PREAMBLE OF INDIAN CONSTITUTION

What is a Preamble?

Preamble is the introductory part of a statute or deed, stating its purpose, aims, and
justification. We can call the preamble the quintessence /soul / spirit etc of the Statute.

It tells us the most fundamental values on which the Statute is based. The Judges are
supposed to interpret the statute in the light of the preamble.

The preamble of India indicates that the source of constitution is "we the people of
India".

The Preamble of India has been called:

Political Horoscope of Indian Constitution (by KM Munshi)

Soul of the Constitution (by Thakur Das Bhargava)

Identity card of the constitution (by N.A. Palkhivala)

Government of India Act 1919 had a separate preamble.

Government of India Act, 1935 had no preamble.

America was the first country that adopted Preamble for their written constitution. Their
preamble also starts with 'We the people.....’

The preamble of Indian Constitution is based on the 'objective resolution' written by

Jawaharlal Nehru which was introduced on 13th December 1946 and accepted on
22nd January 1947 by the constituent assembly.

PREAMBLE

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

JUSTICE, social, economic and political;

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

EQUALITY of status and of opportunity;

and to promote among them all

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

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do

HERE BY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Preamble was Adopted on 26th November 1949 but the constitution

commenced from 26th January 1950

The concept of Liberty, Equality, and Fraternity was adopted from the
French Motto of the French Revolution.

The words Socialist, Secular, and Integrity were not in the original
constitution and have been inserted during emergency by 42nd
amendment act 1976.

Meaning of Various Words in our Preamble

WE THE PEOPLE

This means that the source of the constitution is the people of India.

In Union of India vs Madan Gopal Kabra (1953) Supreme court observed that out
constitution derived its authority from the people of India.

SOVEREIGN Means supreme or independent.

Sovereignty has two dimensions: External and internal. India is both internally and
externally sovereign.

External sovereignty means the sovereignty in International Law which means the
independence of the state against other states.

Internal sovereignty Internal sovereignty is the right of a nation to be free of internal

forces of disruption to its rights & freedoms to exercise the internal governance of its
society & territories.

SOCIALIST- Added to the Preamble during the emergency by the 42nd amendment
act of 1976. It means that we will have social and economic equality.

Social equality means everyone is equal despite what their caste, colour, creed, sex,
religion or language.

Economic equality means that government will endeavour to make the distribution of
wealth more equal and provide a decent standard of living for all.
In Excel wear v. Union of India (1979), the Supreme Court found that with

the addition of the word socialist, a portal is opened to lean the judgments in favour of
nationalization and state ownership of the industry. But the principle of socialism and
social justice cannot ignore the interests and rights of a different section of the society
i.e., the private owners.

In Minerva Mills Ltd. v Union of India (1980), the Constitution Bench had considered
the meaning of the word "socialism” to crystalise a socialistic state securing to its
people socio-economic justice by interplay of the Fundamental rights and the Directive
Principles.

In D.S Nakara v. Union of India (1983), the Supreme Court said that Socialism aims
at providing the working people a decent standard of living.

In Air India Statutory Corporation v. United labour Union (1996), the Supreme
Court observed that the word "Socialist' is added in the constitution to establish an
egalitarian social order through rule of law.

SECULAR Also added by 42nd amendment act. The word 'Secular implies equality of
all religions and religious tolerance. India therefore does not have an official state
religion. The government must not favour or discriminate against any religion. Every
person has the right to preach, practice and propagate any religion they choose.
The word "secular
appears in
constitution for two
times-in Preamble
and then in Article
25.

In S.R. Bommai v. Union of India (1994) it was held that Secularism is part of basic
structure of Constitution.

In St. Xaviers College v. State of Gujarat & Anr (1974) the court said that
Secularism is neither anti-God nor pro-God. Secularism means elimination of God
from the matters of the State and the State has nothing to do with the religion of the
people.

In Valsamma Paul v. Cochin University (1996) the court stated that inter-caste
marriages and adoption were two important social institutions through which
"secularism" would find its fruitful and solid base for an egalitarian social order under
the Constitution of India. "Secularism," the court said, was a bridge between religions
in a multi-religious society to cross over the barriers of their diversity. In the positive
sense, it was the cornerstone of an egalitarian and forward-looking society which our
constitution endeavored to establish.

In Aruna Roy v. Union of India (2002) the Supreme Court has said that Secularism
has a positive meaning that is developing, understanding and respect towards different
religions.
DEMOCRATIC - India is a democracy. The people of India elect their governments
(through free, fair and periodic elections at all levels (Union, State and local) by a
system of universal adult franchise; popularly known as 'One man one vote'.

REPUBLIC- democratic republic is an entity in which the head of state is elected,

directly or indirectly, for a fixed tenure.

JUSTICE-SOCIAL, ECONOMIC POLITICAL

Social justice- abolition of inequalities from society.

Political Justice-elimination of unreasonable distinctions in the political matters of state.

Economic Justice-Equal wage for equal work.

LIBERTY-THOUGHT, EXPRESSION, BELIEF, FAITH AND WORSHIP

Liberty is a state where there is absence of restrictions.

EQUALITY STATUS AND OPPORTUNITY

Providing equal rights to citizens.

FRATERNITY

Fraternity means a spirit of oneness and brotherhood.

For assuring dignity of individual and unity and integrity (added by 42nd amendment)
of nation.

Is Preamble Part of Our Constitution?

Can it be Amended? Literally meaning in

reference
In Re: Berubari Case (1960)
In re appears in the title of
the cases where the
The 8-judge bench held that Preamble
Supreme Court
serves as a key to open the minds of the
Jurisdiction under Article
143(1) of the Indian
Constitution
exercises its advisory framers, and shows
the general purpose for which they made
the provisions of the constitution BUT it
is not part of the Constitution, it is not.
the sources of powers conferred by the
Constitution and since it is not part of the Constitution it can’t be amended by Article
368 which provides for amendment of the CONSTITUTION.

This was not a very good decision because the motion adopted by constituent
assembly itself stated that Preamble is a part of the constitution.

Kesavananda Bharti Sripadagalvaru V. State of Kerala (1973)

The 13-judge bench held that Preamble though is not source of power or the source
of limitations of the constitution but it is part of the constitution, so it can be amended
by Article 368.

Key points about the Preamble of Indian Constitution

• Preamble is an integral Part of the Constitution.

• Preamble was Adopted on 26th November 1949 but the constitution commenced
from 26th January 1950.

• Preamble indicates basic structure of the Constitution (SR Bommait Case).

• Preamble can be amended by Parliament using its amendment powers as per article
368.

• The words Socialist, Secular, and Integrity were not in the original constitution and
have been inserted during emergency by 42nd Amendment act 1976.

• The concept of Liberty, Equality, and Fraternity was adopted from the French Motto
of the French Revolution.

• It does NOT provide any legal framework of constitutional law.

• Preamble is neither a source of power nor a source of limitations.

• The PREAMBLE is neither a source of power to legislature nor a prohibition upon the
powers of legislature.

•It neither provides any power nor imposes any duty.

• Its importance is in role to be played in the interpretation of provisions of the

Constitution.
• Preamble is neither enforceable not justifiable in a court of law. This Implies that
courts cannot pass orders against the government in India to implement the ideas in
the preamble.

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Basic Structure Doctrine

Two articles you need to know: Article 13 and Article 368

Article 13 - Laws inconsistent with or in derogation of the fundamental rights are void.

Article 368 - Power of Parliament to amend the Constitution.

Timeline

1ST Amendment (1951)

Shankari Prasad v. UOl (1951)

17th Amendment (1964)

Sajjan Singh v. State of Rajasthan (1964)

Golaknath v. State of Punjab (1967)

INDIRA GANDHI BECAME PM

24, 25, 26, 29th Amendment

Kesavananda Bharti v. State of Kerela (1973)

Raj Narain v. State of Uttar Pradesh (1975)

39th Amendment (1975)

Indira Gandhi v. Raj Narain (1975)

42nd Amendment (1976)

Minerva Mills v. Uol and Ors. (1980)

Waman Rao v. Uol (1980)

 IR Coelho Case (2007)

Detailed Timeline

1st Amendment (1951)

Article 31A, 318 and 9th Schedule were added 31A provided that the state could take
over estates, corporations for public interest and could also extinguish and modify
rights of people relating to such estates and corporations.

31B provided immunity from judicial review to everything put in 9th schedule.

At that time, we also

had Article 31 which
made the 'right to
property' a fundamental
right.

(It was repealed by

44th amendment
act,1978)

9th Schedule was a new constitutional device, introduced to protect against laws that
are contrary to the Constitutionally guaranteed fundamental rights under Article 13.

1st amendment was challenged in:

Shankari Prasad v. Uol (1951)

- It was held that Article 13 only talks about ordinary laws and not amendments to the
constitution (which is a special law)

- So, 1st amendment is valid

17th Amendment (1964)

More provisions were added to 31A, more entries were added in 9th Schedule.

17th Amendment was challenged in:

Sajjan Singh v. State of Rajasthan (1964)

- 5 judge bench (Decision was 3:2)

- Confirmed Shankari Prasad Case

Golaknath v. State of Punjab (1967)
- 11 Judge Bench (Decision was 6:5)

- Over ruled Both Shankari prasad and Sajjan Singh case

- Held that parliament cannot abridge FR (subject to limitation and judicial review)

- Art. 13 will apply to constitution amendments

State just wanted a way to take away all the land and resources
which were held by the zamindars. And they tried to do that via 15
Amendment and 17" Amendment because otherwise their actions
would be hit by Article 13 for violation of Article 31 (Right to
property), which was not repealed at that time.

INDIRA GANDHI BECAME PM

24th Amendment (1971)

Added Art.13(4) and Art.368(3), Now parliament can amend any part of Constitution.

Article 13 (4) Nothing in this article shall apply to any amendment of this Constitution
made under article 368.

Article 368 (3) Nothing in article 13 shall apply to any amendment made under this
article.

This made Parliaments power unlimited in regard to amending the constitution.

25th Amendment (1972) Privy Purse: payment made

to the
ruling families of princely
Added Article 31C-Dividing 31C in two parts we get states as part
of their agreements to
integrate with India
and thus, losing all ruling
rights.

(1) No law which gives effect to the directive principles can be declared invalid and
unconstitutional on the grounds that it is violating fundamental rights namely Article 14
(equality before law and equal protection of laws), Article 19(protection of six rights in
respect of speech, assembly, movement, etc) & Article 31(right to property).
(ii) No law containing a declaration for giving effect to such policy shall be questioned
in any court on the ground that it does not give effect to such a policy.

26th Amendment (1971)

Abolition of Privy Purses

29th Amendment (1972)

Place land reform acts and amendments to these acts under Schedule 9 of the
constitution.

24th Amendment along with 25th, 26th and 29th amendments were challenged in:

Kesavananda Bharti v. State of Kerela (1973)

- 13 Judge Bench (Decision was 7:6, headed by CJ Sikri)
- Most Landmark judgement so remember its date too i.e., 24th April 1973, you will
understand why this date is important later.
- Gave Doctrine of Basic Structure
- Upheld the validity of the amendment and confirmed that Parliament can amend the
constitution but except the Basic Structure. So, in 31C the (ii) part (underlined above)
was declared unconstitutional, because part (ii) was in contravention of basic
structure as it was restricting judicial review.
- To find out if anything is covered under basic structure. you need to find out the
intention of constitution makers.

Raj Narain v. State of Uttar Pradesh (1975)

o Case was heard by the Allahabad High Court that found the Prime Minister of India
Indira Gandhi guilty of electoral malpractices.

o While the appeal was pending in Supreme Court Indira Gandhi's Govt. declared
emergency and added 39th Amendment
39th Amendment (1975) Prashant Bhushan who was
the co-counsel in State of
Uttar Pradesh v Ra Narain
had written a book
discussing all the nuances
of the case tited The Case
that Shook India.

Added 329A which took away power of Supreme Court's power to try Electoral
Disputes relating to election of President, Vice president, Prime minister and Speaker
of Lok Sabha.

39th Amendment was challenged in:

Indira Gandhi v. Raj Narain (1975)

- This was the first landmark judgement in which Kesavanandal Bharti was applied by
the Supreme court.

- It declared the newly added 329A clause 4 as unconstitutional because it violated the
basic Structure.

- Mathew J. said this clause destroyed essential democratic feature of the Constitution
viz. the resolution of an election dispute by ascertaining the adjudicative facts and
applying the relevant laws, a healthy democracy can only function when there is
possibility of a contest of free & fair elections.

- Chandrachud J. found the said amendment violative of the principle of Separation of

Power as it intently transferred at pure judicial function into the hands of legislature.

42nd Amendment (1976)

- Mini Constitution of Indial

- Added Article 368(4) and 368(5) which conferred unlimited amending power to the
parliament.

- Article 31-C amended again

Minerva Mills v. Uol and Ors. (1980)

- Chief Justice Y.V. Chandrachud, delivered the majority judgement (4:1)

- Declared 368(4) and 368(5) unconstitutional because it is taking away judicial review
which is a basic feature, Article 31-C also restored to pre 1976 position.
- It held that Amending power of parliament can't be unlimited, limited amending power
is in itself part of basic structure.

- This case evolved 'Basic Structure Doctrine'

Waman Rao v. Uol (1980)

- 5 Judge bench

- Basic Structure doctrine is applicable prospectively and not retrospectively.

- It was held (retrospectively) that any law put in 9th schedule after 24th of April
1973 (date of forming of Basic Structure Doctrine by Kesavnanada Bharti case) shall
be under the purview of judicial review.

IR Coelho Case (2007)

- 9 judge bench reiterated Waman Rao's Judgement that all laws put in 9th Schedule
after 24th April 1973 shall be under the purview of judicial review.

- Laws placed in the ninth schedule were challenged, it was argued that any
'unconstitutional’ law even in 9th schedule (which is immune to judicial review) should
be removed.

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Magna Carta Libertatum

Fundamental Rights commonly called Magna
Carta (The great Charter),
is a royal charter of rights
Part III of Constitution-This part is also known England at Runnymede,
as Magna Carta of Indian constitution. agreed to by King John of
near Windsor, on 15 June
1215
Adopted the idea of Fundamental Rights from
Constitution of USA.

Justiciable Rights which mean they can be enforced in court of Law.

All Sections under Part III of Constitution

Definition of State (Article 12)

Laws inconsistent with Fundamental Rights (Article 13)

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-Property (Article 31) (Removed by 44th Amendment, 1978)

7. Right to Constitutional Remedies (Article 32)

Article 12-State under Constitution of India

Fundamental Rights are one of the most important provisions of the Constitution.

FR's are enforceable through Writs.

Writs can only be issued against State.

It is very important to know, what all is covered under the definition of 'STATE, So
article 12 of Part III talks about State.

Article 12 gives Definition of State

"Definition in this part, unless the context otherwise requires, the State includes the
Government and Parliament of India and the Government and the Legislature of each
of the States and all local or other authorities within the territory of India or under the
control of the Government of India.”

The bare provision when converted into points gives us the following under the
definition of State

1. Executive and Legislature of Union and State.

2. All local or other authorities within the territory of India or which are under the control
of the Government of India.

EXECUTIVE AND LEGISLATURE

Legislature

Union Legislature: President, Lok Sabha and Rajya Sabha.

State Legislature: Governor, State legislative assembly and the State legislative
council.
Executive

Union Executive: President, Vice-President, and the Council of Ministers with the
Prime Minister.

State Executive: Governor and the Council of Ministers with the Chief Minister.

What about Judiciary?

In [Link] v. State of Maharashtra(1966), [Link] v. [Link] (1988)

and Rupa Ashok Hurra v. Ashok Hurra (2002) it was observed that a Superior
Judicial body when acting "Judicially" would not fall under the definition of State.

But when it performs any administrative or similar functions e.g conducting

examination, it will fall under the definition of "state" and remedy could be sought in
that context in case of violation of fundamental rights.

So, even when the judiciary is bound by the constitution and Writs like Certiorari lies
against a body acting judicially, still officially judiciary is not in the ambit of Article 12.

LOCAL AND OTHER AUTHORITIES

In the context of Art. 12, "authority" means the power to make laws, byelaws, etc.,
which have the force of law and power to enforce those laws.

Local Authority

Section 3(31) of the General Clauses Act, 1897,

"Local Authority shall mean a municipal committee, district board, body of

commissioner or other authority legally entitled to or entrusted by the Government
within the control or management of a municipal or local fund."

Other Authority
Other authorities are not defined in any place in the constitution or anywhere else so
we can analyse 'other authorities' on basis of case laws.

University of Madras v. Shantabai (1954)

Question was whether the directions issued by the appellant to the affiliated colleges
not to admit girl students without obtaining the permission of the Syndicate are valid.

The question was whether the University can be held to be "local or other authority" as
defined in Article 12.
Court held that these words must be construed 'ejusdem generis' with Government or
Legislature and so exercising governmental functions. They would not include persons
natural or juristic who cannot be regarded as Instrumentalities of the Government. The
University of Madras is a body corporate created by Madras Act VII of 1923. It is not
charged with the execution of any Governmental functions; Its purpose is purely to
promote education. So, University of Madras is not a state as defined in Article 12 of
the Constitution and that its regulations are not subject to the prohibition enacted in
Article 15(1).
ejusdem generis is latin for of the same kind When
a law lists classes of persons or things, this
construed can only mean authorities concept is
used to clarify such a list.

For ex. if it is written car, jeep, rickshaw, bus.

motorcycle etc. It means that other motor vehicles
are also included.

Ujjambai vs state of UP (1961)

Court held ejusdem generis cannot be applied in context to Article 12. The court
rejected the restrictive scope of University of Madras v. Shantabai and held that the
'ejusdem generis' rule could not be resorted to the in interpreting other authorities. The
bodies named under Article 12 have no common genus running through them and they
cannot be placed in one single category on any rational basis.

Rajasthan Electrical Board v. Mohan lal (1967)

The case involved a promotion dispute between some workmen and the Rajasthan
State Electricity Board. Articles 14 and 16 claims were raised, issue was whether the
Board came within the purview of Part III, by virtue of being "State" (other authority)
under Article 12.

The Rajasthan State Electricity Board was a corporate body that had been constituted
under an Act (the Electricity Supply Act, 1948), for the purposes of supplying electricity
within the State of Rajasthan. The Board argued that the phrase "other authority" must
be read "ejusdem generis" The Supreme Court declined to apply the principle of
ejusdem generis, holding that there was no common "genus" running through Article
12.

It was held by the court that all bodies created by a statute on which powers are
conferred to carry out governmental or quasi-governmental functions are state
under the head of 'other authorities'.
Sukhdev v. Bhagatram (1975)
The Corporations are State when they enjoy Power to make regulations and those
regulations have force of law. So LIC, IFC Industrial Finance Corp.) and ONGC were
held to be State because they were performing very close to governmental or
sovereign functions.

Sabhajit Tewary v. Union of India (1975)

This Judgement was delivered by the very same Constitution Bench which delivered
the judgment in Sukhdev Singh and Ors, on the very same day. The question that
arose for consideration in this was whether the Council for Scientific and Industrial
Research (CSIR), a body registered under the Societies Registration Act would fall
under the definition of "other authorities" under Article 12. The CSIR was created by
the Government of India to promote Industrial Research in India, with a majority of its
members being nominated by the Central Government and most of its financial
requirements supplied by the Government but the Society does not have a statutory
character like the ONGC, LIC or IFC. It is a society incorporated in accordance with
the provisions of the Societies Registration Act. For these reasons court held that the
Council of Scientific and Industrial Research is not an authority within the meaning of
Article 12 of the Constitution.

R.D Shetty v. International Airport authority (1979)

Court held that following factors would determine whether a body comes under the
definition of State as defined in Article 12 of the Constitution:

1. The entire share capital is held by the government.

2. Where the financial assistance of the State is so much as to meet almost entire
expenditure of the corporation.

3. Deep and pervasive control of the State.

4. The functions of the corporation are of public. importance and closely related to
governmental functions.

5. A department of Government transferred to a corporation.

6. Enjoys "monopoly status" which State conferred or is protected by it.

The SC concluded International Airport Authorities undoubtedly an instrumentality or

agency of the Central Government and falls within the definition of 'State'.
Som Prakash v. Uol (1980)
Question was whether a statutory company Indian Petroleum Corporation is a state
under Article 12 or not. It was observed that merely because a legal corporation has a
legal personality of its own, it does not mean that the corporation is not an agent or
instrumentality of the state if it is subject to governmental control for all important
matters. A public authority is a body that performs public functions and which performs
duties and carries out its transactions for the benefit of the state. Therefore, the said
body was held to be 'state’.

Ajay Hasia v. Khalid Mujib (1981)

Petitioner gave a viva-voce exam in which he was given exceptionally low marks
because of which he did not get admission in the regional Engineering college,
Srinagar even though he scored really well in the written tests. He filled for violation of
Article 14. Question arose whether Regional Engineering College, Srinagar is state
within the meaning of other Authorities under article 12.

Court approved of the tests laid down in R.D Shetty case and on basis of the tests held
that Regional Engineering college, Srinagar is State under 'other authorities'

Court also added that these tests are not conclusive, they. merely indication which
have to be used with care and caution, because while stressing the necessity of a wide
meaning to be placed on the expression "other authorities", it must be realised that it
should not be s etched so far as to bring in every autonomous body which has some
nexus with the government within the sweep of the expression. A wide enlargement of
the meaning must be limited by a wise limitation.

Chander Mohan Khanna v. National Council of Educational

Research and Training (1992)

In this case, the question arose whether the National Council of Educational Research
(NCERT) was a "State" as defined under Article 12 of the Constitution. NCERT is a
society registered under the Societies Registration Act. After considering the
provisions of its memorandum of association as well as the rules of NCERT, this Court
came to the conclusion that since NCERT was largely an autonomous body and the
activities of NCERT were not wholly related to governmental functions and that the
governmental control was confined only to the proper utilisation of the grant and since
its funding was not entirely from government resources, the case did not satisfy the
requirements of the State under Article 12 of the Constitution.
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology
(2002)
7 judge benches held that the ultimate test in determining whether an entity would be
an instrumentality of the State would be whether functionally, financially and
administratively the body was under the deep and pervasive control of the State.
Mere regulatory control by the Government will not suffice to fulfil the requirements of
Article 12.

Zee Telefilms v. Union of India (2005)

Question raised against court was whether Writ Petition against Board of Control for
Cricket in India (BCCI) is maintainable? which made the court consider on whether
Board is a State within meaning of Art.12.

The facts established in this case shows the following:

1. Board is not created by a statute.

2. No part of the share capital of the Board is held by the Government.

3. Practically no financial assistance is given by the Government to meet the whole or

entire expenditure of the Board.

4. The Board does enjoy a monopoly status in the field of cricket but such status is not
State conferred or State protected.

5. There is no existence of a deep and pervasive State control. The control if any is
only regulatory in nature as applicable to other similar bodies. This control is not
specifically exercised under any special statute applicable to the Board. All functions of
the Board are not public functions nor are they closely related to governmental
functions.

6. The Board is not created by transfer of a government owned corporation. It is an

autonomous body. On the basis of these facts, the majority Court held that the BCCI
would not come within the definition of State under Article 12.

On the other hand, the minority Court held that the BCCI would fall within the ambit of
the definition of "State" under Article 12. The minority in Zee Telefilms opined that
keeping in view the fact that the BCCI discharges an important public function and that
its actions may impinge on the fundamental rights of the players, the actions of the
body are subject to judicial review. Interestingly, the minority Court in the same breath
also opined that in times of privatization and liberalization wherein most of the
Governmental functions are being relegated to private bodies; the actions of such
private bodies would also be amenable to the writ jurisdiction of the Court.

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Fundamental Rights
Part IlI of Constitution - This part is also known as Magna Carta of Indian
constitution.

Adopted the idea of Fundamental Rights from Constitution of USA.

Justiciable Rights which mean they can be enforced in court of Law.

Magna Carta Libertatum, commonly

called Magna Carta (The great
Charter) is a royal charter of rights
agreed to by King John of England
at Runnymede. near Windsor, on
15 June 1215.

All Sections under Part III of Constitution

Definition of State (Article 12)

Laws inconsistent with Fundamental Rights (Article 13)

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 Property (Article 31) (Removed by 44th Amendment, 1978)

7. Right to Constitutional Remedies (Article 32)

Article 13
Article 13- Laws inconsistent with or in derogation of the fundamental rights. -

(1) All laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention of this clause shall, to the
extent of the contravention, be void.

(3) In this article, unless the context otherwise requires

(a) "law" includes any Ordinance, order, bye law, rule, regulation, notification, custom
or usage having in the territory of India the force of law;

(b) "laws in force" includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made
under article 368.

Article 13 says 'what laws are not valid'- whatever is inconsistent or in contravention
or abridges Part III of constitution are void laws.

Supreme Court and High court can declare the laws in violation of Article 13 by
'Judicial Review.'

Doctrine of Severability - To separate

The Doctrine of severability is also known as the doctrine of separability. It means that
an Act may not be void as a whole, only a part of it may be void and if that part is
severable from the rest which is valid, and then the rest may continue to stand and
remain operative.

A.K. Gopalan v. State of Madras (1950)

Section 14 Preventive detection act was inconsistent with Fundamental Rights, so
section 14 was removed, but this removal did not affect the validity of the rest of the
act.

The State of Bombay v. FN Balsara (1951)

The Court declared Section 13(b) of the Bombay Prohibition Act of 1949 as void
because it violated Article 19(1) (f) of the Constitution. The Court again held that only
the part of the statute that is violative of Part III is inoperative and not the whole
Statute.
R.M.D.C v. Union of India (1957)
Nuances of Doctrine of Severability was explained in detail:

1. The intention of the legislature is the determining factor. The test to be applied
is whether the legislature would have enacted the valid part if it had known that the
rest of the statute was invalid. In determining the legislative intent on the question of
separability, it will be legitimate to take into account the history of legislation, its object,
the title and preamble to it.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be
separated from one another, then the invalidity of a portion must result in the invalidity
of the Act in its entirety. If they are so distinct and separate that after striking out what
is invalid, what remains is in itself a complete code independent of the rest, then it will
be upheld notwithstanding that the rest has become unenforceable.

3. Even when the provisions which are valid and distinct and separate from those
which are invalid, if they all form part of a single scheme which is intended to be
operative as a whole, then also the invalidity of a part will result in the failure of the
whole.

4. Likewise, when the valid and invalid parts of a statute are independent and do not
form part of a scheme but what is left after omitting the invalid portion is so thin and
truncated as to be in substance different from what it was when it emerged out of the
legislature, then also it will be rejected in its entirety

5. If after the invalid portion is expunged from the statute what remains cannot be
enforced without making alterations and modifications therein, then the whole of it
must be struck down as void, as otherwise it will amount to judicial legislation.

Kihoto Hollohan v. Zachilhu (1992) (Defection Case)

Court Declared paragraph 7 of the Tenth Schedule (which was inserted by the 52nd
Amendment Act, 1985) as unconstitutional for violating the provision under Article
368(2). It upheld the rest of the Tenth Schedule.

