INDIAN CONSTITUTION

Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic

structure.

Written v unwritten

Written Unwritten

Provisions have been codified into a single legal doc Not so the case

Enacted on a particular date Evolves with time

Constitution is supreme Parliament is supreme i.e. laws made by parliament

supersedes all previous laws

Judiciary enjoys wide powers Judiciary enjoys limited powers i.e. it can review actions

of E, but not of L

Can be rigid, flexible or a combination of both i.e. can be

amended but more than 1 body involved

Flexible

Clear distinction b/w nal & other laws No such distinction

Can be unitary or federal Necessarily unitary

Historical background

The Company Rule (1773 1858)

Regulating Act, 1773

1. Governor of Bengal was designated GG of Bengal. An executive council of 4 was created to assist him. 1st such

GG was Warren Hastings. Governors of Bombay and Madras were made subordinate to GG of Bengal.

2. It provided for SC at Calcutta, which was established in 1774.

3. Servants of company were prohibited to engage in any private trade.

4. Court of directors were now to report on its revenue, civil and military affairs in India.

Pitts India Act, 1784

1. CoDs could manage commercial affairs, but political affairs were to be controlled by BoC (6 commissioners for

the affairs of India, including 2 cabinet ministers). Thus it established double govt. BoC could supervise and

control all operations of military and civil govt and revenues of possessions in India (was referred as 1st

time).

2. Govt of India was placed in the hands of Governor-General (G-G) and a council of 3. G-G could have his way

by getting support of even 1 member. Later in 1786 G-G was given the authority to overrule the council in

important matters.

3. Bombay and Madras presidencies were subordinated to Bengal in all questions of war, diplomacy and

revenues.

4. The company was allowed to retain its monopoly of Indian and Chinese trade. And its directors retained the

profitable right of appointing and dismissing officials in India. Moreover, the GoI was to carried out through

them.

Significance

1. It brought companys affairs and administration under the supreme control of govt. A new phase of

conquest of India began. India was made to serve all sections of the ruling classes of Britain.

Charter Act, 1833

1. GG of Bengal was made GG of India (William Bentick), and was given all civil and military powers. Thus for 1st

time govt having authority over entire area possessed by India was created.

2. GG of India was given exclusive legislative powers. Bombay and Madras governors were deprived of their

legislative powers. Now laws were called Acts (earlier regulations)

3. EIC ended as a commercial body, and became a purely administrative body. territories in India were held by

company in trust for his majesty.

4. It ended the companys monopoly of tea trade and trade with China. Debt of the company was taken over by

the govt of India. The govt continued to be run by the company under the strict control of BoC.

5. Introduced a system of open competition for civil servants. But was negated.

6. Later, not by the act, the supreme authority was delegated to Governor-general-in-council. G-G having the

veto power became the de-facto ruler of India.

Charter Act, 1853

1. Legislative and executive functions of GG council were separated for the 1st time. A separate GGs legislative

council, later known as Indian (Central) legislative council was established. Also local representation was

introduced for the 1st time, and 6 new members were added to this, 4 of whom were appointed from provinces

of Madras, Bombay, Bengal and Agra.

2. Open competition for civil services

3. It extended companys rule to retain Indian territories in trust of crown, but did not provide a time

The Crown Rule (1858 1947)

GoI Act 1858

Provisions

1. It transferred the power to govern Indian from EIC to crown. Earlier directors of EIC and BoC had the power,

now power was given to Secretary of State (SoS) aided by a council. SoS was a member a cabinet.

2. Govt was to be carried as before by GG. It changed the designation of GG of India to Viceroy of India. Lord

Canning was the 1st viceroy. Viceroy would have an Executive council. Members would head different

department and act as advisors. Decision would be taken by majority vote, but the viceroy could overrule on

important matters.

3. Thus it ended double govt by abolishing BoC and CoD

Significance

1. With time viceroy was subordinated, and SoS controlled even the minutest details. Further SoS was

responsible to the parliament. So being controlled directly from London, Indian opinion had even less impact

on govt policy

2. industrialists, merchants, and bankers increased their influence over govt. Thus now even the pretence of

liberalism was given up.

Indian Councils Act 1861

Provisions

1. GGs council was enlarged for making laws. In this capacity it was known as Imperial Legislative Council.

However it possessed no real powers and was merely an advisory body. Any important measures had to be

discussed with prior approval of govt. It could not discuss financial or administrative matters, and had no

control over the budget. A bill had to approved by GG, and could be vetoed by the SoS.

2. It made beginning of representative institutions by associating Indians with the law making process. Viceroy

was authorised to add 6-12 members to his executive council, atleast half of which had to be non-officials,

or Indian. Thus it allowed the viceroy to add some non-official Indian members

3. It initiated the process of decentralisation by restoring legislative powers to Bombay and Madras. This policy

led to almost complete provincial autonomy by 1937

4. New LCs were established for Bengal, NWFP and Punjab

5. Portfolio system of lord canning was recognised

6. It empowered the viceroy to issue ordinances without the concurrence of lLC

Significance

1. With no real powers, Imperial legislative council was to do official work only and to give the appearance of

important matters having been passed by a legislative body.

