. The Constitution of India
was adopted on 26th November 1949.
• B.R Ambedkar, who played the most important part in forming the
Indian constitution, has the credit of speaking the maximum number
of words.
• The Fundamental Rights mentioned in Part III of the constitution were
discussed for nearly 16 days.
• Sorely, women could only form 2 of the total number of actors in the
Constituent Assembly Debates as 15 women were only tagged to the
Constituent Assembly, out of whom just 10 women participated in the
debates.
• Part IV containing the Directive Principles of State Policy was discussed
for around 6 days
The constitution was intended to be a companion for the administration
workers as well as the citizens of India. It likewise meant to give equal elementary
rights while giving certain duties to the Indian citizens that they need to perform as
responsible citizens. Colorful motifs were deliberated upon during the Constituent
Assembly Debates that touched every subject related to creating an equal and
unprejudiced society in independent India. The Constituent Assembly Debates
can be classified as follows:
• Constituent Assembly Debates on Untouchability: Untouchability has
been a delicate subject in India, and thus the framers of the constitution
took enough care & intended to remove this system altogether. They
argued that social equivalency should be achieved & untouchability
should be fully wiped off. They also expressed their belief and support
for the views of Mahatma Gandhi, B.R. Ambedkar, Raja Ram Mohan
Roy, etc.
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NOTES • Constituent Assembly Debates on Federalism: As per the Constituent

Assembly Debates, it was argued that India should be a civil country
and major authority should be handed to the people. Although the word
“civil” wasn’t used indeed formerly in the Preamble or in any other
indigenous provision, the word “union” was used in composition. A
union or unitary form of government wasn’t favoured and all were in
favour of a Federal government, where powers would be distributed
among various levels of governance.
• Constituent Assembly Debates on Preamble: There were numerous
points on which the drafting committee members argued while framing
the constitution of India. The ‘Objectives Resolution’ tabled by J. L.
Nehru was adopted as the preamble of the constitution.
• Constituent Assembly Debates on Uniform Civil Code: The
constituent assembly was faced with a mammoth task of settling the
debate between personal laws and UCC. There was rich debate with
active participation from various members like Ambedkar, Mohammad
Ismail, M. A. Ayyangar, K. M. Munshi, A. K. Iyer, etc. In the face
of bitter criticism of UCC by members of the Muslim community,
Ambedkar assured them of a fair implementation of UCC and consent-
driven governance.
M. A. Ayyangar asserted that Indian concept of secularism tolerated
the existence of all religions with equal honour and dignity.

Conclusion
Drafting a constitution for modern post-independent India by the constituent
assembly is the landmark development in the history of independent India. For
that purpose, they drew inspiration heavily from the great national movements
led by Indian National Congress. Though the constitution has seen more than
hundred amendments during last 74 years, yet the constitution has not be
rewritten. However, there has been attempt to write constitution and bring drastic
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has been restored and never transgressed the boundary. Earlier in Golaknath vs NOTES
the state of Punjab, the Supreme Court held that the amending power of Indian
parliament is limited. Meanwhile, in 1973, the Kesavananda Bharati case was
heard by eleven learned judges of the Supreme Court. They reviewed earlier cases
of Sankari Prasad vs Union of India, Sajjan Singh vs State of Rajasthan (1965)
and Golaknath vs State of Punjab (1967). They viewed that the parliament of
India has right to amend any part of the constitution, however, it cannot abridge
or take away what it called the basic features of the constitution. It pointed out
fundamental rights, federalism, secular character of the state, directive principles
of state policy, parliamentary democracy, etc as the basic structures of the Indian
constitution. S.R. Bomai case, Indra Sawhney case, or Minerva mills case, added
several other basic structures in the constitution that remain intact till date. There
has been serious efforts by M.N. Venkatachaliah constitution review commission
to make a drastic review of the constitution but its recommendations have never
been implemented yet. We can say that all the meetings and debates held during
the constituent’s assembly talks have come up with a bright future for Indian
citizens by gifting a partly rigid and partly flexible constitution that is indeed,
supreme over all the institutions of the country.

In-Text Questions
1. What are the three circumstances under which a constitution comes into
force?
2. A constitution may be of two types, _________ and _________.
3. The Constitution of India was framed within three years between
_________ and _________.
4. The framing of the Constitution was completed on _________.
5. The _________ created provision of Board of Control which was intended
to regulate the activities of the East-India Company.
6. _________ was declared the first Governor General of India.

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NOTES
7. Centralization in India was formed through the _________.
8. As per Pitt’s India Act 1784, the colonies of East India Company were
called the _________.
9. The first Governor-General of India was _________.
10. Cripps Mission was sent to India in _________.
11. The Constitution of India was brought into force on _________.

1.6 SUMMARY

• 77 years ago the Constituent Assembly of India sat for the first time on
December 9, 1946. Thus started a historical journey for India which saw
the country attain independence. It decided its own national flag, national
emblem, national anthem and ultimately adoption of the Constitution which
made India a democratic republic.
• It took almost 2 years 11 months 18 days by our constituent assembly to
prepare Indian Constitution.
• Although it is a known fact that Britishers were enacting all acts and laws
for their own benefit and smooth administration of colonies, but all those
rules had deep impacts on the writings of the future constitution of India.
For example, the Regulating act of 1773, Pitt’s-India act of 1784, Charter
act of India 1793, Charter act of 1813, Charter act of 1833, Charter act
of 1853, Indian Council acts of 1861, 1892, 1909, Government of India
act of 1919 and 1935 influenced the framing of Indian constitution in a
big way. Some critics went on describing the constitution of India is the
carbon copy of government of India act (1935).
• In the heyday of British rule, the sincere efforts by intelligent and educated
Indians nevertheless, were instrumental to the making the constitution of
India for the future generations.
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• The Nehru report summited by Jawaharlal Nehru, Motilal Nehru committee, NOTES
Sapru report are the glaring examples that certainly great inspirations
behind writing the largest constitution in the world. Besides, the national
movements like non-cooperation movement of 1919, civil disobedience
movement of 1930 and quit India resolution of 1942 under the leadership
of Mahatma Gandhi, were the source of inspiration for the constitution
makers.
• The outcomes of the various sessions influenced a lot the constituent
assembly debate.
• The parliamentary form of government, republicanism, socio-economic
development, secularism, the formation of the state on linguistic lines
and fundamental rights were seriously debated and adopted by the Indian
constitution with the letter and spirit.
• Most notably, important decisions were taken by the consensus voting or
the significant interventions by the Congress stalwarts.
• The Western education, command over law, and immense knowledge of
Ambedkar on the then running constitutions of the world largely helped to
guide and draft a constitution that is regarded as a milestone in the history
of modern India.
• Jawaharlal Nehru’s far sighted vision, Western liberal education and
knowledge and wisdom were kingpin in resolving disputes that were
arising out in different constituent assembly meetings and conferences.
Furthermore, Sardar Patel, Rajendra Prasad, Maulana Azad and other
dignitaries played vital role and provided input for writing the constitution.
• Meanwhile, the composition and working of the constituent assembly has
been deeply criticised by some British scholars.
• Firstly, it is said that the assembly was not a sovereign body. However, this
criticism has been refuted by the Indian writers by saying that in the first
general elections, the Congress party was brought to power by thumping
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NOTES majority vote by Indian electorates. The people must have been rejected
obviously, if they would not have liked it. Furthermore, the constituent
assembly was elected by the electorates of the country.
• Secondly, some say, it was a Congress dominated-body. Meanwhile, the
then existing political parties were given representation in the assembly.
Even princely states had sent their representatives to the assembly.
• Thirdly, it is accused that the assembly was a Hindu-dominated body.
Needless to say all the religions according to their provisions had been given
representation in the assembly. The Hindus, Sikhs, Muslims, Christians,
Parsis were heard in the assembly and India was declared a secular country
under various provisions from article 25 to 28 which guarantees right to
freedom of religion.
• Fourthly, some say it was an unrepresentative body. As mentioned earlier,
all the provisions were discussed, voted and reached either by consensus
or majority votes. Hence, the criticisms by the Western scholars do not
carry much weightage with regards to the adoption of the constitution
by the constituent assembly. However, it can be aptly said that as Indian
National Congress played prominent role in the freedom struggle of India,
naturally, its influence on making of the constitution was enormous.

1.7 GLOSSARY

• Constitution: It is the embodiment of rules and regulations that play a

vital role in the governance of a country.
• Government of India Act, 1935: It was a significant constitutional law that
aimed to grant more autonomy to Indian provinces and laid the groundwork
for India’s eventual independence.
• Regulating Act of 1773: It was the first Act towards Constitutional
development in India launched by the British Parliament to manage and
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• Pitt’s India Act of 1784: It was a British law aimed at addressing the NOTES
inefficiencies of the East India Company’s rule in India.
• Charter Act (1853): The Act marked the introduction of competitive
exams, including the civil service examination, which helped recruit
individuals into civil services.
• Constituent Assembly Debates: These are the reiterations of accounts
of all the debates and conversations that took place during the process of
solidifying the draft of the Indian Constitution.
• Federalism: It is a system of government in which power is divided
between a central authority and various constituent units, such as states
or provinces.

1.8 ANSWERS TO IN-TEXT QUESTIONS

1. A constitution comes into force in three circumstances, i.e., in the case of

a social revolution, the overthrow of a totalitarian regime or military rule,
or making the country free from foreign yoke.
2. Written and Unwritten
3. 1946 and 1949
4. 26th November 1949
5. Pits-India act of 1784
6. Lord William Bentick
7. Regulating Act of 1773
8. British Possessions in India
9. Lord William Bentinck
10. 1942
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NOTES
1.9 SELF-ASSESSMENT QUESTIONS

1. Discuss the steps taken by the British administration for the upliftment of
Indian people.
2. Critically analyse the impact of government of India act 1935 on framing
the Indian constitution.
3. In what ways constituent assembly debates help in strengthening the power
of Indian Constitution? Give a critical evaluation.
4. In what ways do you think that Indian Constitution is rigid and supreme?
5. Discuss the provisions of Regulating Act of 1773.
6. Compare the provisions of government of India act 1919 and 1935.
7. Discuss the provisions in the Charter acts of 1793 and 1813.
8. Discuss the provisions in the Charter act of 1813 and how is it different
from Charter act of 1893?

1.10 REFERENCES/SUGGESTED READINGS

• Austin Granville. The Indian Constitution: Cornerstone of a Nation. Oxford

University Press, London, 1999.
• Kashyap Subhash. Concise Encyclopedia of Indian Constitution. Vision
Books, 2009.
• Basu Durga Das. Introduction to the Constitution of India. Lexis Nexis,
1982.
• Shukla V.N. Constitution of India. Eastern Book Company, 2019.
• Sharma L.P. Indian National Movement and Constitutional Development.
Lakshmi Narain Agarwal, 2020.
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• Khanna H.R. Making of India’s Constitution. Eastern Book Company, NOTES

2015.
• Agarwal R.C. and Dr. Bhatnagar Mahesh. Constitutional Development
and National Movement of India. S. Chand, 1991.
• Mellalli Praveen Kumar. Constitution of India, Professional Ethics and
Human Rights. SAGE, 2019.

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Unit II: Basic Features of the Indian Constitution

Lesson 2: Basic Features of the Indian Constitution

Basic Features of the Indian Constitution

LESSON 2 NOTES

BASIC FEATURES OF THE INDIAN

CONSTITUTION

Dr. Duryodhan Nahak

Associate Professor, PGDAV College, DU

STRUCTURE
2.1 Learning Objectives
2.2 Introduction
2.3 Basic Features
2.4 Critical Assessment
2.5 Interpretation of Judiciary
2.6 Summary
2.7 Glossary
2.8 Answers to In-Text Questions
2.9 Self-Assessment Questions
2.10 References/Suggested Readings

2.1 LEARNING OBJECTIVES

After reading this lesson, students should be able to:

• Understand the concept of constitution and its basic features
• Critically assess the constitution and its various provisions
• Analyse the interpretation of various provisions by the judiciary

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NOTES
2.2 INTRODUCTION

Besides being a political document, the constitution tries in improving socio-

economic standards of the citizens to live with dignity and honour. It is a legal
document that provides a set of rules for the governance of the country. A
commentator has rightly stated that the constitution is a living document that
keeps on changing with the changing needs and circumstances. The constitution
is reflection of the political aspirations of people of a country. It lays the needs
and objectives which the country desires to accomplish in the long run. During
last seventy years, the constitution of India has been amended more than hundred
times. However, its basic structure remains intact and is regarded as guiding
principle for the country’s governance. The constitution is essentially a guide
for the executive, legislature, and judiciary.
The demand for constitution basically arises in three critical situations.
Firstly, out of an armed rebellion or civil war, secondly, against foreign yoke,
and thirdly, outbreak of a socialist revolution. Undoubtedly, Indian constitution
falls in the second category. The constitution of India was written through
constituent assembly who were elected by the people in July, 1946. Despite
boycott by Muslim League, the first meeting of Constituent Assembly was held
on 9th December, 1946. They took almost two years, eleven months, and 18 days
to write the constitution. Finally, it was adopted on 26th November, 1949 and
came into force on 26th January, 1950. This lesson can be summed up into three
sections to have a clear-cut idea on the topic. First it covers the basic features of
Indian constitution which are crucial to the students of Indian polity. Secondly,
it makes a critical analysis of the basic features and thirdly, it discusses the idea
of basic structure as interpreted by Indian judiciary in different historic cases.

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NOTES
2.3 BASIC FEATURES

The basic features of Indian constitution are mentioned below:1.

1. Written constitution: Like most of the modern democracies, United States
of America, Australia, France, China, Germany, India too has a written
constitution. It is true that Britain does not have a written constitution, but
it does not mean that it does not have any written documents. Since the
Magna Carta of 1215, Britain is ruled by several charters, statutes, acts,
rules, and regulations that are enacted by its parliament from time-to-time.
The founding fathers have provided a written document that remains an
important political encyclopedia for the country.
2. The Longest Constitution: India is known for its longest constitution as the
founding fathers provided a detailed document that touched upon all aspects
of the country’s governmental system. The constitution of United States
has the shortest constitution having only seven articles. The constitution
of China has only 138 articles, the Canadian constitution has 11 parts and
147 sections the constitution of India, however, had originally 395 articles
and it is also important to note that the volume of the constitution has been
expanding through various amendments. There are a host of reasons that
prompted the framers to write a lengthy constitution.
(i) Pluralist character and multiculturalism of Indian states is responsible
for the big constitution. The people of different languages, castes,
religions, etc. live in India.
(ii) The enormity of the country has largely contributed in making it the
largest constitution in the world.
(iii) India is a large country with an agrarian economy. At time of
independence, large number of people were suffering from poverty,

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NOTES mal-nutrition and illiteracy which might have led the architects to
ventilate those problems within the constitutional parameters.
(iv) Although the directive principles are not enforceable by the court
of law, but these are indispensable for the centre and the units to
implement progressive and forward looking laws in India which
are rooted in Indian ethos and sensibilities. Over the years, the
governments launched myriad socio-economic programmes to
improve the condition of people.
(v) In 1947, India had a number of princely states. The country had to
accommodate their interests as well.
(vi) The constitution makers envisaged India to be a mixed economy where
both public and private sectors would exist. For instance, besides
allowing big-industrial houses to carry out business activities, the
government launched Five-Year Plans in 1951-52, and Indira Gandhi
government nationalised fourteen banks in 1969 which were largely
functioning in private hands. Perhaps, these were nationalised by
Indira Gandhi keeping the socialist spirit in mind.
(vii) North-East Frontier Agency (NEFA), of the country was a disturbed
region even before independence in the British regime. It is consisted
of tribal population of different ethnicities. This region composed of
Assam, Tripura, Mizoram, and Meghalaya which were exclusively
dealt by schedule-VI. This was being governed by British-Bengal
Frontier regulation act of 1873. That’s why, VI schedule was added
in article 244 and article 275. For other tribal regions, schedule V
was included in the constitution.
(viii) India is a country of diverse languages spoken by people of different
regions. It was necessary for the constitution makers to provide
necessary clauses to address the dilemma of the people that are likely
to arise in future. The schedule-VIII was added for the aforesaid
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3. Sovereign-Democratic-Republic: India is sovereign in the sense that the NOTES

power rests with the people and they are supreme. Even though constitution
was not put to vote, the first general elections of 1951-1952 the people
did not reject the constituent assembly and voted for the Indian National
Congress Party to power. Nevertheless, this party had played a vital role
in making the constitution. The constitution of India is democratic because
the government is made for the people by the people. The initial words of
the preamble state “We the People of India” that makes it clear the people
are supreme. It is explicitly clear that constitution derives its power from
the people. The end of the preamble mentions adoption and enactment of
the constitution on the 26th Nov. 1949. India is also a republic where head
of the country is elected whereas the head of some countries like Britain
is hereditary one.
4. Secular Character of the State: The British-India got divided into two
countries on the basis of religion: India and Pakistan. Although Pakistan
declared itself an Islamic state, Indian stalwarts wished for India to remain
a secular country consisting of many religions viz. Hinduism, Islam,
Christians, Sikhs, Buddhism, Jainism, Zoroastrianism, etc. In the original
constitution, the secular character of constitution is reflected from article
25 to article 28. India permits people of all religions to practice, propagate,
and profess the religion of their choice , or remain without it. Although
initially, India did not mention the term secular in its preamble, in 42nd
amendment act, the term secular was added in preamble. India allows all
the people to carry out religious activities of their choice. The central or the
state governments do not make any discrimination on the basis of religion.
The awards, titles, prizes, etc. are not awarded on religious lines.
5. Socialist State: The word socialist was not found in the original constitution
of 1950, but socio-economic principles were made part of chapter IV of
the Indian constitution. Indeed, the framers realised that democracy is
meaningless without improving the condition of the poor and the weaker
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NOTES sections. That’s why, Indira Gandhi’s government added the term socialist
in the preamble of the constitution through 42nd amendment act of 1976.
6. Supremacy of Constitution: The constitution of Indian is supreme in the
sense that it has made clear in various cases interpreted by the Supreme
Court from time-to-time. The Kesavananda Bharati case resolved the
issue once and for all. While the court recognised the amending power
of constitution, it also cautioned the union parliament that like Britain,
Indian parliament is not supreme parliament and has to work within the
parameters of the constitution.
7. Compromise between Parliamentary Supremacy and Judicial Review:
After constitution came into force on 26th January 1949, constitution has
been amended many times. When it affected the interest of the landlords,
big industrial houses, they challenged those cases in the Supreme
Court. In Sankari Prasad vs Union of India and Sajjan Singh vs state of
Rajasthan case, the court recognised the unlimited power of the amending
power of the parliament in the Golaknath case of 1967, the court tried to
strike a balance between parliament and judiciary, a larger bench heard
Kesavananda Bharati case in 1973. The court in its majority decision put
several restrictions on the parliament and pronounced the basic structure.
Even the amending power of parliament is limited under article-368 of
the constitution of India. Now it is clear that in India, neither parliament is
supreme nor the judiciary. While the parliament can discuss about judges
only if case of impeachment is debated, then at the same time, the Supreme
Court has the right to review all the previous and existing acts whether
they are in accordance with the constitution.
8. Federal in Form but Unitary in Spirit: Like the countries of Canada,
Australia, Germany, United States of America, the framers have provided a
constitution for India. Although Indian constitution resembles the Canadian
federation in several respects, it has borrowed from other federations like
Australia and United States. In India there is dual sets of governments.
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The powers are divided between centre and the states. Again, in order to NOTES
have harmonious relations between centre and the states, in VII schedule
the power is divided by giving three lists like central, state and concurrent.
The supremacy of constitution, independence of judiciary, written
constitution, division of power are essentially federal characteristics that
have also been adopted by Indian constitution. As India has emerged as
an independent nation from a peculiar situation and British yoke as well,
the founding fathers have given a constitution with strong unitary features.
Single citizenship, single judiciary, Indian Administrative Service (IAS)
and Indian Police Service (IPS), for which examinations conducted by
the central government but these personnel are deployed in the states.
The President rule in the time of extra-ordinary situation in the states
that has been used by the centre against the states. Here an important fact
is to be noted that while the constitutional body like the central Finance
Commission sees the allocation of resources and taxation between centre
and the states which constitutes only 30 per cent of the total resources,
The Planning Commission or the NITI Ayog an extra-constitutional body
is appointed by the Central government which allocates resources between
the centre and the states. The NITI Ayog takes care of atleast 70 per cent
of country’s resource.
9. Fundamental Rights: The citizens of Britain, were granted rights under
the bill of rights in 1689. The US granted the rights to its citizens in initial
10 amendments through the bill of rights. In India, the constitution makers
gave rights to the Indian citizens. These rights are described as fundamental
as the violation of those rights can be challenged in the court of law.
There were originally seven rights in the chapter-III of Indian constitution
covering articles 12-to-35 like right to equality, right to freedom, right
against exploitation, right to freedom of religion, right to education and
culture, right to property, and right to constitutional remedy. Out of this, in
the 44th amendment act, right-to-property has been taken away and put in

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NOTES 300(A) as an ordinary legal right. These rights are fundamental in the sense
that any violation of those rights by the governmental institutions and any
institutions can be challenged in the Supreme Court and state High Courts.
There are many positive rights that do not make any discrimination between
Indian and the foreign citizens. Since the adoption of the constitution,
it has been amended several times to include certain rights like right
to elementary education which has been included in Right to Life. The
Supreme Court and Indian Parliament have also expanded this citizen’s
charter by interpreting and enacting several acts and laws from time-to-
time. In Kesavananda Bharati case, Supreme Court made it clear that the
Fundamental Rights can be amended but cannot be abridged, contravened,
or taken away in any circumstances. Now the fundamental rights are the
part of basic structure of the constitution.
10. Directive Principles of State Policy: In including Directive principles
of State Policy (DPSP), the constitution stalwarts were influenced by
Irish Republic. DPSP has been placed in the chapter-IV of the Indian
constitution. If the fundamental rights are the part of political democracy,
the directive principles are in form of socio-economic principles that are
quite necessary for the upliftment of the poor and downtrodden. It is true
that these rights are not enforceable by the courts, but these are fundamental
in the governance of the country. The Minerva Mills case of 1980 and
Ashoka Kumar Thakur vs Union of India 2008, the Supreme Court held
that the Fundamental Rights and Directive Principles are not contradictory
rather they are complimentary and supplementary to each other.
11. Fundamental Duties: Fundamental duties were not part of original
constitution. Indian National Congress led by Indira Gandhi, appointed a
committee under the chairmanship of Swaran Singh that submitted its report
for including fundamental duties in chapter-IV, just after directive principles
of state policy, these were added in article 51(A) of 42nd amendment act of
Indian constitution in 1976. The government was inspired by constitution
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of USSR in this matter. These duties cannot be imposed by the courts. NOTES
Meanwhile, these duties are important for the citizens of the country as
rights and duties go hand in hand. Through the various acts, some duties
have been made compulsory for the Indian citizens. For example, to respect
national anthem, national flag, and the Indian constitution, protecting
wildlife and forest are some obligations that are to be observed by the all
the citizens of the country.
12. Local Self-Government: Mahatma Gandhi, the father of India had dreamt
of empowering the rural India through decentralisation. Article-40 of Indian
constitution clearly talks about local self-government. The 73rd and 74th
amendment acts of 1992 created three-tiered local government in the rural
and urban areas which aimed at decentralisation of power and involving
people in decision-making process. The participation of people at grass-
root level and election of 3.2 million representatives is instrumental in
empowering people at bottom and strengthening democracy in India. This
is perhaps the largest local-self-government model in the world.

2.4 CRITICAL ASSESSMENT

The constitution of India has been criticised on several grounds. Few of them are:
1. The constitution of India is of a huge elephantine size: There were 395
articles in the original constitution of India but through the subsequent
amendments a number of articles have been added by taking the number of
articles more than 440. For 230 years, the US constitution has been amended
only 29 times whereas within 70 years the constitution has been amended
more than hundred times. Some critics raise questions on the credibility
of the makers of constitution given the large number of amendments, but
it only reflects the long term planning, flexibility, and optimistic view of
these sound people who drafted the constitution.
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NOTES 2. It is a borrowed constitution: The critics point out that although credit
lies with the learned members of constituent assembly for assembling good
provisions from different established constitutions, but so much reliance
upon other constitutions is not easily digested by the Western scholars.
The constitution makers have borrowed from the existing constitutions of
the world like US, Britain, Weimar Republic, USSR, etc. The constitution
can be described as more Western than Indian.
3. The constitution can be only understood by the legal luminaries:
Various provisions cannot be understood by the ordinary citizens. In case of
violation of fundamental rights and other rights of the citizens, it is difficult
for them to go to the courts without taking help from the lawyers. The Indian
Constitution is often called ‘a lawyer’s paradise’. The constitution of India
is also criticised for cupping most of its provisions from the Government
of India Act 1935.
4. Frequent Amendments: The constitution has been amended more than
hundred times only within seventy years to accommodate various interests.
Now critics question why a new constitution cannot be written in the
changed circumstances and social conditions? Even National Democratic
Alliance government led by Atal Bihari Vajpayee (from 1999-2004)
appointed M.N. Venkatachaliah commission to review the constitution to
study and suggest the measures for reviewing the constitution after five
decades of adoption of Indian constitution.

2.5 INTERPRETATION OF JUDICIARY

At the time of framing the constitution, the framers did not spell out the
basic features of Indian constitution. In due course of time through several
interpretations the highest court of the country: the Supreme Court pointed out
several basic features. In the year 1951, the first amendment was challenged in
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Sankari Prasad vs union of India in the Supreme Court. The court held that the NOTES
parliament has a right to amend any part of the constitution. In the matters of
difference between article-13 which defines the term law and article-368, the
Supreme Court held that under article 368, the union parliament has unlimited
power to amend the constitution. After a few years, the constitution was emended
further. The 4th amendment act was challenged in the Supreme Court in Sajjan
Singh vs State of Rajasthan in 1964. Even the court retreated to its earlier verdict
and opined that the parliament of India can amend any part of the constitution
including fundamental rights.
The article 13 which defines the “Law” does not extend to restrict the
parliament from amending the constitution which it enjoys under article 368. The
three amendments 1st, 4th and 17th amendments were challenged in Golaknath vs
state of Punjab in 1967. The court held that according to article 368, the parliament
has amending power. However, the amending power of parliament is limited. It
does not vest exclusive power with the Indian parliament to contravene, abridge
or take away the fundamental rights mentioned in chapter-III. It further held that
under article-368, the amending power of the union parliament is limited.
Indira Gandhi who succeeded Lal Bahadur Shastri as the Prime Minister in
1966, of course won fourth general elections but she was greatly worried for the
rejection of different constitutional amendments that impeded her will to bring
social revolution in the country. After Golaknath case, she went for 5th general
elections in 1970 and gave the slogan for Garibi Hatao (removal of poverty).
Even before this, she nationalised fourteen banks and abolished privy purses.
She got landslide victory by wining thumping majority of seats. She proposed
24th and 25th amendments in the parliament. In the 24th amendment, Parliament
tried to resolve the dispute between article 13 and 368. Now the parliament can
amend any part of the constitution. In the 25th amendment act of the constitution,
the parliament made it clear that fundamental rights are subordinate to directive
principles. Both the 24th and 25th amendments were challenged in the Kesavananda
Bharati vs state of Kerala. The verdict came in 1973 on 24th April 1973. The case
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NOTES was decided by larger Supreme Court bench which consisted 13 judges. The
court held by majority parliament has amending power under article 368. It can
amend any part of the constitution including preamble and fundamental rights.
However, it cannot abridge or damage the basic structure of the constitution. No
amendment can remain out of purview of Supreme Court’s judicial review. All
the amendments can be challenged in the Supreme Court.
The founding fathers made Supreme Court, the final interpreter and
protector of constitution and fundamental rights. The Kesavananda Bharati and
Minerva mills case are the landmark judgements in this regard. In Kesavananda
Bharati vs state of Kerala in 1973, Justice Sikri pointed out several features
like federal character of Indian Union, Parliamentary government, republican
government, fundamental rights, directive principles of state policy, etc. In
Minerva mills case of 1980, the Supreme Court considered federalism, supremacy
of constitution as the basic features of the Indian constitution. In S.R. Bommai
vs Union of India, the secular character of the state was added within the basic
structure of the Indian constitution.