Doctrine of Eclipse - To hide

The doctrine of eclipse declares fundamental rights as prospective in nature.
According to Doctrine of Eclipse pre-constitutional law inconsistent with the
fundamental rights are not nullity or void ab initio but only remains unenforceable i.e.,
remains in a dormant state.
These dormant laws are still enforceable for past rights and duties and also valid for
those who don't get fundamental rights, like some fundamental rights are not available
to non-citizens (Articles) 15, 16, 19, 29, 30)
Keshav Madhav Menon v. State of Bombay (1951)
The petitioner was prosecuted under the provisions of the 1931 act, the Indian Press
(Emergency Powers) Act, for publishing a pamphlet with no permission. The case was
still pending when the Constitution came into force and thus raised questions
regarding the prospective and retrospective nature of Article 13(1) and the word "void".
The question before the Court was whether the impugned Act was violative of Article
19(1) (a) and if so whether it should be declared void.

The Court held that the act is vold but not retrospectively, and as the petitioner was
charged under the act before the enactment of the constitution, the proceedings going
on before the enactment of the constitution will not be affected as the law is void
prospectively and not void-ab-initio.

Bhikaji v. State of M.P (1955)

The Doctrine of Eclipse was introduced and established in India with the help of this
case.

Certain Sections of Berar Motor Vehicle Act, 1947 empowered govt. to take over motor
transport business, these sections became violative of Article 19, so article 19 eclipsed
these sections, later due to amendments in article 19 and those sections were no more
in violation of article 19, so those sections will become active again.

Deep Chand v. State of Uttar Pradesh (1959)

It was clarified in regard to Doctrine of Eclipse that any post constitutional law
infringing fundamental rights are void ab initio and the doctrine of eclipse cannot apply.
A clear distinction between the two clauses of Article 13 of the Indian Constitution was
made. Under clause (1) a pre-Constitutional law subsists except to the extent of its
inconsistency with the provisions of Part III, whereas as per clause (2), no post-
Constitutional law can be made contravening the provisions of Part III and therefore
the law to that extent, though made, is a nullity from its inception.

State of Gujarat v. Ambica Mills (1974)

Shri Ambica Mills was a company registered under the Companies Act which has filed
the petition to declare certain provisions of Bombay Labour Welfare Fund Act, 1953 as
unconstitutional as it is violative of 19(1)(f) 'right to property, High court ruled in favour
of Ambica Mills, but the Supreme Court held that Article 19 is only available to citizens
and Ambica Mill is not a citizen. So, doctrine of eclipse won't apply to the disputed law
in regard to Ambica Mills.

13(3) talks about what is law BUT what about Personal laws?
State of Bombay v. Narasu Appa Mali (1952)
In this case, the High Court held that "personal law is not included in the expression
"laws in force" used in Article 13(1) of the Constitution.

Until 2018, The Narasu Appa Mali judgement acted as a precedent, (my opinion in
blue) I think it was a horrible judgement shielding all the orthodox customs of
various religions in the name of personal law but finally it was criticized in the
recent Sabrimala Judgement.

Indian Young Lawyers Association vs State Of Kerala (2018)

It was held that as per Article 13(3), "law" includes "customs and usages having the
force of law. Justice Chandrachud, while refuting Narasu Case in the Sabrimala
judgment, said that the definition of "law" under Article 13(3) is an inclusive definition
and it would be inappropriate to put a restrictive interpretation upon terms of wider
denotation. Going by the scriptural texts, he decided on the inclusion of personal laws
in "customs. and usages" under Article 13, and how they have been creating a
menace by not being subjected to judicial review for years.

13(4) Amendments are not covered (but the amendment should not be in violation of
Basic Structure of Constitution)

**************************************************************************************************

Fundamental Rights

Part III of Constitution-This part is also known as Magna Carta of Indian

constitution.

Adopted the idea of Fundamental Rights from Constitution of USA.

Justiciable Rights which mean they can be enforced in court of Law.

All Sections under Part III of Constitution

Magna Carta Ubertatum,commonly called

Magna Carta (The great Charter) is a royal
charter of rights agreed to by King John of
England at Runnymede, near Windsor, on
15 June 1215.

Definition of State (Article 12)

Laws inconsistent with Fundamental Rights (Article 13)

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 Property (Article 31) (Removed by 44th Amendment, 1978)

7. Right to Constitutional Remedies (Article 32)

Article 14 - Equality before law.

BOTH CITIZENS NON-CITIZENS

The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.

Equality before law

Negative concept-All persons should be treated equally, no discrimination allowed.
Concept taken from the British concept of 'Rule of Law has been held as part of basic
structure of Indian Constitution in Indira,of Law The originator of the concept of rule of
Nehru Gandhi v. Raj Narain (1975) law was Sir Edward Coke. It means that no man
is above law and also that every person is subject to the jurisdiction of ordinary courts
of law irrespective of their position and rank. According to Professor A.V Dicey, for
achieving Rule of law three principles/postulates must be followed which are as
follows:

1. Supremacy of law - Absolute supremacy of law as opposed to arbitrary power of

the government.

2. Equality before law- no one is above the law, everyone is bound to obey the law

3. Predominance of Legal Spirit - It means Constitution originated from the ordinary

law and the real source of the right of individual is not the written constitution but the
rules as defined and enforced by the courts. (This concept is not applicable in India
because as we know our written constitution is the Supreme law of the land in India
and source of Rights of all individuals)

Equal protection of law

Concept taken from 14th Amendment of USA's Constitution.

Positive concept - like should be treated like, unlike should not be treated like,
discrimination allowed but it should not be arbitrary and should be reasonable.
In E.P Royappa v. State of Tamil Nadu (1973) it was held that "Equality is a dynamic
concept, it cannot be Cribbed, cabined: or Confined with Traditional Limits. From a
positivistic point of view equality is anti-thesis to arbitrariness."

Class Legislation is not allowed

Class legislation is that which makes an improper discrimination by conferring
particular privileges upon a class of persons arbitrarily selected from a large number of
persons.

Reasonable classification is allowed if it is based on Intelligible

Differentia (Intelligent reason for classification)

Whether the discrimination is reasonable, is upon judiciary to decide

- Reasonable classification.

- Should have relation with the rationale to be achieved.

- The rational to be achieved should be just.

CASES
Chiranjit Lal v. Uol
(1950)

Central Government issued an ordinance which later became an Act named 'The
Sholapur Spinning and Weaving Co. (Emergency provision) Act 1950' when due to
mismanagement and neglect of the company a mill was closed. The action of the
company led to the scarcity of essential commodities in the country apart from
unemployment and unrest.

Petitioner urged that the Act was violative of Article 14 because a single company was
subjected to disabilities.

It was held that a law may be constitutional even though it relates to a single individual,
in those cases where on account of some special circumstances or reasons applicable
to him and not applicable to others, that single individual may be treated as a class by
himself.
State of West Bengal v Anwar Ali Sarkar (1952)
The West Bengal Special Courts Act, 1950 created special courts for the speedier trial
of certain offences, the challenge was made on the point that there was no object for
making the classification between different offences under the Act.

The Supreme Court invalidated the Act because it conferred arbitrary powers in the
government to classify offences or classes of offences at its pleasure. The Act did not
lay down any policy/guideline for classification of such offences. Court held that there
should be some nexus between the basis of classification and the object of the act
which was very vague in this particular case. This case was one of the initial cases to
lay down the foundational principles of Article 14, in this case supreme court said that
'equal protection of law' is corollary (something that naturally follows) to 'equality
before law.

Trilochan Mishra v. State of Orissa & ors. (1971)

The issue was that bid of persons making the highest tenders were not accepted and
persons who had made lesser bids were asked to raise their bids to the highest offered
and their revised bids were accepted.

Court held that the persons who had made lower bids were asked to raise their bids to
the highest offered before the same were accepted. Thus, there was no loss to
Government, The Government has a right to enter into a contract with a person well
known to it and specially one who has faithfully performed his contracts in the past in
preference to an undesirable or unsuitable or untried person.

Maneka Gandhi v. Union of India (1978)

Court said that section 10(3)(c) of passport act, 1967 is void because it violates article
14 of Indian constitution because it confers vague and undefined power to the
passport authority, it is violative of Article 14 of the Constitution since it doesn't provide
for an opportunity for the aggrieved party to be heard. It was also held violative of
Article 21 since it does not affirm to the word "procedure" as mentioned in the clause,
and the present procedure performed was the worst possible one.

Court said any law interfering with personal liberty of a person must satisfy a triple test:

1. It must prescribe a procedure; ('procedure established by law' is requirement of

article 21)

2. The procedure must withstand the test of one or more of the fundamental rights
conferred under Article 19 which may be applicable in a given situation; and

3. It must also be liable to be tested with reference to Article 14.

This is the reason that we call article 14,19 and 21 as the 'golden triangle’ of Indian
Constitution.
Air India v. Nargesh Meerza (1981)
Indian Airlines provided made regulation that an Air Hostess had to retire from their
services on attaining the age of 35 or if they married within 4 years of their service or
on their first pregnancy whichever occurred earlier. The court held that terminating
the services of an air hostess on the grounds of pregnancy amounted to
discrimination as it was an unreasonable ground for termination.

Randhir Singh v. Union of India (1982)

Equal pay for Equal work though not a fundamental right is clearly a constitutional goal
under Articles 14,16 and 39(c) of the constitution. This principle of 'Equal pay for equal
work has since this case been followed in a number of cases (D.S. Nakara v. Union of
India (1983) and Ram Chandra lyer v. Union of India (1984)

D.S. Nakara v. Union of India (1983)

Rule 34 of the Central Services rules was held to be violating Article 14 and thus
unconstitutional. Under this rule, a classification was made between the pensioners
who retired before a specific date and those who retired after that date. Such
classification was held irrational by the Court and it was arbitrary. Thus, it was an
infringement of Article 14 and as a result, was set aside.

Mithu v. State of Punjab (1983)

Section 303 of IPC was struck down as unconstitutional.

Section 303 provided for mandatory death penalty for anyone who commits murder
and is on life imprisonment, which the court declared arbitrary and not based on any
rational principle.

Pradeep Jain v. Union of India (1984)

100% reservation on basis of domicile was held to be unconstitutional.
Central Inland Water Transport Corp. Ltd. v. Brojo Nath Ganguly (1986)

Rules of natural justice implicit in article 14, government cannot terminate services of
permanent employees without giving reasons on three months' notice or pay in lieu of
the notice period. It is a violation of audi alteram partem rule (i.e., hear the parties).

Similar ruling was given in Delhi Transport Corp. v. D.T.C Mazdoor Congress
(1991) where terminating services of permanent employee by notice without giving
reasons or opportunity of hearing was held to be violative of Article 14.

Indian Council of Legal Aid and Advice-v. Bar Council of India (1995)

Validity of a new rule which didn't allow anyone to register as an advocate after the
age of 45 was challenged, reasoning given by bar council was that people who were in
government services use their past contacts to canvass for cases and such people
also pollute the minds of young advocates, Supreme court said that the reasoning
behind this rule is unreasonable and arbitrary and most importantly the bar has no
material to show that what is claimed actually happens plus you can’t deny everyone
the right to register as an advocate just because a select few misuse their position.

Danial Latifi v. Union Of India (2001)

Section 3 and 4 (provided for maintenance beyond iddat period) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 was challenged on the ground that it was
violative of article 14. Court held that the act is constitutionally valid.

This case is important because, it established for the first time that a Muslim husband's
liability to provide maintenance to his divorced wife extends beyond the iddat period,
and he must realize his obligation within the iddat period, thereby striking a balance
between Muslim personal law and the Criminal Procedure Code, 1973.

National Legal Services Authority v. Union of India (2014)

Article 14 does not restrict the word 'person' to males and females only,
Hijras/Transgender's are also included in the definition of person'. Also, the prohibition
on discrimination on basis of Sex under article 15 and 16 does not just mean biological
sex, it also prohibits discrimination on basis of gender identity.

Shayara Bano v UOI (2017)

Supreme Court pronounced its decision in the Triple Talaq Case, declaring that the
practice of instantaneous triple talaq [Talaq-ul-biddat] was unconstitutional. The Bench
observed that this form of Talag is manifestly arbitrary in the sense that the marital tie
can be broken capriciously and whimsically by a Muslim man without any attempt at
reconciliation so as to save it. Therefore, is violative of Article 14.

Navtej Singh Johar vs Union of India (2018)

A five-judge Bench of the Supreme Court unanimously struck down Section 377 of the
Indian Penal Code, because 377 criminalized same-sex relations between consenting
adults. LGBT individuals were legally allowed to engage in consensual intercourse.
Section 377 of IPC was held to be violative of right to equality for same sex
couples.

Indian Young Lawyers' Association v. State of Kerala (2018)

Supreme Court declared unconstitutional the Sabarimala Temple's custom of

prohibiting women in their 'menstruating years' from entering the temple premises.

Harsh Mander v. Union of India (2018)

This judgment decriminalized begging on the ground of right to equality under Article
14 by removing around 25 sections of Bombay Prevention of Begging Act, 1959 which
criminalized different forms of begging.

In this petition it was pointed out that the definition of "begging" under the Act violated
Article 14, as it does not make any distinction between persons who solicit or receive
money for authorized purposes and those who are singing, dancing or engaged in
similar activities.

**********************************************************************

Prohibition of Discrimination and Reservation in

Educational Institutions
Article 15 - Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.

5 GROUNDS

(1) State can't discriminate against any citizen on grounds of religion, race, caste, sex,
place of birth.

(2) No citizen shall, on these 5 grounds be subject to any disability, liability, restriction
or condition with regard to -
FR'S 15, 16, 17,29,30 ONLY CITIZENS

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.

(3) Exception - special provision for women and children.

(4) This article and 29(2) cannot prevent the State from making any special provision
for the advancement of socially and educationally backward classes of citizens or for
SC/ST's

ADDED BY Ist AMENDMENT

(5) This Article or 19(1)(g) cannot prevent the State from making any special provision,
by law, for the advancement of any socially and educationally backward classes of
citizens or for the SC/ST's in relation to their admission to educational institutions
including private educational institutions (aided and unaided both), other than the
minority educational institutions (Art. 30(1)) (ADDED BY 93rd AMENDMENT)

(6) EWS Reservation (ADDED BY 103rd AMENDMENT)

ARTICLE 15
Clause (1) Prohibits STATE from discriminating against CITIZENS on grounds of
RELIGION, RACE, CASTE, SEX or PLACE OF BIRTH.

D.P. Joshi v. Madhya Bharat (1955)

In indore, a medical college was discriminating between the students from Madhya
Bharat (later become part of Madhya Pradesh) and students from the rest of India.
Court held that Article 15 would not be applicable here because there is a difference
between 'place of residence' and 'place of birth' and such classification on basis of
place of residence is just and reasonable also under article 14 because it promotes
education within geographical boundaries.'

Clause (2) Gives rights to citizen to not have any disability, liability, restriction or
condition in certain situations (even against some non-state entities) because of the
5 grounds.

Clause (3) provides for special provision for women and children
Yusuf Abdul Aziz v State of Bombay (1954)
In this case, the constitutionality of Section 497(adultery) was challenged on the
grounds that it violates Article 14 and Article 15, by saying a wife cannot be a culprit
even as an abettor. The 3-judge bench upheld the validity of the said provision as it is
a special provision created for women and is saved by Article 15(3).

(Adultery was decriminalized in Joseph Shine v. Uol (2018))

Clause (4) added by 1" constitutional amendment, empowers state to make special
provisions for socially and educationally backward classes and the SC/ST's.

State of UP v Pradeep Tandon (1975)

The court held that reservation could not be made on grounds of being from rural area.
Rural element does not make a class.

Clause (5) added by 93d amendment empowers state to make special provision like
clause (4) but in relation to their admission to educational institutions (including private
institutions, except educational institutions)

Clause (6) added by 103d amendment provides for Reservations for Economically
Weaker Sections.

CHRONOLOGY OF IMPORTANT LANDMARKS

State of Madras v. Champakam Dorairajan (1951)

(1) Conflict was between Article 15, Article 29(2) (of Fundamental Rights) and Article
46 (of DPSP), issue was reservation, there should be equality according to F.R but
DPSP is asking to promote interests of weaker section.

(ii) Supreme Court in its verdict said that in case of conflict between Fundamental
Rights and Directive Principles, Fundamental Rights would always prevail.

(iii) It also said that Directive principles have to work as a supplement with
Fundamental rights & Parliament can't amend Fundamental Rights.
1st Amendment (1951)
As a Response to Champakam Case, Parliament added Article 15(4) which created a
way to provide reservation as special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.

M.R. Balaji v. State of Mysore (1962)

After the insertion of clause (4) in Article 15, a number of orders were passed by the
Mysore government under Article 15(4) reserving seats for admission to State Medical
and Engineering Colleges for the 'backward classes' and the 'more backward classes
in addition to the seats reserved for the SCs and STs. The government had designated
the backward classes in these orders on the basis of caste and communities.

5 Judge bench of Supreme court held that further categorisation of backward classes
into backward and more backward classes is not envisaged by Article 15(4). For the
purpose of Article 15 (4), backwardness must be both social and educational and the
court acknowledged that caste plays a role in the social superiority and inferiority of
people but still held that caste cannot be made the sole or dominant test for
determining the backwardness of a class of citizens and order under Article 15(4)
need not be in the form of a legislation, it can also be in the form of an executive order.
Court also capped the maximum reservation to up to 50%.

Indra Sahwney v. Union of India (1992)

Upheld that Reservation can’t be more than 50%.

Economic reasons solely can't be called backwardness.

It over ruled M.R. Balaji case in the regard that it said that there can be distinction of
backward and more backward classes and emphasised that this is necessary,
otherwise the portion that is a little advance in the backward classes will take up all the
seats.

We don't need proportionate reservation per se, but we need at least adequate
representation in reservation

Gave concept of Horizontal and Vertical reservation.

Vertical reservation: Reservation for Scheduled Castes, Scheduled Tribes, and Other
Backward Classes is referred to as vertical reservation. It applies separately for each
of the groups specified under the law.
Horizontal reservation refers to the equal opportunity provided to other categories of
beneficiaries such as women, veterans, the transgender community, and individuals
with disabilities, cutting through the vertical categories.

The horizontal quota is applied separately to each vertical category, and not across the
board.

For example, if women have 50% horizontal quota, then half of the selected
candidates will have to necessarily be women in each vertical quota category i.e., half
of all selected SC candidates will have to be women, half of the unreserved or general
category will have to be women, and so on.

How much power does state have over Private Institutions?

T. M. A. Pai Foundation v State of Karnataka (2003)

It was held that the state could not make reservation of seats in admission in privately
run educational institutions, in private institutions admissions could be done on the
basis of common admission test conducted by the state or these institutions or on the
basis of merit.

Islamic Academy v. State of Kerela (2003)

State could fix quota for admissions but could not fix fee, admissions could be done on
basis of entrance tests or merit.

P.A Inamdar v. State of Maharashtra (2005)

Islamic Society Case was over ruled and the position of T.M.A. Pai Case was
reiterated by not allowing state to make reservation of seats in admission in privately
run educational institutions.

93rd Amendment (2006)

(Added to sort out the confusion of whether there can be reservation in private
institutions or not)

Clause (5) added by 93rd amendment which empowered state to make special
provision like clause (4) but in relation to their admission to educational institutions
(including private institutions, except educational institutions) except minority
institutions referred in Article 30(1).

Clause (5) was added in Article 15 in order to make the private educational institutions
share the burden of government educational institutions in providing the citizens with
greater access to education. It enabled the State to make provisions for the
advancement of the SCS, STs or SEBCs of citizens in relation to admission in
educational institutions including private aided/unaided educational institutions.

Ashok Kumar Thakur v Union of India (2008)

The validity of Clause (5) of Article 15 was challenged before the Supreme Court inter
alia on following grounds -

Whether Clauses (4) and (5) of Article 15 are contradictory to each other?

Whether Article 15(5) violates the basic structure of the Constitution?

Whether exclusion of minority educational institutions from the purview of Article 15(5)
is violative of Article 14 of the Constitution?

The court, in relation to first mentioned issue observed that Clauses (4) and (5) of
Article 15 are not mutually contradictory. The second issue was answered by the court
in negative so far as it related to the State-maintained and aided educational
institutions. In relation to the third issue the court opined that minority educational
institutions, by themselves, are a separate class and their rights are protected by other
provisions of the Constitution.
*******************************************************************
Reservation in Public Employment

Article 16 Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of
birth, residence or any of them, be ineligible for, or discriminated against in respect of,
any employment or office under the State. (5 GROUNDS + 2 EXTRA)

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such
employment or appointment. (EXCEPTION To 16(2) (RESIDENCE)

(4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services
under the State. (RESERVATION IN JOB)
 77th AMENDMENT
85th Amendment

(4A) Nothing in this article shall prevent the State from making any provision for
reservation [in matters of promotion, with consequential seniority, to any class]
or AMENOMENT classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled
vacancies of a year which are reserved for being filled up in that year in accordance
with any provision for reservation made under clause (4) or clause (4A) as a separate
class of vacancies to be filled up in any succeeding year or years and such class of
vacancies shall not be considered together with the vacancies of the year in which
they are being filled up for determining the ceiling of fifty percent reservation on total
number of vacancies of that year. (UNFILLED VACANCIES 81st AMENDMENT)

(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination. (RELIGIOUS
INSTITUTION)

(6) EWS (ADDED BY 103 AMENDMENTS)

ARTICLE 16

Clause (1) Gives equality of opportunity to all citizens for employment to any office
under the state.

Clause (2) 7 grounds given, in Art.15 only 5 grounds were given race, religion, caste,
sex and place of birth but in Art. 16, 2 extra grounds i.e., Descent and Residence
are also given.

Clause (3) provides exception for reservation on basis of residence if it is a

backward class and not adequately represented in the State services.

Clause (4) provides reservation in jobs for backward class of citizens not adequately
represented.

Clause (4A) is added by 77th Amendment, which provides reservation in promotion, 85

amendment added reservation in promotion with consequential seniority.

Clause (4B) is added by 81" amendment, added carry forward rule and removed the
50% ceiling on reservation in that regard.

Clause (5) For appointment of incumbent of religious institutions (priest in a temple,

Bishop in a church etc), these provisions shall not apply.
Clause (6) added by 103rd amendment provides for Reservations for Economically
Weaker Sections.

CHRONOLOGY OF IMPORTANT LANDMARKS

Kalelkar Commission (1953)

President appointed the First Backward Classes Commission (popularly known as the
'Kaka Kalelkar Commission') under Article 340(1) of the Constitution, which inter alia,
had the mandate of identifying methods of improving the condition of socially and
educationally backward classes.

Mandal Commission (1979)

The Second Backward Classes Commission (headed by B.P. Mandal) was set up
under Article 340(1) which was tasked with determining the criteria for defining the
socially and educationally backward classes. After an exhaustive survey, the Mandal
Commission identified 52% of the Indian population (3743 castes) as "Socially and
Economically.”

“Backward Classes" (SEBCs). Subsequently, it recommended a 27% reservation for

SEBCS in addition to the previously existing 22.5% reservation for SC/STS. Prime
Minister V.P. Singh issued office of memorandum on AUGUST 13, 1990 and reserved
27% seats for the Socially & Backward classes as OBC Reservation.

Indra Sahwney v. Union of India (1993) 77th Amendment (1995)

Carry forward rule: If

Held: reserved vacancies are left
empty, then those seats will
be carried forward to the next
• Backward classes under Article 16(4) cannot year

be identified on the basis of economic criteria and

the caste system also needs to be considered.

• Article 16(4) does allow the classification of backward classes into backward and
more backward.

• The concept of a creamy layer was laid down and it was directed that such a creamy
layer be excluded while identifying backward classes.

• Reservation was capped at 50% and no reservations in promotions were allowed.

• Over ruled [Link] v. Union of India (1964) by declaring carry forward rule as
constitutional as long as it does not exceed the 50% ceiling.
77th Amendment (1995)
16(4A) added by which the Government nullified the effect of Indra Sawhney. Article
16(4A) allowed the State to provide reservations to a SC/ST in matters of promotion,
as long as the State believes that the SC/ST is not adequately represented in
government services.

Ajit Singh v State of Punjab (1996)

After reservation in promotion was constitutionally recognized, it led to a situation were
reserved category. candidates, who were promoted over general class counterparts,
became their senior due to earlier promotion.

This anomaly was addressed by two judgments Uol v. Virpal Singh (1995) and Ajit
Singh Januja v. State of Punjab (1996), which introduced the concept of a Catch-Up
Rule. The rule held that senior general candidates who were promoted after SC/ST
candidates would regain their seniority over general candidates who were promoted
earlier.

S Vinod Kumar v Union of India (1996)

Held that relaxations in qualifying marks in matters of reservation in promotion was not
permissible under Article 16(4) in view of the command contained in Article 335 of the
Constitution. Article 335 states that reservations are subject to the principle of
administrative efficiency.

81st Amendment (2000)

Through 81st Amendment, the government introduced Article 16(48), which allowed
reservation in promotion to breach the 50% ceiling set on regular reservations. The
Amendment allowed the State to carry forward unfilled vacancies from previous years.
(Carry forward rule).

When we talk about reservation, we should be aware of Article 335 of the Constitution
which says that efficiency of administration should not be hampered because of the
claims of SC/ST to services and posts.

Article 335 Claims of Scheduled Castes and Scheduled

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

Provided that nothing in this article shall prevent in making of any provision in favour of
the members of the Scheduled Castes and the Scheduled Tribes for relaxation in
qualifying marks in any examination or lowering the standards of
evaluation, for reservation in matters or promotion to any class or classes of services
or posts in connection with the affairs of the Union or of a State.

Proviso to Article 335-82nd Amendment (2000)

In the 82nd Amendment, the State added a proviso to Article 335. According to Article
335, the claims of SCS/STS to services and posts have to be consistent with overall
administrative efficiency.

In a way, the 82nd Amendment removed the efficiency requirement. It introduced a

proviso which held that nothing in Article 335 would prevent the State from relaxing the
qualifying marks or lowering the standard of evaluation for reservation in matters of
promotion to members of SC and STs.

The proviso to Article 335 undid the Supreme Court's 1996 judgement in S Vinod
Kumar v. Union of India, which specifically ruled against relaxations in qualifying
marks in matters of reservation in promotion.

85th Amendment (2001)

Parliament negated the Catch-Up Rule that the Court had introduced in Virpal Singh
(1995) and Ajit Singh (1996). In the 85th Amendment, Parliament amended Article
16(4A) and introduced the principle of Consequential Seniority to promoted SC/ST
candidates.

Nagaraj v UOI (2006)

In Nagaraj, the petitioners challenged the 77th, 81st, 82nd and 85th Amendments
before the Supreme Court.

The five-judge Bench upheld the constitutional validity of Reservation in Promotion to

SCS/STs. It upheld the Consequential Seniority Rule under Article 16(4A), the Carry
Forward Rule under Article 16(48) and the Proviso to Article 335.

However, the court noted that Article 16.4A and 4B are enabling provisions and there
is no automatic right to reservation in promotion for SC/STS.

The Court held that for reservation in promotion to be valid, the State has to meet
three compelling requirements:

1. Demonstrate the backwardness of the SC/ST.

2. Prove that the SC/ST is inadequately represented in relevant public employment.

3. Maintain the overall efficiency of administration.

After Nagaraj
Following Nagaraj, which introduced the three controlling conditions, various High
Courts and Supreme Court struck down Statutes and Rules extending reservation in
promotion policies. The various courts ruled that the State had failed to furnish enough
data to meet the controlling conditions. In particular, the courts criticized the State for
failing to demonstrate backwardness and/or insufficient representation.