2. Non-official Indian members were few in number, nominated by the GG, which mostly comprised princes,

zamindars, merchants, and were unrepresentative of the Indian people

Indian Councils Act / Lord Cross' Act, 1892

1. Number of additional (non-official) members in Imperial Legislative Council (ILC) and Provincial Legislative

Councils (PC) were increased, but official majority was maintained.

2. Budget could be voted upon and questions could be asked now.

3. Act provided for indirect election for non-official seats for the 1st time. However word election was not used.

It provided for nomination of some non-official members of (a) ILC by viceroy on recommendation of PLCs and

Bengal Chamber of Commerce (b) PLCs by governor on recommendation of local bodies

Indian Councils Act / Morley-Minto Reforms, 1909

Provisions

1. Number of elected members were increased in ILC and PLCs. It retained official majority in ILC, but allowed

PLCs to have non-official majority

2. Most of elected members were elected indirectly by PCs in case of ILC, and by municipal committees and

district boards in case of PCs. Some elected seats were reserved for landlords and capitalists. The reformed

council was still an advisory body.

3. Separate electorates were introduced, in which Muslims were grouped together in separate constituencies

from which Muslim alone could be elected. This became a potent factor in rise of communalism.

4. Powers of legislatures were enlarged. Now it could pass resolutions, ask questions and vote on separate items

in the budget

5. 1 Indian was to be appointed to the viceroys EC (Satyendra Sinha was the 1st in 1909)

GoI Act / Montagu-Chelmsford Reforms, 1919

Provisions at provincial level

1. Executive

a. Dyarchy It was rule by 2 i.e. the EC of governor and the ministers. Some subjects, like finance and

L&O, were called reserved and remained under direct control of governor and his EC. Others such as

education, health, LSG were called transferred and were controlled by ministers responsible to

legislatures. However in case of failure of nal machinery governor could take control of transferred

subjects. SoS and GG could interfere in reserved, but restrictively in transferred

2. Legislature

a. Provincial Legislative Councils were enlarged and majority members were to be elected

b. LCs could initiate legislation

c. Women got right to vote

Provisions at the central level

1. Executive

a. GG was to be the chief executive authority. He retained full control over reserved subjects.

b. In Viceroyss EC of 8, 3 were to be Indians

2. Legislature

a. 2 houses of Legislature (CLA, CoS) were established at the centre. However it had no control over G-G

and its EC

Significance

1. Central govt had unrestricted control over provincial govt and right to vote was severely restricted

2. INC had moved beyond such halting concessions. At its Bombay session in 1918, under Hasan Imam, it

condemned the reforms.

3. Some veteran leaders led by Surendranath Banerjee were in favour of accepting reforms, and left congress

and founded Indian Liberal Foundation. Later they were known as Liberals and played a minor role.

Simon commission report, 1930

1. It recommended abolition of dyarcy, extension of responsible govt to provinces, establishment of federation

of India and princely states, continuation of communal electorate etc.

2. To consider the recommendations 3 RTCs were held

GoI Act, 1935

Making of the

Background

1. In 1934, the idea of Constituent Assembly (CA) was put forward by MN Roy. In 1935 INC officially demanded

it to frame the of India. In 1938 JLN declared the of free India be framed. The demand was finally accepted

by govt in August Offer of 1940. Cripps came to India with a draft proposal in 1942. Finally Cabinet Missions

proposal for composition of CA was accepted.

Composition of CA

1. Seats to provinces and princely states were to be allotted in proportion of population.

2. Seats of provinces were to be decided among Muslims, Sikhs and General. Representative of each

community were to be indirectly elected by members of that community in Provincial LA. PR by STV.

3. Representatives of princely states were to be nominated by the heads.

4. Elections were held in July-Aug 1946.

Working of CA

1. CA held its 1st meeting in Dec, 1949. ML boycotted it. Dr Sachidanand Sinha was elected as the temporary

president. later Dr Rajendra Prasad and HC Mukherjee were elected as the president and vice president

2. JLN moved the Objectives Resolution in the Assembly. It laid down the fundamentals and philosophy of the

nal structure. It is a modified version of preamble of the present .

Independence Act

1. It made the CA fully sovereign which could repeal or alter any law made by parliament. CA was also given

(ordinary) legislative role, under GV Mavlankar. ML members withdrew from the CA of India.

2. In addition the CA ratified Indias membership of commonwealth, adopted national flag, anthem, and song. It

elected Rajendra Prasad as the 1st president on Jan 24, 1950.

Enactment and Commencement

1. The final draft (395 Articles, 8 schedules) was adopted by the CA on 26 Nov 1949. Some provisions pertaining

to citizenship, elections, provisional parliament, temporary provisions and short title came to effect.