Conclusion
Constitution is a legal document, essentially a set of rules and regulations meant
to govern the country. India drafted a constitution through a constituent assembly
that drafted a constitution for the country in three years from 1946-49. The
constitution arises from certain social situation that help in arousing sentiment
for thinking of a constitution. War/rebellion, revolution, and colonial yoke
are the propelling circumstances that can help in writing the constitution. The
constitution of India was written after country witnessed a prolonged struggle for
at least two hundred years and including thirty years of hectic movement under
the leadership of Mahatma Gandhi. The Drafting committee consisted of seven
members headed by B.R. Ambedkar. The constitution was finally completed and
adopted on 26th November, 1949 and came into force on 26th January, 1950. The
original constitution consisted of eight schedules, 22 chapters and 395 articles.

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Basic Features of the Indian Constitution

The constitution has been amended more than hundred times. The constitution NOTES
of India is a written one. While US constitution is the shortest constitution in the
world, the constitution of India is the longest one in the world. Given the size of
the country, greater diversity in the matters of language, castes, religion, poverty,
illiteracy malnutrition, it is obvious that constitution tried to address those problem
under its ambit. It is a sovereign, democratic Republic constitution where power
is essentially vested with the people. The head of the country is elected. Although
the words socialist and secular were not the part of preamble, later these terms
were added in the 42nd amendment act of the constitution in 1976.
There are some basic features of Indian constitution such as written
constitution, longest constitution, unitary state, federal government, socialist state,
secular state, fundamental rights, directive principles of state policy, fundamental
duties, sovereign-democratic-Republic, supremacy of constitution, compromise
between Parliamentary supremacy and judicial review, socialist state, secular
character of state, local self-government. The basic features or the structure were
not originally given in the constitution by the framers. For the interpretation,
the Supreme Court was empowered to as final interpreter and guardian of the
constitution. In Sankari Prasad vs union of India in 1951, and Sajjan Singh vs
state of Rajasthan in 1964 while Supreme Court held that the Parliament has
unlimited power to amend the constitution, in Golaknath case, the Supreme Court
reversed its own decision. It held that the amending power of Parliament under
368 is limited. The Kesavananda Bharati case of 1973 resolved the issue once
and for all. The judiciary pointed out certain features like Fundamental Rights,
Directive Principles of State policy, parliamentary government, federalism,
secular character of the state, republican form of government, and so on. In
Minerva Mills vs state of Kerala, Waman Rao case and S.R. Bommai case,
the Supreme Court retreated its standby making it clear that the basic structure
cannot be abridged, contravened or damaged. Thus, all the institutions including
government, or private or corporate bodies and the people of the country have
to remain loyal to the constitution and respect its sanctity with letter and spirit.

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NOTES
In-Text Questions
1. The Constitution of India was adopted on ________ and came into
force on ________.
2. The Directive Principles of State Policy are inspired by the Constitution
of ________.
3. The term “socialist” was added to the preamble through the ________
Amendment.
4. The Constitution of India originally contained ________ articles.
5. The ________ case is known for introducing the “basic structure”
doctrine in Indian constitutional law.
6. India is a ________ state, where the head of the country is elected rather
than hereditary.
7. The Indian Constitution includes ________ schedules, which contain
details on various governance aspects.

2.6 SUMMARY

• The Constitution of India is a legal document guiding governance and

socio-economic improvement.
• The constitution was created by the Constituent Assembly, taking nearly
three years to complete, and was adopted in 1949.
• The Constitution has been amended over 100 times, but its basic structure
remains intact.
• India has the longest written constitution, originally with 395 articles,
addressing various governmental aspects.
• The constitution defines India as a Sovereign-Democratic-Republic, where
power rests with the people.

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Basic Features of the Indian Constitution

• The Directive Principles of State Policy focus on socio-economic rights NOTES

but are not enforceable by law.
• Fundamental Rights are guaranteed to citizens and can be enforced in
court.
• Indian federalism divides power between the central and state governments,
though the system has unitary elements.
• The Supreme Court of India acts as the final interpreter and protector of
the Constitution.
• Key constitutional amendments and landmark cases have shaped the
balance between Parliament and judiciary powers.
• Local self-government was introduced through the 73 rd and 74 th
amendments, empowering rural and urban communities.
• The Indian Constitution incorporates elements from other countries’
constitutions, making it a “borrowed” constitution.
• The Constitution enshrines socialist principles, added through the 42nd
Amendment in 1976.
• The judiciary has been instrumental in interpreting the “basic structure”
of the Constitution, which cannot be altered.

2.7 GLOSSARY

• Constitution: It is a set of fundamental principles or established precedents

according to which a state is governed.
• Sovereign: It means the Supreme power or authority; in India, the ultimate
power rests with the people.
• Secular: It is a state that does not favour any religion and treats all religions
equally.
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NOTES • Directive Principles: These are guidelines for the government to follow
in promoting social and economic welfare.
• Federalism: It is a system of government where power is divided between
a central authority and various states.
• Fundamental Rights: These are the basic rights guaranteed to citizens
that are enforceable by courts.
• Unitary: It is a system where the central government holds supreme power,
despite federal elements.
• Judicial Review: It is the power of courts to review laws and actions for
constitutionality.
• Amendment: It is a formal change or addition to a constitution or law.
• Preamble: It is the introductory statement in the Constitution that outlines
its purposes and principles.
• Privy Purses: These were the annual payments made by the Indian
government to former rulers of princely states as part of their integration
into the Union of India after independence.

2.8 ANSWERS TO IN-TEXT QUESTIONS

1. 26th November 1949, 26th January 1950

2. Ireland
3. 42nd
4. 395
5. Kesavananda Bharati
6. Republic
7. Eight
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NOTES
2.9 SELF-ASSESSMENT QUESTIONS

1. Discuss the concept that constitution of India is federal in form and unitary
in spirit.
2. Explain the basic features of Indian constitution.
3. Critically analyse the basic structure of Indian constitution.
4. Explain the topic that constitution of India is a bag of borrowings.
5. Discuss composition and the role of Constituent Assembly.

2.10 REFERENCES/SUGGESTED READINGS

• Basu, D. D. Introduction to the Indian Constitution. Constitutional Law,

1966.
• Chaudhary, Sudhir, et. al. Oxford Companion to the Indian Constitution.
New Delhi, Oxford University Press, 2016.
• Austin, Granville. Cornerstone of Indian Constitution. London, Oxford
University Press, 1996.
• Narang A.S. Indian Government and Politics. Gitanjali Publishing House,
New Delhi, 1987.
• Awasthy S.S. Indian government and Politics. S. Chand Publications, New
Delhi, 1999.
• Ghosh, Peu. Indian Government and Politics. PHL, Learning Private
Limited, New Delhi, 2017.
• Siwach, J. R. Dynamics of Indian Government and Politics. Sterling
Publishers, New Delhi, 1985.

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NOTES • Hoveyda, Abbas. Indian Government and Politics. Pearson, New Delhi,
India, 2010.
• Gupta, D.C. Indian Government and Politics. Vikas Publishing House,
New Delhi, 1997.
• Raj, Hans. Indian Government and Politics. Surjeet Publication, New
Delhi, 1989.
• Johari, J.C. Comparative Government and Politics. Vishal Publication,
New Delhi, 1979.
• Choi, Jungug and Narendar Kumar. Reservation Policy for Backward
Classes. Economic and Political Weekly, December 2019.
• Arun, T.K. How India’s Politics has Changed in the Last Five Years.
Economic Times, May 2019.
• Sinha, N.K.P. The Study of Government and Politics of the different parts
of India. Indian Journal of Political Science, 1965.
• Ranjan, Prabhash. Not A right Agenda, The Hindu, July 2019.

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Unit III: Fundamental Rights

Lesson 3: Fundamental Rights

Fundamental Rights

LESSON 3 NOTES

FUNDAMENTAL RIGHTS

Ashutosh Kumar Jha

Guest Faculty, Miranda House, DU

STRUCTURE
3.1 Learning Objectives
3.2 Introduction
3.3 Fundamental Rights
3.4 Fundamental Rights and Human Rights
3.5 Nature of Fundamental Rights
3.6 Rights under Fundamental rights
3.7 Summary
3.8 Glossary
3.9 Answers to In-Text Questions
3.10 Self-Assessment Questions
3.11 References/Suggested Readings

3.1 LEARNING OBJECTIVES

After reading this lesson, students should be able to:

• Understand Fundamental Rights
• Discuss the concept of Human Rights as an essential part of the constitution
• Examine the nature of fundamental rights in Indian constitution.

3.2 INTRODUCTION

Fundamental rights are indispensable in the Governance of the country. The

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NOTES the desire of the constitution makers to bestow Indians with basic liberty of a free
and a happy life. It is also a means through which the spirit of constitutionalism
is established. It is a check on the ability of democracy to transform into a
tyranny of majority. Fundamental Rights are a social contract strengthening
constitutionalism, protecting and guarding individual autonomy. It is derived
from the American constitutional provision of “Bill of Rights” which acts as
an important bulwark against the tyranny of state guaranteeing and protecting
individual freedom and autonomy. Part III of the constitution deals with
Fundamental Rights of the citizens. They are categorized as basic human freedom
required for individual development. These rights have universal application in
the Indian society and are applied irrespective of caste, religion, place of birth,
sex, colour, etc. The fundamental rights are enumerated in the Indian constitution
under Article 12 -35 (Reddy 1980).

3.3 FUNDAMENTAL RIGHTS

Granville Austin analyses Indian constitution as a social and revolutionary

document (Austin 1966). This philosophy is best manifested by Part III of the
Indian constitution. These rights are a guarantee against any form of encroachment
by the Government of the day. So they are rights which act as limitations on the
powers of the government, legislative as well as executive.
The Rights under Part III are considered Fundamental because of two
important reasons:
• These rights are mentioned in the constitution as guarantees to the
individual and groups.
• These rights are justiciable i.e. they are enforceable through courts of
law.
It also means that in case of violation of Fundamental rights, the individual
can directly approach the highest of courts for redressal of his/her grievance
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Fundamental Rights

If the government (both state and centre) enacts a law that restricts NOTES
Fundamental Rights, such legislation can be judicially reviewed by the court
and could be declared null and void.
The constitution guarantees six fundamental rights to citizens which are
as follows:
1. Right to Equality (Article 14-18)
2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to constitutional Remedies (Article 32)
The original constitution had seven Fundamental rights which also included
Right to Property as a Fundamental Right. Since Right to Property was considered
a hindrance to the goals of attaining land reforms and equitable distribution of
wealth. So it was repealed by 44th Constitutional Amendment Act, 1978. Now,
Right to Property is not a fundamental right but an ordinary legal right under
Article 300a.

3.4 FUNDAMENTAL RIGHTS AND HUMAN RIGHTS

Fundamental rights are compared to human rights. Human rights are considered
to be minimum necessary conditions for a dignified living which involve social,
political, and cultural rights. Since fundamental rights also provide security
to individual in social, political, and cultural aspects, it is also considered to
be fundamental human rights. The extensive action for protection of rights is
restricted to fundamental rights alone, so all human rights are not fundamental
rights. It is also hailed as the Magna Carta of the Indian Constitution as it
establishes the individual liberty and stand against coercion by individual or state.
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NOTES Genesis of Fundamental Rights:

The inspiration for fundamental rights in India could be traced back to England’s
Bill of Rights (1689), The United States (1791) and the French declaration of
Rights of Man (1789).
The Commonwealth of India Bill drafted by Annie Beasant (1925)
demanded seven fundamental rights which included free conscience, free
expression, freedom of assembly, non-discrimination on grounds of religion,
caste, sex, place of origin, etc.
In 1928, the Nehru Commission which consisted of representatives of
Political Parties in India and headed by Motilal Nehru proposed a constitutional
reform for India. They called for Dominion status of India and demanded
elections on the basis of adult suffrage. Their demands also included guarantees
of certain rights which were deemed fundamental and that also limit the power
of the government.
In 1931, the Congress party adopted a resolution in the famous Karachi
Session committing themselves to defense of civil rights. They were also
committed to abolishing untouchability and serfdom. The resolution also
committed for a minimum wage protecting socio-economic rights of ordinary
man.
During 1944-1945, a Sapru Committee supported the demand for
Fundamental Rights. It was a Non-partisan committee consisting of intellectuals
of which Tej Bahadur Sapru was its chairman. When India moved towards the
making of their constitution, the constitution makers gave importance to the idea
of Fundamental rights. The committee on fundamental rights was headed by
Sardar Patel and the sub-committee for minority rights was headed by Acharya
Kriplani (Ray, 2003).

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NOTES
3.5 NATURE OF FUNDAMENTAL RIGHTS

The Fundamental Rights are not mere imposition of prevailing practices in another
country. But it is framed after careful consideration of India’s socio-political and
socio-economic circumstances. It includes:
• Issue of being Absolute Right: The fundamental rights guaranteed in our
constitution are not absolute. There are reasonable restrictions which can
be imposed on these fundamental rights under required conditions and
circumstances.
• Justifiability of Rights: Article 32 makes it justiciable by conferring rights
on every citizen to move to the highest court of the land for enforcement
of his/her fundamental rights.
• Rights Available to Citizens Alone: Although rights are in the nature
of Human Rights and are universal in application but there are certain
safeguards which have been provided to citizens of the country alone. It
is with respect to the social, political, and cultural contexts of India. The
rights available to citizens alone are, equality of opportunity in matters of
public employment, protection from discrimination on any ground, freedom
of speech, expression, association, movement residence and profession,
cultural and educational rights of minorities, etc.
• Amendability of Rights: After several tussle between the legislature
and judiciary, the Supreme Court has held that parliament can amend and
abridge fundamental rights but not in such a manner as to change the basic
structure of the constitution.

Amendability of Fundamental Rights:

The question whether Fundamental Rights can be amended under Article 368
came into consideration of the Supreme Court in Sankari Prasad vs Union of

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NOTES India. It challenged the validity of the 1st amendment to the Constitution. In this
case, it was held that a constitution amendment will also be held valid even it
abridges or takes away any of the fundamental rights. A similar decision was
given by Supreme Court in Sajjan Singh vs State of Rajasthan which challenged
the validity of the 17th amendment (1965 SC 845). In Golaknath vs State of
Punjab, the validity of the Constitution (17th Amendment) Act, 1964 was again
challenged, which inserted certain State Acts in Ninth Schedule. The Supreme
Court in its landmark decision overruled the decision given in the Sankari Prasad’s
and Sajjan Singh’s case. It held that the Parliament had no power from the date of
this decision to amend Part III of the Constitution so as to take away or abridge
the Fundamental rights. Eleven judges participated in this decision. The judges
were worried about the numerous amendments made to abridge the fundamental
rights since 1950. The Chief Justice applied the doctrine of Prospective Overruling
and held that this decision will only have prospective operation and therefore,
the 1st, 4th, and 17th amendment will continue to be valid. It means that all cases
decided before the Golaknath’s case shall remain valid.
In order to remove difficulties created by Golaknath’s decision parliament
enacted the 24th Amendment. The amendment has made the following changes:
• It added a new clause (4) to Article 13 which provides that nothing in
this Article shall apply to any amendment of this constitution made
under Article 368.
• It inserted a new sub section (1) in Article 368 which provides that
notwithstanding anything in the Constitution, Parliament may, in
exercise of its constituent power may amend by way of addition,
variation, or repeal any provision of this Constitution in accordance with
the procedure laid down in the Article 368. Thus the 24th amendment
restored the amending power of the Parliament.
The validity of the 24 th amendment was challenged in the case of
Keshavnand Bharati vs State of Kerala (1973). It challenged the validity of the
Kerala Reforms Act, 1963. But during the pendency of the petition, the Kerala
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Act was placed in the Ninth Schedule by the 29th Amendment. The question in NOTES
this case about the amending involved the extent of the amending power conferred
by Article 368 of the Constitution. A Special bench of 13 judges was constituted
to hear the case. The Court by majority overruled the Golaknath’s case which
denied Parliament the power to amend fundamental rights of citizens. The Court
held that under the Article 368 Parliament is not empowered to amend the basic
structure or framework of the Constitution.
After the decisions of the Supreme Court in Kesavananda Bharati, Indira
Gandhi government passed Constitution (42nd Amendment) Act, 1976, which
added two new clauses, namely, clauses (4) provided that no constitutional
amendment (including the provision of Part III) or purporting to have been made
under Article 368 whether before or after the commencement of the Constitution
(42nd Amendment) Act, 1976 shall be called in any court on any ground. Clause
(5) removed any doubts about the scope of the amending power. It declared that
there shall be no limitation whatever on the constituent power of Parliament
to amend by the way of addition, variation, or repeal of the provisions of the
Constitution under this Article.
Thus insertion of these clauses made it clear that the basic structure of the
Constitution could be amended. In Minerva Mills vs Union of India (1980) the
Supreme Court by 4 to 1 majority struck down clauses (4) and (5) of Article 368
inserted by the 42nd amendment, on the ground that these clauses destroyed the
essential feature of the basic structure of the Constitution.
Since these clauses removed all limitations on the amending power and
thereby conferred an unlimited amending power, it was destructive of the
basic structure of the Constitution. The judgment of the Supreme Court thus
makes it clear that the Constitution, not the Parliament is supreme in India. The
Parliament owes its existence to the Constitution and it cannot take priority over
the Constitution. Therefore this landmark decision ended the long controversy
between the Courts and the Executive. Therefore, at present the position is as
follows:
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NOTES • Fundamental Rights may be repealed or curtailed by passing a

Constitution Amendment Act, according to the procedure laid down
in Art, 368.
• Though Fundamental rights are not immune from amendment, the
amendment of a particular right maybe annulled if the Supreme Court
holds that particular right or its part which has been taken away by
amendment, constitute a basic feature of the Constitution.
• Fundamental Rights are to respected in all circumstances. Also, there
is a limit on the legislative powers of the parliament, as any law that is
in contravention to Fundamental Rights will be declared void.
So the Theory of Basic Structure very effectively proved to be a limitation
on the amending power of the Parliament. The Basic Structure doctrine applies
only to the Constitutionality of amendments and not to ordinary Acts of
Parliament, which must conform to the entirety of the Constitution and not just
its basic structure.

3.6 RIGHTS UNDER FUNDAMENTAL RIGHTS

It includes:

Right to Equality (Article 14-18):

These articles cover the issue of equality comprehensively by adopting universally
accepted standards of creating an equal society.
Article 14 implies equality before law and equal protection of law. Equality
before law implies that no person has any special privilege with respect to the
law of land.
Equal protection of law implies equality of treatment in similar circumstances
by the law and it also permits differences in differential circumstances. For
example, women in India may be placed in favourable position during enactment
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Fundamental Rights

Article 15 prevents discrimination on grounds of religion, caste, sex, or NOTES

place of birth. Article 16 provides equality of opportunity in matters of public
appointment or appointment to any office.
Article 17 abolishes untouchability from being practiced in India. Article
18 abolishes all forms of titles leading to an era of equal treatment of citizens
by the state (Basu 2005).

Right to Freedom (Article19-22):

Article 19(1) of the constitution gives citizens the right to freedom of speech
and expression, to assemble peacefully, to form unions or associations, to move
freely throughout the territory of India, and to practice any trade or profession.
It is important to note here that these rights are not absolute and can be limited
by reasonable restrictions.
The restrictions are defined in clause 2-6 under Article 19. In order to restore
balance between freedom and social contract, these reasonable restrictions are
imposed where freedom of expression is subject to be restricted on grounds of
decency, morality, public order, friendly relations with foreign countries, and
unity as well as integrity of India. Although the reasonableness of restrictions
imposed by the state can be judged by judiciary.
Article 20 provides for the protection in respect of conviction for offences. It
says that criminal legislation cannot be implemented retrospectively. That means
a criminal can be punished with the punishment for the crime that prevails on the
day of offence. In the same article clause B says that a person cannot be forced
to give evidence against himself (self incriminating evidence). No person can
be punished twice for the same crime..
Article 21 contains provisions related to right of life and liberty. It has
been the most holistically interpreted article which has added new dimension
to improve lives of ordinary people in the country. This article is also protected
through the writ of habeas corpus under article 32 which means ‘to have the body
of’. This is mainly practiced in case of illegal imprisonment without sufficient
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NOTES Right to education was made a fundamental right under Article 21A by
86th Constitutional Amendment; 2002. It stipulates the state to provide free and
compulsory education to all between 6-14 years of age. The government marked
it as the ‘dawn of second revolution in the chapter of citizen’s rights’.
Article 22 deals with safeguards against arbitrary arrest and detention.

Right Against Exploitation (Article 23-24):

Article 23 prohibits traffic in human beings and prevents people from forced
labour. The intention of this provision is to protect human dignity and to abolish
de-humanizing social practices.
Article 24 deals in prevention of child labour in hazardous circumstances like
mines, or factories. It states that no child below the age of 14 years shall be
employed in any factory or hazardous occupation. Fundamental Rights of
children against hazardous employment guaranteed under Article 24 is assisted
by various statutory provisions that have been enacted by legislature to give
effect to constitutional provisions.

Right to Freedom of Religion (Article 25-28):

Article 25 deals with freedom of conscience and practice and propagation of
religion. All persons are equally entitled to freedom of forming and defining
their relationship with god or not have one at all.
Article 26 deals in freedom to manage religious affairs by establishing charity
to acquire property for religious purposes, etc.
Article 27 gives freedom to individual to not pay any tax for promotion of any
religion.
Article 28 gives freedom to not attend any religious instruction in certain
educational institutions.
Above mentioned rights are subject to public order and reasonable
restrictions.
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Cultural and Educational rights (Article 29-30): NOTES

Article 29 deals with the protection and conservation of language, script, and
culture of the minority. It also debars admission on grounds of religion, race,
sex, and language in institutions managed by state funds. The intention here is
to promote a culture of inclusivity and to promote pluralism.
Article 30 is a right to minority community to manage and administer educational
institution for preserving their script and culture (Ibid). The word ‘minority’ has
not been defined in the constitution. However, inferences may be drawn from
other articles and statutory provisions.
These rights are vital for creating an inclusive environment within the
diverse framework of Indian state while also ensuring that education is accessible
in the mother tongue of the learners at least in their young age. These are called
‘group rights’.

Right to constitutional remedies (Article 32):

It is the most important fundamental right as it confers the right to citizens to
move to the Supreme Court for enforcement of the rights conferred by part III.
It is Article 32 which gives Fundamental Right such a pride of place within the
Indian Constitution (Ibid). This right was described by Dr. Ambedkar as the
‘heart and soul of the constitution’. Without this provision, other rights would
be meaningless as citizens would have no means to enforce them.

Conclusion
Fundamental rights are the cornerstone of a democratic society, and their
significance in India is profound and indispensable. Enshrined in the constitution,
they safeguard the freedoms, dignity, and equality of every citizen, ensuring
that individuals can live with respect, express themselves freely, and seek
justice. These rights are not just legal provisions but carry a deep moral value,
reflecting the principles of justice, liberty and fraternity that are at the core of
Indian democratic ecosystem. By protecting fundamental rights, the country
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NOTES foundation of a stable, just and inclusive society, making them essential for
sustenance of democracy and the rule of law in India.

In-Text Questions
1. The fundamental rights in India are enshrined in ______ of the
Constitution.
2. The Right to Property was removed as a fundamental right by the ______
constitutional amendment.
3. Article ______ grants the right to constitutional remedies.
4. The basic structure doctrine was established by the ______ case.
5. The right to equality is covered under Articles ______ to ______ of the
Constitution.
6. The Right to Life is guaranteed under Article ______.
7. The ______ Amendment made the Right to Education a fundamental
right under Article 21A.
8. The fundamental rights in India were inspired by the American ______.
9. Articles 23 and 24 of the Constitution prohibit ______ and ______.
10. The Right to Freedom of Religion is guaranteed under Articles ______
to ______.

3.7 SUMMARY

• Fundamental Rights in India aim to protect individual liberties and establish

constitutionalism by restricting government’s powers.
• Derived from the American Bill of Rights, Fundamental Rights ensure the
protection of individual freedoms and guard against state tyranny.
• Part III of the Indian Constitution outlines six Fundamental Rights, which
are justiciable and enforceable through courts of law.
• The original seven Fundamental Rights included the Right to Property,
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• Fundamental Rights protect against discrimination, ensure freedom of NOTES

speech, and safeguard religious and cultural rights.
• Article 32 grants the right to Constitutional Remedies, empowering citizens
to seek enforcement of their fundamental tights through the courts.
• The rights are not absolute; they come with reasonable restrictions imposed
under certain conditions.
• Human rights and fundamental rights are interconnected, though not all
human rights are classified as fundamental rights.
• The Nehru Commission in 1928 and the Sapru Committee in 1944-1945
played pivotal roles in advocating for civil liberties and fundamental rights.
• Fundamental Rights were significantly shaped by the legal struggles of
the 1950s-1970s, including key cases such as Sankari Prasad vs. Union of
India, Golaknath vs. State of Punjab, and Kesavananda Bharati vs. State
of Kerala.
• The Kesavananda Bharati case introduced the doctrine of the “Basic
Structure” of the Constitution, limiting the Parliament’s amending power.
• Articles 14-18 establish the Right to Equality, addressing discrimination
and ensuring equal treatment under the law.
• Articles 19-22 establish the Right to Freedom, providing freedoms of
speech, assembly, movement, and personal security.
• Articles 23-24 prohibit exploitation, including human trafficking and child
labour.
• Articles 25-28 guarantee religious freedom and the right to manage religious
affairs.
• Articles 29-30 protect cultural and educational rights, especially for
minority groups, to preserve their language and culture.
• The Supreme Court plays a critical role in interpreting and protecting
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NOTES • The basic structure doctrine limits Parliament’s power to amend the
Constitution, ensuring the preservation of key principles.
• Over time, the interpretation of Article 21 (Right to Life) has expanded to
include various social and economic rights, such as the Right to Education.
• The interplay between Fundamental Rights and Directive Principles of
State Policy aims to establish a balanced society.