Jarnail Singh v. Lacchmi Narain Gupta (2018)

A five-judge Bench of the Supreme Court unanimously held that the judgment
delivered in Nagaraj in 2006, relating to reservations in promotions for SC/ST persons,
does not need reconsideration by a larger seven-judge Bench. The Bench also struck
the demonstration of further backwardness criterion from Nagaraj.

While on the one hand the Court struck down the further backwardness criterion, it on
the other hand introduced the principle of creamy layer exclusion. It held that creamy
layer exclusion extends to SC/STS and, hence the State cannot grant reservations in
promotion to SC/ST individuals who belong to the creamy layer of their community.

BK Pavitra v. Union of India (2019)

In 2019, the Supreme Court upheld a rese ration in promotion policy. The Supreme
Court upheld a 2018 Karnataka Reservation Act on the ground that the State had
furnished sufficient data to demonstrate both that SC/STS are inadequately
represented and that the policy would not adversely affect efficiency. The 2018 Act
introduces consequential seniority for SC/STS in State: Government Services.

In its judgment, the Court introduced a new inclusive definition of administrative

efficiency under Article 335 of the Constitution. The new definition balances merit with
ensuring adequate representation. Also of note, the Court upheld the Act despite the
fact that the State had failed to apply the creamy layer test introduced in Jarnail Singh.
The Court reasoned that the test can only be applied at the stage of reservation in
promotion and not at the stage of Consequential seniority.

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Untouchability
Article 17 Abolition of Untouchability - "Untouchability” is abolished and its practice
in any form is forbidden. The enforcement of any disability arising out of
"Untouchability” shall be an offence punishable in accordance with law.

Article 35 empowers a parliament to make laws to give effect to the provisions of

Part Ill of constitution, so using those powers parliament enacted the Untouchability
(Offences) Act in 1955 which was amended in 1976 to make it more stringent.
Later it was renamed as 'The Protection of Civil Rights Act, 1955.'

A person practising Untouchability can be given punishment of imprisonment up to 6

months and a fine of Rs.500 or both under this act.

Here 'untouchability’ is not supposed to be interpreted literally, it refers to the orthodox

(now illegal) practise of Indian Caste System. In the case of Devrajjah v. Padmanna
(1958) the Mysore High court said:

"It is to be noticed that that word occurs only in Article 17 and is enclosed in inverted
commas. This clearly indicates that the subject-matter of that Article is not
untouchability in its literal or grammatical sense but the practice as it had developed
historically in this country."

PUDR V. Union of India (1982) (Asiad Project workers case)

Supreme Court held that the fundamental right under Article 17 is available against
private individuals too.

State of Karnataka v. Appa Balu Ingale (1993)

Supreme court under The Protection of Civil Rights Act, 1955' convicted the
respondents with 1 month imprisonment and Rs.100 Fine because they restrained the
complainaint party from taking water from a borewell for the reason that they were
considered untouchables.

Court held that the object of Art. 17 and the act is to liberate the society from blind and
ritualistic adherence and traditional beliefs which has lost all legal or normal base.

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Abolition of Titles
Article 18. Abolition of titles.

(1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or
trust under the State, accept without the consent of the President any title from any
foreign State.
(4) No person holding any office of profit or trust under the State shall, without the
consent of the President, accept any present, emolument, or office of any kind from or
under any foreign State.

18(3) also applies to foreigners who are holding any office of profit or trust under the
state (India), they can't accept any title, from a foreign state, without consent of
President.

18(4) says no person (Indian/foreign both) can accept any title, present, emolument, or
office of any kind from a foreign state without consent of president, if he/she is holding
any office of profit or trust under the state.

Only Dynastic titles are abolished under Article 18, military titles (major, colonel etc)
and academic titles (Dr., Prof. etc) and other meritorious titles are not abolished.

Balaji Raghavan V. Union of India (1996)

Validity of National Awards were challenged, they were called titles by the petitioners
within the meaning of article 18, Supreme court held that the National Awards like
Bharat Ratna, Padma Bhushan and Padma Shri are not violative of the principle of
equality because there should be a system of awards like these to recognize and
reward the excellence. Court referred to Article 51-A(i) of fundamental duties which
says:

'to strive towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavour and achievement'

BUT court also emphasized on the fact that home ministry should be vigilant and
guidelines should be made in a way to give these awards so that abuse could be
prevented and the whole purpose of these awards (awarding and acknowledging
excellence) be not defeated because of political reasons.

**********************************************************************

Right to Freedom
Article 19

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right.

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions or co-operative societies

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) right to property (44th amendment, 1978)

(g) to practise any profession, or to carry on any occupation, trade or business.

Article 19 sub clause 1 gives rights to citizens only Sub clause 2-6 gives states power
to impose reasonable restrictions.

FREEDOM OF SPEECH AND EXPRESSION

19(1)(a)-Reasonable restriction in 19(2)

Grounds for Reasonable restriction

1. Interests of sovereignty and integrity of India. (Added by 16th Amendment,

1963)

2. Security of the state;

3. Friendly relations with foreign states; (Added by 1st Amendment, 1951)

4. Public order; (Added by 1st Amendment, 1951)

5. Decency or morality;

Hicklin Test was used as test for obscenity in Ranjit D Udeshi v. State of Maharashtra
(1965) which was rejected later and 'community standard-test' was used in Aveek
Sarkar v. State of West Bengal (2014)

Community Standard Test: only the material which arouses lustful feelings for an
average man is obscene.

6. Contempt of court;

7. Defamation;

8. Incitement to an offence;
Bijoe Emmanuel v. State of Kerala (National Anthem Case) (1986)

Freedom of Speech includes freedom of Silence

Issue was that three school children belonging to a sect (Jehovah's witness)
worshipped only Jehovah (the creator) and refused to sing the national anthem "Jana
Gana Mana" because singing Jana Gana Mana was against the tenets of their
religious faith which did not allow them to sing the national anthem. These children
stood up respectfully in silence daily for the national anthem but refused to sing
because of their honest belief. The headmistress of the school under the instruction of
the Dy. Inspector of Schools expelled the students.

The Supreme Court held that the action of the headmistress as violative of their
freedom of religion. The fundamental rights guaranteed under Article 19(1)(a) and
Article 25(1) was held as infringed. Court further held that there is no provision of law
which compels or obligates anyone to sing the national anthem, it is also not
disrespectful if a person respectfully stands but does not sing the national anthem.

PUCL v. Union of India (1997)

Telephone tapping is invasion of right to privacy

Section 5(2) of Indian Telegraph Act, 1885 was challenged which permits the
interception of messages, Court held that "Occurrence of any public emergency" or "in
the interest of public safety" is the sine qua non (essential condition) of the application
of the provisions of Section 5(2). Unless the telephone is tapped on these 2 grounds or
any of the grounds mentioned in Art. 19(2) it will be violation of Art 19(1)(a)

Right to Strike not within the ambit of Freedom of speech

O.K. Ghose v. E.X. Joseph (1963)

Right to protest is fundamental right

Mazdoor Kisan Shakti Sangathan v. Union of India (2018)

Calling of 'Bundh' illegal and unconstitutional because it violates the

rights of citizens under Article 19(1)(a) and Article 21

-Communist Party of India(M) v. Bharat Kumar and others (1998)

Sexual Content in ambit of Freedom of Speech?

There cannot be Blanket Ban on Sexually exploitative material (Ajay Goswami v.
Union of India (1994)) similarly court held that the naked scenes in Bandit Queen
movie are not of a sexual nature, when the woman is stripped and paraded in the
village in a scene in the movie, the scene does not intend to arouse lust in the movies
watcher's mind, it brings sympathy for the character, Nakedness doesn't always
arouse baser instincts. (Bobby Art International v. Om pal singh Hoon (Bandit
Queen Case) (1996))

Freedom of the press is a part of the Freedom of Speech and Expression

and covered under Article 19(1)(a)

Freedom of Press an absence of statutory and administrative control on

dissemination of information, ideas, knowledge and thoughts.

Brij Bhushan and Anr. v. State of Delhi (1950)

This case relates to pre-censorship of media. In 1950, Bhushan had argued for a
regulatory body for media content, the Supreme Court bench led by the Chief Justice
of India has clarified that neither the judiciary, nor the executive could have oversight
of media content.

Courts can be approached only after telecast or publication, by parties who may feel
injured. Intervention in the absence of a complaint would amount to impugning Article
19 of the Constitution.

Romesh Thapper v. State of Madras (1950)

Mr. Thapar was a well-known communist and was very sceptical of the policies of the
then Prime Minister Pt. Jawaharlal Nehru. He published a few articles in his weekly
magazine called Crossroads that expressed his scepticism. This Magazine was
banned by Govt. of Madras by an order.

The order was issued under Section 9(1-A) of the Madras Maintenance of Public Order
Act, 1949 which empowered the government to prohibit the circulation, sale or
distribution of the journal in certain parts of the province of Madras the purpose of
ensuring 'public safety' or preserving 'public order."

This order was challenged in the court, the Court ruled that it was clear that the
impugned order passed was in violation of Article 19(1)(a). After applying the rule of
severability to Section 9(1-A) of the impugned Act, it was held to be void under Article
13(1) of the Constitution and thus ultra vires as it was inconsistent with the provisions
of Part III of the Constitution.

(After this decision parliament added 'public order in Section 19(2) as reasonable
restriction)
Sakal papers v. Union of India (1961)
Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages and
size which a newspaper could publish at a price was held to be violative of freedom of
press and not a reasonable restriction under the Article 19(2). Similar ruling was also
given in Bennet Coleman and Co. v. Union of India (1973)

Prabhu Datt v. Union of India (1982)

Right to know news and information regarding administration of the government is
included in the freedom of press.

(Later Right to Information (RTI) Act, 2005 was enacted for providing information about
government administration to maintain transparency)

[Link] v. State of Tamil Nadu (Auto Shankar Case) (1994)

Prior restraint on publishing against freedom of press

Auto Shankar was a prisoner who was convicted of death penalty for six murders, he
wrote his autobiography in jail which was soon to be published in petitioner's magazine
'Nakheeran.'

In the autobiography a close nexus was depicted between Auto Shankar and various
IAS, IPS and other officers who were against the publication of the autobiography on
the grounds that it was defamatory. They used various means including third degree
and torture to stop the publishing of the autobiography.

Court held that the state and the officials cannot impose prior restraint of publication, if
they have proof that it is defamatory, they can file a petition after the publication and
seek appropriate remedy.

Commercial Advertisement part of freedom of speech?

Hamdard Dawakhana v Union of India (1960)

Court said the sale of prohibited drugs was not in the interest of the general public and
as such "could not be a speech" within the meaning of freedom of speech and
expression under Article 19(1) (a) of the Constitution. In this case freedom of speech
was limited to only expression of ideas and commercial advertisements were put out of
the ambit of freedom of speech.
Tata Press v. MTNL (1995)
The judgment results from a dispute between Tata Press and MTNL whose monopoly
on printing telephone directories under the Indian Telegraph Act, was successfully
challenged by Tata's Yellow Pages.

It was contended that it is the public's right to receive Information by way of advertising
implicit in the concept of "free speech and expression" guaranteed under Article 19(1)A
of the Constitution. In taking a holistic approach to the issue, Justice Kuldip Singh
described the free flow of commercial information as "the cornerstone of our economic
system. Low prices for consumers are dependent on mass production (which) is
dependent on volume sales (which) is dependent on advertising."

FREEDOM OF ASSEMBLY

19(1) (b)-reasonable restriction in 19(3)

Grounds for Reasonable restriction

1. Public order.

2. Maintenance of sovereignty and integrity of India.

The Assembly under 19(1)(b) should be peaceful and without arms.

Section 141 of IPC defines what an unlawful assembly is.

FREEDOM OF ASSOCIATION

19(1)(c)-reasonable restriction in 19(4)

Grounds for Reasonable restriction

1. Interests of the sovereignty and integrity of India

2. Public order

3. Morality

19(1)(c) guarantees freedom to form associations and co-operative societies.

The part with co-operative societies was added by the 97th amendment together with
PART IX-B of constitution that talks about co-operative societies.
Cooperative Societies
An autonomous association of persons united voluntarily to meet their common
economic, social, and cultural needs and aspirations through a jointly-owned and
democratically-controlled enterprise.

Best examples are dairy, fish farmers, weavers and artisans and tribal co-operatives.

The right to form association also includes right to not be part of an association.

Damayanti v. Union of India (1971)

Right to form association implies that the person forming the association have also the
right to continue to be associated with only those whom they voluntarily admit in the
association.

FREEDOM OF MOVEMENT (d) AND RESIDENCE (e)

19(1)(d) and 19(1)(e)- reasonable restriction in 19(5)

Grounds for Reasonable restriction

1. Interests of the general public.

2. For the protection of the interests of any scheduled tribe.

State of U.P V. Kaushalya (1988)

Right of movement of prostitutes may be restricted on ground of public health and in
the interest of public morales.

In Ajay Canu v. Union of India (1988) and Rajneesh Kapoor v Union of India
(2007) it was held that rule of wearing helmet ist reasonable restriction on freedom of
movement because the paramount objective is saving the life a citizen.

FREEDOM TO OWN PROPERTY

44th Amendment, 1988 - 19(1)(f) And Article 31 (Right to Property) removed from
constitution and Article 300A-Right to property added.

Article 300A- Persons not to be deprived of property save by authority of law. No

person shall be deprived of his property save by authority of law.

After this Right to property is a constitutional right but not a fundamental right.

FREEDOM OF PROFESSION, OCCUPATION TRADE OR BUSINESS

19(1)(g) reasonable restriction in 19(6)

Grounds for Reasonable restriction

1. In the interests of the general public.

2. State prescribed qualifications for carrying on any profession or technical

occupation.

3. State-run trade, business, industry, or service that excludes the participation

of citizens or others either completely or partially.

Right to carry on business includes right to close the business?

This may sound absurd, anyone can close their business when they want, right? No

Excel Wear v. Union of India (1979)

A registered firm applied to the government for approval for its closure because it was
incurring heavy losses. The govt refused approval in the public interest and the govt
was able to do so because of Section 25-0 and 25-R of Industrial Disputes Act, which
require an employer to take permission from the government for closure of an
industrial undertaking. The employer has to give a 3-month notice before closing down
and even after that govt can refuse to give permission to do so if the 'reasons are not
adequate or sufficient or when such closure is 'prejudicial to the public interest’

Education covered under Article 19(1)(g)?

In Unni Krishnan v. State of A.P. (1993) it was held that right to establish an
educational institution and imparting education is not a commercial activity, such
activity is neither a trade or business nor it can be a profession within the meaning of
19(1)(g) because Trade or business is done with a profit motive and education has
never been a commerce activity in this country, Later in P.A. Inamdar v. State of
Maharashtra (2005) it was said that education can be an occupation in 19(1)(g) but it
cannot be equated with trade or business.
Whether trade or business in Liquor in ambit of 19(1)(g)

Khoday Distilleries Ltd. v. State of Karnataka (1995)

Supreme court held that a citizen does not have a fundamental right to trade or
business in activities which are immoral and criminal and in articles or goods which are
obnoxious and injurious to health, safety and welfare of citizens. A state has power to
prohibit the manufacture, sale, possession, distribution and consumption of alcohol
both because it is dangeroud to health and also because of the DPSP Article 47
(except when it is used in medicinal purposes)

Hawkers have right to trade on pavement of roads but with

reasonable restrictions.

Sodan Singh v. New Delhi municipal Corporation (1989)

State Lotteries are not Trade or business but gambling

B.R. Enterprises v. State of U.P. (1999)

Difference between gambling and trade is that gambling inherently contains a chance
with no skill and trade contains skill with no chance. Ban on Gambling including State
lotteries constitutional.

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Protection in respect of conviction for offences

Article 20 Protection in respect of conviction for offences--

(1) No person shall be convicted of any offence except for violation of a law in force at
the time of the commission of the Act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force at the
time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against

himself.
Article 20(1) - Protection against Ex post Facto Laws

Ex Post facto laws - The laws which imposes penalties retrospectively, which means
that a new law will punish an old act.

Kedarnath v. Union of India (1953)

Supreme Court of India observed that, whenever an act is declared as a criminal
offence and/or provides penalty for same by the legislature, it is always prospective in
nature and can't be implemented retrospectively to uphold what is being said under
Article 20 (1).

Ratan Lal v. State of Punjab (1965)

If retrospective effect gives benefit to accuse then such retrospective effect will be
valid.

Mohan Lal v. State of Rajasthan (2015)

Court held that only conviction and/or punishments under an ex post facto law is
prohibited under Article 20 and not the trial or prosecution itself.

Article 20(2) - Double Jeopardy

Nemo debet bis vexari - Latin: no man ought to be twice vexed; No person should be
twice punished and prosecuted upon the same set of facts if there has been a final
decision of a competent court.

Autrefois acquit and autrefois convict are French terms., means formerly or once
acquitted or convicted. Both the terms relate to the concept of double jeopardy.

The defence from prosecution for the second time has also been embodied in Section
300 (1) of Cr.P.C which says that someone who been convicted/prosecuted by a
competent court for some offence will not be liable to prosecuted again till the previous
conviction/acquittal remains in force.

The following essentials should be there for application of this principle:

1. The person must be accused of an offence.

General Clauses Act in Section 3(38) also describes 'offence' as act or omission made
punishable by any law for the time being in force;
Time being in force is key here, it means the laws which were existent at the time of
commission of the offence.

2. Proceeding or the prosecution must have taken place in front of a 'court' or judicial
tribunal.'

3. The person should be prosecuted and punished in the previous proceeding.

4. The offence must be same for which he was prosecuted and punished.

Maqbool Hussain v. State of Bombay (1953)

The person accused was possessing some amount of gold, which was against lex loci
at the time and gold was confiscated by the customs authority. And, later when the
person was prosecuted before a criminal court, the court was confronted with the
question whether this amounts to Double Jeopardy.

But the Supreme Court observed that departmental proceedings, i.e., by Customs
Authority, in this case, doesn't amount to trial by a judicial tribunal, thus the
proceedings before the criminal court is not barred in this case and the proceedings
can go on.

A.A. Mulla v. State of Maharashtra

Article 20 (2) would not be attracted in those cases where the facts are distinct in
subsequent offence or punishment.

Article 20(3)-Self Incrimination

nemo tenetur seipsum accusare which means roughly "not man has to accuse
himself."

M.P. Sharma v. Satish Chandra (1954)

Supreme court observed that the right under 20(3) encompasses the following

(i) It is a right pertaining to a person who is 'accused of an offence.'

(ii) It is a protection against 'compulsion to be a witness.'

(iii) It is protection against such compulsion relating to his giving evidence against
himself.
State of Bombay v. Kathi Kalu (1961)
Supreme Court held that the interpretation of the phrase 'to be a witness' in M.P.
Sharma case was too broad because it was including 'not furnishing any evidence,
which means no fingerprints, no handwriting specimen, no DNA or any other such
evidence could be collected from the accused, which will definitely not be efficient in
administration of justice, So the ambit of 'to be a witness' was narrowed which now
means that giving fingerprint, handwriting specimen may amount to giving evidences
against himself technically but it will not be included in the ambit of 20(3).

So now the scope of 20(3) is that you cannot compel a person to say something from
his personal knowledge relating to the charge against himself.

Nandini Satpathy v. P.L. Dani (1977)

Supreme court widened the definition of 'compelled testimony', it must be read not just
as evidence procured by physical threat or violence but also mental torture, tiring,
excessive interrogation, intimidatory methods etc.

Selvi v. State of Karnataka (2010)

Court had to decide the constitutionality of Narcoanalysis, Polygraphy and Brain finger
printing (BEAP) tests done on accused without their consent.

On one side there was 'efficient investigation' and on the other side there was
preservation of individual liberty'. Court chose the latter and held that these tests are
testimonial compulsions and thus violative of 20(3).

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Right to Life and Personal Liberty

21. Protection of life and personal liberty - No person shall be deprived of
his life or personal liberty except according to procedure established by
law.

Available to all people (not just citizens)

2 Most important questions in this article are

1. What do we include in 'life and personal liberty'

2. What is 'procedure established by law'

Let’s start with 'procedure established by law'

Difference between 'due process of law' and 'procedure established by law'

American constitution follows 'due process of law'. It checks whether any law in
question is fair and not arbitrary. The dual process of law gives wide scope to the
Court to grant protection to the rights of its citizens. Under due process, it is the legal
requirement that the state must respect all of the legal rights that are owed to a person
and laws that states enact must conform to the laws of the land.

'Procedure established by law' means that a law that is duly enacted by the legislature
or the body in question is valid if the procedure to establish it has been correctly
followed. A rigid and inflexible following of the procedure established by law may raise
the risk of compromise to life and personal liberty of individuals due to unjust laws
made by the law-making authorities, which happened in the case of AK Gopalan v.
State of Madras (1950).

AK Gopalan v. State of Madras (1950)

AK Gopalan was a communist leader who was detained under Preventive Detention
Act, 1950, he challenged his detention on the ground that his civil liberty was being
hampered, Supreme court held that he was detained according to the procedure
established by law.

At the time of this case Supreme Court only provided remedy against arbitrary action
of the executive, as long as the law was made by 'procedure established by law it was
a valid law. This was a very narrow view taken by Supreme Court but this was
changed by the next case of Maneka Gandhi.

Maneka Gandhi v. Union of India (1978)

Passport of Maneka Gandhi was impounded under Section 10(3)(c) of Passport Act,
1967, She was not given any reasons for the impounding. Without passport one cant
travel outside of India, So Maneka Gandhi filled a writ petition under Article 32 for
violating of her personal liberty under Article 21.

The 7-judge bench of Supreme Court invoked not just Article 21 but also Article 19 and
Article 14, Court was of the opinion that Article 19 and Article 21 go hand-in-hand and
the procedure established by law restricting these rights should stand the scrutiny of
other provisions of the Constitution as well-including Article 14.
Supreme Court over ruled A.K. Gopalan case and ruled that at law should be 'Just, fair
and reasonable' and Article 21 can be invoked against arbitrary executive as well as
arbitrary legislative action if the action is not 'just, fair and reasonable. This was a
landmark decision which widened the scope of Article 21 considerably.

Now we will see the various facets of life and liberty' Added to
Article 21 by the Judiciary
Right to live with human dignity

In Occupational Health and Safety Association v. Union of India (2014), the protection
of health and strength of workers and their access to just and humane conditions of
work were taken as essential conditions to live with human dignity.

Navtej Singh Johar v. Union of India (2019)-Section 377 was held unconstitutional
insofar as it criminalizes homosexual acts between consenting adults, Human dignity
is an important consideration of this judgement because human dignity is not a
straightjacket idea. Rather, it involves all those rights and freedoms which enable a
person to live life without encroachment upon his or her self-respect, pride and safety.

Right to livelihood
Olga Tellis v. Bombay Municipal Corporation (1986)

This case was regarding forcible evictions of slum dwellers. The court concluded that
though the slum and pavement dwellers were deprived of their Right to Livelihood, the
government was justified in evicting them as they were making use of the public
property for private purposes. However, they should not be considered as trespassers
as they occupied the filthy places out of sheer helplessness. It was ordered that any
evictions would take place only after the approaching monsoon season and the
persons who were censused before 1976 would be entitled to resettlement.

While the case failed to bring successful resettlement to the dwellers and, in fact, is
sometimes cited as justification for eviction of people by the State, it did play its part in
establishing the Right to Livelihood as part of the Fundamental Right to Life.

Right to Die
Section 309 of the Indian Penal Code, 1860 criminalises attempt to suicide, with the
convicted person facing up to two years of imprisonment, or a fine, or both.
[Link] v. Union of India (1994)

Keeping Article 21 as well as the principles of natural justice in mind, the two-judge
bench ruled that Right to Life also included the right to not live a forced life. Therefore,
Section 309 of the Indian Penal Code was declared void.

Gian Kaur v. State of Punjab (1996)

P Rathinam over ruled, the court concluded that suicide being an unnatural termination
of life, it was against the concept of Right to Life.

Aruna Ramchandra Shanbaugh v. Union of India (2011)

Court held that passive euthanasia can be allowed in certain cases.

Common Cause (A Reg. Society) v. Union of India (2015)

A Constitution Bench decided that the right to life with dignity under Article 21 includes
a right to die with dignity.
Right to Privacy

People's Union for Civil Liberties v. Union of India (1997)

Telephone tapping is a violation of fundamental rights, unless reasonable grounds are

there for doing the same.

Mr. X. vs. Hospital Z (1998)

The issue in consideration was whether the disclosure made by a doctor to the fiance
of a person suffering from HIV positive, amounts to infringement of right to privacy
under Article 21.

The court held that when two fundamental rights, namely the right to privacy and that
of life clashes the right which would advance the public morality or public interest
would alone be enforced through the process of Court.

Surjit Singh Thind v. Kanwaljit Kaur (2003)

Allowing the medical examination of a woman's virginity violates her right to privacy
under Article 21 of the Constitution.

Justice K.S. Puttaswamy (Rtd.) and Anr. V. Union of India (Aadhar

Judgement) (2019)
Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services)
Act, 2016 was held to be constitutional, but some individual sections violating
Fundamental rights were struck down.

Right to Sleep
Ramlila Maidan v. Home Secretary, Union of India (2012) -

Yoga training camp was to be held in Ramlila Maidan during June, 2011 but on 4th
June it turned into a hunger strike against black money and corruption led by Baba
Ramdev. The protests took place all day and at 12:30 at night, when all the protestors
were sleeping, a large number of CRPF, Delhi Police force and Rapid Action Force
personnel reached the venue to bring the sadhu out. A scuffle ensued between the
personnel and the sadhu's supporters which ended in throwing teargas shells on the
people. Court held that every person is entitled to sleep as comfortably and freely as
he breathes. If any person's sleep is disturbed without any reasonable justification, it
amounts to torture and is a violation of his human rights.

Right to Health and Medical Assistance

Parmanand Katara v. Union of India (1989) –

Supreme Court held that all doctors (private or government) are obliged to extend
medical assistance to injured immediately without asking for legal formalities.

Right to Education
Mohini Jain v. State of Karnataka (1992) - Right to education at all levels was held to
be a fundamental right.

Unni Krishnan v. State of A.P (1993) - Supreme Court held that right to education is
a F.R. flowing from article 21 but right to free education is available to the children until
they complete the age of 14 years, after that the obligation of State to provide
education is subject to economic capacity and development.

Right to Clean Environment

Rural Litigation and Entitlement Kendra v. State of U.P. (1985).

M.C. Mehta v. Union of India (Shriram Food Fertilizer case) (1986)

Indian Council for Enviro-Legal Action v. Union of India (1996)

Vellore Citizen's Welfare Forum v. Union of India (1996)

Arrest of Judgement Debtor can be a violation of fundamental rights –

Jolly George Varghese v. State Bank of Cochin (1980)

A court warrant was made for the arrest and detention of two judgement-debtors as
they had not paid the money due to the Bank. Their property was also encroached
upon for the purpose of selling it and obtaining the money. All this was done without
ascertaining that the judgement-debtors had the means to pay but had intentionally
evaded it, Le. had committed an act of bad-faith. Hence, an appeal was filed by the
two.

A judgement-debtor refers to a person against whom a judgement has been made

ordering him to pay a sum of money i.e., damages, which remains unsatisfied. Thus,
he is a debtor of those damages with respect to the judgement passed.

The court declared that it was necessary to ascertain whether an act of bad faith had
been committed, and only then the judgement-debtors should be arrested and
detained.

Thus, the court, keeping in mind the life and personal liberty of the judgement-debtor,
narrowed down the circumstances in which he can be arrested. Therefore, if a
judgement debtor fails to pay the money, he can be arrested - provided that he
deliberately avoided paying it even while possessing the means to do so.

Offence of Adultery Unconstitutional

Joseph Shine v. Union of India (2019) - Section 497 of IPC held unconstitutional on
the grounds that it violated women's right to dignity and hence it infringed Article 21.

Non-Payment of minimum wages violation of Article 21

- PUDR v. Union of India (1982)

Right to Compensation for violation of Fundamental Right was given

-Khatri v State of Bihar (Bhagalpur blinding case) (1981)

-Rudul Shah v. State of Bihar (1983)

Bonded Labour is unconstitutional

- Neerja Chaudhary v. State of M.P. (1984)

Right to shelter is under Right to life in Article 21 –

Chameli Singh v. State of U.P. (1996)

Reproductive choices (decision to produce child or not) within the ambit

of Article 21

Suchita Srivastava v. Chandigarh Administration (2010)

Right to self-determination of Gender is fundamental right –

National Legal Service Authority v. Union of India (2014).

Ban on smoking in public places –

Murli S Deora v. Union of India (2002).

Right to free legal aid is fundamental right

M.H. Hoskot v. State of Maharashtra (1978)

Right to speedy trial is a fundamental right

Hussainara Khatoon v. State of Bihar (1979)

Right against handcuffing, handcuffing should only be resorted to in case there

is clear and present danger of escape.

Prem Shankar v. Delhi Administration (1980)

Using Third degree violative of article 21

Kishore Singh v. State of Rajasthan (1981)

Right against illegal Detention

D.K. Basu v. State of West Bengal (1996)
Public Hanging is violative of article 21

Attorney General of India v. Lachma Devi (1986)

Hanging by rope not violative of article 21

Deena v. Union of India (1983)

Delay in execution of death sentence is violation of Article 21

T.N Vatheeswaran v. State of Tamil Nadu (1981) -

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Right to Education
Article 21A Right to education. The State shall provide free and
compulsory education to all children of the age of six to fourteen years in
such manner as the State may, by law, determine.

Timeline of Important Landmarks

Mohini Jain v. State of Karnataka (1992)

The Court in the absence of any Constitutional Provision for the Right to Education
held that 'right to life and personal liberty' under Article 21 includes 'Right to Education'
as education is required for the overall development of personality without which one
would not be able to enjoy one's right to life. The purpose of the right to life is baseless
without the Right to Education.

Unni Krishnan v. State of A.P (1993).

Narrowed down the approach taken by Mohini Jain case, Supreme Court held that
right to education is a Fundamental right flowing from article 21 but right to free
education is available to the children until they complete the age of 14 years, after that,
the obligation of State to provide education is subject to economic capacity and
development.
86th Amendment, 2002

Article 21A added to constitution.

Other changes made by 86th Amendment, 2002 Article 51-A(k) was added in the
fundamental duties which says:

"(k) who is a parent or guardian to provide opportunities for education to his child or, as
the case may be, ward between the age of six and fourteen years."

Article 45 of DPSP was amended.

"State shall endeavour to provide early childhood care and education for all children
until they complete the age of six years" Before amendment it talked about free and
compulsory education to all children until they complete 14 years of age.

RTE Act, 2009

Came into force 1st April 2010.

Right of Children to Free and Compulsory Education Act, 2009 provides for:

• Free and compulsory full-time Elementary Education to a child who is below 14 years
of age.

• A child's admission to an appropriate class depending on his/her age, if a child has

never been admitted to any school. For keeping the child at par with other students, it
also provides for special training.

• Duty and Responsibility of the Government, local authority and Parents for providing
Free and Compulsory Education to a child.

• Norms and Standards for the school consisting capacity of children, pupil-teacher
ratios, teaching hours.

• Prohibition on physical punishment, mental harassment, screening procedure for

qualifying the admission, any kind of fees, private tuition by the teachers and running
unrecognised schools.

National Education Policy (NEP) 2020

Some key highlights:

• New Curricular and Pedagogical Structure.

• Aims for universalization of education from pre-school to secondary level with 100 %
Gross Enrolment Ratio (GER) in school education by 2030.

• A new and comprehensive National Curriculum Framework for Teacher Education,

NCFTE 2021, will be formulated by the NCTE in consultation with NCERT.

• Higher Education Commission of India (HECI) will be set up as a single overarching

umbrella body for entire higher education, excluding medical and legal education.
HECI to have four independent verticals - National Higher Education Regulatory
Council (NHERC) for regulation, General Education Council (GEC) for standard-
setting. Higher Education Grants Council (HEGC) for funding, and National
Accreditation Council NAC) for accreditation.

• An autonomous body, the National Educational Technology Forum (NETF), will be

created to provide a platform for the free exchange of ideas on the use of technology
to enhance learning, assessment, planning. administration.

This is all proposed to be done, let's see how it is implemented

*********************************************************************

Protection Against Arrest and Detention

22 Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be denied the right
to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to the court of the magistrate
and no such person shall be detained in custody beyond the said period without the
authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive
detention.

(4) No law providing for preventive detention shall authorise the detention of a person
for a longer period than three months unless an advisory board consisting of persons
qualified for being a judge of high court has approved it.

(5) grounds of such detention are provided to the detained person with an opportunity
of representation against the order.

(6) Facts which are against the public interest would not be disclosed under sub-
clause (5).
(7) Parliament may prescribe the circumstances under which a person may be
detained for longer than three months without permission of advisory board, the
maximum period of detention under such law, the procedure to be followed by the
advisory board in an inquiry order.

The most commonly asked questions in this topic are:

1. In which Article right to be informed about grounds of arrest and right to a lawyer
have been provided

Ans. Article 22(1)

2. In which Article right to be produced before a magistrate within a period of twenty-

four hours is given.

Ans. Article 22(2)

Article 22 grants protection to persons who are arrested or detained. Detention is of

two types, namely, punitive and preventive.

In Francis Coralie Mullin v. The Administrator, Union (1981) the difference

between Preventive and punitive detention was discussed. Punitive detention is to
punish a person for an offence committed by him after trial and conviction in court.
Preventive detention, on the other hand, means detention of a person without trial and
conviction by a court. Its purpose is not to punish a person for a past offence but to
prevent him from committing an offence in the near future. So preventive detention is
only a precautionary measure and based on suspicion. Our constitution recognises
Preventive detention but also provides safeguards for it in Articles 21 and 22.

In the A K Gopalan v. State of Madras case of 1950, the Supreme Court, taking a
narrow view of Article 21 and 22, refused to consider if the procedure established by
law suffered from any deficiencies but later in 1978 in Maneka Gandhi v. Union of
India, the court widened the scope of the expression personal liberty considerably and
interpreted it in its widest amplitude.

In D.K. Basu v. State of West Bengal (1996) 11 guidelines were given regarding
arrest and detention.

In Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar (1979) the courts
observed that a large number of people were arrested awaiting their trial in a court of
law. The arrests were made irrespective of the charge and its graveness. The accused
were under arrest, deprived of their freedom even before the commencement of their
trial and the charge actually being proved which stands unreasonable. The Supreme
Court showing concern over the matter interpreted that speedy trial is a constitutional
right although it is nowhere explicitly mentioned.
**************************************************************************************************

Right against Exploitation (Article 23 and Article 24)

Article 23. Prohibition of traffic in human beings and forced labour-

(1) Traffic in human beings and beggar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in
accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for
public purposes, and in imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste or class or any of them.

23(1) prohibits the trafficking of human beings, beggar or any similar form of forced
labour.
Beggar: compulsory labour,
usually without payment;
slave labour

23(2) provides an exception by giving the State power to impose compulsory service
for public purposes (like joining army in situation of war) but the only condition is that
there shouldn't be any discrimination in such compulsory service on grounds of
religion, race, caste or class.

PUDR v. Union of India, (Asiad Construction Workers case)

(1982)
In the case issues like labourers not given the minimum remuneration as mentioned in
the minimum wages act, 1948 and unequal income distribution among men and
women were highlighted.

The Supreme Court interpreted the scope of article 23 in the case. The Court held that
the word force within this article has a very wide meaning. It includes physical force,
legal force and other economic factors which force a person to provide labour at a
wage less than the minimum wage.

Deena v. Union of India (1983)

Labour taken from prisoners without proper renumeration is forced labour under Article
23.
Sanjit Roy v. State of Rajasthan (1983)
Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, 1964
allowed people to be employed for less than the minimum wage because it was
providing relief from drought conditions prevailing in the area. Court said, drought or no
drought, minimum wage is fundamental right and the concerned act allowing less than
minimum wage is unconstitutional.

Bandhua Mukti Morcha v. Union of India (1984)

A letter containing vations based on a survey conducted of some stone quarries in the
Faridabad district where it was found that these contained a large number of workers
working in "inhuman and intolerable conditions" was treated as a PIL and court laid
down guidelines for determination of bonded labourers and also imposed duty on state
government to identify, release and rehabilitate the bonded labourers.

Article 24 - Prohibition of employment of children in factories, etc-

No child below the age of fourteen years shall be employed to work in any factory or
mine or engaged in any other hazardous employment.

PUDR V. Union of India (Asiad Construction Workers case) (1982)

Same case as above, it was observed that children under the age of fourteen had also
been employed. It was however contended that such employment was not against the
Employment of Children Act, 1938 since the act did not list the construction industry as
a hazardous industry.

Supreme court ruled that construction work is hazardous work and children below 14
years must not be employed in such work even though it has not been mentioned
explicitly in Employment of Children Act, 1938.

M.C. Mehta v. State of Tamil Nadu (1996)

Sivakasi (traditional centre for manufacturing firecrackers and matchboxes) was
considered as a big offender who was employing many child labourers.

The Court ruled that this industry qualified as a hazardous industry. Thus, employing
children under the age of 14 years in this industry is prohibited.

A fine of Rs. 20000 for employing children in contravention to Child Labour (Prohibition
and Regulation) Act, 1986 was also charged.

**********************************************************************
Freedom of Religion (Article 25-28)

S. R. Bommai v. Union of India (1994)

9 Judge Bench, held secularism as part of basic structure of the Constitution.

Article 25: Freedom of conscience and free profession, practice and propagation of
religion.

Article 26: Freedom to manage religious affairs.

Article 27: Freedom as to payment of taxes for promotion of any particular religion.

Article 28: Freedom as to attendance at religious instruction or religious worship in

certain educational institutions.

All rights mentioned above are available to Citizens as well as non-citizens.

25 - Freedom of conscience and free profession, practice and propagation

of religion-

(1) Subject to public order, morality and health and to the other provisions of this Part,
all persons are equally entitled to freedom of conscience and the right freely to
profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the
State from making any law.

(a) regulating or restricting any economic, financial political or other secular activity
which may be associated with religious practice;

(b) providing for social welfare and reform the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.

Explanation 1-The wearing and carrying of kirpans shall be deemed to be included in

the profession of the Sikh religion.

Explanation II - In sub-clause (b) of clause (2), the reference to Hindus shall be

construed as including a reference to persons professing the Sikh, Jains or Buddhist
religion, and the reference to Hindu religious institutions shall be construed accordingly
Secular word is used only twice in the Constitution, once in the preamble and the 2nd
time in 25(2)(a) Article 25 only protects those practices which are integral parts of a
religion.
Bijoe Emmanuel v. State of Kerala (national anthem case) (1986)

Issue was that three school children belonging to a sect (Jehovah's witness)
worshipped only Jehovah (the creator) and refused to sing the national anthem "Jana
Gana Mana" because singing Jana Gana Mana was against the tenets of their
religious faith which did not allow them to sing the national anthem. These children
stood up respectfully in silence daily for the national anthem but refused to sing
because of their honest belief. The headmistress of the school under the instruction of
the Dy. Inspector of Schools expelled the students.

The Supreme Court held that the action of the headmistress as violative of their
freedom of religion. The fundamental rights guaranteed under Article 19(1)(a) and
Article 25(1) was held as infringed. Court further held that there is no provision of law
which compels or obligates anyone to sing the national anthem, it is also not
disrespectful if a person respectfully stands but does not sing the national anthem.

Ramesh v. Union of India (1988)

The facts of this case were: The serial Tamas' was based upon a book that already
screened four episodes that portray the communal violence between Hindu-Muslim
and Sikh Muslim and the tension, killing and looting that took place. A writ petition was
filed under Article 32 of the Constitution for the issuance of the writ of prohibition or
other appropriate writ or order restraining the further screening of the serial Tamas'
and enforcing the fundamental rights of the petitioner under Article 21 and Article 25
and to declare the screening of Tamas as violative of Section 5B of the Cinematograph
Act, 1952.

The Court while dismissing the petition held that there is no violation of Article 21 and
25 and the respondent has not acted improperly. The author tries to bring attention to
the past history of our country and to emphasize the wish of the people to live in
harmony and rise above religious barriers. It further held that when the serial is viewed
in its entirety it creates an impression of peace and co-existence and that the people
are not likely to be carried away by the violence shown in it.

26 - Freedom to manage religious affairs - Subject to public order, morality and

health, every religious denomination or any section thereof shall have the right-

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property;

(d) to administer such property in accordance with law.

SP Mittal v. Union of India (1982)
The Supreme court laid down three conditions that need to be fulfilled by a religious
denomination:

1. Collection of Individuals having a common faith.

2. A common organization.

3. Designation by a distinctive name.

Examples of Denominations: Shaivism, Shaktism, Vaishnavism in Hinduism, Shia and

Sunni in Islam.

Aruna Roy v. Union of India (2002)

The Court made a distinction between religious instruction and religious education or
study of religion. It said the latter was permissible, and indeed desirable, while the
former was banned. In India the meaning of Secularism is positive i.e., Developing
understanding and respect towards different religions.

27 Freedom as to payment of taxes for promotion of any particular

religion.

No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any
particular religion or religious denomination.

Religious Denominations are sects within a religion, like we have Vaishnavism,

Shaivism, Shaktism under Hinduism and similarly Shia, Sunni etc in Islam.

Article 27 basically says you cannot take taxes from people for promotion or
maintenance of a religion or religious denomination (if someone willingly gives then it
is allowed)

Fee can be charged for administration (ex. Ticket for entering a temple, mosque etc)

28 Freedom as to attendance at religious instruction or religious worship in

certain educational institutions. -
(1) No religious instruction shall be provided in any educational institution wholly
maintained out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution which is administered
by the State but has been established under any endowment or trust which requires
that religious instruction shall be imparted in such institution.

(3) No person attending any educational institution recognised by the State or

receiving aid out of State funds shall be required to take part in any religious
instruction that may be imparted in such institution or to attend any religious worship
that may be conducted in such institution or in any premises attached thereto unless
such person or, if such person is a minor, his guardian has given his consent thereto.

Clause (1) talks about educational institution wholly maintained by State funds.

In these Institutions no religious instruction allowed.

Clause (2) talks about educational institution administered by State but established
under any religious endowment or trust.

In these Institutions religious instructions are allowed but such religious instruction
should not be against morality, public order, national security, national Unity, National
Integrity or sovereignty of the state.

Clause (3) talks about educational institution recognised by state and secondly an
educational institution getting aid by the state (partial aid)

In these institutions you can give religious instruction but such instructions should not
be compulsory.

**************************************************************************************************

Cultural and Educational Rights

29 Protection of interests of minorities

(1) Any section of the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have the right to conserve
the same.

(2) No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them.

Applicable not only Minorities but majorities also have the rights under Article 29
because 'any section of the citizen' is written:

Two Rights provided:

- To conserve your distinct language, script or culture

- To not be denied admission into state run or state aided educational institution on
basis of religion, race, caste or language.

30 Right of minorities to establish and administer educational institutions

(1) All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.

(1A) in making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause
(1), the State shall ensure that the amount fixed by or determined under such law for
the acquisition of such property is such as would not restrict or abrogate the right
guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a minority,
whether based on religion or language.

Applicable Only to Minorities (Religious and Linguistic)

Rights provided

- To establish and administer educational institutions

- To not be discriminated against any educational institution on basis of it being

managed by a religious or linguistic minority.

Clause (1A) which was added by 44th Amendment, the same amendment removed
Right to property from fundamental rights, so the purpose of adding 30(1A) was to
provide extra protection to the educational institution mentioned in Article 30(1), so in
case government takes away the land of an educational institution falling under 30(1),
the compensation should be enough that the education institution can be built again at
an appropriate location

**********************************
Right to Constitutional Remedies
"If I was asked to name any particular article in this Constitution as the most important,
an article without which this Constitution: would be a nullity, I could not refer to any
other article except this one (Article 32). It is the very soul of the Constitution and the
very heart of it.

▪ Dr. B.R. Ambedkar

ARTICLE 32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari. whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1)
and (2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

Clause (1) gives the right to move to the Supreme court for enforcement of the rights
conferred by Part III (Fundamental Rights) of the Constitution.

Clause (2) gives power to Supreme court to issues directions, orders or writs for the
enforcement of any of the fundamental rights.

Difference between writ jurisdiction of Supreme court (32) and

High Court (226)
Remedy under Article 32 is in itself a fundamental right so SC cannot refuse to
exercise writ jurisdiction, it has to consider the petition but remedy under Article 226 is
discretionary.
This is the reason why
Supreme Court is called
the Guarantor and
Defender of Fundamental
Rights

SC can issue writs only for the enforcement of fundamental rights but HC can issue
writs for enforcement of FR's and also for any other purpose.
Supreme court can issue writs against a person or government throughout the territory
of India. High court can only issue writs against a person residing or against a
government or authority within its territorial jurisdiction or if the cause of action arises
within its territorial jurisdiction.

Writs and what they do

1) Habeaus Corpus

Means "Let us have the body" A person, when arrested, can move the Court for the
issue of Habeas Corpus. Court will then order to produce the arrested person before it
so that it may examine whether the person has been detained lawfully or not. If the
Court is convinced that the person is illegally detained, it can issue orders for his
release. This writ can be issued against public authority and also against individual.

This writ cannot be issued in the cases where

(a) the detention is lawful

(b) cases of contempt of court or legislature

(c) individual is detained by a competent court,

(d) If outside the territorial jurisdiction of court

An individual can also seek compensation from the state against the arbitrary
detention.

Rudul Sah v. State of Bihar (1983)

Petition prayed for compensation for his illegal detention in jail for about 14 years.
Before petition was taken up for hearing, petitioner was released from jail and thus the
petition had become infructuous. SC awarded 30,000rs compensation.

Sebastian v. Union of India (1984)

SC issued a writ of habeas corpus directing Government of India to produce two

persons who were arrested and kept under army custody. Govt. failed to produce them
expressing its inability to comply with the writ. Court made inference an unnatural
death. Keeping in view the torture, agony and mental oppression through which the
wives of those persons had to pass. SC directed Govt to pay 1 lakh to each of the
wives as a measure of exemplary costs.

2) Mandamus
Means "We Command."

Mandamus is an order from a superior court to a lower court, tribunal or public

authority to perform an act, which falls within its duty.

Simply, it is a writ issued to a public official to do a thing which is a part of his official
duty, but, which, he has failed to do, so far.

This writ cannot be claimed as a matter of right. It is the discretionary power of a court
to issue such writs.

3) Quo Warranto

Means "by what warrants?" or "by what authority"

It is a writ issued with a view to restraining a person from acting in a public office to
which he is not entitled. The writ of quo warranto is used to prevent illegal assumption
of any public office or usurpation of any public office by anybody.

For example, a person of 62 years has been appointed to fill a public office whereas
the retirement age is 60 years. Now, the appropriate High Court has a right to issue a
writ of quo-warranto against the person and declare the office vacant.

4) Prohibition

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'.

This writ is issued when a lower court or a body tries to transgress the limits or powers
vested in it.

It is a writ issued by a superior court to lower court or a tribunal forbidding it to perform

an act outside its jurisdiction. After the issue of this writ, proceedings in the lower court
etc. come to a stop.

5) Certiorari

Literally, Certiorari means to be certified.

The writ of certiorari is issued by the Supreme Court to some inferior court or tribunal
to transfer the matter to it or to some other superior authority for proper consideration.

If rights of individual are affected then Certiorari writ. can be filled against
administrative authorities also.
Difference between prohibition and certiorari

The writ of prohibition is available during the pendency of proceedings before a sub-
ordinate court. It is a preventive writ, because it prevents the decision of lower court by
transferring the case to itself.

The writ of certiorari can be issued by the Supreme Court or any High Court for
quashing the order already passed by an inferior court. It is preventive as well as
curative writ because it transfers the case as well as quashes any orders passed by
lower court

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DIRECTIVE PRINCIPLES OF STATE POLICY

Part IV of the Constitution. (Article 36-51)

• These principles are in the nature of directives to the government to implement them
for establishing social and economic democracy in the country.

• The framers of our Constitution took the idea of having such principles from the Irish
Constitution. Dr. B.R Ambedkar called DPSP as 'novel feature’ of the constitution.

• It is also called Kernel (foundational layer) of the Indian Constitution.

• They are instructions or directives from the Constitution to the state and the
government. It is the duty of the government to implement them.

• Non-justiciable in nature (i.e., they are not legally enforceable by the court of law)
its obedience or implementation cannot be secured through judicial proceedings but
still these are fundamental in the governance of the country

o Sapru Committee Report (1945) recommended dividing rights in constitution as

justiciable and non-justiciable which is the same categorization we use for
Fundamental Rights and DPSP's.

In general, the Directive Principles aim at building a Welfare State. These principles
provide the criteria with which we can judge the performance of the government.

Classification of DPSP
Indian Constitution has not originally classified DPSPS but on the basis of their content
and direction, they are usually classified into three types-
Socialistic Principles

They are the principles that aim at providing social and economic justice and set the
path towards the welfare state. (Article 38,39, 39A,41,42,43,43A,47)

Gandhian Principles.

These principles are based on Gandhian ideology and used to represent programme
of reconstruction enunciated by Gandhi during the national movement. (Article
40,43,438,46,47,48)

Liberal-Intellectual Principles.

These principles reflect the ideology of liberalism. (Articles 44,45,48,49,50,51)

Another Classification can be:

- Social and Economic Charter (Article 38,39)

- Social Security Charter (Article 40,41,42,43,43-A,45,46,47)
- Community Welfare Charter (Article 44,48,48A,49,50,51)

Article Number and What it Says (with Amendments)

36 Defines the "state"

37 Extent of Enforceability

38 Social, Political and Economic Justice.

38(2) added by 44th Amendment

39 Principles of Policy

39(f) added by 42nd Amendment

39A Free Legal aid

Added-42nd Amendment

40 Organization of Panchayats

Implemented-73rd Amendment added Part IX in constitution

41 Welfare Government.

42 Securing just and humane work and maternity relief

43 Fair wages and a decent standard of life.

43A Workers' participation in management.

Added-42nd Amendment

43B Promotion of Cooperatives.

Added-97th Amendment

44 Uniform Civil Code

45 Infant and Child Care.

Amended by 86th amendment

46 Protection of SCS, STS and other weaker sections from exploitation.

Implemented-65th and 89th Amendment

47 Nutrition, Standard of living and public health.

48 Scientific agriculture and animal husbandry.

48A Environment and Wildlife Protection.

Added-42nd Amendment

49 Protection of monuments and places and objects which have national

importance.

50 Judiciary should be separate from the Executive.

51 The state shall promote international peace and security.

PROVISIONS
ARTICLE 36 DEFINES 'STATE'

Same meaning as in Part III.

So, the same definition as Article 12 will apply, which means State includes:

1. Executive and Legislature of Union and State

2. All local or other authorities within the territory of India which are under the control of
the Government of India

ARTICLE 37 - EXTENT OF ENFORCEABILITY

• the directive principles shall not be enforceable by any court.

• but these principles are fundamental in the governance of the country and it shall be
the duty of the state to apply them in making laws.

Hence a duty has been imposed upon the organs of the Government to apply these
principles in making laws. It is the duty of the Judiciary to interpret the law in the light
of these directive principles.

ARTICLE 38-SOCIAL ORDER FOR WELFARE

State shall strive to promote welfare of people by securing a social order in which
justice, social, economic and political shall inform all institutions of national life

(1) State shall strive to minimise inequalities in income and to eliminate

inequalities in status, facilities and opportunities.

(2) The State shall, in particular, strive to minimize the inequalities in income, and
endeavour to eliminate inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people residing in different areas or
engaged in different vocations.

(Article 38 was renamed as Article 38 (1) by 44th amendment and Article 38(2)
was added)

ARTICLE 39 - PRINCIPLES OF POLICY TO BE FOLLOWED BY STATE

a) Right to adequate means of livelihood for all citizens.

b) Equitable distribution of material resources of the community for the common

good.

c) Prevention of concentration of wealth and means of production.

d) Equal pay for equal work for men and women (Eg: Equal Remuneration Act 1976)

e) Preservation of the health and strength of workers and children against forcible
abuse.
1) Opportunities for the healthy development of children (clause (f) added by 42nd
amendment 1976)

ARTICLE 39A - EQUAL JUSTICE AND FREE LEGAL AID

State shall secure that operation of legal system promotes justice on a basis of equal
opportunity.

State shall provide free legal aid to ensure that opportunities for securing justice are
not denied to any citizen by reason of economic or other disabilities.

(Article 39A was inserted by the 42nd Amendment Act 1976)

Implementation:

Legal Services Authorities Act 1987

ARTICLE 40 PANCHAYAT SYSTEM

States to take steps to

• Organise village panchayats.

• Endow them with powers and authority.
• Enable them to function as unit of self-government

Implementation:

73rd Amendment Act 1992 (added a new part IX (The Panchayats') consisting of 16
Articles and the Eleventh Schedule to the Constitution.)

Article 41-RIGHT TO WORK, EDUCATION etc.

State shall within its economic capacity and development make effective provision for
securing

Right to work
Right to education
Right to public assistance

in cases of unemployment, old age, sickness, disablement, and undeserved want.

Article 42-JUST AND HUMANE CONDITIONS OF WORK AND MATERNITY
RELIEF

State shall make provision for securing just and humane conditions of work and for
maternity relief

Implementation:

Maternity Benefit Act 1961.

Article 43- PROTECTION OF WORKERS

State shall endeavour to secure to all workers agricultural, industrial or otherwise

a living wage
a decent standard of life
full enjoyment of leisure and social and cultural opportunities.

Implementation:

Amendments to Minimum Wages Act 1948 Payment of Bonus Act 1965

State shall endeavour to promote cottage industries on an individual or co-operative

basis in rural areas.

Implementation:

Khadi and Village Industries Commission Act 1956

Article 43A - PARTICIPATION OF WORKERS

State shall take steps: to secure participation of workers in management of

undertakings, establishments engaged in industry.

(Inserted by the 42nd Amendment Act 1976)

Article 43B - CO-OPERATIVE SOCIETIES

State shall endeavour to promote voluntary formation, autonomous functioning,

democratic control and professional management of co-operative societies.
(Inserted by the 97th Amendment Act 2012)
Article 44-UNIFORM CIVIL CODE

State shall endeavour to secure for citizens a uniform civil code throughout the
territory of India.

Article 45 - EDUCATION AND CARE TILL 6 YEARS AGE

State shall endeavour to provide early childhood care and education for all children
until they complete the age of six years.

(Article 45 was amended by the 86th Amendment Act, 2002, Before amendment
it talked about free and compulsory education to all children until they complete
14 years of age, 86th amendment made that Fundamental Right by adding 21A)

Article 46 - PROTECTION OF WEAKER SECTIONS

State shall promote with special care educational and economic interests of weaker
sections in particular, of SCs and STs.
State shall protect them from social injustice and exploitation.