3.8 GLOSSARY

• Fundamental Rights: These are the basic rights guaranteed by the

constitution that are enforceable by the courts of law.
• Article 32: It is the article that grants the right to constitutional remedies,
allowing individuals to seek enforcement of Fundamental Rights.
• Right to Equality: It is the right that protects against discrimination and
ensures equal treatment under the law.
• Right to Freedom: It is the right that guarantees freedoms of speech,
expression, movement, and assembly.
• Right against Exploitation: It is the right that prohibits human trafficking
and child labour.
• Right to Freedom of Religion: It is the right that protects the individual’s
freedom to practice, propagate, and manage religious affairs.
• Right to Constitutional Remedies: It is the right that empowers citizens
to challenge violations of their fundamental rights in court.
• Basic Structure Doctrine: It is a judicial principle that limits the
Parliament’s power to amend the Constitution.
• Article 21: It is the article that guarantees the Right to Life, which has
been interpreted to include social and economic rights.
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Fundamental Rights

• 44th Amendment: It is the constitutional amendment that removed the NOTES

Right to Property as a fundamental right.
• Directive Principles: These are guidelines for government policy aimed
at establishing social and economic justice.
• Human Rights: These are basic rights inherent to all human beings,
including social, cultural, and political freedoms.

3.9 ANSWERS TO IN-TEXT QUESTIONS

1. Part III
2. 44th
3. 32
4. Kesavananda Bharati
5. 14, 18
6. 21
7. 86th
8. Bill of Rights
9. Human trafficking, child labour
10. 25, 28

3.10 SELF-ASSESSMENT QUESTIONS

1. What do you mean by fundamental rights? Explain the nature of

fundamental rights.
2. Examine the difference between fundamental rights and human rights.
3. Critically examine the types of fundamental rights in Indian Constitution. Self-Instructional
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NOTES
3.11 REFERENCES/SUGGESTED READINGS

• Reddy, S. Sundara Rami. Fundamentalness of Fundamental Rights and

Directive Principles in the Indian Constitution. Journal of the Indian Law
Institute, Vol. 22, No. 3, July-September, 1980, pp. 399- 407.
• Austin, Granville. The Indian Constitution Cornerstone of a Nation. Oxford
University Press, Delhi, 1966, pp. 50.
• Ray, Aswini K. Human Rights Movement in India: A Historical Perspective.
Economic and Political Weekly, Vol. 38, No. 32, Aug. 9-15, 2003, pp.
3409-3412
• Sharan, P. Constitution of India and Judicial Review. The Indian Journal of
Political Science, Vol. 39, No. 4, October-December, 1978, pp. 526-537.
• 1 SCR 89. Sankari Prasad v. Union of India, 1952.
• SC 845 Sajjan Singh vs state of Rajasthan, 1965.
• AIR 1967 SC 1643. Golaknath vs state of Punjab.
• AIR 1973 SC 1461. Keshavnand Bharati v. State of Kerala.
• AIR 1980 SC 1789. Minerva Mills v. Union of India.
• Air 1951 SC 226. State of Madras vs. Srimathi Champakam Dorairajan
• AIR 1951 Pat 246. Kameshwar Singh vs Province of Bihar on 24 January,
1950.
• 1958 AIR 731, 1959 SCR 629. Mohd. Hanif Quareshi & Others vs The
State of Bihar (and Connected ... on 23 April, 1958).
• Basu, D. D. Introduction to the constitution of India, 19th Reprint Edition,
Wadhwa, Nagpur, 2005, pp. 102-143.
• Author(s): Devidas, T. Directive Principles: Sentiment or Sense?. Journal
of the Indian Law Institute, Vol. 17, No. 3, July-September, 1975, pp. 478
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Unit IV: Obligations of State and Duties of Citizen

Lesson 4: Obligations of State and Duties of Citizens

Obligations of State and Duties of Citizens

LESSON 4 NOTES

OBLIGATIONS OF STATE AND

DUTIES OF CITIZENS

Ashutosh Kumar Jha

Guest Faculty, Miranda House, DU

STRUCTURE
4.1 Learning Objectives
4.2 Introduction
4.3 Directive Principles of State Policy
4.4 Classification
4.5 Relationship between Fundamental Rights and Directive Principles of State
Policy
4.6 Constitutional Relationship between FRs & DPSP
4.7 Summary
4.8 Glossary
4.9 Answers to In-Text Questions
4.10 Self-Assessment Questions
4.11 References/Suggested Readings

4.1 LEARNING OBJECTIVES

After reading this lesson, students should be able to:

• Understand the obligation and duties of citizen
• Study the directive principles of state policy
• Discuss the relationship between fundamental rights and directive principles
of state policies

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NOTES
4.2 INTRODUCTION

The Directive Principles of State Policy are contained in the Part IV of the Indian
Constitution. These are borrowed from the Constitution of Ireland. The Directive
Principles of State Policy are important directives to the state. They set out the
aims and objectives to be taken up by the states in the governance of the country.
They are also considered a means to attain the substantive socio-economic goals
by the constitution makers. Together, the Part III and Part IV contain the rights,
liberties and securities of people and groups, and the structural means to attain
these noble ideals.

4.3 DIRECTIVE PRINCIPLES OF STATE POLICY

The Directives contained in (Article 36-51, Part IV) lays down a comprehensive
programme for social and economic order for India. The constitution makers had
the foresightedness to design directives in a manner where Ambedkar thought that
future governments would be judged for their success or failure in implementing
the directives under DPSP. It is different from Fundamental Rights in the sense
that there is no legal sanction behind the directives. Article 37 explicitly mentions
that the provisions are fundamental in the governance of the country and the state
is duty bound to apply these principles in law making. They are derived from the
Irish constitution and unlike Fundamental Rights these are positive obligations
on the state (Devidas 1975).

4.4 CLASSIFICATION

DPSP can be classified under four different ideals it tries to promote. They are
Socialistic Ideals, Western Liberal Ideals, Gandhian Ideals and Ideals of Freedom
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• Socialistic Ideals (Article 38, 39, 39A, 41, 42, 43, 43A, 43B, 45): NOTES
These directive principles revolve around promotion of socio-economic equality,
access to adequate means of livelihood, provisions for health, education, and
promotion of cooperative societies.
The directives to minimize the inequalities in income and endeavour to
eliminate inequalities in status flow from Article 38. Article 39 tries to create an
adequate means of livelihood for both men and women. Article 41 is an important
directive with regards to Right to work while Article 42 deals with creating just
and humane condition for work including maternity relief. Article 43 is a directive
for promotion of decent living wage and promotion of cottage industries. Article
43A is a directive to make workers participate in the management of industries.
Article 43B inserted by 97th amendment is an attempt to professional management
of cooperative societies. Article 45 is a provision for early childhood care and
education to children below 6 years of age. All these ideals entail towards the
creation of a society on socialistic lines thereby promoting socialistic ideals
(Basu 2005).

• Gandhian Ideals (Article 40, 46, 47, 48):

Article 40 is the fulfilment of long held Gandhian dream of organizing socio-
political life with village as the base of such an organisation. The directive for
organisation of village Panchayat is the fulfilment of the same dream realized
by 73rd and 74th Constitutional Amendment (1993) thereby ushering Panchayati
Raj in India.
Article 46 deals in promoting the educational and economic interests
of scheduled castes, scheduled tribes, and other weaker sections. This article
emphasizes protecting these communities from social injustice and exploitation.
Article 47 directs the state to raise the level of nutrition, improve the
standard of living and promote public health.
Article 48 is an important directive on organization of agriculture and
animal husbandry. It reflects constitution’s vision of creating sustainable
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NOTES agriculture and animal husbandry while also preserving and protecting such
animals as specified. It also asks for prohibiting the slaughter of cows and calves
and other milch cattle (ibid).

• Liberal and Intellectual Principles/Ideals (Article 39A, 44, 50):

These principles include several liberal and intellectual principles that promote
social, economic, and cultural progress. These principles promote individual
liberty and justice, freedom of economic activity, education, health, and encourage
scientific temper and humanism.
Article 39A deals in free legal aid to promote equality in justice. Article
44 is a directive to implement uniform civil code in India for the promotion of
uniformity of civil code thereby realising the sense of unity and integrity. Article
50 deals in separation of judiciary from the executive in the public services of
the state.
Article 48A is a directive to safeguard, forest, environment, and wildlife
of the country. Article 49 deal with protection of monuments and places objects
of national importance. Article 51 aims to promote international peace and
security (ibid).

4.5 RELATIONSHIP BETWEEN FUNDAMENTAL

RIGHTS AND DIRECTIVE PRINCIPLES OF
STATE POLICY

The Fundamental Rights and Directive Principles are equal in importance but
vary in degrees in terms of their salience/prominence assigned by the constitution
of India.
1. Fundamental rights are in the nature of limitation to a state action but DPSP
are positive instruments of instruction to the Indian state.
2. Fundamental rights aim at establishing rule of law and political democracy
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They are reflective of the liberal principles of government. While DPSP NOTES
are mainly Socialist, and Gandhian in orientation.
3. The Indian constitution makes Fundamental Rights justiciable, i.e. their
violation can be curbed through recourse to the judicial pronouncement.
The Directive Principles of State Policy aim at social welfare and economic
democracy by promoting just social economic and political order. In this
sense they are principles of governance that successive governments must
have action-oriented regard for. They are non-justiciable in nature in the
sense that they cannot be proclaimed through judicial pronouncements and
yet, for a balanced socio-economic development and an egalitarian social
order, they have been described as moral percepts.
4. The rights enumerated under Fundamental Rights tend to secure welfare
of individual but DPSP seek to promote the welfare of the community.
Together, the Fundamental Rights and Directive Principles of State Policy
comprise the human rights of an individual. According to Justice Bhagwati,
“Broadly Fundamental Rights represent civil and political rights while Directive
Principles embody social and economic rights and together form the board
spectrum of human rights”. They are intended to carry out the objective set out
in the Preamble of the Constitution, i.e. to establish an egalitarian social order
informed with political, social and economic justice, and ensuring dignity of the
individuals, both the mainstream and the vulnerable and marginalized. Together
they constitute what Justice Chandrachud described as the “conscience of the
constitution”. It is interesting to note that although Fundamental Rights and
Directive Principles appear in the Constitution as distinct entities, there was no
such demarcation made between them during the period prior to the framing
of the Constitution. According to Granville Austin, “Both types of rights had
developed as a common demand, products of the national and social revolutions,
of their almost inseparable intertwining, and of the character of Indian Politics
itself” (Austin, 1966).
They were both placed on the same pedestal and treated as falling within
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NOTES is because - together the FRs and the DPSPs contain the philosophy of the
Constitution. This philosophy can be described as the philosophy of the social
service state. Both the preamble and the Directive Principles of State Policy
give evidence of the unmistakable anxiety of the framers of the Constitution
as a mighty instrument for the economic improvement of the people and for
the betterment of their conditions. Equally noticeable throughout the relevant
provisions is their determination to achieve this result in a democratic way by the
rule of law. In other words, the provisions of Part III and Part IV considered in
the light of the preamble emphasize the need to improve the social and economic
conditions of the people and to attempt that task with the maximum permissible
individual freedom guaranteed in the citizens. In fact, it has been argued that
the Constitution adopts a two-fold strategy for the realization of these cherished
goals. Thus, Part III embodies and sanctifies the goals of liberty and equality
by enumerating and guaranteeing certain individual freedom. These freedoms
are made justiciable and thus enforceable against state encroachments. Part IV
which lay down the Constitutional Ideal of Justice enjoins the state to translate
the ideal into reality by necessary legislation. Guarantees of political and civil
rights thus minus social and economic rights are incomplete and insufficient to
satisfy the spirit of citizens. Similarly, the social and economic rights do not
attain the same values in absence of civil and political rights while the social
and economic rights provide the foundation of the building the latter (Civil and
Political Rights) provides the elevation.

4.6 CONSTITUTIONAL RELATIONSHIP BETWEEN

FRS & DPSP

Although FR’s and DPSP are complementary, there has been a controversy
surrounding the constitutional relationship (superiority or complementarity)
between Fundamental Rights and Directive Principles, fuelling at times, a larger
debate on the operation of parliamentary sovereignty and judicial supremacy.
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Constitutional amendments but also in the pronouncement of some of the classical NOTES
judicial decisions. The controversy hinges on the issue of superiority of Part III
or IV in case of conflict between them.
The Constitution of India has issued two broad mandates to the Parliament,
the Legislature of the states and to all the institutions of the Government:
1. Not to take away or abridge certain rights described as Fundamental
Rights, and to that purpose made the FRs justiciable under article 13.
2. To apply certain principles described as Directive Principles of the State
Policy through policy enactments.
The controversy and the debate primarily emanate from the justiciability
and the non-justiciability of the FRs and the DPSPs respectively. The FRs are self-
evident and negative in nature, do not require any law for their implementation
(except in a few cases). Additionally, in case of their violation they could
be restored through judicial interventions via the provisions of Article 13,
operative through Article 32 and 226. The directives on the other hand, aim at
general welfare mechanisms which require legislation for implementation and
enforcement.
In post independent India, adoption of welfare and distributive legislation
measures led to the restriction on individual rights like Right to Property.
Enactment of a law to give effect to one of the directives could thus end up
violating a FR and the violation could thus be challenged in the Supreme Court
or the High Courts under Art 32 or 226 respectively. The relation between
Fundamental Rights and Directive Principles changed from time to time in the
light of judicial interpretation which can be categorized in the following ways:
1. Superiority of Fundamental Rights
2. Directives as Providing Reasonable Restrictions on Fundamental Rights
3. Principles of Harmonious construction
4. Complementarity and Supplementarity
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NOTES Phase 1: Superiority of Fundamental Rights

The Supreme Court in its earlier decisions attributed paramount importance
to Fundamental Rights based on its justiciability. In the landmark judgment of
State of Madras vs Champakam Dorairajan (1951), it was stated that directive
principles were expressly made unenforceable by Article 37 and therefore could
not override the fundamental rights found in Part III which were enforceable
pursuant to Article 32. The court opined that the directive principles although
important in their own respect were required to adhere to the Fundamental Rights
and in the case of conflict Part III would prevail over Part IV.

Phase 2: Directives as Providing Reasonable Restrictions on

Fundamental Rights
In its second phase of interpretation, the Supreme Court placed reliance on the
Directive Principles for validating a number of legislations that were found not
violative of Fundamental Rights. The Directive Principles were regarded as a
dependable index of:
1. Public Purpose
2. Reasonableness of restrictions on Fundamental Rights.
In Bombay vs Balsara the Government of Bombay banned the consumption
of liquor except for medicinal preparation the court held that it amounted as
reasonable restriction under Article 19(6). Similarly, in the State of Bihar vs
Kameshwar Singh, the Supreme Court relying upon the Directive Principles
incorporated in Article 39(b) held that certain zamindari abolition laws had been
passed for a public purpose within the meaning of Article 31(2).

Phase 3: Harmonious Construction

In Mohammed Hanif Qureshi vs State of Bihar, the validity of U.P., M.P., and
Bihar legislation which banned the slaughter of certain animals including cows
was challenged. It was contended that this ban prevented the petitioners from
carrying on their butcher’s trade and its subsidiary undertaking and, therefore,
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(g). The Supreme Court held that under Art 13(2) the State shall not make any NOTES
law which takes away or abridges Fundamental Rights and as such the Directive
Principles cannot override this categorical restriction imposed on the legislative
power of the state. Yet, a harmonious interpretation has to be placed upon the
Constitution and so interpreted. It means that the state should certainly implement
the Directive Principles but it must do so in such a way that its laws do not take
away or abridge the Fundamental Rights. The court in this case for the first
time introduced the doctrine of harmonious construction as a new technique of
interpretation in this field. But this new technique was to be applied in such a
way as not to take away or abridge Fundamental Rights.
The first attempt in this direction was made with the enactment of the
Constitution, 25th Amendment Act 1971 introducing a new provision under
Article 31C into the Constitution. The objective of the amendment was that it
was enacted to get over the difficulties placed in the way of giving effect to the
Directive Principles of the State Policy. The first part of Article 31C provides that
“No law which is intended to give effect to the Directive Principles contained
in the Article 39(b) & 39(c) shall be deemed to be void on the ground that it is
inconsistent with or takes away or abridges any of the rights conferred by Article
14 or 19”. The Second part of Article 31C provided that “No law containing a
declaration that it is for giving effect to such policy can be called into question
on the ground that it does not, in fact, give effect to such a policy”. The validity
of the first part of Article 31C was upheld in the Kesavananda Bharati Case but
the second part of this article which barred the judicial scrutiny of such laws was
struck down as unconstitutional.
After 1972 the value of the Directive Principles underwent a metamorphosis.
Article 31C gave primacy to Article 39(b) & (C) over Article 14, 19 & 31C. The
court emphasized that there is no disharmony between the directive principles
and the fundamental rights as they supplement each other in aiming at the
same goal of bringing about a social revolution and the establishment of a
welfare state, which is envisaged in the preamble. The courts, therefore, have
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NOTES of the Directive Principles and to harmonize the social objectives underlaying
them with individual rights.

Phase 4: Complementarity and Supplementarity

In Minerva Mills vs Union of India, the Supreme Court by 4:1 majority struck
down Article 31C as amended by 42nd amendment as unconstitutional on the
ground that it destroys the basic feature of the Constitution. The court held that
Article 31C was beyond the amending power of the parliament and was void
since it destroys the basic features of the Constitution by a total exclusion of
challenge to any law on the ground that it was inconsistent with any of the rights
conferred by Article 14 or 19 of the Constitution. The majority observed that
the Constitution is founded on the bedrock of the balance between Part III and
IV. To give absolute primacy to one over the other is to disturb the harmony of
the Constitution which is the essential feature of the basic structure. The Court
held that the unamended Article 31C is valid as it does not destroy any of the
basic features of the Constitution. The unamended Article 31C gives protection
to a defined and limited category of laws i.e. specified in Article 31(b) & (c).
They are vital for the welfare of the people and do not violate Article 14 and
19. In fact, far from destroying the basic structure, such laws if passed bonafide
for giving effect to the directives in Article 39(b) & (c) will fortify the structure
(Sharan 1978).

Conclusion
The Directive Principles of State Policy (DPSP) and Fundamental Rights in the
Indian constitution represent two essential pillars that work together to ensure the
well-being of citizens. While Fundamental Rights are justiciable and guarantee
individual freedoms and protections, the directive principles act as guidelines for
the state to create a just and equitable society. Although the two may appear to
conflict at times, there is a harmonious relationship where Fundamental Rights
safeguard individual liberties and DPSPs guide the state in promoting social
welfare and economic justice. The courts in India have worked to balance these
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strives to create a society where individuals can enjoy their rights while the state NOTES
works towards common good and social development.

In-Text Questions
1. The Directive Principles of State Policy are outlined in Part ______ of
the Indian Constitution.
2. The DPSPs are borrowed from the Constitution of ______.
3. DPSPs are non-justiciable, meaning they cannot be enforced in a
______.
4. Article 39A deals with providing free ______ to promote equality in
justice.
5. Article ______ of the DPSP calls for the implementation of a uniform
civil code in India.
6. The 25th Amendment introduced Article ______, giving certain DPSPs
primacy over Fundamental Rights.
7. In the Minerva Mills case, the Supreme Court struck down parts of
Article ______.
8. Gandhian ideals in DPSPs promote the organization of ______ for local
governance.
9. Article ______ emphasizes the separation of the judiciary from the
executive.
10. The Supreme Court gave precedence to Fundamental Rights over DPSPs
in the ______ case.

4.7 SUMMARY

• The Directive Principles of State Policy (DPSP) are outlined in Part IV

of the Indian Constitution. They were borrowed from the Constitution of
Ireland and are considered guiding principles for governance.

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NOTES • DPSPs set out social, economic, and political aims to ensure justice and
welfare for the citizens.
• Although non-justiciable, DPSPs act as positive obligations on the state
for law-making and governance.
• Fundamental Rights and DPSPs together aim to balance individual liberties
and social welfare.
• DPSPs are classified into four ideals: Socialistic, Gandhian, Western
Liberal, and Ideals from the Freedom Struggle.
• Socialistic ideals include minimizing income inequality and promoting
equal opportunities (Articles 38, 39, 41, etc.).
• Gandhian ideals promote local governance through Panchayats and the
welfare of weaker sections (Articles 40, 46, etc.).
• Western Liberal ideals cover free legal aid, a uniform civil code, and the
separation of powers (Articles 39A, 44, 50).
• Intellectual and liberals ideals include protection of the environment and
cultural heritage (Articles 48A, 49, 51).
• Fundamental Rights, being enforceable, secure political democracy, while
DPSPs focus on social and economic democracy.
• DPSPs and Fundamental Rights are complementary, together forming the
“conscience of the constitution.”
• The conflict between DPSPs and Fundamental Rights has led to landmark
judicial decisions.
• In the early years, the Supreme Court held Fundamental Rights superior
to DPSPs (Champakam Dorairajan case).
• The 25th Amendment introduced Article 31C, giving primacy to certain
DPSPs over Fundamental Rights.

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• The Supreme Court later ruled that both DPSPs and Fundamental Rights NOTES
must be harmonized to maintain balance.
• The Minerva Mills case struck down parts of Article 31C, restoring the
balance between Fundamental Rights and DPSPs.
• DPSPs guide governments in areas like healthcare, education, and poverty
alleviation.
• They are seen as a blueprint for creating a welfare state, promoting justice
and equality.
• The implementation of DPSPs is a measure of the success or failure of
governments in achieving social welfare goals.

4.8 GLOSSARY

• Directive Principles of State Policy: It is the non-enforceable principles

that guide the state’s governance towards social justice.
• Fundamental Rights: These are enforceable rights that guarantee
individual freedoms and protect against state encroachment.
• Socialistic Ideals: These are DPSPs focused on reducing inequality and
promoting social welfare.
• Gandhian Ideals: These are principles promoting rural development,
panchayats, and welfare for weaker sections.
• Western Liberal Ideals: These are DPSPs promoting free legal aid,
uniform civil code, and separation of powers.
• Article 39A: This is the article where DPSP ensures free legal aid for all
citizens.
• Article 44: This is the article where DPSP advocates for a uniform civil
code in India.
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NOTES • Article 50: This is the article where DPSP calls for the separation of the
judiciary from the executive.
• Minerva Mills Case: It is a case that restored the balance between DPSPs
and Fundamental Rights.
• Article 31C: It is an article that gave precedence to DPSPs over certain
Fundamental Rights.
• 73rd Amendment: It is the amendment that introduced Panchayati Raj
institutions.
• Panchayat: It is the local self-government institution in rural areas.
• Welfare State: It is a state that actively seeks to ensure the well-being of
its citizens through social policies.

4.9 ANSWERS TO IN-TEXT QUESTIONS

1. IV
2. Ireland
3. Court
4. Legal aid
5. 44
6. 31C
7. 31C
8. Panchayats
9. 50
10. Champakam Dorairajan

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NOTES
4.10 SELF-ASSESSMENT QUESTIONS

1. What are the directive principles of state policy in constitution?

2. Examine the relationship between fundamental rights and directive
principles of state policies.
3. Define fundamental duties in Indian constitution.

4.11 REFERENCES/SUGGESTED READINGS

• Reddy, S. Sundara Rami. Fundamentalness of Fundamental Rights and

Directive Principles in the Indian Constitution. Journal of the Indian Law
Institute, Vol. 22, No. 3, July-September, 1980, pp. 399- 407.
• Austin, Granville. The Indian Constitution Cornerstone of a Nation. Oxford
University Press, Delhi, 1966, pp. 50.
• Ray, Aswini K. Human Rights Movement in India: A Historical Perspective.
Economic and Political Weekly, Vol. 38, No. 32, Aug. 9-15, 2003, pp.
3409-3412
• Sharan, P. Constitution of India and Judicial Review. The Indian Journal of
Political Science, Vol. 39, No. 4, October-December, 1978, pp. 526-537.
• 1 SCR 89. Sankari Prasad v. Union of India, 1952.
• SC 845 Sajjan Singh vs state of Rajasthan, 1965.
• AIR 1967 SC 1643. Golaknath vs state of Punjab.
• AIR 1973 SC 1461. Keshavnand Bharati v. State of Kerala.
• AIR 1980 SC 1789. Minerva Mills v. Union of India.
• Air 1951 SC 226. State of Madras vs. Srimathi Champakam Dorairajan
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NOTES • AIR 1951 Pat 246. Kameshwar Singh vs Province of Bihar on 24 January,
1950.
• 1958 AIR 731, 1959 SCR 629. Mohd. Hanif Quareshi & Others vs The
State of Bihar (and Connected ... on 23 April, 1958).
• Basu, D. D. Introduction to the constitution of India, 19th Reprint Edition,
Wadhwa, Nagpur, 2005, pp. 102-143.
• Author(s): Devidas, T. Directive Principles: Sentiment or Sense?. Journal
of the Indian Law Institute, Vol. 17, No. 3, July-September, 1975, pp. 478
- 480.

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Unit V: Organs of Constitutional Governance: Legislative,
Executive and Judiciary

Lesson 5: Organs of Constitutional Governance: Legislative and Executive

Lesson 6: Organs of Constitutional Governance: Judiciary

Organs of Constitutional Governance: Legislative and Executive

LESSON 5 NOTES

ORGANS OF CONSTITUTIONAL
GOVERNANCE: LEGISLATIVE AND
EXECUTIVE

Manila Narzary
Assistant Professor, Kalindi College, DU

STRUCTURE
5.1 Learning Objectives
5.2 Introduction
5.3 The President
5.4 Qualifications to become President
5.5 Elections of the President
5.6 Powers of the President
5.7 Position of the President
5.8 The Prime Minister
5.9 Summary
5.10 Glossary
5.11 Answers to In-Text Questions
5.12 Self-Assessment Questions
5.13 References/Suggested Readings

5.1 LEARNING OBJECTIVES

After reading this lesson, students should be able to:

• Understand about the organs of constitutional governance
• Discuss about Legislative and Executive as an organ of Government
• Analyse the Powers and Position of the President and Prime Minister
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NOTES
5.2 INTRODUCTION

Executive refers to that wing of government which enforces the laws enacted by
the legislature and carries on the general administration of the country. According
to Prof. Garner the executive organs embraces the totality of all the functionaries
and agencies which are concerned with the execution of the will of the state as
formulated and expressed in terms of law. The Indian constitution, which has
followed the British Parliamentary pattern, has provided for executive at the
center and in each of the states. Though the formal executive authority at the
Centre and in the States is vested in the President and the Governor respectively,
in actual practice this authority is exercised by the Council of Ministers.

5.3 THE PRESIDENT

The constitution of India envisages a parliamentary form of government in

India. Although Article 53 of the constitution says that the executive power of
the Union shall be exercised by the president either directly or through officers’
subordinate to him/her, in practice the president has to abide by the decisions of
the council of Ministers with the Prime Minister at the head.
The president in the constitution is not a figurehead. He/she is the
embodiment of the ultimate authority of the constitution, which moves only on
threat to constitutional government. The president’s oath of office compels him/
her “to preserve, protect, and defend the constitution and the law” and “to devote
himself to the service and wellbeing of the people of India.” The supremacy of
the president lies in securing the supremacy of the constitution.
The importance of the president in the constitutional set-up of the country
is disclosed by the manner of his/her election. He/she is elected by the members
of an electoral college consisting of:
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(i) The elected members of both the Houses of Parliament NOTES

(ii) The elected members of the Legislative Assembly of the states
including union territories of Delhi and Puducherry.
The suggestion that the Electoral College should consist of members of
parliament alone was turned down so that “the president might not be a creature
of the majority in the power and a pale replica of the prime minister.” This
would show, in the first place, that the president is not merely a figurehead and
in second place, that s/he represents the people of India, as against the Union
Ministers who represent only the majority party in parliament, thus making him/
her not only head of the union, but also the Chief of the Nation and the country.