Implementation:

- 65th Amendment Act 1990- National Commission for SCS and ST's (NCSCST)

- 89th Amendment Act 2003- Bifurcated the commission into two separate
commissions, one for SC's (NCSC) and ST's (NCST) each.

SCs and STS (Prevention of Atrocities) Act 1989.

Article 47 - NUTRITION, PUBLIC HEALTH, STANDARD OF LIVING AND

PROHIBITION

State shall make its primary duty in

~ raising of level of nutrition.

~ raising of standard of living of people improvement of public health.

State shall endeavour to

• bring about prohibition of consumption except for medicinal purpose of intoxicating

drinks and drugs injurious to health.
Article 48 - PROTECTION FROM COW SLAUGHTER AND SCIENTIFIC
AGRICULTURE

State shall endeavour

• to organise agriculture and animal husbandry on modern and scientific lines.

State shall take steps for

• preserving and improving the breeds and prohibiting slaughter of cows and calves
and other milch and draught cattle.

Article 48A - PROTECTION OF ENVIRONMENT AND WILD LIFE

State shall endeavour to protect and improve environment and to safeguard forests
and wild life (inserted by the 42nd Amendment Act 1976)

Implementation:

Wildlife Protection) Act 1972

Forest (Conservation) Act 1980

Environment (Protection) Act 1986

Water (Prevention and Control of Pollution) Act 1974

Air (Prevention and Control of Pollution) Act 1981

Article 49 - PROTECTION OF HISTORICAL SITES

It shall be the obligation of State

• to protect every monument or place or object of artistic or historic interest declared by

Parliament to be of national importance.

• from spoliation, disfigurement, destruction, removal or export.

Implementation:

Ancient and Historical Monuments and Archaeological Sites and Remains Act 1951.
Article 50-SEPARATION OF JUDICIARY
State shall take steps

• to separate judiciary from executive in public services of State.

Implementation:

Criminal Procedure Code 1973 - Judicial powers have been taken away from
executive authorities like Collector, Tehsildar.

Article 51-INTERNATIONAL RELATIONS

State shall endeavour

• to promote international peace and security
• to maintain just and honourable relations between nations
• to foster respect for international law and treaty obligations
• to encourage settlement of international disputes by arbitration.

#RELATIONSHIP OF DPSP AND FUNDAMENTAL RIGHTS

Champakam Dorairajan Case (1951)

• Conflict was between Article 15, Article 29(2) (of Fundamental Rights) and Article 46
(of DPSP), issue was reservation. There should be equality according to F.R but
DPSP is asking to promote interests of weaker section.

• Supreme Court in its verdict said that in case of conflict between Fundamental Rights
and Directive Principles, Fundamental Rights would always prevail.

• It also said that Directive principles have to work as a supplement with Fundamental
rights & Parliament can't amend Fundamental Rights.

1st Amendment (1951)

As a Response to Champakam Case, Parliament added Article 15(4) which created a

way to provide reservation as special mprovision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.

In Re: Kerela Education Bill (1958)

• Doctrine of Harmonious Construction Applied i.e., should try to harmonize the two as
far as possible and court held that Fundamental Right and Directive Principle of State
policy are Complementary and Supplementary to each other.

Similar Observation was made in State of Kerela v. N.M Thomas(1975) and

Dalmia Cement v. Uol (2017)

Golaknath Case (1967)

• SC held that Parliament cannot amend Fundamental Rights to give effect to the
Directive Principles.

24th Amendment (1971)

• This amendment was done in reaction to Golaknath Case judgement and to nullify
the effect of the same.

• Added Art.13(4) and Art.368(3), meaning parliament can amend any part of
Constitution.

25th Amendment (1972)

It was also done in reaction to Golaknath Case judgement. It inserted a new Article 31-
C which contained the following two provisions:

(1) No law which gives effect to the directive principles can be declared invalid and
unconstitutional on the grounds that it is violating fundamental rights namely Article 14
(equality before law and equal protection of laws), Article 19(protection of six rights in
respect of speech, assembly, movement, etc) & Article 31(right to property).

(ii) No law containing a declaration for giving effect to such policy shall be questioned
in any court on the ground that it does not give effect to such a policy.

(Note: Right to Property was a fundamental right at this time.)

KESHAVNANDA BHARTI CASE (1973)

• SC in its verdict held that the second provision mentioned in the Article 31-C is invalid
& unconstitutional as it is taking away the power of court for judicial review. However,
first provision of Article 31-C was held valid & constitutional.

42nd Amendment (1976)

• DPSP were given precedence over fundamental rights and any law made to this
effect by parliament was kept beyond scope of judicial review by court.

MINERVA MILLS CASE (1980)

SC in its decision declared that Directive Principles are subordinate to Fundamental

Rights. But position of Fundamental Rights under Article 14 & Article 19 was made
subordinate to Directive Principles. SC also said that Constitution demands to maintain
balance between the Fundamental Rights & Directive principles. To give absolute
primacy to one over the other is to disturb the harmony of the Constitution.

(Note: Right to property (Article 31) was abolished as a fundamental right by 44th
Amendment Act (1978)]

PRESENT POSITION

1. FR except 14 and 19.

2. DPSP 39(b) and 39(c).

3. FR 14 and 19.

4. DPSP except 39(b) and 39(c).

This means that DPSP 39B and 39C has been given precedence over Fundamental
Right 14 (Right to Equality) and Fundamental Right 19 (Freedom of Speech and
Expression).

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Fundamental Duties Part IV-A

Added by 42 Amendment, 1976 (Mini Constitution of India)

There were 10 duties and 11th duty (51-A (k)-Education) was added by 86th
amendment act, 2002.

The concept of fundamental duties was inspired from Communist/Socialist countries

like U.S.S.R.

These duties were added on recommendation of Swarn Singh Committee.

These duties are non-Enforceable but many of these duties are enforced through
various legislations.
Article 51-A
It shall be the duty of every citizen of India

a) to abide by the Constitution and respect its ideals and institutions, the National Flag
and the National Anthem;
Bijoe Emmanuel v. State of Kerela’

- Not necessary that you have to sing the national anthem, just standing up and
showing respect is enough.

b) to cherish and follow the noble ideals which inspired our national struggle for
freedom;

c) to uphold and protect the sovereignty, unity and integrity of India;

d) to defend the country and render national service when called upon to do so;

e) to promote harmony and the spirit of common brotherhood. amongst all the people
of India transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;

f) to value and preserve the rich heritage of our composite culture;

g) to protect and improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures;

h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

i) to safeguard public property and to abjure violence;

j) to strive towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavour and achievement.

(k) who is a parent or guardian to provide opportunities for education to his child or, as
the case may be, ward between the age of six and fourteen years.

Short way to remember the order of the duties (because they ask specifically what
number is what duty)

Constitution gives freedom to be sovereign Nation but we need to live as brothers,

protect our culture and

environment.

Scientific temper is necessary among public to excel, for that we need all children to
go to school.

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Union Executive
Executive branch of government takes care of the Execution, so this branch is
responsible for implementation of laws and policies legislated by the legislature.

It Contains the following

- President

- Vice President

- Prime Minister

- Council of Minister

- Attorney General of India

The President and Vice President

52 The President of India.

- President is the First Citizen of India and Supreme Commander of Defence Forces

53 Executive power of the Union.

Executive Power of Union shall be vested in President. But Real power vests with
Council of Ministers (Article 74)

54 Election of President.
An electoral college is a
set of electors who are
Elected by the members of an electoral college selected to elect a
consisting of the elected members candidate to particular
of both Houses of Parliament offices.
(Rajya and Lok Sabha); and the elected members
of the Legislative Assemblies of the States.
(70th Amendment, 1992-'State' includes UT of National Capital Territory of Delhi and
Pondicherry)

Note: Only will elected members Vote, Nominated members will not.

55 Manner of election of President

Every MP and MLA have certain number of Votes, the votes are calculated by the
following formulas.

Votes of a Member of Legislative Assembly (MLA)

Population of State
/ 1000
No of Elected Members

(Population data is taken from 1971 census)

Votes of a Members of Parliament (Rajya and Lok Sabha) (MP’S)

Total Number of Votes of all MLA’in Country

Total No. Of M. P’s

Voting is done by Single transferrable vote system (55(3)).

That means every voter will choose preferences. The first preference only will be
counted in first round.

If one candidate doesn't get majority in first round, the candidate with least number of
votes will be eliminated and the people who voted for the eliminated candidate as 1"
preference, their 2nd preference votes will be counted (for whoever they chose as 2nd
preference) this elimination will go on until 1 candidate gets majority votes.

56 Term of office of President

Term-5 years

President resigns to Vice President and can be impeached by process given under
Article 61.

President will hold office even after expiration of his term until his successor enters
upon his office.

57 Eligibility for re-election - Eligible for re election

58 Qualifications for election as President.

- Citizen of India

- Minimum 35 years old

- Should be qualified to become member of House of People (Lok Sabha) (Article

84)

- Must not hold any office of Profit (Acting President, vice president, ministers of
Union or state, Governors of State is not deemed to be office of profit)

59 Conditions of President's office

President will not be a member of either House of Parliament or of a House of the

Legislature of any State, if a member of any of these becomes president then he shall
be deemed to have vacated his seat.

President shall not hold any office of profit.

President shall be entitled without payment of rent to the use of his official residences
and shall be also entitled to such emoluments, allowances and privileges as may be
determined by Parliament.

60 Oath or affirmation by the President

- In presence of CII, in absence of CJI, in presence of senior most judge of SC.

- Oath talks about preserving, protecting and defending the constitution.

61 Procedure for impeachment of the President

- A charging motion for impeachment can be initiated by either house of Parliament,

the other house investigates this charging motion 14-day notice

-resolution signed by 1/4th of members of the house

-2/3rd majority should pass the resolution

- another house investigates

- other house passes resolution by 2/3rd majority

-President Impeached
(1/4th and 2/3rd of total number of members)

62 Time of holding election to fill vacancy in the office of President and

the term of office of person elected to fill casual vacancy

-Election should be held before the end of the term of President or within 6 months if
vacancy is due to death/resignation/removal.

63 The Vice-President of India

64 The Vice-President to be ex officio Chairman of the Council of States.

65 The Vice-President to act as President or to discharge his functions during

casual vacancies in the office, or during the absence, of President.

- Vice President becomes the acting president in case the position of President is
vacant for any reason of death, resignation, removal etc.

66 Election of Vice-President

Elected by the members of an electoral college consisting of the members of both

Houses of Parliament, other than that same process as of President.

Eligibility: Same as president only one change that instead of being qualified to be a
member of House of People (Lok Sabha) he should be qualified to be member of
Council of State (Rajya Sabha)

67 Term of office of Vice-President

5 years

Resigns to President

68 Time of holding election to fill vacancy in the office of Vice President

and the term of office of person elected to fill casual vacancy.

At the end of term, or in case of death/resignation/removal, as soon as possible

69 Oath or affirmation by the Vice-President

Oath taken before President

70 Discharge of President's functions in other contingencies

71 Matters relating to, or connected with, the election of a President or Vice-

President.

71(1) All doubts and disputes regarding election taken by Supreme Court.

71(2) If election is declared void, acts before the declaration are not invalidated.

71(3) Parliament by law may regulate any matter relating to election.

71(4) -Election will never be challenged on question of vacancy in electoral college.

N.B. Khare v. Election Commission of India (1958)

Held that Art. 71(1) merely prescribes the forum in which doubts and disputes in
connection with the election of the President and Vice President would be enquired
into, but the right to move the Supreme Court as well as the procedure therefor, are
determined by the Act of Parliament as authorised by Art. 71 (3). Accordingly. the Act
and the Rules in question are valid, and the petitioner has no rights apart from those
given by the statute to file an application for setting aside an election.

72 Power of President to grant pardons, etc., and to suspend, remit or

commute sentences in certain cases.

President may:

Grant pardon: Removes both the sentence and the conviction and completely
absolves the convict from all sentences, punishments and disqualifications.

Reprieve: It implies a stay of the execution of a sentence (especially that of death) for
a temporary period. Its purpose is to enable the convict to have time to seek pardon or
commutation from the President.

Respite: It denotes awarding a lesser sentence in place of one originally awarded due
to some special fact, such as the physical disability of a convict or the pregnancy of a
woman offender.

Remmit: It implies reducing the period of sentence without changing its character. For
example, a sentence of rigorous imprisonment for two years may be remitted to
rigorous imprisonment for one year.

Commute: It denotes the substitution of one form of punishment for a lighter form. For
example, a death sentence may be commuted to rigorous imprisonment, which in turn
may be commuted to a simple imprisonment.
The President cannot exercise his power of pardon independent of the government.

In Maru Ram vs Union of India (1980) and Dhananjoy Chatterjee vs State of West
Bengal (1994) it was held that the President has to act on the advice of the Council of
Ministers while deciding mercy pleas.

73 Extent of executive power of the Union

Council of Ministers
74 Council of Ministers to aid and advise President.

Head of the Council of Ministers - Prime Minister

Duty of CoM to aid and advise the president.

President can ask the CoM to reconsider their advice, but after the CoM reconsider
and send the advice again, President has to act in accordance with that advice (44th
Amendment, 1978).

The question whether any, and if so what, advice was tendered by Ministers to the
President shall not be inquired into in any court.

75 Other provisions as to Ministers.

o Prime Minister appointed by President

o Other Ministers appointed by President on advice of PM

o Total number of CoM shall not exceed 15% of total number of member in House of
People (Lok Sabha) o A minister who is not a member of Parliament for 6 months shall
cease to be a minister.

o COM shall be collectively responsible to the House of People (Lok Sabha)

The Attorney-General for India

76 Attorney-General for India

Appointed by President of India.

Duty to Advise the Government of India on Legal Matters.

Attorney-General shall have right of audience in all courts in the territory of India.

Conduct of Government Business

77 Conduct of business of the Government of India.

78 Duties of Prime Minister as respects the furnishing of information to the

President, etc.

State Executive
153 Governors of States - There shall be a Governor for each State, Same person
can be Governor for two or more States.

154 Executive power of State - Executive power of the State shall be vested in the
Governor.

155 Appointment of Governor - Appointed by the President.

156 Term of office of Governor -

Term of five years, Resigns to the President.

Even after term ends Governor shall continue to hold office until his successor enters
upon his office.

157 Qualifications for appointment as Governor.

Citizen of India

Completed the age of thirty-five years.

158 Conditions of Governor's office.

Governor will not be a member of either House of Parliament or of a House of the

Legislature of any State (if a member he shall be deemed to have vacated his seat in
that House on the date on which he enters upon his office as Governor)

Shall not hold any other office of profit.

Where the same person is appointed as Governor of two more States, the emoluments
and allowances shall be allocated among the States as the President orders.

159 Oath or affirmation by the Governor

In the presence of the Chief Justice of the High Court exercising jurisdiction in relation
to the State, or, in his absence, the senior most Judge of that Court available.

Oath talks about preserving, protecting and defending the Constitution.

160 Discharge of the functions of the Governor in certain contingencies.

161. Power of Governor to grant pardons, etc., and to suspend, remit or

commute sentences in certain cases.

Grant pardon: Removes both the sentence and the conviction and completely
absolves the convict from all sentences, punishments and disqualifications.

Reprieve: It implies a stay of the execution of a sentence (especially that of death) for
a temporary period. Its purpose is to enable the convict to have time to seek pardon or
commutation from the President.

Respite: It denotes awarding a lesser sentence in place of one originally awarded due
to some special fact, such as the physical disability of a convict or the pregnancy of a
woman offender.

Remmit: It implies reducing the period of sentence without changing its character. For
example, a sentence of rigorous imprisonment for two years may be remitted to
rigorous imprisonment for one year.

Commute: It denotes the substitution of one form of punishment for a lighter form. For
example, a death sentence may be commuted to rigorous imprisonment, which in turn
may be commuted to a simple imprisonment.

162 Extent of executive power of State

Subject to the provisions of this Constitution, the executive power of a State shall
extend to the matters with respect to which the Legislature of the State has power to
make laws: Provided that in any matter with respect to which the Legislature of a State
and Parliament have power to make laws, the executive power of the State shall be
subject to, and limited by, the executive power expressly conferred by this Constitution
or by any law made by Parliament upon the Union or authorities thereof.

Council of Ministers
163 Council of Ministers to aid and advise Governor.

• Chief Minister (CM) at the head the CoM at state level.

• CM will aid and advise the Governor in the exercise of his functions, except functions
which are available to Governor’s discretion.

o Advice tendered by Ministers to the Governor shall not be inquired into in

any court.

164 Other provisions as to Ministers.

• Chief Minister shall be appointed by the Governor, other Ministers shall be appointed
by the Governor on the advice of the Chief Minister, an

o In Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, there shall be a

Minister in charge of tribal welfare who may in addition be in charge of the
welfare of the Scheduled Castes and backward classes or any other work.

• The total number of Ministers, including the Chief Minister, in the Council of Ministers
in a State shall not exceed fifteen per cent of the total number of members of the
Legislative Assembly of that State (Minimum 12 minister including CM)

• The Council of Ministers shall be collectively responsible the Legislative Assembly of

the State.

• Oath of Minister will be taken by Governor.

• A Minister who for any period of six consecutive months is not a member of the
Legislature of the State shall at the expiration of that period cease to be a Minister.

The Advocate-General for the State

165 Advocate-General for the State.

• Appointed by Governor

• Should be qualified to be appointed a Judge of a High Court.

• Duty to give advice to the Government of the State upon legal matters.
166 Conduct of business of the Government of a State

167 Duties of Chief Minister as respects the furnishing of information to

Governor, etc

Duties:

• To communicate to the Governor of the State all decisions of the Council of Ministers
relating to the administration of the affairs of the State and proposals for legislation.

• To furnish such information relating to the administration of the affairs of the State
and proposals for legislation as the Governor may call for; and

• If the Governor so requires, to submit for the consideration of the Council of Ministers
any matter on which a decision has been taken by a Minister but which has not been
considered by the Council.

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Union Legislature (Parliament)

79 - Constitution of Parliament.
Two Houses - Council of States (Rajya Sabha) (Upper House)

House of People (Lok Sabha) (Lower House)

80 - Composition of the Council of State (Rajya Sabha)

• 12 members nominated by President

• 238 members representative of States and UT's.

Nominated members would be persons having special knowledge or practical

experience in respect of Literature, science, art and social service.

81- Composition of the House of the People (Lok Sabha)

• 530 Members chosen by Direct election in constituencies in the State.

• 20 members from UT's by the method parliament may by law provide.

As practicable as possible, the ratio of Population of each state and constituencies
inside shall be in proportion to the number of members.

President is part of Parliament but not a member of either house.

The Number of members mentioned above is the maximum number.

Currently there are total 245 members in Rajya Sabha and 543 in Lok
Sabha.

There were seats reserved for Anglo Indians which were discontinued by
104 Amendment, 2019

82 - Readjustment after each census.

We are using the 1976 census figures now and it will not be readjusted until 2026
census (85th amendment, 2001)

83- Duration of Houses of Parliament.

Rajya Sabha-1/3rd members will retire every 2nd year.

Lok Sabha are elected for 5 years.

This period may be extended while a Proclamation of Emergency is in operation, for a

period not exceeding one year at a time and not extending in any case beyond a
period of six months after the Proclamation has ceased to operate.

84 - Qualification for membership of Parliament.

Citizen of India

25 years old for Lok Sabha, 30 years for Rajya Sabha

Any other qualification prescribed by parliament

85 - Sessions of Parliament, prorogation and dissolution

President can summon each house from time to time but six months shall not
intervene between its last sitting in one session and the date appointed for its first
sitting in the next session.
The President may from time prorogue (discontinue without dissolving) the Houses or
either House; or dissolve the House of the People.

The dissolution of a legislative assembly is the mandatory simultaneous going out of

office of all of its members, in anticipation that a new assembly will reconvene later
with possibly different members. The new assembly is chosen by a general election.

When Parliament is dissolved, all bills pending within the Lok Sabha lapse. However,
bills in the Rajya Sabha never lapse, and can remain pending for decades.

86 - Right of President to address and send messages to Houses

87 - Special address by the President

At the first session after general elections and at the 1st session of each year

88 - Rights of Ministers and Attorney-General as respects Houses

Attorney General can take part into proceedings, joint sittings etc but can’t vote

Officers of Parliament
89 - The Chairman and Deputy Chairman of the Council of States.

Vice-President of India shall be ex officio Chairman of the Council of States.

A member of the Council shall be chosen as Deputy Chairman.

90 - Vacation and resignation of, and removal from, the office of Deputy
Chairman.

91 - Power of the Deputy Chairman or other person to perform the duties

of the office of, or to act as, Chairman
92 - The Chairman or the Deputy Chairman not to preside while a
resolution for his removal from office is under consideration

93 - The Speaker and Deputy Speaker of the House of the People

Chosen by the House of People

94 - Vacation and resignation of, and removal from, the offices of Speaker
and Deputy Speaker

95 - Power of the Deputy Speaker or other person to perform the duties of

the office of, or to act as, Speaker.

96 - The Speaker or the Deputy Speaker not to preside while a resolution

for his removal from office is under consideration.

97 - Salaries and allowances of the Chairman and Deputy

Chairman and the Speaker and Deputy Speaker.

98 - Secretariat of Parliament.

Conduct of Business

99 -Oath or affirmation by members.

Oath will be taken before the President or any person appointed by him.

100 - Voting in Houses, power of Houses to act notwithstanding

vacancies and quorum

Save as otherwise provided in this Constitution, all questions at any sitting of either
House or joint sitting of the Houses shall be determined by a majority of votes of the
members present and voting, other than the Speaker or person acting as Chairman or
Speaker (Speaker or Chairman shall vote in case of an equality of votes)

Disqualifications of Members
101 - Vacation of seats
No person shall be a member of both Houses of Parliament.

No person shall be a member both of Parliament and of a House of the Legislature of

a State.

If for a period of sixty days a member of either House of Parliament is without

permission of the House absent from all meetings thereof the House may declare his
seat vacant

(Period during which the House is prorogued or is adjourned for more than four consecutive
days will not be counted.)

102 - Disqualifications for membership

• If he holds any office of profit under the Government of India or the

Government of any State, other than an office declared by Parliament by law
not to disqualify its holder;
• if he is of unsound mind and stands so declared by a competent court;
• if he is an undischarged insolvent;
• if he is not a citizen of India, or has voluntarily acquired the citizenship of
foreign State, or is under any acknowledgment of allegiance or adherence to a
foreign State;
• if he is so disqualified by or under any law made by Parliament.
• A person shall be disqualified for being a member of either House of
Parliament if he is so disqualified under the Tenth Schedule.

103 - Decision on questions as to disqualifications of members

The question shall be referred for the decision of the President and his decision shall
be final (President will obtain opinion of Election commission and act according to that
opinion)

104 - Penalty for sitting and voting before making oath or affirmation
under article 99 or when not qualified or when disqualified.

Rs.500 For each day he so sits or votes

Powers, Privileges and Immunities of Parliament and its

Members
105 - Powers, privileges, etc., of the Houses of Parliament and of the
members and committees thereof

The members of Parliament are exempted from any civil or criminal liability for any
statement made or act done in the course of their duties.

These Privileges include:

Freedom of Speech

Different from the right given under 19(2).

This right is given even to non-members who have a right to speak in the house.
Example, attorney general of India.

This includes right of publishing any reports, discussions etc. of the house under
authority of the member of the house.

Freedom from Arrest

Freedom from arrest in any civil case 40 days before and after the adjournment of the
house and also when the house is in session.

No member can be arrested from the limits of the parliament without the permission of
the house to which he/she belongs.

If the detention of any members of the parliament is made, the chairman or the
speaker should be informed by the concerned authority, the reason for the arrest. But,
a member can be arrested outside the limits of the house on criminal charges against
him under The Preventive Detention act, The Essential Services Maintenance Act
(ESMA), The National Security Act (NSA) or any such act.

Freedom from appearing as witness in court

106 - Salaries and allowances of members.

Legislative Procedure

107 - Provisions as to introduction and passing of Bills.

Bill may originate in either house of Parliament.

Bill shall not be deemed to have been passed by the Houses of Parliament unless it
has been agreed to by both Houses (only with amendments agreed by both houses).

Bill pending in Parliament shall not lapse by reason of the prorogation of the Houses.
Bill pending in the Council of States which has not been passed by the House of the
People shall not lapse on a dissolution of the House of the People.

Bill which is pending in the House of the People, or which having been passed by the
House of the People is pending in the Council of States, shall, subject to the provisions
of article 108, lapse on a dissolution of the House of the People

108 -Joint sitting of both Houses in certain cases

After passing of bill in one house if the other house rejects it or disagrees to the
amendments made in the bill or 6 months elapse the president can summon both the
houses in a joint meeting (Not applicable to 'money bills')

If house is adjourned or prorogued for more than 4 consecutive days it won’t count in 6
months.

At the joint sitting of the two Houses the Bill, with such amendments, if any, as are
agreed to in joint sitting, is passed by a majority of the total number of members of
both Houses present and voting. The bill shall deem to be passed.

No new amendments will be added (except those necessary because of passage of

time) when the bill is returned to the house in which it was originated.

109 - Special procedure in respect of Money Bills

Money bill can’t be introduced in council of states.

After a Money Bill has been passed by the House of the People it shall be transmitted
to the Council of States for its recommendations and the Council of States shall within
a period of fourteen days from the date of its receipt of the Bill return the Bill to the
House of the People with its recommendations and the House of the People may
accept or reject all or any of the recommendations.

The bill will be passed irrespective of the fact that the recommendations of council of
states are accepted or not accepted, also if the council of states doesn't return the bill
in 14 days, it shall be deemed to have been passed by both houses.

110 - Definition of "Money Bills".

A Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all
or any of the following matters, namely:

(a) the imposition, abolition, remission, alteration or regulation of any tax;

(b) the regulation of the borrowing of money or the giving of any guarantee by
the Government of India, or the amendment of the law with respect to any
financial obligations undertaken or to be undertaken by the Government of
India;

(c) the custody of the Consolidated Fund or the Contingency Fund of India, the
payment of moneys into or the withdrawal of money from any such Fund;

(d) the appropriation of moneys out of the Consolidated Fund of India;

(e) the declaring of any expenditure to be expenditure charged on the

Consolidated Fund of India or the increasing of the amount of any such
expenditure;

(f) the receipt of money on account of the Consolidated Fund of India or the
public account of India or the custody or issue of such money or the audit of the
accounts of the Union or of a State; or

(g) any matter incidental to any of the matters specified in sub clauses (a) to (f).

A Bill shall not be deemed to be a Money Bill by reason only that it provides for the
imposition of fines or other pecuniary penalties, or for the demand or payment of fees
for licences or fees for services rendered, or by reason that it provides for the
imposition, abolition, remission, alteration or regulation of any tax by any local authority
or body for local purposes.

Decision of the Speaker of the House of the People thereon shall be final regarding the
question that whether it is a money bill or not.

111 - Assent to Bills

President can withhold his assent but only once, if he returns the bill to the houses (not
money bill) with a request that the bill would be reconsidered and the houses pass it
again, with or without considering the request, then the 2 time President has to give
assent.

Procedure in Financial Matters

112 - Annual financial statement.

113 - Procedure in Parliament with respect to estimates.

114 - Appropriation Bills.