5.4 QUALIFICATIONS TO BECOME PRESIDENT

The qualifications for the office of the president are contained in Article 58 and
59 and the presidential Election Act and are as follows:
a. He/she should be a citizen of India.
b. He/she should have completed thirty-five years of age.
c. He/she should be qualified for election as a member of the Lok Sabha.
d. He/she should not hold any 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.
e. He/she should not be a member of either House of Parliament or a State
legislature. If any such person is elected as president, his/her seat in the
parliament or the state legislature is deemed to have been vacated.
f. A candidate contesting election for the office of president has to deposit a
security of Rs.15000 with his/her nomination papers. This has been done
to prevent fake or non-sincere candidates from contesting elections.

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NOTES Certain office holders, however, are also permitted to stand as presidents.
They are:
1. The current Vice President
2. The governor of any State
3. A minister of the union or any state (including Prime Minister and Chief
Minister)
In such situations when Vice president, a state Governor or Minister is
elected as a president, they are considered to have vacated their previous office
on the date they began serving as President.
Further, Article 59 enumerates that the president shall be entitled without
payment of rent to the use of his/her official residences and shall also be entitled
to such emoluments, allowances, and privileges as may be determined by
parliament by law and until provision in that behalf is so made, such emoluments,
allowances, and privileges as are specified in the Second Schedule which cannot
be diminished during his or her term of office.

5.5 ELECTIONS OF THE PRESIDENT

The president is indirectly elected through an electoral college to ensure due

representation to the union as well as the states. The Electoral College consists of:
(i) The elected members of both the houses of parliament.
(ii) The elected members of the Legislative Assemblies of the states and union
territories of Delhi and Puducherry.
The nominated members of parliament or State legislature do not take
part in president’s elections. The election is held according to the system of
proportional representation through a single transferable vote. The constitution
tries to ensure uniformity among the states and parity between the Union and
the States. Therefore, the constitution laydown that the elected members of the
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of 1000 in the quotient obtained by dividing the population of the state by the NOTES
total number of members of the Assembly. In short, the number of votes which
each member of the Legislative Assembly is entitled to caste in the Presidential
election is based on the population of the state.
Similarly, the constitution tries to maintain a parity between the strength
of the states and the parliament and provides that each member of the parliament
shall be entitled to cast as many votes as are obtained by dividing the total number
of votes of the Legislative Assemblies of all the states by the total number of
elected members of the two houses of the parliament. All disputes regarding the
election of the President are inquired into and decided by the Supreme Court of
India, whose decision is final.

Oath
Before assuming office, the president has to take an oath or an affirmation in
the presence of the Chief Justice of India, or, in his/her absence, the senior most
judge of the Supreme Court.

Term of the Office and Removal

The president holds office for a term of five years from the date on which s/he
assumes his/her office. He/she continues in office even after the expiry of his/
her term until his/her successor is elected and the office assumed by him/her.
The president is eligible for re-election. Actually Dr. Rajendra Prasad, the first
president of India, held office for two terms. Thereafter no president has held
office for more than one term. The president can resign his/her office before the
expiry of five years, by addressing his/her resignation to the Vice- President.

Impeachment
The president can be removed from his/her office before the expiry of his/her
term through impeachment. According to the constitution, the president can be
impeached only for a violation of the constitution. Impeachment proceedings can
be initiated in the house of the parliament. Thereafter, the other house investigates
the charges. The president is given a chance to be present at such investigation. If Self-Instructional
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NOTES the investigating house also passes a resolution by two-thirds majority of the total
membership of the house sustaining the charge, the president stands impeached
from the date on which the resolution is passed.

Vacancy
In case the office of the president falls vacant due to death, resignation, or removal
of the president, the vice-president of the India becomes the president till fresh
elections are held for the post and the new incumbent assumes office. Under the
constitution, such elections have to be held within six months of the occurrence
of vacancy. Similarly, if the president is not able to discharge his/her duties due
to the sickness or absence due to other reasons, the vice-president discharges
the functions of the president. When the vice-president acts as the president s/
he is entitled to the same salary, allowances and privileges which are available
to the president. In case the vice-president of India is not available to discharge
the duties of the president, the Chief justice of India performs these duties. This
happened when V.V. Giri, Vice-president of India, who was acting as the president
after the death of Dr. Zakir Hussain, tendered his resignation. Thereupon, the
then Chief Justice of India, M. Hidayatullah assumed the office of the president.

Privileges of the President

The president enjoys a number of privileges. Some of them are:
• He/she is not answerable to any court for the exercise of power and the
performance of the duties of his/her office except through impeachment
proceedings.
• No criminal proceedings can be instituted against him/her in any court
during his/her term of office.
• He/she cannot be arrested or imprisoned during his/her term of office.
• No civil proceedings can be instituted against him/her in any court in
respect of any act done by him/her in his/her personal capacity, during
his/her term of office.
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NOTES
5.6 POWERS OF THE PRESIDENT

The president is the executive head of the state and has been vested with a variety
of powers which can be studied under the following heads:

Executive Power
The constitution vests all the executive authority of the Union in the president
which s/he may exercise either directly or through the officers subordinate to
him/her. The executive powers of the president extend to all those matters with
respect to which the parliament has the exclusive power to make laws. All
executive orders are expressed to be taken in his/her name. All contracts of the
Union Government are also executed in the name of the president. According to
Article 53(2), the President is also supreme commander of the armed forces of
India and has the power to declare war and make peace. All the major executive
appointments of the Union Government are also made by the president. Some
of the important appointments made by the president include the Prime Minister
and other members of the Council of Ministers; the Governor of the states;
Attorney General of India; Chairman and Members of the Union Public Service
Commission; the Comptroller and Auditor General of India; Chief Justice and
Judges of the Supreme Court; Chief Justice and Judges of the High Courts; the
commissioner of scheduled caste and scheduled tribes and Backward classes;
Members of Finance Commission; Ambassadors and other Diplomatic envoys,
etc. It may be observed that though formally all the above executive powers are
vested in the president s/he exercises them in the advice of the Prime Minister
and his/her Council of Ministers. Earlier it was not obligatory for the president
to accept this advice but the 42nd Amendment made it obligatory for the president
to exercise his/her functions in accordance with the advice of the Council of
Ministers.
However, under the 44th Amendment the President has been authorized
to refer back the matter to the Council of Ministers for reconsideration. But if
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NOTES President, the latter has to abide by the same. This modification was made to
ensure that the situation which arose in 1975 when the President signed the
Proclamation of Emergency on the advice of the Prime Minister (Mrs. Indira
Gandhi), even though she had not consulted the cabinet, does not recur.

Legislative Powers
As an integral part of the Parliament, the president of India enjoys extensive
legislative powers. He/she can summon and prorogue the two houses of
parliament and can dissolve the Lok Sabha. In case of conflict between the two
houses of parliament, the president can call a joint sitting of both the houses to
resolve the deadlock. The president addresses either house of parliament or a
joint session of the two houses at the commencement of each session. The first
session of parliament each year also starts with an address from the president.
In this address, the president outlines the general policy and programme of the
government. The address of the president is prepared for him/her by the council
of Ministers. The president also reserves the right to send messages to either
house of parliament with respect to pending bills or otherwise and the house is
duty bound to consider his/her message. Certain bills can be introduced in the
parliament only on the recommendation of the president. The president also
enjoys the final authority to decide the questions regarding disqualification of
members and his/her decision in this regard is final. However, in this matter, the
president acts on the advice of the election commission.
The president nominates 12 members to the Rajya Sabha amongst the
people who have distinguished themselves in fine arts, literature, social service,
etc., the president also reserves the rights to nominate two members of the Anglo-
Indian Community to the Lok Sabha if s/he is satisfied that the community has
not been adequately represented in the house. However in January 2020, Anglo-
Indian reserved seats in the parliament were abolished by 104th constitutional
Amendment Act. All the bills after they are passed by the two houses of parliament
must receive the assent of the president. When a bill is presented to the president
for his/her assent, s/he can either sign it or refuse his/her signature and return
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the bill to the originating house for reconsideration. However, if the parliament NOTES
repasses the bill and sends the same to the president, s/he has to append his/her
signature. Thus, the parliament can overrule the veto of the president.
Finally, the president can promulgate ordinances during the recess of
the parliament if s/he is satisfied that the circumstances warrant an immediate
action. It may be observed that the satisfaction of the president virtually means
satisfaction of the council of ministers. Therefore, the president always issues
ordinances on the advice of the council of ministers. The ordinances issued by the
president have the same force as a law of parliament. Further, the ordinance has
to be placed before both the houses of the parliament. If the parliament does not
take any action on the ordinance for six weeks, the ordinance shall automatically
lapse after the expiry of this period. The ordinance shall cease to operate if the
two houses of the parliament pass a resolution disapproving the same before the
expiry of six weeks. But if the two houses of parliament accord their approval
to the ordinance, it becomes an act.
The legislative powers of the president also extend to matters falling under
the jurisdiction of the state legislature. Under the constitution, the governor of the
state can reserve certain bills, presented to him/her for his/her assent by the state
legislature, for the consideration of the president. Further, certain bills cannot
be introduced in the state legislature without prior sanction of the president.
Similarly, some bills passed by the state legislature come into force only after
presidential assent. The president also enjoys the power to issue regulations for
the Union Territories of Andaman and Nicobar Island and Lakshadweep Island,
Minicoy and Amindivi Islands. These regulations have the same force as the laws
of the parliament. The president also lays the reports and recommendations of
several important bodies and Commissions before the parliament like UPSC,
Finance Commission, CAG, etc.

Financial Powers
The president also enjoys substantial financial powers. No money bill can be
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NOTES the beginning of the financial year, the president causes to be laid before the
parliament the annual Financial Statement showing the estimated receipts and
expenditure of the Union Government. Similarly, no bill imposing or altering any
tax or duty in which the states are interested can be introduced in the parliament
without the recommendation of the president.
The constitution places the Contingency Fund of India at the disposal of
the president who is authorised to make advances out of it to meet the unforeseen
expenditure pending and determines the share of the states in the income tax
receipts. He/she also decides about the grants in aid to be made to the states of
Assam, Bengal, Bihar, and Orissa in lieu of their share of the jute export duty.
Every five years the president appoints a Finance Commission, consisting of a
chairman and four other members to make recommendations to him/her regarding
the distribution of such taxes as to be divided between the Union and the States.
The Finance Commission also advises on the principles which should govern
the grants-in aid to the states out of the consolidated fund of India. The president
can also seek advice of the Finance Commission on any other issue concerning
the sound finances.

Judicial Powers
First and foremost, the president has the power to appoint the Chief Justices and
other judges of the Supreme Court and the High Courts. He/she can also dismiss
them only after an address by each house of the parliament supported by majority
of the total membership of that house and by majority of not less than two third of
the members of the house present and voting has been presented to the president
in the same session for such removal on the ground of proved misbehaviour or
incapacity. Mentioned in Article 124(4) of the constitution. The power of pardon
exists to prevent injustice whether from harsh, unjust laws, or from judgments
which result in injustice, hence the necessity of vesting that power in an authority
other than the judiciary has always been recognized.
The president can seek advice from the Supreme Court on any question of
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respite, or remission or commute of punishment to any person convicted of any NOTES

offence like:
a) In all cases where the punishment or sentence is by a court martial.
b) In all cases where the punishment or sentence is for an offence against
any law relating to matters within the executive power of the Union.
c) In all cases where the sentence is of death.
It may be observed that the president can grant pardon at any stage after
the commission of the offence viz., before legal proceedings are instituted, during
pendency of proceedings or after the conviction. The president enjoys legal
immunity and is not answerable to any court of law for anything done in the
exercise of his/her official duties. He/she can neither be arrested, nor can judicial
proceedings be instituted against him/her in any court law. Civil suits can however
be brought against the president only after giving him/her a written notice of at
least two months. So far, no such suit has been brought against the president.

Emergency Powers
The constitution arms the president with extensive emergency powers. The
constitution has envisaged three types of emergencies. They are:
a) Emergency due to war, external aggression, or armed rebellion.
b) Emergency due to failure of constitutional machinery in a state.
c) Emergency due to threat to the financial stability of the country.
They are explained in detail below:

a) Emergency due to war, external aggression, or armed rebellion:

Article 352 provides that “If the president is satisfied that the security of India is
threatened by foreign attack or armed rebellion, he/she can make a proclamation
of emergency in respect of the whole of India or any part of the country.” It is
noteworthy that the president can make such a proclamation even when s/he feels
that there is imminent danger to the security of India. During the proclamation
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NOTES of emergency, the president can modify the distribution of power between the
Union and the States and suspend the enforcement of fundamental rights. The
president can make such a proclamation for whole of India or any part of it. The
courts cannot examine whether the grounds of emergency did exist in fact. The
satisfaction of the president is enough to make a proclamation of emergency.
The proclamation of emergency has to be laid before each house of
parliament and ceases to operate at the expiry of one-month period unless within
this period the proclamation is approved by the resolutions of both the houses of
the parliament. However, if the proclamation of emergency is issued at a time
when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes
place during the period of one month without approving the proclamation, the
proclamation must be placed before the Rajya Sabha for approval. It must be
placed before the Lok Sabha as soon as it re-assembles. Unless the Lok Sabha
passes a resolution approving the proclamation earlier, the proclamation shall
cease to operate after the expiry of 30 days from the date on which the Lok
Sabha held its first meeting after re-election. It may be noted that in terms of 44th
amendment act the resolution approving the proclamation has to be passed by
special majority viz. two-thirds of the members present and voting in each house.
The proclamation of emergency, if approved by parliament, remains in force
for a period of six months from the date of passing the resolution, approving it,
unless revoked earlier. Thereafter the parliament can approve the continuation of
emergency for six months at a time. The Lok Sabha may move a resolution for
disapproving the continuance of the proclamation of emergency by giving a notice
in writing signed by not less than one-tenth of the total number of members of
the house. Such a notice has to be given to the speaker, if the house is in session
and to the president, if the house is not in session. A special meeting of the Lok
Sabha has to be called within 14 days of the receipt of the notice by the speaker
or president for the purpose of considering the resolution.

b) Emergency due to failure of constitutional machinery in a state:

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president, on receipt of report from the Governor or otherwise, is satisfied that NOTES
the government of a state cannot be carried on in accordance with the provisions
of the constitution, s/he can make a proclamation of emergency. During such
emergency the president can assume to him/herself all or any of the functions
of the state government and all or any of the powers vested in or exercisable by
governor or any body or authority in the state other than the legislature of the
state. And also, can declare that the powers of the legislature of the state shall
be exercised by or under the powers of the parliament. This means that the law-
making power of the state is suspended during the emergency and the distribution
of legislative powers between Centre and States is fundamentally changed.
Every proclamation has to be laid before each House of Parliament and
continues in force for two months unless approved by resolutions of both houses
of the parliament. Such proclamation continues for six months and can be
extended by subsequent resolution of parliament by six months at a time but not
beyond three years. After the expiry of this minimum time limit of three years,
neither the parliament nor the president can continue emergency in the state and
the constitutional machinery has to be restored there. In original Article 356,
the period was six months at a time of 42nd Amendment. But 59th Amendment
provided special provision to continue president’s rule beyond three years only
in Punjab. 63rd Amendment repealed Amendment 59 but 65th Amendment again
gave power to parliament to extend president’s rule in Punjab.
Earlier 38th Amendment had made it clear that the satisfaction of the
president shall be final and conclusive and shall not be questioned in any court on
any ground. This provision has been omitted by 44th Amendment. But in general
courts have taken a position that such a proclamation was a political matter and
not a legal one, therefore, they cannot pass a judgment on the same.
A proclamation of emergency under Article 356 means that the president
assumes to him/herself, all or any of the functions of the Government of the state
including those belonging to the Governor or any other authority. It is because
of this that this emergency is called “President’s Rule”.
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NOTES c) Emergency due to threat to the financial stability of the country:

According to Article 360 the president can declare financial emergency if s/he is
satisfied that a situation has arisen whereby the financial stability or credit of India
or of any part of the territory thereof is threatened. During such an emergency
s/he can direct the union as well as the state government to observe such canons
of financial propriety as s/he may deem desirable. All money bills and financial
bills have to be reserved for the consideration of the president after they are
passed by the legislatures of the state. He/she can also ask them to reduce salaries
and allowances of all or any class of state servants. He/she can direct the states
to reserve their money bills for his/her consideration. He/she can even order the
reduction of salaries of judges of the Supreme Court and the High Courts.
Diplomatic Power: The president represents India in the international
affairs and enjoys extensive diplomatic powers. He/she sends Indian diplomatic
envoys to foreign states and receives their envoys accredited to India. He/she
can also ask the foreign diplomats to leave the country by declaring them as
persona-non-grata. All the international treaties and agreements are concluded
by India on behalf of the president and are subjected to his/her final signature.

5.7 POSITION OF THE PRESIDENT

The position of the president has been a subject of great controversy ever since
the inauguration of the constitution. Different scholars have broadly expressed
two views. Those who have taken a purely legalistic view of his/her position
assert that the constitution has vested all the executive powers in the President
which s/he can exercise either directly or through officers subordinate to him/
her. There was no mention in the constitution before the enactment of the 42nd
Amendment that the President was bound to accept the advice of the Council of
Ministers. Naturally these scholars assumed that the president could act on his/her
own and assume autocratic powers. As opposed to this, some other scholars have
viewed the position of the president in the context of the parliamentary system
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of government adopted in the country. They have argued that the president is NOTES
expected to be merely a constitutional ruler and the real authority rests with the
popularly elected Council of Ministers, since power and responsibility must go
hand in hand. This view was given a formal legal shape by the 42nd amendment
which clearly stipulated that the president in the exercise of his/her functions shall
act in accordance with the advice of the Council of Ministers. The Amendment did
not permit the president to even play the role of an adviser or a guide. The limited
role of the president of India was further confirmed by the 44th Amendment,
which provided that “The president may require the Council of Ministers to
reconsider such advice, either generally or otherwise, and the president shall
act in accordance with the advice tendered after such reconsideration”.
According to Dr. Bhim Rao Ambedkar, who was the chairman of the
Drafting Committee of the constitution, “The president occupies the same position
as the king under the English constitution. He is the head of the Nation but does
not rule the Nation. He will be generally bound by the advice of the Ministers.
He can do nothing contrary to their advice, nor can do anything without their
advice.” A similar view was expressed by Dr. Rajendra Prasad as the president
of constituent Assembly in these words: “Although there is no specific provision
to accept the advice of his ministers, it is hoped that the Convention under
which in England the king always acted on the advice of the Ministers, would be
established in this country also and the president would become constitutional
president in all matters”.
Despite the limited role envisaged for the Indian president by the 42nd
and 44th amendments, it would be certainly wrong to assert that the president is
merely a rubber stamp and has no discretion in any matter. The weak position
of the president does not mean that his/her office is superfluous. He/she plays
a vital role in the working of the Government. Being impartial and above party
politics, s/he exerts or is likely to exert his/her influence on the decision of the
Prime Minister. A capable president can certainly make his/her weight felt both
by executive and the legislative departments. He/she can send messages to the
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NOTES to him/her. He can greatly influence the decision of the cabinet through advice
and criticism. Under certain conditions he/she can make use of his/her discretion.
For example, if no single political party is able to get a clear cut majority in the
Lok Sabha, the president can show some discretion in the selection of the Prime
Minister.
No president till date however, has exceeded his/her authority and has
asserted himself/herself. Most of the presidents have played constructive role
and have guided the Indian Government meaningfully. During the emergency
in India caused by the Chinese invasion, president Radhakrishnan conducted
himself in a noble and dignified way. He did not overdo his role, nor did he try
to assert his authority. There has been no rivalry in India between the president
and the prime minister. Both have acted in perfect co-operation. However, serious
differences developed between the former president Giani Zail Singh and Prime
Minister Rajiv Gandhi during the former’s tenure of last few months.
However, it cannot be doubted that the real executive power lies in the
Prime Minister and his/her Council of Ministers, and the President is the only
formal executive.

5.8 THE PRIME MINISTER

The Prime Minister occupies a pivotal position in the union executive. Unlike
Britain where the Prime Minister does not enjoy any constitutional status, the
office of the Prime Minister in the India has been created by the constitution.
Article 74(1) of the constitution provides that “There shall be Council of Ministers
with the Prime Minister at the head to aid and advice the President who shall,
in the exercise of his functions, act in accordance with such advice.”
The prime minister is appointed by the President. However, the President
has to appoint only such a person as Prime Minister who commands majority
in the Lok Sabha. This means that if a single party has majority in Lok Sabha,
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hand, if there is no single party with majority in the Lok Sabha or there is no NOTES
recognized leader of the majority party, the President can use some discretion
in the appointment of the Prime Minister. Even in this case the president has to
ensure that only such a person is appointed as Prime Minister who shall be able
to muster majority support in the parliament.

Term of Prime Minister

Term of office Prime Minister holds office for a term of five years. However, if
the life of the Lok Sabha is extended beyond five years, the term of the Prime
Minister gets automatically extended. Similarly, if the Lok Sabha is dissolved
before the expiry of its five years term, the term of the Prime Minister is
automatically cut short.
Theoretically the Prime Minister holds office during the pleasure of the
President, but actually s/he remains in office as long as s/he enjoys the confidence
of the Lok Sabha. If s/he loses the confidence of the Lok Sabha, the Prime Minister
must either tender his/her resignation or the President can dismiss him/her.

Salary and Allowances

The Prime Minister gets a monthly salary and other allowances which are paid
to members of parliament. He/she also receives constituency allowances at the
same rate to which the MPs are entitled. In addition, the Prime Minister gets a
sumptuary allowance per month. Over and above s/he is entitled to free house,
medical facilities and travelling allowances.

Powers and Functions of the Prime Minister

The Prime Minister as the chief adviser of the president and the Chairman
of the Council of Ministers enjoys very extensive functions and powers. The
constitution acknowledges the primary position of the Prime Minister in the
council of ministers by specifically providing that “there shall be Council of
Ministers with the Prime Minister as its head” to aid and advise the President.
Even if the constitution had not specifically assigned a primary position to the
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NOTES known fact that in the Parliamentary system of government, the Prime Minister
is the Centre of executive and imparts content and meaning to the policies to
the government. The powers of the Prime Minister can be conveniently studied
under the following categories:
1. In Relation to the Council of Ministers: The prime minister occupies a key
position in relation to the council of ministers. All members of the council of
ministers are appointed by the president on the advice of the prime minister.
However, the prime minister is not absolutely free to include any one in
his/her council and has to keep several practical considerations in mind
while forming the council. After the council of ministers is constituted,
it is the prerogative of the prime minister to allocate various portfolios
among the ministers. He can also reshuffle these portfolios subsequently
in the interest of administrative efficiency. In case of difference of opinion
between the prime minister and other ministers, the prime minister can
either advise the minister to tender his/her resignation or recommend his
dismissal to the president. As the Chairman of the council of ministers,
the prime minister determines its agenda and proceedings, and influences
the decisions of the council of ministers in a decisive manner. Above all,
the prime minister co-ordinates the working of the various ministries and
ensures that their policies and programmes do not conflict.
2. In Relation to the President: The prime minister is the chief channel
of communication between the president and the council of ministers.
According to Article 78, it is the duty of the prime minister to communicate
to the president all decisions of the council of ministers. Similarly, if
the president so desire, the prime minister has to submit a matter for the
consideration of the council of ministers, if the decision has been taken
by an individual minister but no decision has been taken by the council
of ministers as such. The prime minister is also duty bound to supply
such information to the president regarding proposal of legislation and
administration of the Union, as the president may call for. It is significant to
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note that no other member of the council of ministers is authorized to make NOTES
any direct communication with the president unless s/he is so authorized.
The president acts on the advice of the prime minister with regard to the
appointment of important officials like the Chief Justice of India, the
judges of Supreme Court, the Chief Justice and judges of the High Courts;
Comptroller and Auditor General; Chairman and members of Union Public
Service Commissioner; Election Commissioner; Governors; Chief of the
Army, Navy, and Air Force; Ambassadors and High Commissioners and
other officials.
3. In relation to the Parliament: The prime minister is intimately connected
with the parliament. In fact, s/he is appointed as prime minister only
because s/he is the leader of the majority party in Lok Sabha. After his/her
appointment, prime minister and the council of ministers are collectively
responsible to the parliament and stays in office as long as it enjoys the
confidence of the majority of the members of Lok Sabha. The prime
minister has to justify the policy and programmes of his/her government
in the floor of the parliament. In fact, all important policy announcements
are made by the prime minister on the floor of the parliament. The prime
minister also exercises control over the time table of the house. Its sessions
are convened and prorogued by the president on the advice of the prime
minister. The president dissolves the Lok Sabha on the advice of the prime
minister.
4. In Relation to the Party: Prime minister is an important leader of the party
and greatly influences its working and decisions. He/she keeps in constant
touch with other important members of his/her party to ensure the party
solidarity and support. Prime minister is fully aware that the continued
existence of his/her government depends on party support. Therefore, s/he
tries to maintain the best of relations and control over party leaders. Quite
often the prime minister him/herself acts as the president of the party. But
at present, prime minister and the president of the party are separate. It is
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NOTES a well-known fact that at times prime minister like Pt. Jawaharlal Nehru,
Mrs. Indira Gandhi, Mr. Charan Singh, and Mr. Rajiv Gandhi were also
the president of their political parties.
5. Conduct of International Relation: The prime minister also plays an
important role in conduct of international relations. Generally, the prime
minister keeps the portfolio of external affairs with him/her. Even if some
other minister is in charge of this department, s/he works in complete co-
operation with the prime minister and keeps him/her posted with all the
recent developments. The prime minister represents the country in the
various international conferences, and plays a vital role in the conduct of
country’s international relations.
6. Power of Patronage: The president of India is head of the state while
prime minister is the head of the government. He/she enjoys great power
of patronage. Although the president of India is vested with many executive
powers, in actual practice he or she acts only at the advice of the prime
minister and the cabinet. All major appointments of the Union Government
are virtually made by the prime minister and all the major decision making
bodies like the Union Cabinet, Governor, and Chairmanship of various
committees, planning commission (Niti Ayog), etc. Cabinet Committees
function under his/her supervision and direction. The prime mister can
elevate even the non-entities to the most important position.

Position of the Prime Minister

The Prime Minister no more remains the leader of the party in Parliament but
becomes the leader of the Nation as a whole. He/she is the centre and focus of
the people’s hope and aspirations. To the people at large s/he symbolizes the
national government. He/she enjoys tremendous power and influences both in
the executive and legislative sphere. As head of the Council of Ministers, s/he
plays a decisive role in the formation and implementation of the policy by the
various ministers. The nominal or constitutional position of the President of
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India under the Indian political system further adds to the powers and prestige NOTES
of the Prime Minister. In this respect, all the power vested in the president by
the constitution are exercised by the prime minister. In this respect, the position
of the Prime Minister in Great Britain and all those epithets which are used
for the British Prime Minister are applicable to him/her as well. Some of these
epithets are primus inter pares (first among equals), ‘steersman of the Ship of
the State’, ‘the moon among the lesser stars’, and ‘sun around which all other
planet revolves’. In fact, the position of the Indian Prime Minister is superior to
the position of the British Prime Minister in so far as Indian Prime Minister’s
office enjoys a constitutional basis and is not a product of the convention. It may
be further observed that the position of the Indian Prime Minister, like that of
the British Prime Minister, depends on his/her personality, the position of his/
her party in the parliament and his/her own position within the party.