115 - Supplementary, additional or excess grants.

116 - Votes on account, votes of credit and exceptional grants.

117 - Special provisions as to financial Bills.

Procedure Generally
118 - Rules of procedure.

119 -Regulation by law of procedure in Parliament in relation to financial

business.

120 - Language to be used in Parliament - Hindi or English:

Someone not able to express in Hindi or English may be allowed to speak in their
mother tongue.

121 - Restriction on discussion in Parliament

No discussion I take place in Parliament with respect to the conduct of any Judge of
the Supreme Court or of a High Court in the discharge of his duties except upon a
motion for presenting an address to the President praying for the removal of the Judge

122 - Courts not to inquire into proceedings of Parliament

The validity of any proceedings in Parliament shall not be called in question on the
ground of any alleged irregularity of procedure.

No officer or member of Parliament in whom powers are vested by or under this

Constitution for regulating procedure or the conduct of business, or for maintaining
order, in Parliament shall be subject to the jurisdiction of any court in respect of the
exercise by him of those powers.

CHAPTER III-LEGISLATIVE POWERS OF THE PRESIDENT

123 - Power of President to promulgate Ordinances during recess of

Parliament

Grants the President certain law-making powers to promulgate Ordinances when

either of the two Houses of Parliament is not in session and hence it is not possible to
enact laws in the Parliament.

This Ordinance has the same limitations as the Parliament to legislate, given the
distribution of powers between the Union, State and Concurrent Lists.
Ordinances must be approved by Parliament within six weeks of reassembling or they
shall cease to operate, they will also cease to operate in case resolutions disapproving
the Ordinance are passed by both the Houses.

RC Cooper vs. Union of India (1970)

The Supreme Court, while examining the constitutionality of the Banking Companies
(Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India's
largest commercial banks, held that the President's decision could be challenged on
the grounds that 'immediate action' was not required; and the Ordinance had been
passed primarily to by-pass debate and discussion in the legislature.

38th Constitutional Amendment Act (1975)

Inserted a new clause (4) in Article 123 stating that the President's satisfaction while
promulgating an Ordinance was final and could not be questioned in any court on any
ground.

44th Constitutional Amendment Act (1978)

Deleted clause (4) inserted by the 38th CAA and therefore reopened the possibility for
the judicial review of the President's decision to promulgate an Ordinance.

AK Roy vs. Union of India (1980)

While examining the constitutionality of the National Security Ordinance, 1980, which
sought to provide for preventive detention in certain cases, the Court argued that the
President's Ordinance making power is not beyond the scope of judicial review.
However, it did not explore the issue further as there was insufficient evidence before it
and the Ordinance was replaced by an Act. It also pointed out the need to exercise
judicial review over the President's decision is only when there were substantial
grounds to challenge the decision, and not at "every casual and passing challenge".

T Venkata Reddy vs. State of Andhra Pradesh (1985)

While deliberating on the promulgation of the Andhra Pradesh Abolition of Posts of

Part-time Village Officers Ordinance, 1984 which abolished certain village level posts,
the Court reiterated that the Ordinance making power of the President and the
Governor was a legislative power, comparable to the legislative power of the
Parliament and state legislatures respectively. This implies that the motives behind the
exercise of this power cannot be questioned, just as is the case with legislation by the
Parliament and state legislatures.

DC Wadhwa vs. State of Bihar (1987)

It was decided that the legislative power of the executive to promulgate Ordinances is
to be used in exceptional circumstances and not as a substitute for the law-making
power of the legislature. Here, the court was examining a case where a state
government (under the authority of the Governor) continued to re promulgate
ordinances, that is, it repeatedly issued new Ordinances to replace the old ones,
instead of laying them before the state legislature. A total of 259 Ordinances were re-
promulgated, some of them for as long as 14 years. The Supreme Court argued that if
Ordinance making was made a usual practice, creating an 'Ordinance raj' the courts
could strike down re promulgated Ordinances.

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State Legislature
168 - Constitution of Legislatures in States.

Governor + one house (legislative assembly)

Another house (Legislative council) In Andhra Pradesh, Bihar, Madhya Pradesh,

Maharashtra, Karnataka, Tamil Nadu, Telangana, Uttar Pradesh.

169 - Abolition or creation of Legislative Councils in States

Parliament may by law abolish or create legislative councils.

170 - Composition of the Legislative Assemblies

Not more than 500 and not less than 60 members.

171 - Composition of the Legislative Councils

Not more than 1/3rd of the total number of members in Legislative assembly of that
state. But never less than 40 members.

172 - Duration of State Legislatures

Legislative Assembly - 5 years (can be extended during emergency, 1 year at a time,

but 6 months should not exceed after emergency has ceased to operate)

Legislative Council - one third members retire every second year.

173 - Qualification for membership of the State Legislature

- Citizen of India who has to take oath by a person authorised by Election commission.
- 25-year-old (30 in case of legislative council)

- Other qualifications parliament prescribes by law

174 - Sessions of the State Legislature, prorogation and dissolution

-6 months should not pass between 2 sessions.

-Governor may from time to time prorogue either or both house or may dissolve
Legislative assembly.

175 - Right of Governor to address and send messages to the House or

Houses

176 - Special address by the Governor

- Every first session after general election and every first session of the year Governor
shall address the legislative assembly or both houses combined in case there are 2
houses in the state.

177 - Rights of Ministers and Advocate-General as respects the Houses

Officers of the State Legislature

178 -The Speaker and Deputy Speaker of the Legislative Assembly

-elected by the assembly

179 - Vacation and resignation of, and removal from, the offices of
Speaker and Deputy Speaker

Speaker or deputy speaker can:

- vacate office if he ceases to be member of assembly

- resign his office (speaker will resign to deputy speaker and vice versa)

- be removed by resolution (with 14 days' notice) with majority of the members

Whenever the Assembly is dissolved, the Speaker shall not vacate his office until
immediately before the first meeting of the Assembly after the dissolution.

180 - Power of the Deputy Speaker or other person to perform

the duties of the office of, or to act as, Speaker
181 - The Speaker or the Deputy Speaker not to preside while a
resolution for his removal from office is under consideration

182 - The Chairman and Deputy Chairman of the Legislative

Council
- State council will choose

183 - Vacation and resignation of, and removal from, the offices of
Chairman and Deputy Chairman

Chairman or deputy chairman can:

-vacate office if he ceases to be member of council

-resign his office (chairman will resign to deputy chairman and vice versa)

- be removed by resolution (with 14 days' notice) with majority of the members

184 - Power of the Deputy Chairman or other person to perform the duties
of the office of, or to act as, Chairman

185 - The Chairman or the Deputy Chairman not to preside while a

resolution for his removal from office is under consideration.

186 - Salaries and allowances of the Speaker and Deputy Speaker and the
Chairman and Deputy Chairman.

Such salaries and allowances as may be respectively fixed by the Legislature of the
State by law, until then as specified in 2nd Schedule

187 - Secretariat of State Legislature

Conduct of Business

188 - Oath or affirmation by members

Before the governor or some person appointed in that behalf by him.

189 - Voting in Houses, power of Houses to act notwithstanding

vacancies and quorum

All questions at any sitting of a House of the Legislature of a State shall be determined
by a majority of votes of the members present and voting, other than the Speaker or
Chairman, or person acting as such.
Disqualifications of Members

190 - Vacation of seats

No person shall be member of both houses, No person shall be member of legislature
of two or more states.

In both cases he has to vacate his seat in all but one house.

If for a period of sixty days a member of a House of the Legislature of a State is

without permission of the House absent from all meetings the house may declare his
seat vacant. (Time period when house is prorogued or is adjourned for more than four
consecutive days will not be counted)

191 - Disqualifications for membership

- if he holds any office of profit under the Government.

- if he is of unsound mind and stands so declared by a competent court.

- if he is an undischarged insolvent.

- if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign

State, or is under any acknowledgment of allegiance or adherence to a foreign State.

- if he is so disqualified by or under any law made by Parliament.

192 - Decision on questions as to disqualifications of members

Final decision will be of Governor but only after getting the opinion of Election
Commission and complying to it.

193 - Penalty for sitting and voting before making oath or affirmation
under article 188 or when not qualified or when disqualified.

-Liable in respect of each day on which he so sits or votes to a penalty of five hundred
rupees to be recovered as a debt due to the State.

Powers, privileges and immunities of State Legislatures and

their Members

194 - Powers, privileges, etc., of the Houses of Legislatures and of the

members and committees thereof.

Similar to Union Legislature part

195 - Salaries and allowances of members

Legislative Procedure

196 - Provisions as to introduction and passing of Bills

Bill may originate in any house, and will be passed when agreed by both houses.

Bill will not lapse because of prorogation or dissolution of the house.

197 - Restriction on powers of Legislative Council as to Bills

other than Money Bills

Bills (other than money bills) can be passed by Legislative assembly. Assembly will
send it to council, after that

If the bill is rejected or

3 months elapse after it has been laid before the council

or

the bill has been passed by council with amendments.

The assembly will pass the bill (with or without such amendments) and send it again to
council after which

If the bill is rejected or

1 month has elapsed after it has been laid before the council or

The bill has been passed by the council with amendments.

The Bill shall be deemed to have been passed by the Houses of the Legislature of the
State in the form in which it was passed by the Legislative Assembly for the second
time with such amendments, if any, as suggested by the council

198 - Special procedure in respect of Money Bills

Money Bill can only be introduced in Legislative assembly.

After the bill is passed by the assembly it shall be sent to the council for its
recommendations (which it has to give in 14 days, if it doesn't return the bill in 14 days,
then it shall be deemed to be passed by the council)
The Assembly can accept/reject any or all of the amendments suggested by the
council.

199 - Definition of "Money Bills"

Same as Article 110 (Money bill in union)

Just change to government of state and consolidated fund of state etc wherever
government of India consolidated fund of India etc is written.

Decision of the Speaker of the Legislative Assembly of a State shall be final on the
questions of whether it is a money bill or not.

200 - Assent to Bills

After the bill is passed, it is presented to the Governor and the Governor shall declare
either that he assents to the Bill or that he withholds assent therefrom or that he
reserves the Bill for the consideration of the President.

After the Bill is sent back to the legislature with recommendations or suggestions by
the governor, the bill may be sent back to the governor with or without including those
suggestion or recommendations, and the 2nd tiem governor has to assent.

Governor shall not assent to, but shall reserve for the consideration of the President,
any Bill which in the opinion of the Governor would, if it became law, so derogate from
the powers of the High Court.

201 - Bills reserved for consideration

When a Bill is reserved by a Governor for the consideration of the President, the
President shall declare either that he assents to the Bill or that he withholds assent
Where the Bill is not a Money Bill, the President may direct the Governor to return the
Bill to the legislature to reconsider the bill within a period of six months, after the bill is
passed again (with or without the amendments requested) it shall be presented again
to the President for his consideration.

Procedure in Financial Matters

202 - Annual financial statement.

203 - Procedure in Legislature with respect to estimates.

204 - Appropriation Bills.

205 - Supplementary, additional or excess grants.

206 - Votes on account, votes of credit and exceptional grants.

207 - Special provisions as to financial Bills.

Procedure Generally
208 - Rules of procedure

209 - Regulation by law of procedure in the Legislature of the

State in relation to financial business

210 - Language to be used in the Legislature

Same as Union Legislature

211 - Restriction on discussion in the Legislature

Same as Union Legislature

212 - Courts not to inquire into proceedings of the Legislature

Same as Union Legislature

CHAPTER IV-LEGISLATIVE POWER OF THE GOVERNOR

213 -Power of Governor to promulgate Ordinances during recess of
Legislature

If the houses of parliament are not in session (one or both) the Governor if is
satisfied that circumstances exist which render it necessary for him to take
immediate action, he may promulgate such Ordinances as the circumstances
appear to him to require:

Provided that the Governor shall not, without instructions from the President,
promulgate any such Ordinance if-
(a) a Bill containing the same provisions would under this Constitution have
required the previous sanction of the President for the introduction thereof into
the Legislature; or

(b) he would have deemed it necessary to reserve a Bill containing the same
provisions for the consideration of the President; or

(c) an Act of the Legislature of the State containing the same provisions would
under this Constitution have been invalid unless, having been reserved for the
consideration of the President, it had received the assent of the President.

Ordinance will cease to operate at the expiration of six weeks from the
reassembly of the legislature, or if before that a resolution disapproving the
ordinance is passed by the legislature.

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Centre State Relations

Part XI-Relations Between the Union and the States

Chapter I-Legislative Relations

Distribution of Legislative Powers

245 - Extent of laws made by Parliament and by the

Legislatures of States
Parliament may make laws for the whole or any part of the territory of India, and
the Legislature of a State may make laws for the whole or any part of the State.

No law made by Parliament shall be deemed to be invalid on the ground that it

would have extraterritorial operation.

246 - Subject-matter of laws made by Parliament and by the

Legislatures of States

Parliament - List I (Union List)

State Legislature-List II (State List) Both-List III (Concurrent List)

Lists are given in 7th Schedule

246A - Special Provision for GST (101st Amendment)
Parliament and State Legislature can make laws with respect to GST, but
parliament has exclusive power to make laws with respect to GST where the
supply of goods, or of services, or both takes place in the course of inter-State
trade or commerce.

247 - Power of Parliament to provide for the

establishment of certain additional courts

248 - Residuary powers of legislation

Parliament has exclusive power to make any law with respect to any matter not
enumerated in the Concurrent List or State List.

249 - Power of Parliament to legislate with respect to a matter

in the State List in the national interest
If council of States by resolution declares by 2/3 majority (present and voting)
that it is necessary or expedient in the national interest that Parliament should
make laws with respect to GST or State list then parliament can legislate on
those matters.

This resolution will remain in force for 1 year (can be revised).

Such law made under this resolution shall cease to be in force after 6 months of
the expiration of resolution

250 - Power of Parliament to legislate with respect to any

matter in the State List if a Proclamation of Emergency is in
operation

Such legislation shall cease to have effect on the expiration of a period of six
months after the Proclamation of emergency has ceased to operate.
251 - Inconsistency between laws made by Parliament under
articles 249 and 250 and laws made by the Legislatures of
States

Law made by parliament shall prevail and the state law shall be inoperative
only as long as the law made by parliament continues to have effect (Just like
doctrine of eclipse)

252 - Power of Parliament to legislate for two or more States by

consent and adoption of such legislation by any other State
If resolutions are passed by all the Houses of the Legislatures of the States
allowing the parliament to legislate on behalf of the states for matters on which
parliament has no power to legislate, it shall be lawful for Parliament to pass an
act for regulating that matter accordingly for such states.

253 - Legislation for giving effect to international agreements

254 - Inconsistency between laws made by Parliament and laws

made by the Legislatures of States
The law made by Parliament, whether passed before or after the law made by
the Legislature of such State, shall prevail and the law made by the Legislature
of the State shall, to the extent of the repugnancy, be void.

But the law so made by the Legislature of such State shall, if it has been
reserved for the consideration of the President and has received his assent,
prevail in that State.

Nothing in this clause shall prevent Parliament from enacting at any time any
law with respect to the same matter including a law adding to, amending,
varying or repealing the law so made by the Legislature of the State.

255 - Requirements as to recommendations and previous

sanctions to be regarded as matters of procedure only

No Act of Parliament or of the Legislature of a State, and no provision in any

such Act, shall be invalid by reason only that some recommendation or
previous sanction required by this Constitution was not given, if assent to that
Act was given
(a) where the recommendation required was that of the Governor, either by the
Governor or by the President;
(b) where the recommendation required was that of the Rajpramukh, either by
the Rajpramukh or by the President;
(c) where the recommendation or previous sanction required was that of the
President, by the President.

Chapter II- Administrative Relations

256 - Obligation of States and the Union

States need to exercise their executive power to ensure compliance with the
laws made by the parliament.

Union Executive power shall extend to giving such directions to a state as may
appear to the govt. of India to be necessary for that purpose.

257 - Control of the Union over States in certain cases

The executive power of every State shall be so exercised as not to impede or
prejudice the exercise of the executive power of the Union.

Union Executive can give directions to a State as to thei construction and

maintenance of means of communication declared in the direction to be of
national or military importance, also it can give directions for measures to be
taken for the protection of the railways within the state.

Extra Costs incurred by the state to comply to these directions shall be given by
the Government of India, and in case of default, the decision shall be taken by
an arbitrator appointed by the CJI.

258 -Power of the Union to confer powers, etc., on States in

certain cases
President with the consent of Government of the state can extend either
conditionally or unconditionally to that government or officers the functions and
executive powers of the Union.

Parliament can also by making law, confer powers and duties in matters on
which state has no power to make laws.

The expenses incurred by state in fulfilling these duties and powers are to be
incurred by Government of India and in default of agreement the matter shall be
decided by Arbitrator appointed by CJI.
258A - Power of the States to entrust functions to the Union

The Governor of a State may, with the consent of the Government of India,
entrust either conditionally or unconditionally to that Government or to its
officers’ functions in relation to any matter to which the executive power of the
State extends.

259 - (Omitted)

260 - Jurisdiction of the Union in relation to territories outside

India

Can do this with agreement of the government of any territory not being part of
Indian Territory.

261 - Public acts, records and judicial proceedings

Full faith and credit shall be given throughout the territory of India to public acts,
records and judicial proceedings of the Union and of every State.

Final judgments or orders delivered or passed by civil courts in any part of the
territory of India shall be capable of execution anywhere within that territory
according to law.

Disputes relating to Waters

262 - Adjudication of disputes relating to waters of inter-State

rivers or river valleys

Parliament may by law provide for the adjudication of any dispute or complaint
with respect to the use, distribution or control of the waters of, or in, any inter-
State River or river valley.

Parliament may by law provide that neither the Supreme Court nor any other
court shall exercise jurisdiction in respect of any such dispute or complaint.

Inter-State River Water Disputes Act, 1956

The 1956 Law on Water Disputes was adopted pursuant to Article 262 of the
Constitution. The centre plays a very important role in the law. Article 4(1) of
the Act, which is empowered to establish a water court to challenge water law
on the basis of a county government.

Co-ordination between States

263 - Provisions with respect to an inter-State Council
President for Public Interest can establish an Inter-State Council which shall
have the following duties:

(a) inquiring into and advising upon disputes which may have arisen between
States;

(b) investigating and discussing subjects in which some or all of the States, or
the Union and one or more of the States, have a common interest; or

(c) making recommendations upon any such subject and, in particular,

recommendations for the better co-ordination of policy and action with respect
to that subject.

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THE UNION JUDICIARY

Part V, Chapter IV of the Constitution. (Article 124-147)

• Since language of the constitution is not free from ambiguities and its
meaning is likely to be interpreted differently by different authorities at
different times; it is but natural that disputes might arise between the
centre and its constituent units regarding their respective powers.
Therefore, in order to maintain the supremacy of the constitution there
must be an independent and impartial authority to decide disputes
between the centre and states.
• It is necessary to bear in mind the scope and ambit of the powers of the
court under constitution. The powers of the court are not the same under
all constitutions.
• In England parliament is supreme and there is no limitation upon its
legislative powers. However, in US, the law made by congress, in order
to be valid, must be in conformity with the. provisions of the constitution.
(Provisions of Judicial Review and independence of judiciary are taken
from US)
• We have different levels of Judiciary which is present at the central level,
the state level, and district level. In Part V of the constitution, chapter IV
concerns the Union Judiciary.
Article Number and What it Says (with Amendments)

124 Establishment and constitution of supreme court

125 Salaries, etc. of Judges

126 Appointment of acting Chief Justice

127 Appointment of ad hoc Judges

128 Attendance of retired Judges at sittings of the Supreme

Court

129 Supreme Court to be a court of record

130 Seat of Supreme Court

131 Original jurisdiction of the Supreme Court

132 Appellate jurisdiction of Supreme Court in appeals from High

Courts in certain cases.

133 Appellate jurisdiction of Supreme Court in appeals from High

Courts in regard to civil matters.

134 Appellate jurisdiction of Supreme Court in regard to criminal

matters.

134 A Certificate of appeal to Supreme Court

Ins. By the Constitution 44th Amendment Act, 1978

135 Jurisdiction and powers of the Federal Court under existing

law to be exercisable by the Supreme Court.

136 Special leave to appeal by the Supreme Court.

137 Review of judgments or orders by the Supreme Court

138 Enlargement of the jurisdiction of the Supreme Court

139 Conferment on the Supreme Court of Powers to issue

certain writs

139 A Transfer of certain cases

Ins. By the Constitution 42nd Amendment Act, 1976

140 Ancillary powers of Supreme Court

141 Law declared by Supreme Court to be binding on all

courts.

142 Enforcement of decrees and orders of Supreme Court and

orders as to discovery, etc.

143 Power of President to consult Supreme Court

144 Civil and judicial authorities to act in aid of the Supreme

Court

145 Rules of Court, etc

146 Officers and servants and the expenses of the Supreme

Court

147 Interpretation

Provisions

124 - Establishment and constitution of Supreme Court

(1) Supreme Court of India will have Chief Justice of India and 7 judges (Now
"33" Judges, 33+1(C), vide The Supreme Court (Number of Judges)
Amendment Act, 2019)

(2) Every Judge of the Supreme Court shall be appointed by the President after
consultation with such of the Judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary for the purpose and
shall hold office until he attains the age of sixty-five years, A judge resigns to
President of India.

(2A) the age of a Judge of the Supreme Court shall be determined by such
authority and in such manner as Parliament may by law provide], (Inserted by
the Constitution (Fifteenth Amendment) Act, 1963)

(3) Qualification to be a Judge of Supreme Court

• Citizen of India
• has been for at least five years a Judge of a High Court or of two or
more such Courts in succession;
 • or has been for at least ten years an advocate of a High Court or of two
or more such Courts in succession; or
• in the opinion of the President, a distinguished jurist.

(4) Removal of Judge

Both houses need to approve with Simple majority (total membership) and 2/3
majority of members (present and voting)

Such order shall be presented to the president in same session and President
orders the removal (grounds are proved misbehaviour or incapacity)

(5) Parliament may by law regulate the procedure for the presentation of an
address and for the investigation and proof of the misbehaviour or incapacity of
a Judge under clause (4).

(6) Oath by Supreme Court Judge taken in front of President or some person
appointed by President.

(7) No person who has held office as a Judge of the Supreme Court shall plead
or act in any court or before any authority within the territory of India.

Before 99th amendment judges of SC were appointed by the president.

The chief justice of supreme court was appointed by the president with the
consultation of SC and HC judges as he deemed necessary for the purpose.
But in appointing other judges the president would always consult the CJI. He
might consult such other judges of the SC and HC as he might deem
necessary.

• Case 1: UOI vs Sankalchand Sheth (1977)

The SC held that the word Consultation meant full and effective consultation. It
does not mean concurrence and the president is not bound by it.

• Case 2: SP Gupta vs UOI (1982) (1st judges' case or judges

transfer case)

The SC unanimously agreed with the meaning of the term 'Consultation' as

explained by the majority in the case of UOI vs Sankalchand Seth. This means
that the ultimate power to appoint judges was vested in the executive from
whose dominance and subordination it was sought to be protected.

• Case 3: Supreme Court Advocates on Record Association v.

Union of India (1993): (2nd Judges case or Transfer case)
A nine Judge Bench of the Supreme Court by a 7: 2 majority overruled its
earlier judgment in the Judges Transfer case and held that in the matter of
appointment of the Judges of the Supreme Court and the High Courts, the
Chief Justice of India should have primacy.

• Case 4: Re presidential reference 1999 (3rd Judges case or

Transfer case)

A nine-judge bench of SC held that the recommendation made by the CII on

the appointment of judges of SC and HC without following the consultation
process are not binding on government.

After 99th Amendment: To remove the collegium system

The Constitution (Ninety ninth Amendment) Act, 2014 was passed which
entailed the constitution of national judicial appointments commission 2014 and
amended articles 124 (2), 127 and 128. It inserted articles 124A, 1248 and
124C. Which contended that a special committee needs to be set up for
impartial and uninterred appointing of judges. Which consisted of PM, CJI and
person for civil society.

• Case 5: Supreme court advocates on record association vs

UOI (2015)

SC held that both, 99th constitutional amendment and as well as NJAC act
2014 is unconstitutional and void. Therefore, the original collegium system was
initiated again.

124(A) (8) (C) declared void by SC on 16th October 2016 in the

case of Supreme court advocates on record association vs UOI
2016

125 - Salaries, etc. of Judges

Salary, privileges, allowances and rights as are specified in the Second
Schedule.

Neither the privileges nor the allowances of a Judge nor his rights in respect of
leave of absence or pension shall be varied to his disadvantage after his
appointment.

126 - Appointment of acting Chief Justice - By President

127 - Appointment of ad hoc Judges

128 - Attendance of retired Judges at sittings of the Supreme
Court

129 - Supreme Court to be a court of record

The Supreme Court shall be a court of record and shall have all the powers of
such a court including the power to punish for contempt of itself.

Implementation: The contempt of courts Act 1971

In the case of Rajeshwar Singh vs Subrata Roy Sahara 2014

SC held that the jurisdiction of the SC under Article 129 is independent of

courts act- If there is not proper compliance of the provisions of the Contempt
of Courts Act, it would not deter or take away the constitutional powers of the
SC under Article 129.

In Delhi Judicial Service Assn. v. State of Gujarat

it has been held that under Article 129 the Supreme Court has power to punish
a person for the contempt of itself as well as of its subordinate courts. The
expression "including" extends and widens the scope of power. The plain
language of Article 129 clearly indicates that the Supreme Court as a Court of
Record has power to punish for contempt of itself and also something else
which would fall within the inherent jurisdiction of the Court of Record. This
inherent power is necessary to safeguard and protect the subordinate judiciary
which forms the very back bone of administration of justice. In the instant case
the Court had sent five police officers to jail as they were found guilty of criminal
contempt for harassing and handcuffing the Chief Judicial Magistrate of town
Nadiad in the State of Gujarat.

Vitusah Oberoi vs Court of its own Motion 2017

Article 215 does not give power to HC to punish for the contempt of a superior
court. Reason being availability of the power under Article 129 and its plenitude
that is why article 215 could never have been intended to empower the HC to
punish for the contempt of the SC

130 - Seat of Supreme Court

The Supreme Court Shall Sit in Delhi or in such other place or places, as the
Chief Justice of India may, with the approval of the President, from time to time,
appoint.
131 - Original jurisdiction of the Supreme Court

The Supreme Court shall, to the exclusion of any other court, have original
jurisdiction in any dispute-

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or

States on one side and one or more other States on the other, or

(c) between two or more States,

if and in so far as the dispute involves any question (Whether of law or fact) on
which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of
any treaty, agreement, covenant, engagement, Sanad or other similar
instrument which, having been entered into or executed before the
commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend to
such a dispute. (7th amendment act, 1956):

Recently Article 131 was invoked in the case of Sushant Singh

Rajput where there was Clash of opinion between Bihar govt or
Maharashtra govt.

SC is excluded to use its rights of original jurisdiction in the following case:

• The proviso mentioned in the article 131

• Disputes between states with respect to the use, distribution or control of

water of interstate river or river valley. (Dealt by article 262)

• Matters referred to financial commission. (Dealt by article 280)

• Adjustment of certain expenses as between union and state. (Dealt by article

257,258)

132 - Appellate jurisdiction of Supreme Court in appeals from

High Courts in certain cases

An appeal shall lie to the Supreme Court from any judgment, decree or final
order of a High Court in the territory of India, whether in a civil, criminal or other
proceeding. [if the High Court certifies under Article 134A] that the case
involves a substantial question of law as to the interpretation of this
Constitution.