Prime Minister and the President

According to the characteristics and convention of the Parliamentary democracy,
President is supposed to be only a constitutional head. All the executive powers
lie with the prime minister and his/her cabinet and President is just a nominal
executive. Therefore, the President being the nominal executive can only function
with the aid and advice of the real executive, i.e., the prime minister and his/her
Council of Ministers. Also, in view of elected nature of President, differences
of opinion may arise between the President and Prime Minister. The Prime
Minister has no power to dislodge the President except through impeachment,
which requires special majority in both Houses of Parliament. The President has
several ways of conveying his/her displeasure to the Prime Minister. Article 74
lays down that the Prime Minister and his/her Council of Ministers are to aid
and advice the President of India. It says that the President shall in the exercise
of his/her functions act in accordance with such advice.
According to the Article 78 of the constitution, it shall be the duty of the
Prime Minister to communicate to the President all decisions of the Council of

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NOTES Ministers relating the administration of the affairs of the Union and proposals
of the legislation. This makes Prime Minister a link between the President and
the Cabinet and Chief advisor of the President. This also gives the President
Right to information. Prime Minister is bound to forward to the president such
information relating to the administration of the affairs of the union and proposals
for legislation as the President may call for. Also, the president may require the
prime minister to submit for the consideration of the council of Ministers, any
matter in which the decision has been taken by a Minister, but which has not
been considered by the council.

Conclusion
At the end, theoretically speaking, it may be violation of the article 78, for it
carrying the word ‘duty’, which implies it is the duty of the Prime Minister to
consult the President. Fortunately or unfortunately no president so far has made an
issue of this, hence Article 78 has not been tested. Mostly, the other presidents like
Zakir Hussain, V.V. Giri, F.A. Ahmed, R. Venkataraman, and Sankar Dayal Sharma
stuck to their constitutional role and the relations between them and the Prime
Minister did not enter into any controversy. In India’s parliamentary democracy,
the relationship between PM and the President is crucial in maintaining balance,
continuity and integrity in governance. The President, as the ceremonial head of
the state provides stability and oversight while the PM, heading the executive,
drives policy and decision making. This relationship, though primarily defined
by the constitution, thrives on mutual respect and cooperation, fostering unity
in diverse political landscapes. While differences may arise, the President’s
role as a guiding figure can offer a check on the executive, promoting balances
governance. This interplay ultimately strengthens democratic values by blending
accountability with effective leadership encouraging a harmonious partnership
aimed at national progress.

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NOTES
In-Text Questions
1. The executive branch of India follows the ________ parliamentary
system.
2. The President’s election is conducted by an ________ College.
3. The President can serve a term of ________ years.
4. The process of removing the President is called ________.
5. The Vice President acts as President if the office becomes ________.
6. The President’s powers include appointing the ________ of India.
7. The ________ Bill can only be introduced with the President’s
recommendation.
8. The President has the power to declare a ________ emergency under
Article 352.
9. The President’s role during a national emergency is to modify the
distribution of power between the ________ and the states.
10. The Prime Minister is appointed by the President but must command
a majority in the ________.

5.9 SUMMARY

• The executive branch enforces laws and administers governance, following

parliamentary systems like Britain’s.
• The President of India exercises executive power but largely follows the
advice of the Council of Ministers.
• The President is elected by an Electoral College comprising members of
Parliament and Legislative Assemblies.
• Article 58 and 59 outline the qualifications to become the President,
including being an Indian citizen and at least 35 years old.

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NOTES • The President’s election is conducted via proportional representation with

a single transferable vote system.
• The President holds office for five years and can be re-elected; impeachment
is possible for constitutional violations.
• In the event of vacancy, the Vice President acts as the President until new
elections are held.
• The President enjoys legal privileges such as immunity from court actions
during their term, except through impeachment.
• The President has executive powers including appointing the Prime
Minister, judges, governors, and military leaders.
• Legislative powers include summoning and proroguing Parliament,
dissolving the Lok Sabha, and addressing joint sessions.
• The President’s legislative powers also extend to Union Territories and
certain state matters.
• Financial powers include managing the Contingency Fund and making
recommendations for money bills.
• The President can declare three types of emergencies: war, constitutional
machinery failure, and financial instability.
• Article 352 enables the President to declare a national emergency during
war or rebellion.
• The President has diplomatic powers, such as sending and receiving
diplomats and signing treaties.
• The Prime Minister, appointed by the President, must command majority
support in the Lok Sabha.
• The Prime Minister coordinates the Council of Ministers, assigns portfolios,
and advises the President on key appointments.

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• The Prime Minister represents India internationally and manages its foreign NOTES
relations.
• The Prime Minister is central to both the executive and legislative functions
of the government.
• The relationship between the President and Prime Minister is primarily
advisory, with real power vested in the Prime Minister.

5.10 GLOSSARY

• Executive: It is the branch responsible for enforcing laws and administering

governance.
• Electoral College: It is a body that elects the President, consisting of
members of Parliament and state legislatures.
• Impeachment: It is the process of removing the President for constitutional
violations.
• Proportional Representation: It is an electoral system where votes are
allocated based on population.
• Ordinance: It is a law promulgated by the President when Parliament is
not in session.
• Contingency Fund: It is a fund used by the President to manage unforeseen
expenses.
• Article 352: It is the article that allows the President to declare a national
emergency.
• Proclamation of Emergency: It is a declaration by the President during
war or rebellion.
• Council of Ministers: It is a body led by the Prime Minister that advises
the President.
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NOTES • Lok Sabha: It is the lower house of India’s Parliament.

• Rajya Sabha: It is the upper house of India’s Parliament.
• Finance Commission: It is a body that makes recommendations on the
division of taxes between the union and states.
• Single Transferable Vote: It is an electoral system where voters rank
candidates by preference.
• Union Territories: These are regions in India governed directly by the
central government.
• Supreme Court: It is the highest judicial authority in India.

5.11 ANSWERS TO IN-TEXT QUESTIONS

1. British
2. Electoral
3. Five
4. Impeachment
5. Vacant
6. Prime Minister
7. Money
8. National
9. Union
10. Lok Sabha

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NOTES
5.12 SELF-ASSESSMENT QUESTIONS

1. Explain the organs of Government in Indian Constitution.

2. Define the powers and position of the President.
3. Explain the changing role of Prime Minister in India.

5.13 REFERENCES/SUGGESTED READINGS

• Bakshi P.M. The Constitution of India. Universal Law Publishing, Delhi,

2000.
• Basu D.D. Introduction to the Constitution of India. Prentice-Hall of India,
New Delhi, 1992.
• Jain M.P. Indian Constitutional Law. Wadhwa & Company, Nagpur, 1999.
• Pylee M.V. India’s Constitution. S. Chand & Company, New Delhi, 1994.
• Rao K.V. Parliamentary Democracy of India: A Critical Commentary. The
World Press, Calcutta, 1961.
• Singh M.P. & Saxena R. Indian Politics: Contemporary Issues and
Concerns. Prentice-Hall of India, New Delhi, 2008.

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LESSON 6 NOTES

ORGANS OF CONSTITUTIONAL
GOVERNANCE: JUDICIARY

Manila Narzary
Assistant Professor, Kalindi College, DU

STRUCTURE
6.1 Learning Objectives
6.2 Introduction
6.3 Appointment of Judges
6.4 Appointment of Chief Justice and Other Judges of Supreme Court
6.5 Jurisdiction of the Supreme Court
6.6 Other Provisions
6.7 Independence of the Judiciary
6.8 Judicial Review
6.9 Judicial Activism
6.10 Public Interest Litigation
6.11 Summary
6.12 Glossary
6.13 Answers to In-Text Questions
6.14 Self-Assessment Questions
6.15 References/Suggested Readings

6.1 LEARNING OBJECTIVES

After reading this lesson, students should be able to:

• Understand about the organs of Constitutional Governance, specially in
reference to Judiciary

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NOTES • Discuss the roles and functions of Supreme Court

• Discuss the Judicial review and Judicial activism in India

6.2 INTRODUCTION

Under the Act of 1935, for the first time an All India Court, called the “Federal
Court of India” was set up. With the coming of the Indian Constitution in to
force, on 28th January 1950, the Federal Court of India was substituted by the
Supreme Court. Under a Federal Constitution, a Supreme Court is an essential
part of the constitutional scheme. It is at once the highest interpreter of the
constitution and a tribunal for the final determination of disputes between the
union and its constituent units. The Supreme Court of India, however, is more
than a federal court.
The Framing of draft provisions establishing the Supreme Court was
done by an ad hoc committee of five members: B.N. Rao, K.M. Munshi, B.L.
Mitter, Srinivas Varadachariar, and Alladi Krishnaswamy Iyer. This report was
later submitted to Union Constitution Committee. This report was accepted by
the constituent Assembly with an exception of the rule applicable to choosing
the judges of the court. The Supreme Court was idealized by the Constituent
Assembly because the court was seen as an extension of the rights; it was an
arm of social movement; as the guardian of the Constitution; it would be the
expression of the new law created by Indians for Indians.
According to Article 32 (Supreme Court) 226 (High Court), Supreme
Court is the protector of all the fundamental rights embodied in the constitution
and it has to safeguard these rights every infringement at the hands of either the
Union Government or State Governments. The Supreme Court of India is made
independent of the legislative and executive influences. The second function
of the court is federal in nature. It has original jurisdiction in cases involving
Government of India and one or more States or between the Government of
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or between two or more States. Thirdly, it is called upon to give advice to the NOTES
president whenever he/she ask for it. It has the power to supervise the working
of the entire judicial system and maintains uniformity of law ensuring high
standards set by the framers of the constitution.

6.3 APPOINTMENT OF JUDGES

The judges of the Supreme Court are appointed by the president. The president
appoints the Chief Justice of the Supreme Court in consultation with such judges
of Supreme Court and high courts as he may deem necessary. However, in
appointing other judges, the president also consults the Chief Justice of India.
It may be observed that the power of appointing judges of the Supreme Court is
only a formal power and s/he always appoints them on the advice of the council
of ministers.

Tenure
In United States of America, judges are appointed for life or till they sustain good
behaviour, which practically ensures them a lifelong tenure. The Constituent
Assembly of India decided against this. It valued the independence of judiciary,
but assumed that judges tend to become incompetent on account of their legal
background and old age. It was in favour of judicial competence and efficiency
but distrusted the old age and conservatism of the judges. This is perhaps why
article 124(2) stipulates that judges can be appointed till they have attained the
age of 65 years. The Chief justice also serves up to the age of 65 years.

Qualification
In order to be appointed as a Judge of the Supreme Court, a person must be a
citizen of India and must have been, for at least five years, a judge of a High
Court or of two or more such Courts in succession, or an advocate of a High
Court or of two or more such courts in succession for at least 10 years or s/he
must be, in the opinion of the President, a distinguished jurist. Provisions exist
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NOTES for the appointment of a judge of a High Court as an ad-hoc judge of the Supreme
Court and for retired judges of the Supreme Court or High Courts to sit and act as
judges of that court. A judge can resign from his/her job prior to his/her attaining
the stipulated age by writing to the president, who is the appointing authority. A
judge can be removed from office by an order of the president when either house
of parliament makes such a proposal by a majority of the total membership of that
house. The proposal must be adopted by a majority of not less than two-thirds
of the members of the other house during the same session of the legislature.
Besides that the motion has to be based on the grounds of misbehaviour.

6.4 APPOINTMENT OF CHIEF JUSTICE AND

OTHER JUDGES OF SUPREME COURT

According to the Article 126, “When the office of Chief Justice of India is vacant
or when the chief justice is, by reason of absence or otherwise, unable to perform
the duties of the office, his duties shall be performed by one of the other judges
of the court as the president may appoint for the purpose”.

Seat of Supreme Court

The Supreme Court is permanently located at New Delhi. However, the chief
justice of India can arrange its sitting at some other place in India with the approval
of the president from time to time. Why a provision has been made for making the
sittings of the court at a place other than Delhi was made possible and justified
by Dr. Ambedkar in the Constituent Assembly itself when he said, “Supposing
the capital of India was changed, we would have to amend the constitution in
order to allow the Supreme Court to sit at such other place as the parliament
may decide as the capital, therefore, I think subsequent words are necessary”.

Appointment of Ad Hoc and Retired Judges

If the Supreme Court cannot hold or continue its meeting due to lack of quorum,
the chief Justice of India may, with the prior consent of the president and in
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consultation with the Chief Justice of a particular High Courts, can request a NOTES
judge of that high court to act as an ad hoc judge of the Supreme Court for such
period as may be necessary, However, only such persons can be appointed as ad
hoc Judges who are qualified to be appointed as a judges of the Supreme Court.
It shall be the duty of the judge, so designated, to give priority to his/her duty to
attend the sittings of the Supreme Court rather than other duties at the time and
period for which his/her attendance is required in the Supreme Court. At that time,
s/he shall have all the jurisdiction, powers and privileges, and shall discharge the
duties of a judge of the Supreme Court. As far the Article 128, Chief justice can
also require the attendance of the retired judge of a Supreme Court to act as the
judge of the Supreme Court. Such a judge is entitled to such allowances as the
president may by order determine, and shall have all the jurisdiction, powers,
and privileges of a judge of the Supreme Court.

6.5 JURISDICTION OF THE SUPREME COURT

The Supreme Court has been granted very extensive powers. These powers may
conveniently be studied under the following heads:
1. Original Jurisdiction: The original jurisdiction of the Supreme Court
extends to all those cases which can originate only in the Supreme Court.
These include disputes between:
(a) Government of India and one or more states.
(b) The government of India and any state or states on the one side and
one or more other states on the other side.
(c) Two or more states.
It may be observed that the disputes involving the above parties are brought
before the Supreme Court only if a question of law or fact is involved. Even
the case involving disputes over the enforcement of fundamental Rights
fall within the original jurisdiction of Supreme Court. The Supreme Court
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NOTES these rights. Some of writs which can be issued by the Supreme Court for
this purpose include Habeas Corpus, Mandamus, Prohibition, Certiorari,
and Quo Warranto (P.Chander1984, p. 192).
However Supreme Court does not enjoy any original power with regard
to dispute arising out of any treaty, agreement, covenant, engagement, or
other similar instruments which had been entered into or executed before
the commencement of the constitution and which continued in operation
even after the commencement of constitution.
The parliament by law can exclude the jurisdiction of the Supreme Court in
disputes with respect to the use, distribution, or control of the water of any
inter-state river or river valley. The other matters which do not fall under
the original jurisdiction of the Supreme Court include matter referred to
the finance commission (Article 280) and adjustment of expenses between
the union and states (Article 290).
2. Appellate Jurisdiction: The Supreme Court is the highest court of appeal
in the country and hears appeals against the judgments of the lower courts
in constitutional, civil, and criminal matters. In constitutional matters an
appeal can be made to the Supreme Court if the High Court certifies that
the case involves a substantial question of law as to the interpretation of
the constitution. Even if the high court does not grant this certificate, the
Supreme Court can grant special leave to appeal from any judgment, decree,
determination, sentence or order made by any court or tribunal in India.
In civil cases an appeal can be made to the Supreme Court against the
judgment, decree, or final order of a High Court if it grants a certificate
that:
a. The case involves a substantial question of law of general importance.
b. In its opinion the said question needs to be decided by the Supreme
Court.
In criminal cases, an appeal lies with the Supreme Court against the
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certifies that the case is fit for appeal for the Supreme Court. An appeal NOTES
can also be taken to the Supreme Court without the certificate of the High
Court if the lower court acquits the accused but the High Court reverses
the order of acquittal in appeal and passes a sentence of death; or the High
Court takes a case from the lower court, conducts the trial itself, convicts
the accused and awards the death sentence.
The appellate jurisdiction of the Supreme Court can be further extended
by the parliament (Article 134, clause 2). In pursuance of this power, the
parliament passed the Supreme Court (enlargement of jurisdiction) Act
1970, which provides that an appeal shall lie to the Supreme Court from
any judgment or final order of sentence in a criminal proceeding of a
High Court if the High Court has on appeal reversed an order of acquittal
of an accused person and sentenced him/her to imprisonment for life or
to imprisonment for a period of not less than 10 years; or has withdrawn
for trial before itself any case from any court subject to its authority and
has in such trial convicted the accused person and sentenced him/her to
imprisonment for life or imprisonment for a period of not less than 10
years. As a result of this enactment, the accused can make an appeal to the
Supreme Court as a matter of right without any certificate from the High
Court even where the High Court does not award the sentence of death.
3. Advisory Jurisdiction: The Supreme Court also enjoys advisory
jurisdiction. Advisory jurisdiction is provided in Article 143 of the Indian
constitution. If at any time it appears to the president that any question
of law or fact has arisen or is likely to arise; and the question is of such
a nature and of such public importance that it is expedient to obtain the
opinion of the Supreme Court upon it, s/he may refer the question for the
advisory opinion of the court, and the Court may, after such hearing as it
thinks fit, report to the President its opinion thereon. However, it is within
the discretion of the Supreme Court either to give its opinion or to refuse the
same. But the Supreme Court is bound to give its opinion on matters relating
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NOTES entered into or executed before the commencement of the Constitution, if

the president refers such dispute to it. In actual practice, however, since
the enforcement of the constitution, the Supreme Court has never refused
to give its opinion on any matter referred to it. It is noteworthy that the
Supreme Court of United States does not enjoy any advisory jurisdiction.
On the other hand, under the Canadian Constitution, the Supreme Court
has been given advisory jurisdiction and its opinion on any matter referred
to it for hearing and consideration.
The advisory opinion of the Supreme Court is not binding on the President
of India because it is merely an advice and the president may or may not accept it.

6.6 OTHER PROVISIONS

In addition to these jurisdictions, there are several other provisions dealing with
other aspects of the Supreme Court’s power.
Firstly, article 129 of the constitution declares the Supreme Court’s power as
a court of record which implies that it has all the power of such a court including
the power to punish for contempt of court. The Supreme Court has a summary
jurisdiction to punish its authority. This power is exercised only in the public
interest to punish an act which might interfere in the administration of justice.
The court exercise this power “cautiously, wisely, and with circumspection.” The
court can punish its contempt by fine or imprisonment. The court may take action:
a. Suo moto, or
b. On a petition made by Attorney-General, or Solicitor General, or
c. On a petition made by any person, and in the case of criminal contempt
with the consent in writing of the Attorney General or the Solicitor
General.
A court of record possesses the following features:
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b. Its records are admitted in evidence and cannot be questioned when NOTES
produced in any court of law.
c. It has the power to punish by fine and imprisonment of any person
guilty of contempt of its authority.
Secondly, the decision of the Supreme Court is not bound by its earlier
decision and can depart from it if it is convinced of its error and its harmful
effect in the general interest of the public. For example, in the Golaknath case,
the Supreme Court departed from its earlier decision in Sankari Prasad vs the
Union of India. Later on, the Supreme Court even departed from its decision in
the Golaknath case in its judgment in Kesavananda Bharati case.
Thirdly, the decree, orders, etc. issued by the Supreme Court of India
are enforceable throughout the territory of India in such a manner that may be
prescribed by or under any law made by the parliament. The Supreme Court can
also issue orders for the purpose of securing the attendance of any person, the
discovery or production of any documents or the investigation or punishment
of any contempt of itself.
Fourthly, the constitution authorizes the Supreme Court to make rules for
broadly regulating the practice and procedure of the court with regard to which
the Supreme Court can make rules including the people practicing before the
court; the procedure for hearing appeals, and other matters pertaining to appeals
including the time within which appeals to the court are to be entered; proceeding
in the court for the enforcement of any of the rights conferred by part III of the
constitution; condition subject to which any judgment pronounced or order made
by the court may be reviewed and the procedure for such review; cost of the
incidentals to any proceeding in the court and the fees to be charged in respect
of the proceedings therein; granting of bails; stay of proceedings; summary
determination of any appeal which appears to the court to be frivolous or brought
for the purpose of delay; and procedure for enquiries, etc.
Fifthly, the Chief justice of India can appoint officers and servants of the
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NOTES conditions of service of officers and servants of the Supreme Court are also
prescribed by the Chief Justice of India in consultation with the president. It is
noteworthy that the administrative expenses of the Supreme Court, including
all salaries, allowances and pensions payable to or in respect of the officers and
servants of the court, shall be charged upon the Consolidated Fund of the India
and any fees or other money taken by the court form a part of that fund.
Sixthly, the Supreme Court decides the disputes regarding the election of
the President and the Vice-President and its decision in this regard is final.
Seventhly, on reference made by the President, the Supreme Court can
recommend the removal of the Chairman and other members of Union Public
Service Commission on grounds of misbehaviour.

6.7 INDEPENDENCE OF THE JUDICIARY

The constitution has made due provisions for ensuring the independence and
impartiality of the Supreme Court and to place it beyond executive and legislative
interference or influence. Therefore, meticulous care was taken to ensure the
independence of judges in various ways.
1. Though president is the appointing authority, however, s/he does not enjoy
absolute discretion here. The judges are appointed after due consultation
with the Chief Justice of India. In the case of the appointment of Chief
Justice, the president must consult such judges of the Supreme Court and
High Court as s/he may deem necessary.
2. The judges of the Supreme Court enjoy the security of the tenure. Their
removal on the ground of proved misbehaviour or incapacity is very
difficult.
3. The constitution provides high retiring age for the judges. Once appointed,
they can hold office until they complete the age of 65 years.

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4. During their tenure as judges of Supreme Court and after their retirement, NOTES
the judges cannot practice in India.
5. The judges also enjoy the security of service conditions. Their salaries
have been fixed by the constitution. Their privileges, rights, and allowances
cannot be altered to their disadvantages.
6. The salaries of the judges and the administrative expenses of the Supreme
Court are charged on the consolidated fund of India and are not subject to
the vote of parliament.
7. Only during Financial Emergency, the salaries and allowances of the judges
can be reduced.
8. The independence of the Court is further safeguard by the provision that
the actions and decisions of the judges in their official capacity are immune
from criticism in the sense that no motive may be imputed to them. Even
parliament cannot discuss the conduct of a judge except when a resolution
for his/her removal is being considered.
9. The Supreme Court has its own establishment over which it has complete
control. The court determines the terms of service of its officers and servants
and appointments are made by the chief justice.

The State High Courts

The constitution of India has provided a single integrated judiciary with the
Supreme Court at the top. At the state level, the constitution provides a High
Court which is the highest organ of the judicial administration in the states. Article
214 of the constitution provides that there shall be High Court for each state.
However, the parliament can by law establish a common High Court for two or
more states, or for two or more states and a Union territory. In pursuance of this
power, the parliament has set up common High Courts for certain States/Union
Territories. For example, Punjab, Haryana, and Union Territory of Chandigarh
have a common high court.
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NOTES Composition of High Court

Under article 216, every high court shall consist of a Chief Justice and other such
Judges as the President may appoint from time to time. As per the article 217,
the Chief Justice of a High Court is appointed by the President in consultation
with the Chief Justice of India and the Governor of the State.

Appointment of Judges
The High Court of the state consists of a Chief Justice and other such judges as
the President may determine from time to time. This implies that the strength
of the High Court has not been fixed by the constitution and is determined by
the President. It is not the same for all by the President. The Chief Justice of the
High Court is appointed by the President in consultation with the Chief Justice
of India and the Governor of the state concerned. The other judges of the High
Court are appointed by President in consultation with the Chief Justice of India,
the Chief Justice of the High Court, and Governor of the state. The President
also appoints additional judges for a period not exceeding two years to dispose
pending work. The Chief Justice of the High Court, can invite the Retired Judges
of the High Courts to participate in the proceedings of the High Court with the
prior consent of the President. According to Article 223, ‘When the office of the
Chief Justice of a High Court is vacant or when any such Chief Justice is, by
reason of absence or otherwise, unable to perform the duties of his office, the
duties of the office shall be performed by a judge of the court as the President
may appoint’.

Term and Removal

Chief justice and judges of the High Court hold office until the age of 62 years
and are removable in the same manner as a judge of the Supreme Court. Article
220 restricts any persons who have held as a permanent judge of a High Court
to plead or act in any court or before any authority in India except the Supreme
Court and the other High Courts. A judge of a High Court can also resign the
office by writing to the president.
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Qualification NOTES
A person to be eligible for appointment as a judge of a High Court must possess
the following qualifications.
1. She/he must be citizen of India.
2. She/he must have held a judicial office for at least ten years or be an
advocate of a High Court or Courts for at least ten years.
It may be observed that while an eminent jurist can be appointed as judge
of the Supreme Court, s/he cannot be appointed as the judge of a High Court.

Oath
Before entering upon the office, a judge of High Court has to take an oath in the
prescribed form before the Governor of the state or some other person appointed
by him/her for that purpose. In the oath, the judge affirms that s/he will bear
true faith and allegiance to the constitution of India and will perform the duties
of the office without fear and favour, affection or ill-will, and will uphold the
Constitution and the laws.

Jurisdiction of the High Court

According to the Constitution of India, High Courts enjoy the following
jurisdiction:
Article 225 of the constitution deals with the general jurisdiction of the
High Court and provides that, subject to the provisions of this constitution and
to the provision of any laws of the appropriate legislature made by virtue of
power conferred on that legislature by this constitution, the jurisdiction of, and
the law administered in any existing High Court, and the respective powers of the
judges thereof in relation to the administration of justice in the court, including
any power to make rules of court and to regulate the sittings of the court and
members thereof sitting alone or in division court before the commencement of
this constitution. Thus, the constitution tries to preserve the pre-constitutional
jurisdiction of the High Court’s jurisdiction over revenue matters.
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NOTES Writ Jurisdiction

The High Courts issue to any person or authority within its jurisdiction, 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
fundamental rights or any other purpose. It may be observed that the use of words
‘any other purpose’ makes the jurisdiction of the High Court more extensive
than that of the Supreme Court. While the Supreme Court jurisdiction extends
to the enforcement of a legal right or a legal duty. However, the jurisdiction of
the Supreme Court extends throughout the territory of India, but the jurisdiction
of the High Court extends only to the cases arising within its local limits.

Supervisory Jurisdiction
The high court exercises supervision over all courts and tribunals within its
jurisdiction by virtue of Article 227 of the constitution of India. For this purpose,
it can call returns from them, make and issue general rules, and prescribe forms
for regulating the practice and the procedure of such courts, settle table of fees
to be given to the sheriff, clerks, attorney, advocates, and pleaders. However,
the High Court does not exercise any provision over those courts or tribunals
that are constituted by law and relate to the arm forces. It may be observed that
the power of superintendence over the lower courts enjoyed by the High Court
is not confined to administrative supervision only, but also include judicial
supervision. Thus, the High Court can take steps to ensure that the lower courts
discharge their duties within the bounds of their authority or make use of the
powers vested in them.
The High courts can tranfer cases from subordinate courts to itself, to
dispose them off. Article 228 says that “If the high court is satisfied that a case
pending in a court subordinate to it involves a substantial question of law as to
the interpretation of the constitution, the determination of which is necessary for
the disposal of the case, it shall withdraw the case itself, or determine the case to
the court from which the case has been so withdrawn, together with a copy of its
judgment on such question, and the said court shall on receipt thereof proceed
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to dispose off the case in conformity with such judgment.” The High court can NOTES
also transfer cases from one lower court to another lower court for disposal.
There are two types of courts in every district: Civil Court and Criminal
Court. Besides the District court, there are courts of sub-judges, munsiff courts,
and courts of small causes. Below the Session courts are the courts of First Class
Magistrates. In metropolitan cities like Delhi, Mumbai, Kolkata, and Chennai,
these magistrates are known as metropolitan magistrates. Apart from this, there
are courts of Second Class and Third Class Magistrates also. They function
under the superintendence and control of the High Court of that particular state.