133 - Appellate jurisdiction of Supreme Court in appeals from

High Courts in regard to civil matters
When the case involves a substantial question of law of general importance
and in the opinion of the High Court the said question needs to be decided by
the Supreme Court.

No appeal shall, unless Parliament by law otherwise provides, lie to the

Supreme Court from the judgment, decree or final order of one Judge of a High
Court.

134 - Appellate jurisdiction of Supreme Court in regard to

criminal matters

If the High Court has on appeal reversed an order of acquittal of an accused

person and sentenced him to death; or has withdrawn for trial before itself any
case from any court subordinate to its authority and has in such trial convicted
the accused person and sentenced him to death; or certifies that the case is a
fit one for appeal to the Supreme Court:

134-A Certificate for Appeal to Supreme Court

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

136 - Special leave (SLP) to appeal by the Supreme Court

Supreme Court may, in its discretion, grant special leave to appeal from any
judgment. decree, determination, sentence. or order in any cause or matter
passed or made by any court. or tribunal in the territory of India.

This shall not apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

Essar Steel Ltd. Vs UOI (2016)

It was held that The Court not competent to judge economic policy of the
Government. The Supreme Court has no jurisdiction and competence to judge
the validity of the economic policy decision of the Government unless it is
unconstitutional or in violation of the statute and the rules or it is arbitrary,
unreasonable or mala fide.

Delhi Judicial Service Assn. v. State of Gujarat (1991)

The Supreme Court has held that under Article 136 the Supreme Court has
wide power to interfere and correct the judgment and orders passed by any
court or tribunal in the country. In addition to the appellate power, the court has
special residuary power to entertain appeal against any order of any court. The
plenary jurisdiction of the Court to grant leave and hear appeals against any
order of a court or tribunal, confers power of judicial superintendence over all
the courts and tribunals including subordinate courts of Magistrate and District
Judge. The Supreme Court has therefore supervisory jurisdiction over all courts
of India. Accordingly, the Court punished the five police officials for committing
contempt of the Chief Judicial Magistrate Court of town Nadiad in the State of
Gujarat and also quashed the false criminal proceedings against the Magistrate
filed by the police.

137 - Review of judgments or orders by the Supreme Court.

138 - Enlargement of the jurisdiction of the Supreme Court

139 - Conferment on the Supreme Court of Powers to issue

certain writs

Parliament may by law confer on the Supreme Court power to issue directions,
orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for any purposes. other
than those mentioned in clause (2) of article 32.

139A - Transfer of certain cases

(1) Where cases involving the same or substantially the same questions of law
are pending before the Supreme Court and or more High Courts or before two
or more High Courts and the Supreme Court is satisfied on its own motion or on
an application made by the Attorney-General of India or by a party to any such
case that such questions are substantial questions of general importance, the
Supreme Court may withdraw the case or cases pending before the High Court
or the High Courts and dispose of all the cases itself:

Provided that the Supreme Court may after determining the said questions of
law return any case so withdrawn together with a copy of its judgment on such
questions to the High Court from which the case has been withdrawn, and the
High Court shall on receipt thereof, proceed to dispose of the case in
conformity with such judgment.

The Supreme Court may, if it deems it expedient so to do for the ends of

justice, transfer any case, appeal or other proceedings pending before any High
Court to any other High Court. (42 Amendment Act 1976)

In Union of India v. Shiromani Gurdwara Prabandhak

Committee (1986)

A petition for transfer of a suit for damage filed in Punjab against Union of India
for loss of Gurdwara properties by respondents as a result of operation Blue
Star was filed in the Supreme Court by the Union of India on the ground that
fair trial in Punjab would not be possible in view of extraordinary situation
prevailing there. In view of the unusual and sensitive nature of the suit and the
extraordinary situation in Punjab the Court allowed the petition and transferred
the case to the Delhi High Court for trial. The Court said that the power to
transfer cases from one State to another must be used with circumspection and
caution. In the instant case the circumstances justified the transfer of the case
from Punjab to Delhi Court.

In Swaranjit Kaur V Swaran Singh Sohi 2009

The wife of the petitioner sought the transfer of a divorce petition from Delhi
District Judge to District Judge, Indore. The petitioner is dependent on her
parents. She has two children. It is difficult to defend the case by travelling to
Delhi. The Court allowed her transfer petition from District Judge, Delhi to
District Judge at Indore.

140 - Ancillary powers of Supreme Court

141 - Law declared by Supreme Court to be binding on all

courts

142 - Enforcement of decrees and orders of Supreme Court and

orders as to discovery, etc.

143 - Power of President to consult Supreme Court

(1) If at any time it appears to the President that a question of law or fact has
arisen, or is likely to arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion of the Supreme Court upon
it, he may refer the question to that Court for consideration and the Court may,
after such hearing as it thinks fit, report to the President its opinion thereon.

(2) The President may, notwithstanding anything in the proviso to article 131
refer a dispute of the kind mentioned in the [said proviso] to the Supreme Court
for opinion and the Supreme Court shall, after such hearing as it thinks fit,
report to the President its opinion thereon.

In re kerala education bill-1958

SC held that the court is not bound to answer a reference made to it by the
president It also held that in cases of advisory opinion conferred by article 143
is different from regular opinion, it is mandatory on the court to answer any
reference or discussion made to it.

In re special courts bill 1978

SC held that even in matters arising out of article 142(2) the court may be
justified in returning the reference unanswered for a valid reason.

144 - Civil and judicial authorities to act in aid of the Supreme Court

145 - Rules of Court, etc.

146 - Officers and servants and the expenses of the Supreme Court

147 – Interpretation

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State Judiciary
Chapter V of Indian Constitution (Article 214-237)

• It was in 1858 when on the recommendation of the Law Commission, the

Parliament passed the Indian High Courts Act 1861 which suggested the
establishment of High Courts in place of Supreme Court in three
Presidencies: Calcutta, Madras, and Bombay. The Charter of High Court
of Calcutta was ordered in May 1862 and that of Madras and Bombay
were ordered in June 1862. Thereby, making the Calcutta High Court the
first High Court of the country.
• The reason for the implementation of this act was the need fora separate
judiciary body for different states. The British Government, therefore,
 decided to abolish the then-existing Supreme Court and Sadar Adalat
and replaced it with High Court.
• Certain rules and eligibility criteria were set for the appointment of a
Judge in any High Court and later after independence as per Article 214
of the Indian Constitution, it was declared that every Indian state must
have their own High Court.
• The British-created laws were different from the ones that were stated in
the Indian Penal code and the entire legal system of the country
changed after the independence of the country.

There are currently 25 High Courts in India.

NO. HIGH COURT JURISDICTION PRINCIPLE SEAT

1 Allahabad High Uttar Pradesh Prayagraj

Court
2 Andhra Pradesh Andhra Pradesh Amaravati
High Court
3 Bombay High Maharashtra, Goa, Dadra Mumbai
Court and Nagar Haveli and
Daman and Diu

4 Calcutta High Court West Bengal, Andaman Kolkata

and Nicobar Islands

5 Chhattisgarh High Chhattisgarh Bilaspur

Court

6 Delhi High Court National Capital Territory Delhi

of Delhi
7 Gauhati High Court Assam, Arunachal Guwahati
Pradesh, Mizoram,
Nagaland

8 Gujarat High Court Gujarat Ahmedabad

9 Himachal Pradesh Himachal Pradesh Shimla

High Court

10 Jammu and Jammu and Kashmir, Srinagar/Jammu

Kashmir and Ladakh
Ladakh High Court

11 Jharkhand High Jharkhand Ranchi

Court
12 Karnataka High Karnataka Bangalore
Court
 13 Kerala High Court Kerala, Lakshadweep Kochi

14 Madhya Pradesh Madhya Pradesh Jabalpur

High Court

15 Madras High Court Tamil Nadu, Pondicherry Chennai

16 Manipur High Court Manipur Imphal

17 Meghalaya High Meghalaya Shillong

Court

18 Orissa High Court Odisha Cuttack

19 Patna High Court Bihar Patna

20 Punjab and Haryana Punjab, Haryana, Chandigarh

High Court Chandigarh

21 Rajasthan High Jodhpur

Court Rajasthan.

22 Gangtok
Sikkim High Court Sikkim

23 Telangana High Hyderabad

Court Telangana

24 Tripura High Court Tripura Agartala

25 Uttarakhand High Uttarakhand Nainital

Court

Provisions
214 - High Courts for States. There shall be a High Court for
each State.

215 - High Courts to be courts of record.

-Every High Court shall be a court of record and shall have all the powers of
such a court including the power to punish for contempt of itself.
216 - Constitution of High Courts.
-Every High Court shall consist of a Chief Justice and such other Judges as the
President may from time to time deem it necessary to appoint.

217 - Appointment and conditions of the office of a

judge of a High Court.
(1) Every Judge of a High Court shall be appointed by the President after
consultation with the Chief Justice of India, the Governor of the State, and, in
the case of appointment of a Judge other than the Chief Justice, the Chief
Justice of the High Court, and shall holding office, in the case of an additional
or acting Judge, as provided in article 224, and in any other case, until he
attains the age of sixty-two years. Judge Resigns to President

A Judge may be removed from his office by the President in the manner
provided in clause (4) of article 124 for the removal of a Judge of the Supreme
Court;

(2) Qualifications
(a) has for at least ten years held a judicial office in the territory. of India; or

(b) has for at least ten years been an advocate of a High Court or of two or
more such Courts in succession.

(3) If any question arises as to the age of a Judge of a High Court, the question
shall be decided by the President after consultation with the Chief Justice of
India and the decision of the President shall be final.

218 - Application of certain provisions relating to Supreme

Court to High Courts

The provisions of clauses (4), (5) of article 124 shall apply in relation to a High
Court as they apply to the Supreme Court with the substitution of references to
the High Court for references to the Supreme Court. (Process of removal)

219 - Oath or affirmation by Judges of High Courts. In front of

Governor or any person appointed by him
220 - Restriction on practice after being a permanent Judge
except the Supreme Court and the other High Courts

221 - Salaries, etc., of Judges

As per 2 Schedule or as per parliament determines by law.

222 - Transfer of a Judge from one High Court to another

(1) The President may, after consultation with the Chief Justice of India,
transfer a Judge from one High Court to any other High Court.

(2) When a Judge has been or is so transferred, he shall, during the period he
serves, after the commencement of the Constitution (Fifteenth Amendment)
Act, 1963, as a Judge of the other High Court, be entitled to receive in addition
to his salary such compensatory allowance as may be determined by
Parliament by law and, until so determined, such compensatory allowance as
the President may by order fix.

Union of India v. Sankalchand Sheth (1976).

The constitutionality of a notification issued by the President by which Justice
Sankalchand Sheth of the Gujarat High Court was transferred to the High Court
of Andhra Pradesh, was challenged on the ground that the order was passed
without the consent of the Judge and against public interest and without
effective consultation of the Chief Justice of India. The Supreme Court by a
majority of 3: 2 held-

A Judge of a High Court could be transferred under Art. 222 (1) without his
consent. If consent was imported in Art. 222 so as to make condition precedent
to transfer a Judge from one High Court to another then a Judge by withholding
consent could render the power contained in Article 222 wholly ineffective and
nugatory.

The power to transfer a High Court Judge is conferred by the Constitution in

public interest and not for the purpose of providing the Executive with a weapon
to punish a Judge who does not touch its line or who, for some reason or the
other, has fallen from its grace. The extraordinary power conferred on the
President by Art. 222 (1) cannot be exercised in a manner which is calculated
to defeat or destroy in one stroke the object and purpose of the various
provisions conceived with such care to insulate the judiciary from the influence
and pressures of the executive. Once it is accepted that a High Court Judge
can be transferred on the ground of public interest only, the apprehension that
the Executive may use the power of transfer for its own ulterior ends and
thereby interfere with the independence of the judiciary loses its force.
Also Art. 222 (1) casts an absolute obligation on the President to consult the
Chief Justice of India before transferring a judge from one High Court to
another.

S.P Gupta v. Union of India (1982) (Judges Transfer case)

The validity of a circular letter of the Union Law Minister asking the Chief
Ministers of various States to get the advance consent of sitting additional
Judges and future incumbents to the post for being appointed as permanent
Judges outside their State) was challenged. the Court by 4:3 majority held-

The consent is not necessary element of Art. 222. The only requirement is that
there must be a "consultation with the Chief Justice of India which must be
effective. Power of transfer of Judges must be exercised in public interest.
However, transfers cannot be done by way of 'punishment.’

Accordingly, the Court held that the transfer of the Chief Justice of Patna High
Court to the Madras High Court was in public interest because certain persons
were taking undue-advantage of their close relationship with him which had
created considerable mis-understanding and dissatisfaction in the working of
the High Court and remedying this was surely a public purpose. There was full
and effective "consultation between the Chief Justice of India and the President
and the Chief Justice had in fact recommended for the transfer.

In Supreme Court Advocates-on-record Association (1993)

Supreme Court has overruled the Judges Transfer case and held that in case
of transfer of Judges of High Court the opinion of the Chief Justice of India has
not the primacy, but is determinative in the matter. The Chief Justice was
however required to consult two senior most Judges of the Supreme Court
before sending his recommendation for transfer of a Judge from one High Court
to another. It was also held that the consent of the transferred Judge/Chief
Justice of a High Court is not required for either the fresh or any subsequent
transfer from one High Court to another.

Any transfer made on such recommendation of the Chief Justice of india not
deemed to be punitive, and such transfer is not justiciable on any ground.

In re Presidential Reference (1999)

A nine-Judge-Bench of the Supreme Court unanimously held that in case of
transfer of High Court Judges, the Chief Justice of India must consult four
senior most Judges of the Supreme Court and in addition to the collegium of
four Judges the CJI is required to consult the Chief Justice of the two High
Court (one from which the Judge is being transferred and the other receiving
him). The collegium should make the decision in consensus and unless opinion
of the collegium in conformity with that of the CJI no recommendation is to be
made. If two Judges give adverse opinion, the CII should not send the
recommendation to the Government.

223 - Appointment of acting Chief Justice

By the President

224 - Appointment of additional and acting Judges

By the President

No person appointed as an additional or acting Judge of a High Court shall hold

office after attaining the age of sixty-two years.

224A - Appointment of retired Judges at sittings of High Courts

225 - Jurisdiction of existing High Courts

226 - Power of High Courts to issue certain writs.

Every High Court shall have power, throughout the territories in relation to
which it exercises jurisdiction, to issue to any person or authority, any
Government, within those territories’ directions, orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by
Part Ill and for any other purpose. This power may also be exercised by any
High Court exercising jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises for the exercise of such i power,
notwithstanding that the seat of such Government or authority or the residence
of such person is not within those territories.

Abhiram Samal v. Indian Bank (2019)

Cases where there is neither violation of natural justice nor any procedural
irregularity, writ of certiorari cannot be issued:

Radhey Shyam v. Chhabi Nath, (2015)

Writ of certiorari will be issued in cases where lower courts pass an order either
without jurisdiction, or in excess of jurisdiction or acting in flagrant disregard of
law or rules of procedure or acting in violation of the principles of natural justice,
and thereby occasioning failure of justice.
Mamta Prajapati v. State of Madhya Pradesh (2019)
Writ of mandamus cannot be issued where there is availability of efficacious
and alternative remedy of filing a criminal complaint before the Court of
competent jurisdiction.

U. Periyanayagi v. The Home Secretary, 2017

Issuance of Writ of Mandamus on grounds of "extraordinary" and "emergency
situations.

A.K. Gopalan v. Sate of Madras 1950

(Distinction between Article 226 and Article 32)

The distinction in a Writ Petition under Article 226 and Article 32 is that the
"remedy under Article 32 is available only for enforcement of the Fundamental
Rights," while under Article 226 of the Constitution, a Writ Court can grant relief
for any other purpose also.

227 - Power of superintendence over all courts by the High

Court

Every High Court shall have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction.

Nothing in this article shall be deemed to confer on a High Court power of

superintendence over any court or tribunal constituted by or under any law
relating to the Armed Forces.

228 - Transfer of certain cases to High Court

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 this Constitution
the determination of which is necessary for the disposal of the case, it shall
withdraw the case and may-

(a) either dispose of the case itself, or

(b) determine the said question of law and return 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 to dispose of
the case in conformity with such judgment.
229 - Officers and servants and the expenses of High Courts

230 - Extension of jurisdiction of High Courts to Union

territories

231 - Establishment of a common High Court for two or more

States

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EMERGENCY
Part XVIII of the Constitution

Articles 352 to Article 360 contains emergency provisions emergency with

regard to external aggression, armed rebellion, breakdown of the
constitutional machinery or financial crisis.

352 Proclamation of Emergency

353 Effect of Proclamation of Emergency

354 Application of provisions relating to distribution of revenues while

a Proclamation of Emergency is in operation.

355 Duty of the Union to protect States against external aggression

and internal disturbance.

356 Provisions in case of failure of constitutional machinery in States.

357 Exercise of legislative powers under Proclamation issued under

article 356.

358 Suspension of provisions of article 19 during emergencies.

359 Suspension of the enforcement of the rights conferred by Part III

during emergencies.

360 Provisions as to financial emergency.

The emergency provisions of the Indian Constitution were borrowed from the
German Constitution, where there exists a provision for the suspension of
fundamental rights during emergency.

Part XVIll of the Constitution visualizes three kinds of emergency:

1. Emergency [Art. 352]

2. State Emergency, called President's Rule [Art. 356]

3. Financial emergency [Art. 360]

Two duties are imposed on the Centre by Article 355 of the Constitution:

1. To protect every State from external aggression and armed rebellion.

2. To ensure that the government of every State is carried on in accordance

with the provisions of the Constitution.

ARTICLE 352
Proclamation of emergency can be made under any of the three circumstances
by President under Article 352(1) if he is satisfied that a grave emergency
exists for the following reasons.
Internal Disturbance was
1. War substituted
to 'Armed Rebellion'
2. External Aggression by 44th Amendment,
1978
3. Armed Rebellion

- The proclamation of emergency could only be issued by the President, on

recommendations of the Council of Ministers, in writing.

- 44th Amendment also added that Proclamation of Emergency may be made

if the security of India or any part thereof is threatened, even before the actual
occurrence of war or of any such aggression or rebellion, if the President is
satisfied that there is imminent danger thereof.

- The proclamation (not being a Proclamation revoking a previous

Proclamation) will cease to operate within a month unless approved by
resolutions by both the Houses of Parliament.

- If the houses approve the proclamation by passing a resolution to that

effect, it shall remain in force for a period of six months.
 If either House takes no action, it shall expire after one month. If the
proclamation is rejected or disapproved, it shall be revoked by the
President with immediate effect. If it is rejected by the Council of States, it
shall expire after one month.

- The approval should be by both Houses of Parliament, passed by a majority

of total membership of the House and of not less than two-thirds of members
present and voting (and not by simple majority as provided earlier).

- 38 amendment added that the President may, if satisfied, issue different

proclamations on different grounds, even if al proclamation has already been
issued and is in operation. It also made the satisfaction of the President
beyond the scope of judicial review.

BABURAO V UNION OF INDIA (1988)

The court, in this case, held that a proclamation of emergency is notified by

publication in the Official Gazette, but such publication is not obligatory either
for coming into effect or its operation or continuance.

SARBANANDA SONOWAL V UNION OF INDIA (2005)

The Supreme Court for the first time, got the opportunity to interpret the word
"aggression" in Article 355.

In this case, the constitutionality of Illegal Migrants (Determination by

Tribunals) Act, 1983 was challenged. This Act was applicable for the detection
and deportation of Bangladeshi nationals who illegally entered India.

As the Act was applicable only to the State of Assam, it was challenged on the
ground of violation of Article 14 of the Constitution.

Interpreting the word "aggression", the court held that it is not to be confined in
interpretation with the word "war".

Aggression comprises many acts which cannot be termed as war. The framers
of the Constitution have deliberately used the word "aggression and not "war".
The unabated influx of illegal migrants into Assam is a contributing factor
behind the insurgency in Assam undermining national security and, therefore, is
an act of aggression emergency under Article 352?

Though internal disturbance is a matter of concern, it does not threaten the

security of the country or part thereof, unlike armed rebellion. Further, internal
disturbance by itself cannot be a ground for proclamation of emergency under
Article 356 if there is no failure of constitutional machinery of State.
So, it was held that, the provisions of the Illegal Migrants (Determination by
Tribunals) Act, 1983 are ultra vires to the Constitution of India and are
accordingly struck down and all cases pending before the Tribunals under the
Illegal Migrants (Determination by Tribunals) Act, 1983 shall stand transferred
to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and
shall be decided in the manner provided in the Foreigners Act, 1946.

EFFECTS OF PROCLAMATION OF EMERGENCY

- Four important effects of the proclamation are mentioned in Articles 353, 354,
358 and 359.

ARTICLE 353: Effect of proclamation of emergency

During emergency, the executive power of the Union extends to giving

directions to a State as to the manner in which the executive power is to be
exercised. The legislative power of the Union also is extended to making laws
in the State List, for a State or a part thereof, and has an overriding effect. This
includes the power to impose duties on the Union and its officers.

ARTICLE 354: Application of provisions relating to distribution

of revenues while a proclamation of emergency is in operation

The financial arrangements between States and the Union as given under
Articles 268 to 279 may also be altered by order of the President during
proclamation of emergency, which is to be laid before each House of
Parliament. This arrangement will cease to operate after the cessation of
emergency.

ARTICLE 358: Suspension of provisions of article 19 during

emergencies
During proclamation of emergency, if a law passed by the legislature or any
executive action is inconsistent with Article 19 of the Constitution, it is not open
to challenge either during or after the proclamation. However, after emergency,
it ceases to operate.

ARTICLE 359: Suspension of the enforcement of the rights

conferred by part III during emergencies
When a proclamation of emergency is in operation, enforcement of
fundamental rights except Articles 20 and 21 (44 Amendment) may be
suspended by the President in the whole or any part of India. This again has to
be laid before each House of Parliament.

MOHD. YAQUB V STATE OF J&K (1968)

Article 359 came up for consideration in this case wherein a number of habeas
corpus petitions were filed to test the validity of arrests made under Rule 30(1)
of the Defence of India Rules, 1962, and the President's Order issued under
Article 359(1) suspending the enforcement of fundamental rights under
Articles 14, 21 and 22 during the period of emergency.

Among the other grounds, it was contended that:

1. The President being an authority under Article 12, the order passed by him
under Article 359 is law within the meaning of Article 13(2) and is, therefore,
liable to be tested under the anvil of fundamental rights.

2. The enforcement of only such fundamental rights can be suspended which

have nexus with the reasons which have led to the proclamation of emergency.

Supreme Court rejected both the contentions because Article 13(2) and
Article 359, being parts of the same Constitution, stand on an equal footing
and the two provisions have to be read harmoniously in order that the intention
behind Article 359 is carried out and it is not destroyed altogether. Also, the
suspension of the enforcement of a particular fundamental right is for the sake
of security of India for which the subjective determination of the President is
involved, and he cannot be called to justify his action in a court of law.

ADM JABALPUR V SHIVAKANT SHUKLA (HABEAS CORPUS

CASE) (1975) –

The issue of suspension of a writ of habeas corpus during a period of

emergency came up before the Supreme Court in ADM, Jabalpur v. Shivakant
Shukla (Habeas Corpus case) in 1975;

The President on the advice of the Prime Minister declared emergency under
Article 352 on the ground that the security of India was threatened by internal
disturbance and also issued an order under Article 359 suspending the right of
access to courts for the enforcement of fundamental rights enshrined in
Articles 21, 22 and 14 of the Constitution.

Parliament thereafter amended the Maintenance of Internal Security Act,

1971 (MISA) and conferred extraordinary powers on the government to detain
a person without trial.
A question arose whether a writ of habeas corpus under Article 226 can be
issued to release the detenu on the ground that his detention was inconsistent
with the provision of MISA or mala fide.

It was contended that the object of the Presidential Order under Article 359 is to
remove fetters on legislative powers so that during emergency it is free to make
laws in violation of the fundamental rights mentioned in the order, and
suspension of the right to enforce fundamental rights cannot confer any right on
the government to flout the law, be it emergency or otherwise.

It was further contended that the obligation on the government to act in

accordance with law stems out from the inherent compulsion of rule of law, and
the suspension of Article 21 does not automatically entail the suspension of
rule of law.

The enquiry in a habeas corpus petition entails whether the detention is justified
by law, and it is not shut out by suspension of the right to enforce fundamental
rights; otherwise, it would necessarily mean that during emergency no person
has any right to life or personal liberty.

The Supreme Court with the dissent of Khanna J legitimised the suspension of
a writ of habeas corpus during a period of emergency on the basis of higher
claims of national security. In other words, the detenu has no locus standi to file
a writ petition and question the grounds of detention.

State Emergency
The failure or breakdown of constitutional machinery in States is dealt with in
Articles 356 and 357 of the constitution, where a duty is imposed on the union
to ensure that every state runs according to the provisions of the constitution.
Articles 356 and 365 give the circumstances as to when the proclamation can
be made.

ARTICLE 355: Duty of the union to protect states against

external aggression and internal disturbance

Article 355 imposes an obligation on the centre to ensure that the government
of every state is carried on in accordance with the provisions of the constitution.
This power of the president to ensure that the government is functioning in
accordance with the constitution basically depends upon the report of the
governor. If he writes to the president that the government is not functioning
according to the principles laid down under the constitution, president then
takes action under article 356.
ARTICLE 356: Provisions in case of failure of constitutional
machinery in states

The President is empowered to issue a proclamation, if he is satisfied (on the

basis of report of the Governor) that the government of the State cannot be
carried on in accordance with the provisions of the Constitution.

Once a proclamation is made, he assumes to himself, the functions of the

Government of the State and declares that thepowers of the legislature of the
State shall vest in Parliament.

These powers, however, do not include the powers relating to High Courts.

Article 356 is read with the other relevant articles, viz. Articles 256, 257, 355
and 365.

Article 355 also speaks of the duty to the union to protect the state against
external aggression and internal disturbance and to ensure that the government
of the state is carried on in accordance with the constitution; it is obvious that
Article 356 is not the only one to take care of the situation of failure of
constitutional machinery. The union can also act under Article 355, i.e. without
imposing President's Rule. Article 355 can stand on its own. Also, the union
Government can issue certain directions under Articles 256 and 257.

The scheme of the constitution clearly suggests that before rushing to issuing a
proclamation under Article 356, all other possible avenues should be explored.

It should first be ensured that the Union had done all that it could in discharge
of its duty under Article 355, that it had issued the necessary directions under
Article 256 and 257, and that the state had failed to comply with or give effect to
the directions.

ARTICLE 357 - Exercise of legislative powers under

Proclamation issued under article 356.
When by a proclamation under 356(1) it has been declared that the powers of
the Legislature of the State shall be exercisable by or under the authority of
Parliament then:

a) Parliament can give President the power of the Legislature of the State to
make laws, and the President can delegate that power to any other authority he
specifies

b) The Parliament or the President or the other authority to whom this power is
given as in the point (a) above to whom can make laws conferring powers and
imposing duties, or authorising the conferring of powers and the imposition of
duties, upon the Union or officers and authorities.
c) The President can authorise when the House of the People is not in session
expenditure from the Consolidated Fund of the State pending the sanction of
such expenditure by Parliament.