Extension of Jurisdiction of High Court

The right to extend or exclude jurisdiction of a High Court over any Union
territory rests with the parliament. The legislature of the state does not enjoy any
power to increase, restrict, or abolish the jurisdiction of the High Court. High
courts of India have been vested with quite extensive and effective powers.

A Court of Record
Every high court is also a court of record and has all the powers of such a court
including the power to punish for its contempt. The 42nd Amendment Act of 1976
curtailed the jurisdiction of the High Courts in various spheres. However, the
44th Amendment Act 1979 restored the original jurisdiction and position of the
High Courts. It may be observed that these powers of the High Court are similar
to the powers of the Supreme Court.

Power to Regulate its Working

The chief justice of the High Court is authorized by the constitution to appoint
officers and servants of the High Court. However, the governor of the state can
require him/her to consult the state public service commission in this connection.
The condition of service of the officers and servants of the High Court are also
laid down by the Chief Justice of the court or some other judges or officers of
the court authorized by the Chief Justice to make rules for the purpose. However,
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NOTES the rules relating to salaries, allowances, leave, or pension require the formal
approval of the Governor of the state.
A survey of the powers and functions of the High Court shows that it is
primarily a supervisory court which exercises supervision over the subordinate
courts and tribunals within its jurisdiction. At the same time, it also acts as the
guardian of the fundamental liberties of the people of the country against possible
encroachment by the legislature and the executives. The actual working of the
High Court since the inauguration of the constitution has amply demonstrated
that they have given precedence to the writ petitions over other works and
knocked down a number of statutes and executive orders on the ground that they
encroached on the Fundamental Rights of the citizens. It has played a vital role
in protecting the freedom of the citizens and acted as guardian of their rights.

6.8 JUDICIAL REVIEW

Judicial review, broadly speaking, means the power of the judiciary to review
any order or act of the public authority, both executive and legislative and to
pronounce upon the constitutional validity when challenged by the effected
person. This power is based upon a simple rationale that the constitution is the
supreme law of land and any authority, if it ventures to go beyond the limitation
laid down by the constitution, it will be curbed. Obviously it is a far reaching
power. In Britain, within the framework of the supremacy of parliament,
judiciary has no such power whereas in America, under the doctrine of limited
or constitutional government it has become very important. Judicial review has
two prime functions:
• Legitimizing government action.
• To protect the Constitution against any encroachment by the government.
The doctrine of judicial review is originated in United States of America.
This was contribution of American constitutional system. This was acquired by
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the American Supreme Court in Marbury vs Madison case in 1803 when Chief NOTES
Justice Marshall announcing the verdict remarked that any law violating the
constitutional provision is null and void. Since then it got strongly embedded in
the constitution and judicial supremacy got established.
It is emphatically, the province and duty of the judicial department, to say
what the law is; those who apply the rule to particular cases, must be of necessity
expound and interpret that rule. If two laws conflict with each other, the court
must decide on the operation of each. So if a law is in position to the constitution;
the court must either decide that case conformably to law disregarding the
constitution or apply to a particular case, or conforming to law disregarding the
constitution; the court must determine which of these conflicting rules govern
the case; this is the very essence of the judicial duty. If then, the courts are to
regard the constitution and the constitution is superior to any ordinary act of
the legislature, the constitution, and not so ordinary act, must govern the case.
However, the Indian constitution does not, in so many words, assigns the
power of judicial review to the judiciary. It is implicit in Articles 13, 32, and 226.
Article 13(1) says that “All laws in force in the territory of India immediately
before the commencement of this provisions of this part (part III i.e. Chapter
on Fundamental Rights), shall, to the extent of such inconsistency, be void.”
Article 13(2) clearly prohibits the state from making any law which takes away
or abridges the fundamental rights and any law which does so, will be void
to the extent. Article 32 and 226 deals with the powers of the Supreme Court
and the High court respectively with regard to the protection of fundamental
rights by issuing various kinds of writs. Further there are other Articles 131-
136, 143, 145, 246, 251, 254, and 372 from which power of judicial review is
also derived. Though the word judicial review has not been used anywhere in
the constitution, the framers of the constitution certainly wanted this power to
be exercised by the courts while interpreting the constitution. They wanted the
judges of the Supreme Court and the High Courts to uphold the constitution and
the laws. While assuming judges of the Supreme Court and High Courts have
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NOTES constitution against attacks from the legislature and executive. In this respect, the
Indian Supreme Court resembles the American Supreme Court rather than the
British court, which are obliged to enforce the laws enacted by the parliament,
without going into their constitutionality. The adoption of Federal system and the
incorporation of the fundamental rights in the constitution are responsible for the
unique position of the Supreme Court in India. It has to see that the Union and
the State Governments keep within their respective spheres and the fundamental
rights granted by the constitution are not violated. For this purpose, it has been
granted the powers to pronounce on the constitutionality of Federal as well as
State laws.
The power of the judicial review of Indian Supreme Court is much
narrower than the Supreme Court of the United States of America. The Indian
Supreme Court can declare a law as valid only if it is contrary to the letter of the
constitution. It cannot go behind the law to find out its objectives and to declare
it unconstitutional. Supreme Court does not possess any power to question the
wisdom or policy of the laws enacted by the parliament or the state legislature.
The power of judicial review can be adjudged from various landmark
judgments of the Supreme Court and the effort of the parliament to claim its
sovereignty by limiting the power of judicial review. Over the years, the numbers
of laws in the ninth schedule have greatly increased. Ninth schedule was created
to protect certain laws from judicial review, effectively shielding them from
being challenged in courts on grounds of violating Fundamental Rights. Further
restrictions were placed on the power of judicial review in the wake of the
Supreme Court’s decisions. In Golak Nath case, Bank Nationalization and privy
purses cases through the 24th 25th amendments to the constitution. The power of
judicial review was once again curtailed in 1975 through the 39th amendment
which exempted the election of the President, Vice-President, Prime Minister,
and Speaker from judicial review. Still more restrictions on the power of judicial
review were imposed by the 42nd amendment. These restrictions were:
1. The power of center was increased by transferring certain provisions
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2. The power of Supreme Court and High Courts were curtailed. With NOTES
respect to article 14, 19, and 31, parliament can make any law to
implement Directive Principles of state policy.
3. The power of the Supreme Court was further curtailed by stating that
no amendment of this constitution made or purporting to have been
made under this Article shall be called in question in any court on any
ground.
4. Minimum five judges of the Supreme Court should sit for the purposes
of determining constitutional validity of central law and it cannot be
declared unconstitutional unless two-third majority of judges decide
and for the High Court there had to be five judges to determine the
constitutional validity of law.
5. The validity of the central law was to be decided by the Supreme Court
under the Article 141A and not by the High Court under the Article
228A and subsequently the validity of the state law could be decided
by the High Courts.
6. The power of issuing writs for implementation of fundamental rights
were curtailed to the effect that these writs will not be issued unless
substantial injury has taken place and also if alternative remedy is
provided under any law.
7. Further, the appointment procedures of High Courts were dealt
extensively.
8. It was also stated that the decisions of any administrative tribunals can
be questioned or challenged only in the Supreme Court.
However, the Supreme Court has not accepted all these restrictions and
at times asserted its authority by declaring some of these amendments as null
and void. It asserted that curbs on judicial review were against the basic scheme
of the constitution. In simple words, the Supreme Court, through its power of
judicial review, has tried to ensure that the basic structure of the constitution is
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NOTES There are several examples to cite where the court has exercised the power of
judicial review.
The working of the Supreme Court during the first three decades can be
described as an arena of struggle between the legislature and the judiciary in
relation to fundamental rights and power of amendment. But by evolving the
doctrine of basic structure of the Constitution, the Supreme Court limited the
power of the Parliament to amend the Constitution. It was an innovation which
widened the court’s power of judicial review to an unlimited extent. Thus,
although the Supreme Court reversed the Golaknath judgment but in fact it
extended its jurisdiction even beyond the Golaknath case judgment. In the post
Kesavananda scenario, the major parts of the Constitution have come in to the
ambit of basic structure of the Constitution which the Parliament cannot change.

6.9 JUDICIAL ACTIVISM

Judicial activism refers to the interference of the judiciary in the legislative and
executive fields. It mainly occurs due to the non-activity of the other organs of
the government. Judicial activism is a way through which relief is provided to
the disadvantaged and aggrieved citizens. Firstly, judicial activism is providing a
base for policy making in competition with the legislature and executive. Judicial
activism is the rendering of decisions, which are in tune with the temper and
tempo of the times. Judicial activism has arisen mainly due to the failure of the
executive and legislatures to act. Secondly, it has arisen also due to the fact that
there is a doubt that the legislature and executive have failed to deliver the goods.
Thirdly, it occurs because the entire system has been plagued by ineffectiveness
and inactivity.
Activism is judicial policy making which further is the cause of social
change or articulates concepts such as liberty, equality, or justice. Activism
counters the traditional concept of judiciary as a mere umpire; on the contrary,
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it should work as an active catalyst in the constitutional scheme. It has to be an NOTES

arm of the social revolution. An active judge activates the legal mechanism and
makes it play a vital role in socio-economic process.
Its emergence can be traced back to 1893, when justice Mahmood of
Allahabad High Court delivered a dissenting judgment. It was a case of under
trial who could not afford to engage a lawyer. So the question was whether the
court could decide his case by merely looking at his paper. Justice Mahmood
held that the pre-condition of the case being heard would be fulfilled only when
somebody speaks.
The violation of basic human rights has also led to judicial activism. Finally,
due to the misuse and abuse of some of the provisions of the Constitution, judicial
activism has gained significance. Judicial activism, like many catchwords, has
acquired so many different meanings as to obscure more than it reveals. But at
the same time it cannot be discarded as an intellectual void for the vagueness
of the definition of the word at the heart as it speaks about the survival of law.
Abandonment of this word not being a viable option, clarification needed as to
what judicial activism is. Judicial activism is different from the judicial review
or other process of jurisdiction in the sense that under the gamut of judicial
review, the judiciary can extend its influence to the spheres of executive and the
legislative. Judicial activism simply means a pro-active judiciary which does no
limit itself to the interpretation of law only but also sees if the law affects people
adversely. The great contribution of judicial activism in India has been to provide
a safety valve and a hope that justice is not beyond reach.
According to Upendra Baxi, who is a constitutional expert, if the executive
or legislature defaults on its legal and constitutional obligations, courts cannot
for long take a view that violations of rights involved in such defaults are of no
concerns to them. What therefore emerges is that provisions of judicial function
can be constructed only in the context of the work being done by other branches
of the institution.

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NOTES The following trends were the cause of the emergence of judicial activism:
• Expansion of rights of hearing in the administrative process.
• Excessive delegation without limitation.
• Expansion of judicial review over administration.
• Promotion of transparent government.
• Indiscriminate exercise of contempt power.
• Exercise of jurisdiction when it doesn’t exist, over extending the
standard of rules of interpretation in its search to achieve economic,
social and educational objectives.
• Passing of orders which are unworkable.
The first case of judicial activism can be seen in case of the Kesavananda
Bharati case (1973) or the fundamental rights case where the Court gave the
verdict that a constitutional amendment dully passed by the legislature was
invalid as it is damaging or destroying the basic structure. The Supreme Court
declared that the executive had no right to tamper with constitution and alter its
fundamental features. There have been a whole lot of cases where the court has
played an active role. Some important cases are like S.P. Gupta vs Union of India
(1982), where through public interest litigation the court has granted access to
people inspired by public interest to invite judicial intervention against abuse
of power or misuse of power or inaction of the government, Vineet Narain vs
Union of India, 1996 the Apex Court took upon itself the task of monitoring the
investigations pertaining to the hawala transactions and common cause vs Union
of India, 1996. In a recent landmark judgment in February 2012, the Supreme
Court has cancelled 122 telecommunication licenses awarded to companies in
2008 related to the 2G spectrum scam, etc. Courts also gave judgment/verdict
on several cases related to the environment. The courts have a process of
interpretation, it substantially enlarged the ambit of civil liberties enjoyable by
citizens and have also guarded these rights against any encroachment either by
the executive or the legislature. Also the Supreme Court and Parliament have
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acted as partners in various areas of social justice. For example, in developing NOTES
the industrial law, both have doubtlessly shared common concerns.
As justice A.M. Ahmedi had opined “judicial activism has been more
or less thrust upon Indian judiciary”. The reluctance of the legislature and the
executive to take hard and unpleasant decisions have compelled the judiciary
to become active. When a sensitive issue remains unattended to and unresolved
people become restive and seek courts to come across a solution. But this era
of judicial activism is a temporary one. In our democracy the legislative, the
executive, the judiciary, and the media have their mutually reinforcing roles
which cannot be usurped by a single authority.

6.10 PUBLIC INTEREST LITIGATION

Public Interest Litigation popularly known as PIL can be broadly defined as

litigation in the interest of that nebulous entity: the public in general. Prior to
1980s, only the aggrieved party could personally knock the doors of justice and
seek remedy for his/her grievance and any other person who was not personally
affected could not knock the doors of justice as a proxy for the victim or the
aggrieved party. In other words, only the affected parties had the locus standi
(standing required in law) to file a case and continue the litigation and the non-
affected persons had no locus standi to do so. As a result, there was hardly any
link between the rights guaranteed by the Constitution of Indian Union and the
laws made by the legislature on the one hand and the vast majority of illiterate
citizens on the other.
Two judges of the Supreme Court, Justice V.R. Krishna Iyer and P.N.
Bhagawati recognized the possibility of providing justice to the poor and the
exploited people by relaxing the rules of locus standi. In the series of path breaking
pronouncements, for instance, S.P. Gupta vs Union of India, 1982, the Supreme
Court of India, through public interest litigation, has granted access to people
inspired by public interest to invite judicial intervention against abuse power or
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NOTES misuse of power or inaction of the Government. Justice P.N Bhagawati in this
case articulated the concept of PIL.
‘PIL is considered to be an off shoot of social forces where freedom suffered
at the cruel hands and public participation was required to check the system. It
was an opportunity for citizens to participate and reaffirm their faith in the legal
process. The petition can be filed by any voluntary agency or a member of the
public. However the court must satisfy itself while accepting the petition and see
that the person is acting bona fide and not for personal profit or gain’. In most of
the PIL cases, government agencies are involved on account of them violating the
written legal norms or interpreting them to suit their own convenience. Even after
court’s decisions, they continued to do so, and a couple of state administrations
are repeatedly figuring in the PIL cases.
The PIL involves issues connected with a set of fundamental rights like
right to free legal aid, right to human treatment in the prison, right against torture,
and issues related to protection of environment. It also involves other issues like
degraded bonded labour, women prisoners, humiliated inmates of protective
homes, custodial violence, domestic workers, rehabilitation and compensation
for the rape victims, sexual harassment of women at workplace, children, slum
dwellers, construction workers, etc. Article 32 emerged as a forum of PIL in recent
years and it has become a byword for judicial involvement in social, political and
economic affairs of the society. Judges have encouraged the practice of allowing
third parties to file writs on behalf of weaker section of the society. In PIL any
person or group can approach the Supreme Court and High Courts for the redress
of grievances on behalf of the victims who are incapable of approaching the court.
‘The movement of liberalization of locus standi started with the Bar
Council of Maharashtra vs M.V. Dabholkar where the Bar Council was stated
to be aggrieved party. Further, the judiciary directed the government agencies
to be responsive to public grievances. The PIL got the required recognition in
S.P. Gupta case who was not an aggrieved person. The court observed that the

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basis of judicial redressal was personal injury but today where there is public NOTES
wrong or injury caused by act or omission of the state or a public acting bona
fide and having sufficient interest can maintain an action for redressal of such
public wrong or public injury’. As litigations became very expensive the effected
persons joined together to fight for a common cause. The PIL promises a new
jurisprudence of state accountability, particularly in respect of the rights of the
weaker section of the society.
The Supreme Court with its wide jurisdiction and powers reflected
the concern with providing social equality and the rule of law. It has acted
judiciously in changing socio-economic structure for the progress of the nation.
The existence of this court gives a feeling of security among the citizens. It acts
as an independent authority which puts check on extreme actions upholding
the constitutional values. The court should not allow its process to be abused
by politicians and others to delay legitimate administrative action or to gain in
a political objective. However PIL has been criticized for adding to the arrears
of the courts of consuming too much time and of making litigation a vital issue.

Conclusion
In a democratic polity, the independence of judiciary is valuable in itself. The
independence of judiciary has three dimensions: (1) freedom from encroachment
from other organs; (2) freedom from the executive and the legislative interference;
(3) decisions should not be influenced by either the executive or the legislature
and should be delivered without favour and fear.
To strengthen the judiciary, one may even add that the Cabinet Ministers
and members of Parliament should refrain from criticizing the judges and their
judgments. It is important to provide freedom than we can only expect judiciary
to perform its assigned role independently and to the best of its ability.

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NOTES
In-Text Questions
1. The Supreme Court replaced the ________ Court of India in 1950.
2. The President appoints the ________ of the Supreme Court.
3. Supreme Court judges retire at the age of ________.
4. ________ jurisdiction refers to the Court’s authority to hear cases for
the first time.
5. The Supreme Court can issue writs like ________ to enforce fundamental
rights.
6. Public Interest Litigation is often initiated to protect the ________
interest.
7. Judicial review ensures that ________ actions comply with the
Constitution.
8. The ________ Fund of India covers the expenses of the Supreme Court.
9. The term ________ activism refers to the judiciary stepping in when
other branches fail.
10. The ________ doctrine protects essential constitutional principles from
parliamentary amendments.

6.11 SUMMARY

• The Supreme Court of India replaced the Federal Court in 1950 and
serves as the highest authority for constitutional interpretation and dispute
resolution.
• Article 32 of the Indian Constitution makes the Supreme Court the protector
of fundamental rights, independent of legislative and executive control.
• The President of India appoints the Chief Justice and other judges of the
Supreme Court, though they are typically chosen based on the advice of
the Council of Ministers.
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• Supreme Court judges serve until the age of 65 and may resign by NOTES
submitting a letter to the President.
• The Court has original jurisdiction in cases involving disputes between
states or the Union and states, and in the enforcement of fundamental
rights.
• The Supreme Court also hears appeals in constitutional, civil, and criminal
matters from lower courts.
• The Court provides advisory opinions to the President on legal or
constitutional questions.
• The decisions of the Supreme Court are binding and it has the power to
punish for contempt.
• The Court has the authority to review its own decisions and can overturn
previous judgments if deemed necessary.
• The administrative expenses of the Supreme Court are charged to the
Consolidated Fund of India, ensuring financial independence.
• High Courts in India function at the state level and have similar powers,
including the issuance of writs to enforce fundamental rights.
• Judicial review allows the Court to determine the constitutionality of
legislative and executive actions.
• Judicial activism in India has emerged as a response to legislative and
executive inactivity, empowering the judiciary to uphold social justice.
• Public Interest Litigation (PIL) allows third parties to approach the Court
on behalf of disadvantaged or aggrieved citizens, expanding access to
justice.
• PIL cases often involve fundamental rights violations, including those
related to prisoners, environmental protection, and worker rights.
• The Supreme Court plays a critical role in ensuring the balance of power
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NOTES • The independence of the judiciary is safeguarded by fixed salaries, tenure

security, and immunity from parliamentary criticism, except in cases of
removal.
• The High Courts have supervisory jurisdiction over lower courts and
tribunals within their states, ensuring proper judicial conduct.
• Judicial review in India is narrower than in the U.S., focusing on whether
laws violate the Constitution rather than broader objectives.
• The concept of “basic structure” of the Constitution limits the ability of
Parliament to amend fundamental elements of the Constitution.

6.12 GLOSSARY

• Judicial Review: It is the power of courts to review the constitutionality

of legislative and executive actions.
• Original Jurisdiction: It is the authority of a court to hear a case for the
first time.
• Appellate Jurisdiction: It is the power of a court to review and revise
decisions of lower courts.
• Public Interest Litigation (PIL): It is the legal action initiated in court
for the protection of public interest.
• Chief Justice of India: It is the head of the Supreme Court of India.
• Consolidated Fund of India: It is the main government account from
which Supreme Court expenses are paid.
• Writ: It is a formal written order issued by a court to protect fundamental
rights.
• Advisory Jurisdiction: It is the power of the Supreme Court to advise the
President on legal matters.
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• Judicial Activism: It is the proactive role of the judiciary in ensuring NOTES

justice when other branches fail.
• Contempt of Court: It is the offense of being disobedient or disrespectful
toward a court of law and its officers.
• Basic Structure Doctrine: It is a judicial principle that certain parts of
the Constitution cannot be altered by Parliament.
• Federal Court: It is the predecessor to the Supreme Court of India,
established under the Government of India Act, 1935.
• Habeas Corpus: It is a writ requiring a person under arrest to be brought
before a judge or into court.
• Certiorari: It is a writ issued by a superior court to review the decisions
of a lower court.

6.13 ANSWERS TO IN-TEXT QUESTIONS

1. Federal
2. Chief Justice
3. 65
4. Original
5. Habeas Corpus
6. Public
7. Legislative
8. Consolidated
9. Judicial
10. Basic Structure

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NOTES
6.14 SELF-ASSESSMENT QUESTIONS

1. Explain the procedure of appointment of Judges.

2. Describe the appointment of Acting Chief Judge.
3. Explain the procedure of Judicial Review and Activism.

6.15 REFERENCES/SUGGESTED READINGS

• Bakshi P.M. The Constitution of India. Universal Law Publishing, Delhi,

2000.
• Basu D.D. Introduction to the Constitution of India. Prentice-Hall of India,
New Delhi, 1992.
• Jain M.P. Indian Constitutional Law. Wadhwa & Company, Nagpur, 1999.
• Pylee M.V. India’s Constitution. S. Chand & Company, New Delhi, 1994.
• Rao K.V. Parliamentary Democracy of India: A Critical Commentary.
The World Press, Calcutta, 1961.
• Singh M.P. & Saxena R. Indian Politics: Contemporary Issues and
Concerns. Prentice-Hall of India, New Delhi, 2008.

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Unit VI: Centre-State Relations and Decentralization

Lesson 7: Centre State Relations

Lesson 8: Decentralization
Centre State Relations

LESSON 7 NOTES

CENTRE STATE RELATIONS

Dr. Smita Agarwal

Assistant Professor
Department of Political Science, DU

STRUCTURE
7.1 Learning Objectives
7.2 Introduction
7.3 Division of Powers
7.4 Legislative Relations
7.5 Administrative Relations
7.6 Financial Relations
7.7 Fifth and Sixth Schedules
7.8 Summary
7.9 Glossary
7.10 Answers to In-Text Questions
7.11 Self-Assessment Questions
7.12 References/Suggested Readings

7.1 LEARNING OBJECTIVES

After reading this lesson, students should be able to:

• Understand centre state relations
• Study the division of Powers (Legislative and Administrative)

7.2 INTRODUCTION

Federalism is the system of government where the powers are divided between
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NOTES independent of each other. K.C. Wheare argues that: “By the federal principle, I
mean the method of dividing powers so that general and regional governments
are each within a sphere, coordinate and independent”. The framers of the Indian
Constitution divided the powers between the Centre and the States but at the same
time, in Article 1 of the Constitution, declared India as a ‘Union of States’ and
not as a Federation of States. The complexity of the nature of Indian federalism
is further evident from the views of various political scientists. People like Sir
Ivor Jennings, Paul H. Appleby, K. Subba Rao, Dr. Rajendra Prasad, and Dr.
B.R. Ambedkar describe the Constitution as federal whereas, Dr. K. M. Munshi
calls it more unitary than federal, and K.C. Wheare describes it as quasi-federal.

7.3 DIVISION OF POWERS

The federal principle envisages sharing of power between the Centre and the
States. It is the Constitution that confers powers on these units by specifying
the subjects allotted to both the Centre and the States. The Indian Constitution
provides for three lists – According to Article 246, Parliament has been given the
exclusive power to make laws on matters mentioned in the Union List and the
State Legislature has been given the exclusive powers to make laws on matters
mentioned in the State List. On matters mentioned in the Concurrent list, both
Parliament and the State Legislature have concurrent jurisdiction. However, in
case of a conflict between the law made by Parliament and the State Legislature
on a matter mentioned in the Concurrent list, the law made by Parliament prevails
and the law made by the State legislature shall be void to the extent it clashes
with the law made by Parliament (Article 254).
List I of VIIth/seventh schedule called as Union List contains 1001 subjects
of national importance. Example: Defence, Armed forces, Foreign affairs, War
and Peace, Railways, Currency and Coinage, Reserve Bank of India, Trade and
Commerce, etc. on which the Central Government can legislate.

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List II of Schedule 7 contains 61 subjects. Example: Police, Prisons, Local NOTES

Governments, Public Health, Agriculture, Land, Money Lending, etc. over which
the State legislature has exclusive power to make laws.
List III of 7th Schedule contains 52 subjects. Example: Criminal Law,
Marriage and Divorce, Forests, Price Control, Factories, Acquisition and
Requisitioning of Property, etc. on which both the Centre and the States are
competent to make laws.

7.4 LEGISLATIVE RELATIONS

In ordinary circumstances the distribution of powers in legislative matters

is guided by Article 245 and Article 246 which specifies the subjects and
the jurisdictions of the Centre and the States. The Union government has no
jurisdiction with respect to the subjects mentioned in the State list. But under
certain circumstances this scheme of distribution of powers automatically gets
modified whereby many articles of the Constitution either empower Parliament to
make laws even on matters mentioned in the State list or empower the President
to veto the Bills passed by the State legislature. For example:
a) According to Article 249, if the Rajya Sabha passes a resolution, supported
by at least 2/3rd of its members, present and voting, declaring a particular
subject to be of ‘national interest’, then the Parliament becomes competent
to make law on the specified State subject, for a period of not more than
one year at a time.
b) Under Article 250, the Parliament has the power to make laws on State
subjects for the whole or any part of the territory of India during ‘the
proclamation of Emergency.’
c) According to Article 252, the legislatures of two or more States may pass
resolutions requesting Parliament to make laws on a subject which is not

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NOTES included in the Union list. Such laws will be applicable only in those States
which have passed such resolutions. It will also apply to those States which
adopt it by resolution. For example, The Wild Life (Protection) Act, 1972;
The Transplantation of Human Organs Act, 1994 were passed under Article
252.
d) According to Article 253, Parliament has the power to make laws for
implementing any treaty, agreement, or convention with any other country
or any decision made at any international conference or body. Under this
article the Parliament may legislate on a subject enumerated in the State
list.
e) The Governor of the State may reserve certain kinds of Bills for the
Presidential assent. Even some of the Bills pertaining to matters mentioned
in the Concurrent list [Article 254(2)] may also be reserved by the Governor
for the consideration of the President.
f) Whenever emergency is declared in the country under Article 352 of
the Constitution, Parliament gets the power of making laws on matters
mentioned in the State list [Article 250(1)] which means for all practical
purposes the State list is automatically converted into a Concurrent list.
Thus, the mere listing of subjects in the three different lists does not
specify the positions occupied by the Centre and the States in the balance of
power. Despite the fact that certain important subjects are listed in the State
list, Parliament can intervene in that field on many grounds mentioned in the
Constitution and this has strengthened the position of the Centre vis-a-vis
the States. The socio-economic-political conditions of the Country and the
international environment at the time of framing of the Constitution made it all
more essential to strengthen the Centre and this was done by giving it a dominant
role in the distribution of legislative powers.

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NOTES
7.5 ADMINISTRATIVE RELATIONS

The Indian federal system is based on the general principle that the executive
power is co-extensive with the legislative power, i.e., the executive power of
the Union extends to all those matters with respect to which Parliament has the
power to make laws (Article 73) and the executive power of the States extends
to all those matters with respect to which the legislature of the State has the
power to make laws (Article 73). But as far as exercise of administrative powers
is concerned, the Centre possesses much more powers than it enjoys in the field
of legislation. Articles 256 to 263 provide for Union control over the States even
in normal conditions. The Union may give directions to a State:
a) To ensure compliance with laws made by the Parliament (Article 256).
b) To ensure that the executive powers of the State is exercised in a manner
not to impede the exercise of the executive power of the Union (Article
257).
c) For the construction and maintenance of means of communication of
national and military importance and for the protection of railways within
the State.
d) To execute schemes related to welfare of Schedule Tribes (Article 339).
e) To ensure that every State is run in accordance with the provisions of the
Constitution (Article 355).
f) Regarding the manner in which the executive power is to be exercised
during a Proclamation of Emergency under Article 352 (Article 353).
Also, if a State fails to comply with any of the directions given by the
Government of India under any of the provisions of the Constitution, the President
may hold that a situation has arisen in which the Government of the State cannot
be carried on in accordance with the provisions of this Constitution (365). As

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NOTES soon as this declaration is made the State Government will be dismissed under
Article 356 and the State Assembly may either be suspended or dissolved.
Other than those mentioned above, there are certain more provisions in the
Constitution which tilt the balance of power in favour of the Centre. For example:
a) Article 275 provides for payment by the Union of grants-in-aid of
revenues of the States.
b) The officers of the All India Services are allotted to a State cadre
but are controlled by the Union. More such All India services can be
created by the Centre if the Rajya Sabha by passing a resolution by
two-thirds majority of members present and voting recommends the
creation of such All India services.
c) Article 258 empowers the Union to entrust certain functions either
conditionally or unconditionally to the State government or its officers
with the consent of the State government. But in certain cases even
without the consent of the State government, Parliament, may by
law confer powers and imposes duties on State officials. However,
in such cases if the State Government is to incur certain additional
expenses, then they are to be paid by the Government of India.
d) Governors are the Constitutional Head of the states and they are
appointed, dismissed and transferred by the President. Many a
times, because of the pressure of the Central government, they have
to exercise their power of appointing and dismissing Ministries,
summoning, proroguing, and dissolving the Assemblies; making
recommendations to impose the President’s rule, keeping in view the
interests of the ruling party at the Centre.
The facts mentioned here undoubtedly point towards the administratively
predominant position of the Centre vis-à-vis the States. Though the Constitution
framers tried their best to delicately balance the issues of State autonomy and
that of providing for a strong Centre to maintain the Unity and Integrity of the
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Country, yet the States occupy a subordinate position as far as administrative NOTES
powers are concerned.

7.6 FINANCIAL RELATIONS

In order to ensure that both the Centre and the States have their independent
sources of income, the Constitution framers in Part XII of the Constitution made
provisions for the distribution of various taxes and duties between the Centre and
the State. But a detailed analysis of Articles 264 – 300 will reveal that the States
have been made dependent on the Union for funds. The various taxes, duties,
and other sources of revenue can be summarised in the following six categories:
1. Taxes levied by the Union but collected and appropriated by the States.
They are:
i) Stamp duties mentioned in the Union list.
ii) Duties of excise on medicinal and toilet preparations.
The Union has no share in the proceeds (Article 268).
2. Taxes levied and collected by the Union but are assigned to the States as
per the principles formulated by the Parliament by law (Article 269).
3. Taxes levied and collected by the Union (except those mentioned in Articles
268, 268 A, and 269) and distributed between the Union and the States
(Article 270). This article was inserted by the 80th Constitution Amendment
act, 2000 and has considerably increased the resources of the States.
4. Article 271 provides for levy of surcharges on duties and taxes. The
proceeds of such surcharges go to the Union exclusively with no share to
the States.
5. Taxes which are levied and collected by the Union and may be distributed
between the Union and the States if Parliament by law so provides (Article
272).
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NOTES 6. Certain grants-in-aid provided by the Centre are:

i) A certain amount of export duty on jute and jute products is to be
given as grants-in aid to the States of Assam, Bihar, Orissa, and West
Bengal (Article 273).
ii) Certain grants-in-aid may be given to the States which are in need
of assistance if Parliament so provides (Article 275). Different sums
may be fixed for different States depending upon the assessment of
their needs and some of them may not be given at all.
iii) Article 282 empowers the Union and the States to make grant for any
public purpose.
Consolidated Fund: Under Article 266, the Constitution has brought into
existence a Consolidated Fund for the Central government and also a separate
Consolidated Fund for each State. All the receipts of the taxes, fees, cesses, etc.,
in favour of the Centre or the State are credited in their Consolidated Funds
respectively. In order to withdraw money from the Consolidated Fund, the
competent legislature passes Appropriation Acts. The purpose of creating these
funds was to ensure that no appropriation can be made from these Funds without
the authority of law.
Finance Commission and Planning Commission: Article 280 provides for
the Constitution of a Finance Commission. Article 280(3) of the Constitution has
assigned an important role to the Finance Commission so far as the distribution
of the net proceeds of the taxes which are to be and may be divided between
Centre and the States and in giving grants-in-aid including the determination of
the principles governing them is concerned. But apart from it there is another
Commission which has been created by a resolution of the Government which
controls and distributes Central grants to the States. This Commission was an
extra-Constitutional body but was performing important financial functions.
Despite the fact that there is a division of powers between the Centre and
the States, the Centre has very frequently used its powers to meet the political
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needs of the party in power. The various issues that have been major irritants in NOTES
the Centre – State relations are:
(a) Discriminatory role of the Governor
(b) Reservation of bills for the consideration of the President
(c) Dismissal of State Governments under Article 356
(d) Use of All India Services by the Centre
(e) Discrimination against States in the allocation of funds
(f) Postponement of assembly by-elections on partisan grounds
(g) Appointment of Enquiry Commissions
(h) Demand for State Autonomy
(i) Law and Order problem in the States and the role of the Centre
(j) Differences on finance and planning
(k) Inter-State Disputes (Boundary and Water)

7.7 FIFTH AND SIXTH SCHEDULES

The fact that the geographical size of the States is different from each other
requires that the Constitution recognises this inequality while at the same
time protect the diversity as well as the unity of the country. The statutory
arrangements recognising this asymmetry have been appropriately incorporated
in the Constitution. These asymmetries have been visible in different forms:
economic, social, and cultural. The Constitutional provisions also ensure that
the cultural identities, customs, and political and economic interests of various
regions and communities are protected.
With the purpose of protecting the interests of Scheduled Tribes with
regard to land alienation and other social aspects provisions of ‘Fifth Schedule’
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NOTES contains special provisions for administration and control of certain areas which
have been named as Scheduled Areas and also for Scheduled Tribes even though
such areas form part of a State or Union Territory.

Fifth Schedule
The Fifth Schedule under Article 244(1) of the Constitution defines ‘Scheduled
Areas’ as those areas as the President may by order declare to be Scheduled Areas
after consultation with the Governor of the State. Fresh orders may be issued from
time to time redefining the Scheduled Areas. This Schedule covers Tribal areas
in 9 states of India namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal
Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Orissa, and Rajasthan. The
main provisions are as follows:
• The executive power of the State is subject to the 5th Schedule.
• The Governor is required to report to the President annually or whenever
so required by the President regarding the administration of the Scheduled
Areas.
• Each State has a Tribes Advisory Council consisting of not more than 20
members of whom ¾ shall be the representatives of Scheduled Tribes in
the Legislative Assembly of the State. It is the duty of the Tribes Advisory
Council to advise the government on the matters relating to the welfare
and advancement of the Scheduled Tribes referred by the Governor.
• The Governor is authorised to direct that any particular Act of Parliament
or of the State legislature shall not apply to a Schedule Area or shall apply
with such modifications as may be specified.
• The Governor is authorised to make regulations to prohibit or restrict
transfer of land by or among the members of Scheduled Tribes. All such
regulations made by the Governor must have the assent of the President.
The purpose of the Fifth Schedule is to provide protection to the Tribal
people living in these Scheduled areas from being alienated from their land and
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Sixth Schedule NOTES

To safeguard the democratic traditions and cultural diversity of the tribes residing
in the hilly areas of the North-Eastern States, the provision of tribal self-rule
was envisioned by the Constitution makers. These provisions are enshrined in
the Sixth Schedule, which in accordance with Article 244, lays down special
provisions for administration of Tribal Area in Assam, Meghalaya, Tripura, and
Mizoram. The following provisions emanate from this Schedule:
• Each Tribal Area is administered as an autonomous district.
• Such districts remain under the executive authority of the State in which it
is situated but District Councils and Regional Councils are created which
exercise certain legislative and judicial functions.
• These councils have the power to make laws for certain specified subjects,
example: land use, land occupation, succession of property, use of water
course, management of forest, marriage and divorce, social customs, flood
control, trade and commerce, etc.
• They have also been conferred to judicial powers. They can constitute
village councils or courts for the trial of suits and cases between parties
all of whom belong to Scheduled Tribes within such areas.
• The Councils have the power to assess and collect land revenue and to levy
certain specific taxes, example: taxes on profession, animals and vehicles,
on entry of goods, etc.
• The President in regard to a Central Act and the Governor in regard to a
State Act may direct that the Central Act or State Act shall not apply to
an autonomous district or shall apply with such modifications as may be
specified.
• The Councils will be subject to the jurisdiction of the High Court.

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NOTES Conclusion
At the last we can understand the fact that the geographical size of the states is
different from each other requires that the Constitution recognises this inequality
while at the same time protect the diversity as well as the unity of the country.

In-Text Questions
1. The Indian Constitution refers to India as a ________ of States, not a
Federation.
2. The Union List contains ________ subjects of national importance.
3. In case of a conflict in the Concurrent List, the law passed by ________
prevails.
4. The Planning Commission has been replaced by ________.
5. Article ________ allows the President to impose President’s Rule in a
State.
6. ________ jurisdiction allows both the Centre and States to legislate on
certain subjects.
7. The Finance Commission is established under Article ________ of the
Constitution.
8. The ________ Schedule protects the rights of Scheduled Tribes in
northeastern states.
9. ________ aid refers to financial assistance provided by the Centre to
needy States.
10. The ________ system divides powers between the Centre and States.

7.8 SUMMARY

• Federalism in India divides powers between the Centre and the States,
with each being independent within its own sphere.
• The Indian Constitution refers to India as a “Union of States,” not a
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Centre State Relations

• Power is distributed through three lists: Union List (100 subjects), State NOTES
List (61 subjects), and Concurrent List (52 subjects).
• In case of conflict over a subject in the Concurrent List, the law passed by
Parliament prevails.
• Under certain conditions, Parliament can legislate on State subjects, such
as during an emergency or when the Rajya Sabha declares a matter of
national interest.
• The Centre’s dominance is also evident in legislative relations, as it can
override State laws in various situations.
• Administrative relations are co-extensive with legislative powers, with the
Centre having more authority, especially during emergencies.
• The President can dismiss a State government if it fails to comply with
Central directives, invoking Article 356.
• Financial relations are skewed toward the Centre, with States reliant on
the Union for grants and revenues.
• Taxes are distributed based on provisions such as Articles 268-270, with
some taxes exclusively for States and others shared with the Union.
• The Finance Commission, established under Article 280, advises on the
distribution of taxes between the Centre and the States.
• The Planning Commission (now replaced by NITI Aayog) was an extra-
constitutional body that controlled Central grants to States.
• Issues like the role of Governors, Article 356, and State autonomy have
historically caused tensions in Centre-State relations.
• The Fifth Schedule protects the interests of Scheduled Tribes in specific
areas by restricting land transfer and regulating governance.
• The Sixth Schedule provides for autonomous district councils in tribal areas
of the northeastern states, granting them legislative and judicial powers.
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NOTES • The Councils under the Sixth Schedule can legislate on local matters like
land use, social customs, and resource management.
• These Councils can also set up courts for disputes between tribal members
and levy taxes within their jurisdiction.
• The Governor plays a critical role in the administration of Fifth and Sixth
Schedule areas, with some decisions requiring Presidential assent.
• The balance of power in Indian federalism often tilts toward the Centre,
especially in financial and administrative matters.
• Despite the division of powers, the Centre frequently influences State
governance through various constitutional provisions.

7.9 GLOSSARY

• Federalism: It is a system of government where power is divided between

the Centre and States.
• Union List: It is a list of subjects on which only the Centre can legislate.
• State List: It is a list of subjects on which only the State governments can
legislate.
• Article 356: It is the article that allows the President to dismiss a State
government if it fails to function per constitutional provisions.
• Finance Commission: It is a constitutional body that advises on the
distribution of taxes between the Centre and States.
• Article 249: It is the article that allows Parliament to legislate on State
subjects if the Rajya Sabha deems it of national interest.
• Planning Commission: It is a now-replaced body that controlled Central
grants to States, succeeded by NITI Aayog.

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• Grants-in-aid: It is a financial assistance provided by the Centre to States NOTES

in need.
• Concurrent Jurisdiction: It is the shared legislative powers between the
Centre and States on subjects in the Concurrent List.
• Emergency Powers: These are the special powers of the Centre during
national emergencies, including legislating on State matters.
• Governor: It is the constitutional head of a State, appointed by the
President, with significant influence over State governance.
• Consolidated Fund: It is a government account where all tax revenues
are deposited, from which withdrawals require legislative approval.

7.10 ANSWERS TO IN-TEXT QUESTIONS

1. Union
2. 100
3. Parliament
4. NITI Aayog
5. 356
6. Concurrent
7. 280
8. Sixth
9. Grants-in
10. Federal

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NOTES
7.11 SELF-ASSESSMENT QUESTIONS

1. Explain central and state relations.

2. Define power and draw comparison between legislative and administrative.
3. Write a short note on fifth and sixth schedules.

7.12 REFERENCES/SUGGESTED READINGS

• Bakshi P.M. The Constitution of India. Universal Law Publishing, Delhi,

2000.
• Basu D.D. Introduction to the Constitution of India. Prentice-Hall of India,
New Delhi, 1992.
• Jain M.P. Indian Constitutional Law. Wadhwa & Company, Nagpur, 1999.
• Pylee M.V. India’s Constitution. S. Chand & Company, New Delhi, 1994.

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Decentralization

LESSON 8 NOTES

DECENTRALIZATION

Dr. Smita Agarwal

Assistant Professor
Department of Political Science, DU

STRUCTURE
8.1 Learning Objectives
8.2 Introduction
8.3 History of Local Governance in India: An Overview
8.4 Local Governance in Pre-Colonial Period
8.5 Ashok Mehta Committee 1978
8.6 73rd Amendment Act: Key Mandatory Provisions
8.7 The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996
8.8 Summary
8.9 Glossary
8.10 Answers to In-Text Questions
8.11 Self-Assessment Questions
8.12 References/Suggested Readings

8.1 LEARNING OBJECTIVES

After reading this lesson, students should be able to:

• Understand the History of Local Governance in India
• Discuss the Local Governance and Pre-Colonial Period
• Analyse the Ashok Mehta Committee (1978) recommendations
• Evaluate the provisions of 73rd Amendment Act and its key mandatory
features

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NOTES
8.2 INTRODUCTION

Grassroots democracy is a tendency towards designing political processes where

as much decision-making authority as practical is shifted to the organization’s
lowest geographic level. It leads to the creation of institutions both formal and
informal which are collectively called local governance. Grassroots democracy
thus helps in pursuing collective action by defining the framework for citizen-
citizen and citizen–state interaction. Local governance is associated with
decentralization of power. Broadly speaking, the term decentralization refers
to the process of gradual devolution or transfer of functions, resources and
decision-making powers to the lower level democratically elected bodies (Crook
and Manor 1998). In terms of applicability to different types of initiatives,
decentralization occurs through different types i.e. privatization, de-concentration,
downward fiscal transfers, and devolution.1 Of these, devolution is considered
to be an ideal form of decentralization in its wider connotations. This includes
devolution or transfer of tasks and function with matching resources, as well as
appropriate decision-making powers to the lower level democratically elected
bodies, which are often perceived as independent of higher-level authorities.
This is considered as a comprehensive definition of decentralization as it is by
and large covers what is perceived as common ground held by others.

8.3 HISTORY OF LOCAL GOVERNANCE IN INDIA:

AN OVERVIEW

Local governance historically predates the emergence of nation-states. In ancient

history, tribes and clans established systems of local governance in most of the
world. They established their own codes of conduct and ways of raising revenues
and delivering services to the tribe or clan. Tribal and clan elders developed

1. Decentralization is a broad term which has been defined in many ways. Here it is based on the
Self-Instructional assessment of Rondenelli et al. (1984). For a brief account of this refer to Manor, James, “Political
162 Material
Economy of Democratic Decentralization”, World Bank 1999.

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Decentralization

consensus on the roles and responsibilities of various members. Some tribes and NOTES
clans with better organization and skills then sought to enlarge their spheres of
influence through conquest and cooperation with other tribes. In this way, the
first Chinese dynasty, the Xia, was established (2070 BC to 1600 BC) (see Zheng
and Fan 2003). A similar situation prevailed in ancient India, where in the third
millennium BC (about 2500 BC) a rich civilization was established in the Indus
Valley (now Pakistan). This advanced civilization has placed great emphasis on
autonomy in local governance and enshrined a consensus on division of work
for various members of the society.2
The philosophical basis of local government is well laid out in the
Gandhian ideas when he defined village panchayats in the following words
“My idea of village Swaraj is that it is a complete republic independent of its
neighbours for its own vital wants and yet interdependent for many others in
which dependence is necessity. The government of the village will be conducted
by the panchayat of five persons annually elected by the adult villagers, males,
and females, possessing minimum prescribed qualifications. These will have all
authority and jurisdiction required. Since there will be no system of punishment
in the accepted sense, the panchayat will be legislature, judiciary, and executive
combined to operate for its year of office. Any village can become such a republic
today without much interference even from the present government whose sole
effective connection with the village is the execution of village revenue. Here
there is a perfect democracy based upon individual freedom. The individual is
the architect of his own government.”3

8.4 LOCAL GOVERNANCE IN PRE-COLONIAL PERIOD

It is widely recognized that self-governing village communities characterized by

agrarian economies had existed in India from earliest times. Not only they are

2. ‘Two Perspectives on Local Government’ (Introduction) in Grassroots Democracy in India

And China: Right to Participate, Mohanty Manoranjan, Ma Ronga, Mathew George (ed),
Self-Instructional
Sage Publication, New Delhi, 2007. Material 163
3. Gandhi, M.K., ‘My Idea of Village Panchayat’, 26th July, 1942, Harijan.

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NOTES mentioned in the Rig Veda which dates from approximately 1200 B.C., there is
also definite evidence available of the existence of ‘village sabhas’ (council of
assemblies) and ‘gramins’ (senior persons of the village) until about 600 B.C.
These village bodies were the lines of contact with higher authorities on day to
day matters affecting the villages. In course of time, these village bodies took
the form of panchayats (an assembly of five people) which looked after the
affairs of the village. They had both police and judicial powers. Custom and
religion elevated them to a sacred position of authority. If this was the general
pattern in the Indo-Gangetic plains, in the south, village panchayats generally
had a village assembly whose executive body consisted of representatives of
various groups and castes. Panchayats in north and south had been pivot of
administration, the center of social life, and focus of solidarity. Even during
the Medieval and Mughal periods, this characteristic of the village panchayat
remained unchanged. Although under the Mughals their judicial powers were
curtailed, local affairs remained unregulated from above, and village officers
and servants were answerable primarily to the panchayats.4

Local Governance in British Colonial Period:

With the advent of the British, the self-contained village communities and their
panchayats ceased to get sustenance. In course of time, they were replaced by
formally constituted institutions of administration. It is a historical fact that self-
government in India, in the sense of responsible representative institutions was
the creation of colonial rulers. It is not that the first priority of the British rulers
concentrated on creation of local bodies. But their interest in trade made them
establish local bodies in those areas; it was limited to creation of local bodies of
nominated members in the major towns. It was thus as early as 1687, a Municipal
Corporation came to be formed in Madras based upon the British Model of a
Town Council. This body was empowered to levy taxes for building halls and

4. Mathew George, “Panchayati Raj in India- An overview” in “ Status of Panchayati Raj in

the States and Union Territories of India 2000”, Concept Publishing Company, New Delhi,
2000.
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Decentralization

schools. With the passage of time, the sphere of activities of this corporation NOTES
and similar bodies set up in other major towns increased and their administrative
power widened. Although symbolizing local government of some sort, the bodies
continued to comprise of nominated members only 5. A great shift occurred in the
structure and functioning of local government bodies after Mayo Resolution was
passed. In 1870, the Viceroy, Lord Mayo, got a resolution passed by his council
for decentralization of power to bring about administrative efficiency in getting
the demands of people fulfilled and add to the “existing imperial resources which
would suffice for the growing wants of the country”6.
The passing of Ripon Resolution in 1882 was a watershed in the structural
evolution of the government in the country. He established the local bodies
consisting of elected non-official members and presided by a non-official
chairperson. It is considered to be ‘Magna Carta’ of local democracy in India.
The role of local administration was elevated by the passing of the resolution. The
resolution proposed the establishment of rural local boards, two-thirds of whose
membership was composed of elected representatives. Although the step was
half-hearted, the term ‘self-government’ began to take prominence. In 1906, the
Indian National Congress under the presidentship of Dadabhai Naroji, accepted
“self- government” as the political goal of the country. In 1907, the government
constituted a ‘Royal Commission on Decentralization’ which in its report released
in 1909 elaborated further the principles enunciated in the Ripon Resolution.
Although this commission consisted of five Englishmen and only one Indian, it
recognized the importance of panchayats in the Indian context. But like the Ripon
Resolution, recommendations made by Royal Commission on Decentralization
remained largely on paper, a fact underlined by the congress in a resolution
adopted in 28th congress session in 1913. The Montagu-Chelmsford Reforms
in 1919, under the proposed scheme of dyarchy, made local self-government a
“transferred subject”. This meant that local self-government was brought under
the domain of Indian ministers in the provinces. It was a promising move and

5. Ibid
6. Venkatarangaiya, M. and Pattabhiram, M. (ed.), Local Government in India: Selected Self-Instructional
Readings, Allied Publishers, Bombay, 1969 Material 165

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NOTES an advanced move in this sphere. To make local self-government both fully
responsible and representative, the reforms had suggested that there should be
as far as possible, complete popular control in local bodies and largest possible
independence for them of outside control. Notwithstanding this professed
objective of Montagu-Chelmsford scheme, it did not make the panchayat
institutions truly democratic and vibrant instruments of self-government at the
level of villages due to various constraints, both organizational and fiscal. Still
in almost all provinces and a number of native states, acts were passed for the
establishment of village panchayats. By 1925, eight provinces in British India
had passed such these statutory panchayats that covered only a limited number
of villages and had only a limited number of functions.7
The Government of India Act 1935 and the inauguration of Provincial
Autonomy under it marked another important stage in the evolution of panchayats
in the country. With popularly elected government in the provinces almost
all provincial administration felt duty-bound to enact legislations for further
democratization of the local self-government institutions including village
panchayats.8 From 1935 till 1947 the status of panchayats remained unchanged.

Constituent Assembly Debates:

India gaining independence and Gandhi’s influence upon political freedom during
national movement with village panchayats at its center made the people think
that India’s commitment to democratic decentralization would find a special status
in the constitution. The first draft of India’s constitution did not give any place
to panchayats. For Ambedkar, ‘village republics’ have ruined India and they are
‘a sink of localism and ignorance, narrow-mindedness and communal’, and he
was surprised that those who condemn provincialism and communalism should
come forward as champions of village. Countering this, members like Madhav

7. Mathew George, “Panchayati Raj in India- An overview” in “Status of Panchayati Raj in

the States and Union Territories of India 2000”, Concept Publishing Company, New Delhi,
2000.
8. Mathew George, “Panchayati Raj In India- An Overview”, in “Status of Panchayati Raj in
Self-Instructional the States And Union Territories of India 2000”, Concept Publishing Company, 2000, N.
166 Material Delhi.

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Decentralization

Rau of Mysore said that, “It is true some villages are chronically faction-ridden NOTES
and indulge in petty tyrannies, or remain the strongholds of untouchability. A
considerable number are pathetic or even moribund.” However, according to him,
if thirty percent could be classed as good, they could not be ignored. He quoted
the example of the effort being made by then popular government in Mysore as
‘encouraging and sometimes gratifying’.9 Despite some leaders defending the
local governance they were not made statutory. They were made part of Article
40 of the Indian constitution and list II entry 5 in the seventh schedule. The entry
empowered the state legislature to legislate with respect to all matters relating
to local government including the constitution and establishment of such local
authorities. The constitution also empowered the state legislatures to confer such
powers upon local authority including power to levy taxes which the state could
levy under the state list. In spite of such direct and indirect powers, no substantial
steps were taken to give village panchayats a role in social transformation and
implementation of development programmes.

Rise and Decline of Panchayats till 1977:

India’s development strategy in the early fifties was through centrally administered
plans It did not take long to realize the folly of this approach. The Community
Development Project, in 1952, experimented in Shantiniketan, Baroda, and
Nilokheri soon found themselves in a pit in the absence of effective instruments
of people’s participation. In order to suggest a constitutional setup to secure such
a participation in the Community Development and National Extension Service
Program, the committee planned projects that constituted a team to study the
failure of these two projects. The study team was headed by Balwant Rai Mehta,
a Member of Parliament and was set up in 1957. The team gave following two
recommendations:
(a) Administrative decentralization for effective implementation of
development programme.
(b) Control by elected bodies for this decentralized administrative system.
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9. Constituent Assembly Debates, Official Report”, Vol. VIII, Lok Sabha Secretariat, New Material 167
Delhi, 1999.