Any law made in exercise of the power of the Legislature of the State by
Parliament or the President or other authority referred above will continue to be
in force even after the Proclamation has ceased to operate until altered or
repealed or amended by a competent Legislature or other authority.

Unless revoked, a proclamation so approved ceases to operate on the expiry of

six months from the date of issue of the proclamation, it is also provided that a
resolution to continue a proclamation in force for any period beyond a year from
the date of issue of such proclamation cannot be passed by either House of
Parliament unless:

a. A proclamation of emergency is in operation, in the whole of India or, as the

case may be, in the whole or any part of the State, at the time of passing of
such resolution, and

b. the Election Commission certifies that the continuance in force of the

proclamation, approved under Article 356 during the period specified in such
resolution, is necessary on account of difficulties in holding general elections to
the Legislative Assembly of the State concerned.

SATISFACTION OF THE PRESIDENT VIS-À VIS

JUDICIAL REVIEW
The President can declare a state of emergency by issuing a proclamation
whenever he is "satisfied", of course, on the aid and advice of the Council of
Ministers that "grave emergency" exists, whereby the security of the nation is
threatened. [Art. 352]

Thus, the satisfaction of the President is the satisfaction of the Council of

Ministers based on the decision of the Cabinet.

The President need not call a session of Parliament.

MINERVA MILLS LTD. V UNION OF INDIA (1980)

In an important decision of the Supreme Court in Minerva Mills Ltd. v. Union of

India, Bhagwati J, while delivering the minority judgment, declared that a
proclamation of emergency is not completely out of the court's jurisdiction.
Of course, the subjective satisfaction of the President regarding the necessity
of declaring emergency is not open to scrutiny. However, if the satisfaction is
mala fide or is based on wholly extraneous and irrelevant grounds, the court
would have the jurisdiction to go into the matter. Similar is the case with Article
356 of the Constitution.

S.R. BOMMAI V UNION OF INDIA (1994)

In S.R. Bommai v. Union of India, a nine-judge Bench of the Supreme Court

dealt with the question of imposing President's rule in a State comprehensively.

The court has given illustrations of situations under which the power under
Article 356 can be exercised by the President.

Article 356 of the Constitution confers extraordinary powers on the President.

The President's power under this article should be used very sparingly and only
when a President is fully satisfied that a situation has arisen, where the
government of the State cannot be carried on in accordance with the provisions
of the Constitution.

The Court held that, Resort to Article 356(1) should be only as a last measure
and before this article is brought into operation, the President would take proper
precaution.

Except in situations where urgent steps are imperative and exercise of drastic
powers under this article cannot be delayed, the President should use all
measures to restore the constitutional machinery in the state.

The exercise of the power under Article 356 is an extraordinary one and need
to be used sparingly when the situation contemplated by Article 356 warrants to
maintain democratic form of government and to present a political process,
single or individual acts of violation of the constitution for good, bad or
indifferent administration does not necessarily constitute failure of the
constitutional machinery or characteristics that a situation has arisen in which
the Government of the State cannot be carried on in accordance with the
provisions of the constitution.

The exercise of power under Article 356 should under no circumstances be

used for political gain to the party in power in the Union Government.

It should be used sparingly and with the circumspection that the government of
the state function with responsibility in accordance with the provisions of the
constitution.
The following propositions have been laid down by the Supreme Court with
respect to Article 356:

1. Presidential proclamation dissolving a State Legislative Assembly is subject

to judicial review.

2. The burden lies on the Government of India to prove that relevant material
existed to justify proclamation.

3. Courts would not go into the correctness of the material.

4. If the court strikes down the proclamation, it has power to restore the
dismissed State Government to office.

5. A State Government pursuing anti-secular politics is liable to action under

Article 356 of the Constitution.

RAMESHWAR PRASAD V UNION OF INDIA (2006)

In this case, the imposition of President's rule in the State of Bihar was
challenged by the elected members of the dissolved Assembly.

In Bihar, after the declaration of election result to the Legislative Assembly, it

was found that no political party won a clear majority so as to form the
government. Cases of horse trading and allurement given to members of
legislative assembly to secure majority, were reported.

In these circumstances, the President notified the dissolution of the suspended

assembly.

The dissolution was invalidated by the supreme court without consequent relief
of reviving because notification for elections was already issued.

Supreme Court held that when the Governor recommends dissolution of

assembly, he should annex relevant documents substantiating his decision.

The majority in this case seems to have desired the restricted use of article 356
to exceptional cases.

ARTICLE 360: PROVISIONS AS TO FINANCIAL

EMERGENCY
It states that if the President is satisfied that a situation has arisen whereby the
financial stability or credit of India (or any part thereof) is threatened, he may,
by a proclamation, make a declaration to that effect.
It was formerly provided that the satisfaction of the President on this point was
to be final and conclusive, and could not be questioned in any court on any
ground. It was further provided that neither the Supreme Court nor any other
court had the jurisdiction to go into the validity:

[Link] such a proclamation of the President;

[Link] the continued operation of such a proclamation.

The provision was, however, deleted by the 44th Amendment, 1978

or

Such a proclamation may be revoked or varied by a subsequent proclamation.

It is also to be laid before each House of Parliament.

It ceases to operate at the expiry of two months, unless, before the expiry of
that period, it has been approved by resolutions of both Houses of Parliament,

However, if any such proclamation is issued at a time when the House of the
People has been dissolved, or if the dissolution of the House of the People
takes place during the period of two months referred to above, and if a
resolution approving the proclamation has been passed by the Council of
States, but no resolution with respect to such proclamation has been passed by
the House of the People before the expiry of that period, the proclamation
ceases to operate at the expiry of 30 days from the date on which the House of
the People first sits after its reconstitution, unless, before the expiry of this
period of 30 days, a resolution approving the proclamation has also been:
passed by the House of the People.

Article 360 also mentions the effects of a proclamation of emergency in case of

financial stringency. - While a proclamation of emergency (declared owing to
financial stringency) is opera, the executive authority of the Union extends to
giving directions to any State to observe such canons of financial propriety as
may be specified in the directions. Any such direction may include:

1. a provision requiring the reduction of salaries and allowances of persons

serving a State, as also of persons serving the Union (including High Courts'
and Supreme Court's judges);

2. a provision requiring all Money Bills to be served for consideration of the

President after they are passed by the legislature of a State.
RECOMMENDATIONS OF THE SARKARIA
COMMISSION (1983)
The Sarkaria Commission made the following recommendations regarding
Emergency:

1. The commission was not in favour of deletion of Article 356.

2. The Commission recommended, in the spirit of the framers of the

Constitution, that Article 356 must be used sparingly and only as a remedy of
the last resort and after exhausting action under other Articles like Articles 256,
257 and 355.

3. In case of political breakdown, the Commission recommended that before

issuing a proclamation under Article 356, the State concerned should be given
an opportunity to explain its position and redress the situation, unless the
situation is such that following the above course would not be in the interest of
security of the State, or defence of the country, or for other reasons
necessitating urgent action.

4. The Commission recommended that the question whether the Ministry in a

State has lost the confidence of the Legislative Assembly or not, should be
decided only on the floor of the Assembly and nowhere else. If necessary, the
Union Government should take the required steps to enable the Legislative
Assembly to meet and freely transact its business. The Governor should not be
allowed to dismiss the Ministry so long as it enjoys the confidence of the
House. According to the Sarkaria Commission, "the President's rule should be
imposed, based on the Governor's report", which itself should be a speaking
document.

5. The Commission recommended that normally the President's rule in a State

should be proclaimed on the basis of the Governor's report under Article
356(1). The Governor's report should be a "speaking document" containing a
precise and clear statement of all material facts and grounds on the basis of
which the President may satisfy himself as to the existence or otherwise of the
situation contemplated in Article 356.

6. The Commission recommends that in clause (5) of Article 356 of the

Constitution, in sub-clause (a), the word "and" occurring at the end should be
substituted by "or" so that even without the State being under a proclamation of
emergency, the President's rule may be continued if elections cannot be held.

7. Article 356 should be amended to ensure that the State Legislative Assembly
is not dissolved either by the Governor or the President before the proclamation
issued under Article 356(1) has been laid before Parliament, and it has had the
opportunity to consider it.

******************************************************************************************
Temporary, Transitional and Special Provisions.

Part XXI of Constitution (Article 369-392)

The said provision were always meant to be a temporary provision. The union
government has revoked the 'special status" granted to Jammu and Kashmir by
the Constitution. However, a range of "special provisions" for as many as 11
other states continue to be part of the Constitution.

All these provisions take into account the special circumstances of individual
states, and lay down a wide range of specific safeguards that are deemed
important for these states.

Article 369 - Temporary power to Parliament to make

laws with respect to certain matters in the State List as
if they were matters in the Concurrent List. -
For 5 years after commencement of Constitution parliament can. make laws in
certain matters i.e.

(a) trade and commerce within a State in, and the production, supply and
distribution of, cotton andwoollen textiles, raw cotton (including ginned cotton
and unginned cotton kapas), cotton seed, paper (including newsprint), food
stuffs (including edible oilseeds and oil), cattle fodder (including oil cakes and
other concentrates), coal (including coke and derivatives of coal), iron, steel
and mica;

(b) offences against laws with respect to any of the matters mentioned in clause
(a), jurisdiction and powers of all courts except the Supreme Court with respect
to any of those matters, and fees in respect of any of those matters but not
including fees taken in any court;

Article 370 - Temporary provisions with respect to the

State of Jammu and Kashmir
Under this article State of J&K enjoyed a special status because of certain
commitments made by Govt. of India to the rulers of J&K in the past.
After the state constituent assembly was convened, it recommended the
provisions of the Indian constitution that should apply to the state, based on
which 1954 Presidential Order was issued. Since the state constituent
assembly dissolved itself without recommending the abrogation of Article 370,
the article was deemed to have become a permanent feature of the Indian
Constitution. On 5 August 2019, the Government of India issued a Presidential
Order superseding the 1954 order, and making all the provisions of the Indian
constitution applicable to Jammu and Kashmir. The order was based on the
resolution passed in both houses of India's parliament with two-thirds majority.

The Jammu and Kashmir Reorganisation Act, 2019 was passed by the
parliament, enacting the division of the state of Jammu and Kashmir into two
union territories to be called Union Territory of Jammu and Kashmir and
Union Territory of Ladakh.

Special Provisions for various states

Article 371 Maharashtra and Gujarat

The Governor has a "special responsibility”

• To establish "separate development boards" for "Vidarbha, Marathwada, and

the rest of Maharashtra", and Saurashtra and Kutch in Gujarat;

• To ensure "equitable allocation of funds for developmental expenditure over

the said areas", and "equitablearrangement providing adequate facilities for
technical education and vocational training, and adequate opportunities for
employment" under the state government.

Article 371 A-Nagaland

• Parliament cannot legislate in matters of Naga religion or social practices, the
Naga customary law and procedure, administration of civil and criminal justice
involving decisions according to Naga customary law. Parliament also cannot
intervene in ownership and transfer of land and its resources, without the
concurrence of the Legislative Assembly of the state.

This provision was inserted in the Constitution after a 16-point agreement

between the Centre and the Naga People's Convention in 1960, which led to
the creation of Nagaland in 1963. Also, there is a provision for a 35-member
Regional Council for Tuensang district, which elects the Tuensang members in
the Assembly. A member from the Tuensang district is Minister for Tuensang
Affairs. The Governor has the final say on all Tuensang-related matters.
Article 371 B- Assam
The President of India may provide for the constitution and functions of a
committee of the state Assembly consisting of members elected from the tribal
areas of the state.

Article 371 C-Manipur

• The President of India may provide for the constitution and functions of a
committee of elected members from the Hill areas of the state in Assembly, and
entrust "special responsibility to the Governor to ensure its proper functioning.
The Governor has to file a report every year on this subject to the President.

Article 371 D-Andhra Pradesh or State of Telangana

The President must ensure "equitable opportunities and facilities" in "public
employment and education to people from different parts of the state.

He may require the state government to organise "any class or classes of posts
in a civil service of, or any class or classes of civil posts under, the State into
different local cadres for different parts of the State", and allot them.

The President has similar powers vis s-à-vis admissions in any university or
state government-run educational institution. Also, he may provide for setting
up of an administrative tribunal outside the jurisdiction of the High Court to deal
with issues of appointment, allotment or promotion in state civil services.

Article 371E allows for the establishment of a university in Andhra

Pradesh by a law of Parliament. But this is not really a 'special provision in
the sense of the other provisions in this part of the Constitution

Article 371 F-Sikkim

The members of the Legislative Assembly of Sikkim shall elect the

representative of Sikkim in the House of the People. To protect the rights and
interests of various sections of the population of Sikkim, Parliament may
provide for the number of seats in the Assembly, which may be filled only by
candidates from those sections.

The Governor shall have "special responsibility for peace and for an equitable
arrangement for ensuring the social and economic advancement of different
sections of the population."

All earlier laws in territories that formed Sikkim shall continue, and any
adaptation or modification shall not be questioned in any court.
Article 371 G-Mizoram
This provision lays down that Parliament cannot make laws on "religious or
social practices of the Mizos, Mizo customary law and procedure,
administration of civil and criminal justice involving decisions according to Mizo
customary law, ownership and transfer of land... unless the Legislative
Assembly... by a resolution so decides".

Article 371 H-Arunachal Pradesh

The Governor has a special responsibility with regard to law and order, and he
shall, after consulting the Council of 1 Ministers, exercise his individual
judgment as to the action to be taken.

Should a question arise over whether a particular matter is one in which the
Governor is "required to act in the exercise of his individual judgment, the
decision of the Governor in his discretion shall be final", and "shall not be called
in question."

Article 3711-Goa
The Legislative Assembly of the State of Goa shall consist of not less than thirty
members.

Article 371J-Karnataka.
There is a provision for the establishment of a separate development board for
the Hyderabad-Karnataka region, the working of which will be reported annually
to the Assembly. There shall be "equitable allocation of funds for
developmental expenditure over the said region", and "equitable opportunities
and facilities" for people of this region in government jobs and education.

An order can be made to provide for reservation of a proportion of seats and

jobs in educational and vocational training institutions and state government
organisations respectively in the Hyderabad-Karnataka region for individuals
who belong to that region by birth or domicile.
Articles 372-378A
Provisions for Offices President, Judges, etc. These were mostly introduced for
continuation of "Rule of Law" from) British Raj to Indian Govt.

Articles 379-391B
Repealed-Replaced by the Constitution (Seventh Amendment) Act, 1956

Articles 392- Power of the President to remove

difficulties

*****************************************************************************************

Election Commission of India

The Election Commission is a body which is responsible for making sure and
conducting free and fair elections in the country.

The Election Commission also has an important duty of advising the President
and the governors in the matter of disqualification of sitting members of
Parliament and of State legislatures, on all grounds other than the ground of
defection (Arts 103 and 192).

Provisions

324 Superintendence, direction and control

of elections to be vested in election
commission. Composition of Election
Commission.
325 No person to be ineligible for inclusion
in, or to claim to be included in a
special, electoral roll, on grounds of
religion, race, caste or sex.
326 Provides for Elections to be on the
basis of Adult Suffrage
327 Power of Parliament to make provision
with respect to elections to legislature.
328 Power of Legislature of a State to
make provision with respect to
elections to such Legislature.
329 Bar to interference by courts in
electoral matters.

PROVISIONS IN DETAIL (with Case Laws)

ARTICLE 324: POWER OF SUPERINTENDENCE, DIRECTION
AND CONTROL TO VEST IN ELECTION COMMISSION

Election Commission shall have the superintendence, direction and control

of the preparation of the electoral rolls for all elections to Parliament,
State Legislature, President and Vice-President.

Chief Election Commissioners (CEC) is appointed by the President, Regional

Commissioners may also be appointed by President in consultation with CEC,
Regional commissioner can't be removed also without consultation with CEC.

CEC is Chairperson of Election Commission.

Removal of CEC shall be based on like grounds as that of the Judge of the
Supreme Court provided under Article 124(4) & Conditions of service shall not
be varied to his disadvantage after his appointment.

Duty imposed on the President or Governor to provide staff for the disposal of
Functions of the Election Commission.

Mohinder Singh Gill v. Chief Election Commissioner

(1978)
The Election Commission has to conform to the principles of natural justice and
rule of law, but, in certain cases, the application of rules depends upon
circumstances and cannot be generalised.

If, in a case, hearing has been given to a candidate before taking a decision, it
is sufficient to meet the ends of justice and it is not necessary that notice should
be given to all members of the public.
A.C. Jose v. Sivan Pillai (1984)
Three-judge Bench of the Supreme Court elaborated the legal and
constitutional position regarding the conduct of elections as follows:

1. When there is no parliamentary legislation or rule, the Commission is free to

pass any orders in respect of the conduct of elections.

2. Where there is an Act and express rules made thereunder, the Commission
cannot override the Act or the rules and pass orders in direct disobedience to
the mandate contained in the Act or the rules

3. Where a particular direction by the Commission is submitted to the

government for approval, as required by the rules, it is not open to the
Commission to go ahead with the implementation until the approval of the
government is not given.

S.S Dhanoa v. Union Of India (1991)

In October 1989, the President notified that besides CEC, the Commission
should have two other members called "Election Commissioners with
coordinate powers.

On 1 January 1990, the President revoked his notification of 1989 as a result of

which the two ECS, who had been appointed, lost their office as ECs. 55
Dhanoa was one of them Shri Dhanoa challenged this decision of the President
before the Supreme Court, contending, inter alia, that, once appointed, an
election commissioner continues in office for his full tenure as determined by
rules under art 324 and that the President had no power to cut short the tenure
so fixed The Supreme Court rejected the petition under Article 324 on the
following basis:

1. The creation and abolition of posts is a prerogative of the executive and

Article 324 empowers the President to fix and appoint such number of ECs as
he may, from time to time, determine. Hence, the abolition of the post of ECS
gave rise to no cause of action.

2. While it was obligatory to appoint the CEC, the appointment of other ECs or
Regional Commissioners is left by the Constitution to the discretion of the
President.

T.N. Seshan (CEC) v. Union Of India (1995)

Parliament enacted the Chief Election Commissioner and other Election
Commissioners (Conditions of Service) Act 1991.
The validity of this Act regarding the status, power and authority of two ECs in
comparison with the CEC, whereby the two were equated, was challenged in
this case. The CEC, Mr T.N. Seshan challenged the constitutionality of the Act
on the ground that it was arbitrary, unconstitutional and void.

The Supreme Court, dismissing the above petitions, held that the scheme of art
324 is that the Election Commission can either be a single member body or a
multi-member body, if the President considers it necessary to appoint one or
more election commissioners. The argument that a multi-member Election
Commission would be unworkable and should not, therefore, be appointed
could not be accepted.

The court, in this case, observed that nobody can be above the institutions
which he is supposed to serve. He is merely the creature of the institution; he
can exist only if the institution exists. To project the creatures of the institution
mightier than the institution would be a grave injustice.

Common Cause Reg. Society v. Union of India and Ors

(1996)
The expression "conduct of election in art 324 of the Constitution is wide
enough to include in its sweep, the power of the Election Commission, to issue
in the process of the conduct of elections, directions to the effect that the
political parties shall submit to the Commission for its scrutiny, the details of the
expenditure incurred or authorised by the political parties in connection with the
election of their respective candidates.

Union of India v. Association for Democratic Reforms

(2002)
It was stated in this case that Article 324 operates in areas left unoccupied by
legislation. The power of the Election Commission is plenary in character and in
exercise thereof, it can cope with situations where the field is unoccupied by
issuing necessary orders.

The Election Commission, therefore, can ask the candidates contesting

elections to furnish information regarding their assets, educational
qualifications, and antecedents of the of the candidate-whether he was involved
in a criminal case and if the case is decided, its result, if pending, whether the
charge is framed or cognizance taken by court.

Incorporating the above directions, an amendment was made in the

Representation of the People Act, 1951 in 2002, but it was invalidated in
People's Union for Civil Liberties v Union of India (2003)
Thus, The Election Commission can make all necessary provisions for
conducting free and fair elections.

Special Reference No.1 of 2002

In Special Reference No. 1 of 2002, re, the President referred under Article 143
an important question regarding interpretation of Article 174 and Article 324 of
the Constitution.

Article 174 confers on the government the power to dissolve the State
Legislative Assembly as it deems fit. However, six months should not intervene
between its last sitting in one session and the date appointed for its first sitting
in the next session, meaning thereby, that if a Legislative Assembly is
dissolved, election must be held.

Article 324 vests the Election Commission the power of superintendence,

direction and control of the preparation of electoral rolls for, and the conduct of
election to Parliament and Legislature (State Legislative Assembly and State
Legislative Council) of every State and to the offices of the President and the
Vice President.

The questions which were referred to the Supreme Court were:

a. Whether Article 174 is subject to the decision of the Election Commission

under Article 324?

b. Whether the Election Commission can declare an election schedule which

violates Article 174?

c. Whether the mandate of Article 174 to hold elections will be fulfilled by

holding of elections by the Commission under Article 324?

The Supreme Court rejected the contention of the Gujarat Government that
Article 174 mandates that not more than six months shall lapse between two
sittings of an elected Assembly, and held that Article 174(1) does not apply to a
"dissolved" Assembly but is applicable to "live" Assembly.

The court held that holding of an election is the exclusive domain of the
Election Commission under Article 324 of the Constitution.

Regarding whether Article 174 would yield to Article 324, the court observed
that Articles 174(1) and 324 operate in different fields and none is subject to the
other.
The court further added that on premature dissolution of an i Assembly, the
Election Commission is required to initiate immediate steps for holding
elections for constituting the Assembly on the first occasion and in any case
within six months from the date of premature dissolution of the Assembly.

The court also stated that ordinarily, the law and order or public order should
not be the occasion for postponing the election, and it would be the duty and
responsibility of all concerned to render all assistance and cooperation to the
Election Commission for holding free and fair elections.

DMDK v. Election Commission Of India (2012)

It was explained in DMDK v. Election Commission of India that the expression
"election" in Article 324 is used in a wide sense and makes the Election
Commission a special authority to lay down norms for conduct of elections.

Therefore, the Election Commission cannot be equated with other authorities

whose power to make law has to be i interpreted in a strict sense. The Election
Commission was competent to promulgate provisions of the Election Symbols
(Reservation and Allotment) Order, 1968, which bring into effect a poll
performance-based criterion for grant of recognition/allotment of symbols to
political parties.

ARTICLE 325: NO PERSON TO BE ELIGIBLE FOR INCLUSION

IN, OR TO CLAIM TO BE INCLUDED IN A SPECIAL,
ELECTORAL-ROLL ON GROUNDS OF RELIGION, RACE,
CASTE OR SEX

"There shall be one general electoral roll for every territorial constituency for
election to either House of Parliament or to the House or either House of the
Legislature of a State and no person shall be ineligible for inclusion in any such
roll or claim to be included in any special electoral roll for any such constituency
on grounds only of religion, race, caste, sex or any of them."

It ensures political equality to all citizens of India.

There is no scope for communal electoral rolls or rolls that discriminate on the
basis of religion, race, caste of sex.

Disregarding these differences, all are equally entitled to be included in the

same electoral role.

Emphasising its importance in R.C. Poudyal v. Union of India, (AIR 1993 SC

1804), the court has held that it is crucial for maintaining the secular character
of the Constitution." Any contravention of this provision shall have adverse
impact on the secular character of the Republic which is a basic feature of the
Constitution.

ARTICLE 326: ELECTIONS TO THE HOUSE OF THE

PEOPLE AND TO THE LEGISLATIVE ASSEMBLIES OF
STATES TO BE ON THE BASIS OF ADULT SUFFRAGE

This article establishes Adult Suffrage for elections to the House of the People
(Lok Sabha) and to the Legislative Assembly of every State.

"The elections to the House of the People and to the Legislative Assembly of
every State shall be on the basis of adult suffrage; that is to say, every person
who is a citizen of India and who is not less than eighteen years (changed by
61st Amendment,1988, before that it was 2 on such date r age on as 21 years
of age) of as may be fixed in that behalf by or under y any law made by the
appropriate Legislature and is not otherwise disqualified under this Constitution
or any law made by the appropriate Legislature on the ground of non-
residence, unsoundness of mind, crime or corrupt or illegal practice, shall be
entitled to be registered as a voter at any such election.”

This provision is one of the most important pillars of the Constitution which
ensures democracy and social change.

ARTICLE 327: POWER OF PARLIAMENT TO MAKE PROVISION

WITH RESPECT TO ELECTIONS TO LEGISLATURE

"Subject to the provisions of this Constitution, Parliament may from time to time
by law make provision with respect to all matters relating to, or in connection
with, elections to either House of Parliament or to the House or either House of
the Legislature of a State including the preparation of electoral rolls, the
delimitation of constituencies and all other matters necessary for securing the
due constitution of such House or Houses".

Article 327 contemplates legislation by Parliament with respect to all matters

relating to or in connection with election to either House of Parliament or to the
State Legislatures, including laws relating to the preparation of electoral rolls
and the delimitation of constituencies or other connected matters.

In exercise of the power conferred by this article, the Indian Parliament has
enacted the RPAS, 1950 and 1951. The Preamble of the Delimitation Act, 2002
shows that it is an Act to provide for the readjustment of the allocation of seats
in the House of the People to the States, the total) number of seats in the
Legislative Assembly of each State, the division of each State into territorial
constituences for elections to the House of the People and Legislative
Assemblies of the States and for matters connected therewith.

Article 82 only foreshadows those readjustments may be necessary upon

completion of each census, but Article 327 gives power to Parliament to make
elaborate provision for such readjustment, including delimitation of
constituencies and all other matters connected therewith as also elections has
to either House of Parliament.

328: POWER OF LEGISLATURE OF A STATE TO MAKE

PROVISION WITH RESPECT TO ELECTION TO SUCH
LEGISLATURE
"Subject to the provisions of this Constitution and in so far as provision in that
behalf is not made by Parliament, the Legislature of a State may from time to
time by law make provision with respect to all matters relating to, or in
connection with, the elections to the House or either House of the Legislature of
the State including the preparation of electoral rolls and all other matters
necessary for securing the due constitution of such House or Houses.”

ARTICLE 329: BAR TO INTERFERE BY COURTS IN

ELECTORAL MATTERS

(a) the validity of any law relating to the delimitation of constituencies or the
allotment of seats to such constituencies, made or purporting to be made under
article 327 or article 328, shall not be called in question in any court;

(b) No election to either House of Parliament or to the House or either House of

the Legislature of a State shall be called in question except by an election
petition presented to such authority and in such manner as may be provided for
by or under any law made by the appropriate Legislature.

Clause (a) enacts those laws relating to delimitation of constituencies or the

allotment of seats cannot be challenged in a court of law.

Clause (b) excludes the jurisdiction of the courts to entertain any matter relating
to election disputes Elections can be challenged only in the manner laid down
in law made by the appropriate legislature.

In pursuance of clause (b) of Article 329, Parliament has enacted the RPA,
1951.
Part VI of the Act deals with election disputes. Election petitions are triable by
the High Courts, as provided in the Representation of the People (Amendment)
Act, 1966.

No other court can decide election disputes. The word "election" has been used
in Article 329 as well as in other provisions of Part XV of the Constitution in the
wide sense, that is to say, to connote the entire procedure to be gone through
to return a candidate to the legislature. Rejection or acceptance of nomination
papers is included in the term "election".

But preparation of electoral roll is not "election" within the meaning of Article
329(b).