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NOTES Its recommendation was that public participation in community works

should be organized through a statutory representative body, giving a fillip to
prevailing nation-wide sentiments.10
The recommendations of Balwant Rai Mehta team favouring ‘democratic
decentralization’, created the pace of constituting Panchayati Raj institutions in
all states. Even the National Development Council affirmed the basic principle
of democratic decentralization enunciated by Balwant Rai team and left it to
the states to work out the measures suitable to each state. During this stage, the
term “Panchayati Raj” came to mean, as a process of governance. It led to a
system organically linking people from Gram Sabha to Lok Sabha. S.K. Dey had
disclosed that the term was given by Nehru and it is different from panchayats
which means a local body within a geographical area. Rajasthan was the first state
to inaugurate Panchayati Raj after Balwant Rai Mehta’s report. Jawahar Lal Nehru
while inaugurating the panchayat at Nagaur hailed it as “the most revolutionary
and historical step in the context of new India.” Democracy at the top cannot be
successful until it is built from below. Nehru had felt similar sentiments while
inaugurating the new Panchayati Raj at Shadnagar, near Hyderabad. Nine days
later, S.K. Dey, Ministry of Community Development in Nehru’s cabinet and
the architect of Panchayati Raj after Independence elevated the whole idea to a
philosophical level and viewed it as an instrument which linked individual with
the universe. In the sphere of national democracy he visualized an organic and
intimate relationship between Gram Sabha and Lok Sabha.
By 1959, all the states had passed panchayat acts, and by mid 1960’s,
panchayats had reached all parts of the country. More than 217,300 village
panchayat, covering over 96 percent of the 579,000 inhabited villages and 92
percent of the rural population had been established. On an average, a panchayat
covered a population of about 2,400 in two to three villages.11 There was
enthusiasm in rural India and the people felt they had a say in affairs affecting

10. Peter Ronal Dsouza ‘Decentrlization and local government’ in Zoya hssan, E Sridharan and
R. Sudrshan (ed) India’s Living Constitution: Ideas prcatises and controversies Permanent
Self-Instructional Black :2002
168 Material 11. George Mathew Op.cit

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Decentralization

them. Those were the promising days of Panchayati Raj Institutions in India. NOTES
The report of the Ministry of Community Development had started in 1964-65
than younger and better leadership was emerging through the Panchayati Raj
institutions and there was a fairly high degree of satisfaction among the people
with their working.
In yet another comment, a study team appointed by the Associations of
Voluntary Agencies for Rural Development (AVARD) in 1962 that evaluated
Panchayati Raj in Rajasthan had made the following observation: It was reported
that the people felt that they had sufficient powers to enable them to mould their
future. They are fully conscious of the fact that such privileges and favours which
were formerly under the control of the Block Development Officers (B.D.O) are
now under their control by securing full advantage of democratic decentralization.
The study team then proceeded to say that the conferring of power on people’s
representatives had improved the attendance of teachers in primary schools, while
block administration had become more responsive, people were voicing their
grievances before the pradhans and obtaining relief through them and above all
petty corruption both among the subordinate staff as well as among the newly
elected leaders had declined; the former because the block staff had come under
the Panchayat Samiti and the latter because the public reputation of the pradhans
was crucial for them to get re-elected. In other words, Panchayati Raj institutions
fulfilled all the functions of a local government and acted as the nurseries or even
the primary schools of democracy. Due to interest generated by the Panchayati
Raj institutions several states set up committees to assess their working and to
recommend measures for improvement.
Echoing the same voice of the study team, Abhijit Datta said “Panchayati
Raj institutions have become only a living caricature of local government”. The
decline of Panchayati Raj occurred mainly because there was paucity of funds
at their disposal and state and center funds were inadequate. The elections to the
panchayats were a farce for it was like a change in permutation and combination,
as George Mathew says12. Traditional rivalries obstructed the functioning of
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NOTES panchayats which gave state government to delay the elections. In 1966-1967,
the reduction of Community Development Ministry to a department and later its
merger under Food and Agriculture Department further marginalized the role of
panchayats. Along with this came the next blow when new schemes integrated
with district areas were launched. Later Community Development Program
was widened to include rural development. Thus it marked the end of both
‘community’ and ‘panchayats’ as agents of change and agencies of development.,
as it is observed by L.C. Jain13.

8.5 ASHOK MEHTA COMMITTEE 1978

Ashok Mehta committee was setup to enquire into the working of the Panchayati
Raj institutions and to suggest ways to strengthen it. It marked a turning point
in the concept and functioning of Panchayati Raj. It launched second generation
panchayats. First generation panchayats were in the Nehruvian era. Mehta
committee had suggested the following:
1. All development activities should flow through the block level organization.
2. Panchayat samiti is a key unit of decentralization and in most cases it was
coterminous with the Block.14
Second generation panchayats started with the setting of panchayats in
Bengal on the lines of recommendation given by Mehta Committee. West Bengal,
Karnataka, Jammu, Kashmir, and Andhra Pradesh either revised their existing
panchayats or enacted new acts in theory accepting Ashok Mehta Committee.
Thus in this phase panchayats developed into a political institution. This was
largely due to the intervention of various political leaders of different states.
Ashok Mehta committee made the first official recommendation for
including in the constitution. Though the states had gone ahead in devolving
powers to the panchayats but concentration of power at the center was working

Self-Instructional 13. Ibid

170 Material 14. Ibid

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as a serious impediment. For instance, in 1985, Abdul Nazir Sab, the minister of NOTES
Panchayati Raj and Rural Development in Karnataka under the Janta Government,
had stressed that “without a constitutional amendment guaranteeing the - ‘Four
Pillar State’, our efforts may not be fruitful as we desire.”
Since the second generation panchayats gave more powers to the local
bodies, they evoked more enthusiasm both in implementation and functioning.
The West Bengal pattern was considered to be a success story. It was thought
that since no state government had taken there process seriously, the need
of constitutional support became pertinent. Further success to this approach
demands political will, people’s awareness and building healthy conventions
and traditions guided by constitutional and legislative changes which can bring
a transformation in the society. The working of second generations revealed that
first two factors were present only, third factor that was missing had thwarted the
successful working of panchayats. Various scholars working on panchayats have
even suggested that in the present condition constitutional mandate had become
necessary to realize the dreams of making panchayats as vehicle of social change.
By the end of 1988, a sub-committee of parliament for the Ministry of Rural
Development under the chairmanship of P. K. Thungon made recommendations
for strengthening the Panchayati Raj system. It also recommended for giving
constitutional status to panchayats. It was against this scene that on 15th May the
constitution (64th Amendment Bill) was drafted and introduced in the Parliament.
It was modelled on the recommendations of L. M. Singhvi draft bill and Ashok
Mehta Committee Report. Though the bill was welcomed, it was opposed for
following a uniform pattern, thus ignoring the different structures of different
states and secondly, it was an agency of the state with no role being played by
states. There was an outcry from both political parties and intellectual citizens.
In response to this widespread criticism, a committee headed by S. R. Bommai
was appointed by National Front. The report submitted stressed on the lacunae
of earlier bill and later bills that were re-drafted included the findings.15

15. Mathew Op.cit Self-Instructional

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NOTES Although the 64th Amendment Bill was passed with two-thirds majority
in Lok Sabha, in the Rajya Sabha, it failed to meet the mandatory requirement
by two votes. National Front government introduced the 74th Amendment Bill
(a combined bill on both Panchayats and Municipalities) on 7th September
1990 during its short tenure but it was never taken up for discussion. By this
time, the political atmosphere was charged for giving constitutional status to
local bodies. All parties had declared in their manifesto that they supported
constitutional amendment for strengthening panchayats. In September 1991, the
congress government under Narasimha Rao introduced 72nd (Panchayats) and
73rd Amendment (Nagarpalikas) constitutional Amendment bills. These two bills
were referred to a Joint Select Committee of Parliament. The Lok Sabha passed
the two bills on 22nd December 1992, while the Rajya Sabha passed them the
next day. By the time parliament passed the two bills, their sequence changed to
73rd and 74th Amendment Act respectively. Following their ratification by more
one-third states assemblies, the president gave his assent on 20th April 1993.
They came into force as constitution (Seventy Third Amendments) Act, 1992 on
April 1993, and constitution (Seventy-Fourth Amendment) Act, 1992 on 1st June,
1993. These amendments to the constitution brought about fundamental change
not only in the realm of local government but also in India’s federal character.16

8.6 73RD AMENDMENT ACT: KEY MANDATORY

PROVISIONS

This section discusses the key provisions of the 73rd Amendment Act.

Gram Sabha
It is a body consisting of people registered in the electoral rolls relating to a
village. This body was endowed with such powers and functions as the legislature
of the state may provide by law (Article 243 A).

Self-Instructional 16. Kumar Girish, “Local Democracy in India , Interpreting Decentralization”, Introduction,, Sage
172 Material
Publication, New Delhi , 2006.

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Constitution of Panchayats NOTES

The establishment in every state (except those with populations below 2 million)
of rural local bodies (panchayats) at the village, intermediate and district levels
(Article 243B) includes:
• Elections: Direct elections to all seats in the panchayats at all levels. Indirect
elections to the position of panchayat chairperson at the intermediate and
district levels (Article 243C). Compulsory elections to panchayats every
five years with the elections being held before the end of the term of the
incumbent panchayat in the event that a panchayat is dissolved prematurely,
elections must be held within six months, with the newly elected members
serving out the remainder of the five year term (Article 243E).
• Reservations of Seats (Article 243 D): Not less than one-third of the total
number of seats are reserved for the Scheduled Castes and Scheduled Tribes
in every panchayats. Among this, one-third of the seats shall be reserved for
women belonging to the Scheduled Castes or as the case may be Scheduled
Tribes. Not less than one-third (including the number of seats reserved for
women belonging to the Scheduled Caste and Scheduled Tribes) of the total
seats to be filled by direct election in every panchayat shall be reserved for
women and allotted by rotation to different constituencies in a panchayat.
The act also provides for reservation of one-third of the total number of
offices of chairpersons in the panchayats at all levels for women including
women from Scheduled Caste and Scheduled Tribes.
Following the amendment, about eight lakh women representatives entered the
different tiers of rural governance in 1993-1994.
• Election Commission (Article 243K): An independent election
commission to supervise and manage elections to local bodies, much as the
Election Commission of India manages state assembly and parliamentary
elections.

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NOTES • State Finance Commission (Article 243 I): It is established every five
years, to review the financial position of local bodies and recommend the
principles that should govern the allocation of funds and taxation authority
to local bodies.
• District Planning Committees Article 243ZD: It mandates the
constitution of District Planning Committees to consolidate the plans
prepared by both rural and urban local bodies. In order to facilitate a well-
planned husbanding of available resources, Panchayats and municipalities
should be informed as early as possible of what they might be expected
to receive by way of tied and untied funds under various budgetary heads
for implementing various schemes. This is an essential pre-requisite for
each tier of the Panchayati Raj system to prepare plans for its areas of
responsibility, as defined through Activity Mapping, and then for all these
plans, along with plans of municipalities, to be “consolidated” by the
District Planning Committees (DPC) as mandated by Article 243 ZD of
the Constitution. It needs to be underlined that the Constitution does not
provide for DPCs to prepare district plans on their own, but to “consolidate”
local area plans drawn up at lower tiers in both rural and urban areas of each
district (A different provision of the Constitution covers district planning
for Metropolitan areas).
Specific Provisions for Tribal and Scheduled Areas: Article 243M provides
that:
1. This Part shall apply to the Scheduled Areas referred to in clause (1) and
the tribal areas referred to in clause (2) of article 244.
2. This Part shall apply to:
a. The States of Nagaland, Meghalaya and Mizoram.
b. The hill areas in the State of Manipur for which District Councils
exist under any law for the time being in force.
3. Nothing in this Part relating to Panchayats at the district level shall apply
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for which Darjeeling Gorkha Hill Council exists under any law for the NOTES
time being in force.
Parliament may, by law, extend the provisions of this Part to the Scheduled
Areas and the tribal areas referred to in clause (1) subject to such exceptions and
modifications as may be specified in such law and no such law shall be deemed to
be an amendment of this Constitution for the purposes of Article 368. As required
under Part IX of the Constitution, all the States and UTs have enacted/amended
their Panchayati Raj Acts incorporating the provisions of Part IX.

8.7 THE PROVISIONS OF THE PANCHAYATS

(EXTENSION TO THE SCHEDULED AREAS)
ACT, 1996

Enactment of “The Provisions of the Panchayats (Extension to the Scheduled

Areas) Act, 1996” (PESA) was a step taken by the Government of India to
provide for the extension of the provisions of the Part-IX of the Constitution
relating to the Panchayats to the Fifth Schedule Areas with certain modifications
as provided under Article 243M(4)(b) of the Constitution. This legislation has
not only extended the development, planning and audit functions to the Gram
Sabhas in the Fifth Schedule Areas but has also endowed it with the management
and control of natural resources and adjudication of justice in accordance with
traditions and customs.

Issues in the Working of Panchayati Raj Act

PRIs are either a failure or, at best, a series of missed opportunities. Before 1993,
India had only two levels of government. The 73rd Amendment introduced local
governing bodies across India. This amendment, however, did not require the
implementation of local self-governing bodies. It only mandated the creation of
local self-governing bodies, and left the decision to delegate powers, functions,
and finances to the state legislatures.
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NOTES 1. Limited Transfer of Power to the Panchayats

Despite XI schedule of the Indian constitution delegating powers to the panchayats,
their transfer of power has been limited. This has been due to reluctance of state
legislature to make Panchayats autonomous. As a result, panchayats are mere
implementing agency for the state and central governments. A study carried out
by Planning Commission17 showed a terrible state of affairs with regard to all
state governments in transferring power to panchayats.

2. Lack of Funds to Panchayats

Local governments can either raise their own revenue through local taxes or
receive intergovernmental transfers. The 73rd Amendment recognized both
forms of public finance, but did not mandate either. The power to tax, even for
subjects falling within the purview of PRIs, has to be specifically authorized by
the state legislature. The 73rd Amendment let this be a choice open to the state
legislatures—a choice that most states have not exercised. A second avenue of
revenue generation is intergovernmental transfers, where state governments
devolve a certain percentage of their revenue to PRIs. The constitutional
amendment created provisions for State Finance Commissions to recommend the
revenue share between state and local governments. However, these are merely
recommendations and the state governments are not bound by them. Though
finance commissions, at every level, have advocated for greater devolution of
funds, there has been little action by states to devolve funds. As a result, PRIs are
so starved for funds that they are often unable to meet even payroll obligations.
They are reluctant to take on projects that require any meaningful financial outlay,
and are often unable to solve even the most basic local governance needs. The
only long-term solution is to foster genuine fiscal federalism where PRIs raise
a large portion of their own revenue and face hard budget constraints, i.e. fiscal
autonomy accompanied by fiscal responsibility.

17. http://planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_demo.pdf
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3. Proxy Candidate NOTES

The 73rd Amendments required that no less than one-third of the total seats in
local bodies should be reserved for women. India has the most women in elected
positions. This is the only level of government with reservation for women.
However various researches conducted after the implementation of reservation
for women found that women acted as proxy candidates18 for men of their
family. They were rubber stamps where actual decisions were taken by men of
their family. They lacked knowledge and experience for carrying out functions
of panchayats. At the same time research using PRIs has shown that having
female political representation in local governments makes women more likely
to come forward and report crimes. Further, female PRI leaders are more likely
to focus on issues pertinent to women. R. Chattopadhyay and E. Duflo19 show
that in districts with female sarpanch/pradhans, significantly greater investments
are made in drinking water, a priority public goods issue for women. They also
show that SC sarpanch/pradhans are more likely to invest in public goods in
SC hamlets an important change in the severely segregated villages of India.
In a country where access is determined by gender and caste, even more than
economic status, these changes are remarkable.

4. Unscientific Distribution of Functions

The Panchayati Raj scheme is defective in so far as the distribution of functions
between the structures at different levels has not been made along scientific
lines. The blending of development and local self-government functions has
significantly curtailed the autonomy of the local self-government institutions.
Again, it has virtually converted them into governmental agencies. Even the
functions assigned to the Panchayat and the Panchayat Samiti overlap, leading

18. Baviskar, B.S., “Impact of Women’s Participation in Local Governance in Rural India” –in
L.C. Jain (ed.), Decentralization and Local Governance (New Delhi: Orient Longman, 2005).
Buch, Nirmala, “Women and Panchayats: Opportunities, Challenges and Support” – in L.C.
Jain (ed.), Decentralization and Local Governance (New Delhi: Orient Longman, 2005).
19. Raghabendra Chattopadhyay and Esther Duflo, Women’s leadership and policy
decisions: Evidence from a nationwide randomized experiment in India (Boston: Institute Self-Instructional
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NOTES to confusion, duplication of efforts and shifting of responsibility. The three-tiers

do not operate as functional authorities. The tendency on the part of the higher
structure to treat the lower structure as its subordinate is markedly visible.

5. Bureaucratic Attitude towards Panchayats

Introduction of the Panchayati Raj aimed at securing effective participation of
the people but in reality this hardly happens since the key administrative and
technical positions are manned by the government officials. Generally, there is
lack of proper cooperation and coordination between the people and the officials
like Block Development Officers, the District Officers, etc. Again, the officers fail
to discharge the developmental duties more efficiently and sincerely. Bureaucracy
at the state level that had long enjoyed autonomy refuses to be under elected
representatives. As a result, they create hindrances by creating parallel structures
of power with panchayat institutions or they show lack of co-ordination with them.

6. Undemocratic Composition of Various Panchayati Raj Institutions

Various Panchayati Raj Institutions are constituted setting aside democratic
norms and principles. In many cases, state governments show reluctance in
setting elections commission that can aid the elections at this level. As a result,
there are long delays in holding elections. At the same time the indirect election
of most of the members to Panchayat Samiti only increases the possibility of
corruption and bribery. Even the Zila Parishad consists of mainly ex-officio
members. They are, for the most part, government officials. This negates sound
democratic principles.

7. Disillusionment on Structural-Functional Front

The performance of Panchayati Raj Institutions has been badly affected by
political cum caste factionalism, rendering developmental projects into an
illusion or dream. Corruption, inefficiency, scant regard for procedures, political
interference in day to day administration, parochial loyalties, motivated actions,
and power concentration instead of true service mentality, all these have stood in
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the local bodies on the part of the State Government clearly violates the spirit NOTES
of democratic decentralization.

8. Politicization of PRIs
It is being increasingly noticed that the Panchayati Raj Institutions are viewed
only as organisational arms of political parties, especially of the ruling party
in the state. The State Government, in most states, allows the Panchayati Raj
Institutions to function only upon expediency rather than any commitment to
the philosophy of democratic decentralisation.

Way Ahead
Now that there are millions of elected representatives giving voice to Indians at
the grass-roots level, these representatives need clear mandates of local functions,
and the ability to raise their own revenue to foster better local governance.
Without the functions and finances, PRIs will only be an expensive failure. This
can happen only if the higher tier of governments sees them as a forum to explain
their development strategies. Judicious use of Gram Sabhas can actually make
panchayats an arena for citizen-governance interface.
Panchayats can play an effective role in convergence of development efforts
at the local level. This convergence can be of two kinds:
• Internal to the efforts of the line departments working under the control
of the PRIs.
• External by converging the efforts of the line departments with the
efforts of the organs of the larger society.
Panchayats through the system of internal audits can enhance accountability
of elected representatives to face his/her constituency periodically, can be
activated so that the elected representatives are made to explain to the electorate
what they had done and what they propose to do. The Gram Sabhas, if regularly
conducted, can definitely achieve the purpose for which they have been created,
by providing a ready and effective forum of accountability not only for the Gram
Panchayat members but also for the elected representatives of the higher tiers, this Self-Instructional
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NOTES would augur well for our democratic polity. The existence of the PRIs can help
in introducing the process of social audit at the local levels. Voluntary councils
of experts and eminent citizens constituted by the Gram Sabhas can evaluate
the work carried out by the panchayats and judge their quality, effectiveness,
and conformity with accepted norms. The PRIs can also ensure wide publicity
for their activities among the people through the Gram Sabhas. Steps can be
taken to provide access to official records and accounts at least at the Gram
Panchayat level and this can be extended to the higher tiers over a period of
time. Such arrangements for ensuring transparency in administration can be fully
operationalised throughout the country on the basis of the experience gained at
the local levels. The activities of the various community-based organisations
working at the village levels can be effectively monitored by insisting on their
reporting to the Gram Sabhas of their activities.
Finally, the need to train local government representatives themselves
for their new role. The PRI representatives and local officials must devise
mechanisms for collaboration in the context of direct democracy. It is in their
interest to understand each others’ problems and limitations at a very early
stage and in smaller territories where the problems are comparatively easy and
manageable. The attitudinal differences between the politicians and bureaucrats
can be brought down to an acceptable level over a period of time, as both the
groups gain experience in working together and managing local administration.
Till then, the need to train both of them independently and also jointly with a
view not only to equipping them for their tasks but also to co-exist harmoniously
will remain.

Conclusion
Without a strong political will, an autonomous local authority, even if there is
one, will always remain the weaker party in any conflict with a nationally based
department functionary. Another key element for the success of PRIs is the change
of mindset from one that works for the people to one that works with the people.
This would require a re-orientation of both the bureaucrats and senior politicians
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at the central/provincial levels, from an attitude which is centralizing, control NOTES

oriented, and populist to one of sharing authority through regular institutions
of democracy. This can be achieved through a process of training and fresh
institutionalisation.

In-Text Questions
1. Grassroots democracy promotes decision-making at the ________ level.
2. Decentralization involves the ________ of powers from higher to lower
levels of government.
3. ________ is considered the ideal form of decentralization, where
decision-making is fully transferred to local bodies.
4. ________ are village assemblies that form the foundation of the
Panchayati Raj system.
5. The Ripon Resolution of ________ was a landmark in local self-
governance in British India.
6. The 73rd Constitutional Amendment Act was passed in ________ to
institutionalize Panchayati Raj.
7. Panchayati Raj institutions consist of three tiers: Gram Sabha, Panchayat
Samiti, and ________.
8. The Ashok Mehta Committee was set up in ________ to suggest
improvements in Panchayati Raj.
9. The Provisions of the Panchayats (Extension to the Scheduled Areas)
Act is also known as ________.
10. The main challenge faced by Panchayati Raj institutions is the lack of
________ autonomy.

8.8 SUMMARY

• Grassroots democracy involves decentralizing decision-making to the

lowest levels, creating local governance systems that empower citizens.
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NOTES • Local governance focuses on decentralization, transferring power and

resources to lower-level elected bodies for more effective governance.
• Devolution, the transfer of functions and decision-making to lower levels,
is the ideal form of decentralization.
• Local governance has existed since ancient times, with examples in the
Indus Valley and early Chinese dynasties.
• The concept of village republics was strongly advocated by Mahatma
Gandhi, who envisioned autonomous and self-sustaining local communities.
• Ancient village communities in India had panchayats (assemblies) with
both police and judicial powers, acting as centers of social life.
• During British rule, local governance was formalized, with the creation of
municipal corporations in major towns like Madras in 1687.
• The Ripon Resolution of 1882 was a landmark in local self-government,
establishing elected local bodies.
• The Government of India Act of 1935 further democratized local
governance, but panchayats still had limited powers.
• Post-independence, Panchayati Raj was promoted as a means of democratic
decentralization, following the recommendations of the Balwant Rai Mehta
Committee in 1957.
• Panchayati Raj became a three-tier system, linking Gram Sabha, Panchayat
Samiti, and Zila Parishad, and spreading across rural India by the 1960s.
• The Ashok Mehta Committee (1978) recommended strengthening
Panchayati Raj institutions and granting them constitutional status.
• The 73rd Constitutional Amendment Act (1992) gave constitutional status
to Panchayati Raj institutions, mandating their establishment in every state.
• The 73rd Amendment ensured regular elections, reservations for women and
Scheduled Castes/Tribes, and the formation of state finance commissions.
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• Gram Sabhas became the foundation of local democracy, allowing citizens NOTES
to directly participate in decision-making at the village level.
• Panchayats were empowered to implement development programs, but
their autonomy was often limited by state governments.
• Financial constraints remain a challenge for Panchayats, with inadequate
resources and dependence on state and central funds.
• The Provisions of the Panchayats (Extension to the Scheduled Areas) Act
(PESA) extended Panchayati Raj to tribal areas, giving Gram Sabhas more
authority.
• Panchayati Raj institutions face issues such as limited devolution of power,
bureaucratic interference, and insufficient financial autonomy.
• Effective local governance requires better collaboration between elected
representatives and officials, along with capacity building and transparency
mechanisms.

8.9 GLOSSARY

• Grassroots Democracy: It is the political processes where decision-making

is decentralized to the lowest levels.
• Local Governance: It is the management of local affairs by elected bodies
at lower levels of government.
• Decentralization: It is the transfer of powers and resources from central
to local governments.
• Devolution: It is the transfer of decision-making authority to lower-level,
autonomous government bodies.
• Panchayat: It is a local governing body in India, traditionally consisting
of five members.
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NOTES • Gram Sabha: It is a village assembly that serves as the foundation of the
Panchayati Raj system.
• Ripon Resolution: It is a 19th century policy that established elected local
self-governing bodies in British India.
• Panchayati Raj: It is a system of local self-governance in India,
institutionalized through the 73rd Amendment.
• 73rd Amendment: It is the constitutional amendment that gave legal
recognition to Panchayati Raj institutions in India.
• PESA: It is a law extending Panchayati Raj to Scheduled Areas,
empowering tribal communities.
• Balwant Rai Mehta Committee: It is a 1957 committee that recommended
democratic decentralization through Panchayati Raj.
• Ashok Mehta Committee: It is a 1978 committee that recommended
constitutional support for Panchayati Raj institutions.
• State Finance Commission: It is a body established under the 73rd
Amendment to review local bodies’ financial status.
• Zila Parishad: It is the top tier of the three-tier Panchayati Raj system,
functioning at the district level.
• Proxy Candidates: Individuals, often women, elected to Panchayats
who act as representatives for male family members are known as proxy
candidates.

8.10 ANSWERS TO IN-TEXT QUESTIONS

1. Local
2. Transfer
3. Devolution
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4. Gram Sabhas NOTES

5. 1882
6. 1992
7. Zila Parishad
8. 1978
9. PESA
10. Financial

8.11 SELF-ASSESSMENT QUESTIONS

1. Describe the history of Local Governance in India.

2. Compare between Local Governance and Pre-Colonial Period.
3. Explain the Ashok Mehta Committee (1978).
4. Explain the 73rd Amendment Act and its key mandatory provisions.

8.12 REFERENCES/SUGGESTED READINGS

• Baviskar, B.S., “Impact of Women’s Participation in Local Governance in

Rural India” – in L.C. Jain (ed.), Decentralization and Local Governance.
Orient Longman, New Delhi, 2005.
• Buch, Nirmala, “Women and Panchayats: Opportunities, Challenges and
Support” – in L.C. Jain (ed.), Decentralization and Local Governance.
Orient Longman, New Delhi, 2005.
• Chattopadhyay R. and Esther Duflo, Women’s leadership and policy
decisions: Evidence from a nationwide randomized experiment in India.
Institute for Economic Development, Boston, 2001.
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NOTES • Dsouza Peter Ronald, ‘Decentralization and Local Government’ in Zoya

Hasan, E Sridharan and R. Sudrshan (ed), India’s Living Constitution:
Ideas practices and controversies. Permanent Black, 2002.
• Mathew George, “Panchayati Raj in India- An Overview”, in “Status of
Panchayati Raj in the States and Union Territories of India 2000”. Concept
Publishing Company, New Delhi, 2000.
• Institute of Social Studies Trust. “Women in Leadership Positions: A
Scoping Paper”. ISST, New Delhi, July 2005, available at http://www.
isstindia.org/PDF/Women%20in%20Leadership%20Position.pdf/.
• Kumar Girish. “Local Democracy in India, Interpreting Decentralization”.
Introduction, Sage Publication, New Delhi, 2006.
• Manor, James. Political Economy of Democratic Decentralisation.
Washington D.C, World Bank, 1999

Reports
• Constituent Assembly Debates, Official Report”, Vol. VIII, Lok Sabha
Secretariat, New Delhi, 1999.
• Decentralization in India: Issues and Challenges: Discussion papers UNDP
https://www.undp.org/content/dam/india/docs/decentralisation_india_
challenges_opportunities.pdf
• Report on the working Group on Democratic Decentralisation and PRI’S
http://planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_
demo.pdf

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 8.5 mm

INTRODUCTION TO THE
INDIAN CONSTITUTION
B.A. (PROGRAMME)/B.COM. (PROGRAMME)/B.A. (HONS.) ENGLISH
SEMESTER-II
GENERIC ELECTIVE (GE) POLITICAL SCIENCE

INTRODUCTION TO THE INDIAN CONSTITUTION

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