2. The remaining major part came into force on Jan 26 1950, referred to as the date of commencement of the

. Date was chosen because of historical importance of being the poorna swaraj day (Jan 26 1930) following

the resolution of Lahore session (1929)

Salient Feature

Sources

1. Govt. of India Act 1935 - Administrative details, Federal System, Power of federal judiciary, Emergency power,

Public Service Commissions, Governor post

2. United Kingdom - Parliamentary form of govt, Citizenship, Law making procedure, Bicameral Legislature, Rule

of Law, Writs, CAG office

3. USA Preamble, FRs, Impeachment of SC and HC judges, Independent Judiciary, Functions of VP, JR

4. Ireland - DPSP, Nomination of RS members, Method of Presidential election

5. Canada - Federation with strong centre, Residuary powers with centre, Appointment of Governors (by centre),

Review by Supreme Court

6. Australia - Concurrent list, Freedom of trade, Joint sitting

7. Germany - Suspension of FRs during emergency

8. South Africa - Procedure for amendment, Election of members of RS

9. France Republic, fraternity in preamble

10. Russia (U.S.S.R.) - Fundamental Duties, justice in preamble

11. Japan - Procedures established by law

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 HEREBY ADOPT, ENACT AND GIVE TO

OURSELVES THIS CONSTITUTION.

PART I UNION & ITS TERRITORY

Art 1

1. It describes India, i.e. bharat, as a union of states

2. It also classifies the territory of India into state, UTs, acquired territories

Union of states

1. It signifies that, unlike a federation, India is not a result of agreement between states and no state can secede

from it.

2. Territory of India is a wider term than union of India, as union includes only the states. Thus the states are

members of federal system. UTs & acquired territories are administered directly by centre

Art 2

1. It empowers the president to admit existing states or establish new states into UoI, on such terms and

conditions as it thinks fit. The admission and establishment of states here relate to those states which are not

a part of UoI.

2. Article 3, on the other hand, relates to formation of or changes in the existing states (and UTs) of UoI. In other

words it deals with internal readjustment of the constituent states of UoI

Art 3

1. It empowers the parliament to form new states or UTs by all possible combinations of states, UTs, or both. A

part of state/UT can also be used.

2. It also empowers the parliament to alter area, boundary, name of any state

3. Bill for the purpose of above changes shall be introduced only after recommendation of president, which will

be after it has been referred to the concerned state legislature to take its views. Views are not binding. No

reference is needed in case of UTs

4. Thus India is an indestructible union of destructible states, unlike America which is indestructible union of

indestructible states

Art 4

1. Laws made u/a 2 & 3 will not be considered as a CAA

Evolution of states & UTs

Integration of princely states

1. After the integration of Hyderabad, junagarh and Kashmir, contained a 4 fold classification of states Part

A (9 erstwhile governors provinces of British India), Part B (9 erstwhile princely states with legislatures), Part

C (erstwhile chief commissioners provinces of British India & some princely states), Part D (A&N islands)

Dhar commission & JVP committee

1. Dec, 1948 - The linguistic provinces commission under SK Dhar recommended administrative convenience,

and rejected language, as the basis of reorganisation of states

2. Apr, 1949 JVP committee consisting of Nehru, Patel, Pattabhi Sitarammaya again rejected language as the

basis of reorganisation

3. Oct, 1953 Govt was forced to create the 1st linguistic state known as Andhra State

Fazl ali commission

1. The creation of Andhra state intensified the demand from other states & thus the govt created another state

reorganisation commission

2. In its report in September, 1955, it broadly accepted language as the basis of reorganisation. But rejected the

theory of one language one state. Its view was that unity of India should be given prime importance in

reorganisation.

3. By states reorganisation act, 1956 and 7th CAA, 14 states & 6 UTs were created

PART II CITIZENSHIP

2 kinds of people

1. There are 2 kinds of people citizens & aliens

2. Enemy aliens, compared to friendly aliens, do not enjoy protection against detention & arrest u/a 22

3. Following rights are given to citizens, but denied to aliens Art 15, 16, 19, 29, 30, right to vote in elections of

LS and SLA, right to become an MP/MLA/MLC, eligibility to hold office of president, VP, judge of SC and HC,

attorney and advocate general. Citizens also have certain duties. In India a naturalised citizen is eligible to the

office of president, whereas in USA he is not.

nal provisions

1. provides citizenship rights for people born before 26th Jan, 1950 & it confers unfettered power on the

parliament to bring out a legislation which will govern citizenship rights of those born on or after 26th Jan, 1950

Types of citizenship (citizenship act, 1955)

1. By birth - If one is born in India and 1 parent is Indian.

2. By descent - It covers persons born outside India, provided 1 or both parents are Indians at the time of their

birth. The birth has to be registered in embassy of India. Descent citizenship is as of right.

3. By registration - Even if parents are not Indians, one can become an Indian citizen by registration provided the

person has lived in India for 7 yrs prior to his registration. Also he should be one of the following (a) PIO (b)

Persons married to Indian citizens (c) Minor children of Indian parents (who became Indian citizens after the

childs birth.) (d) Persons whose parents are registered as citizens (e) Persons whose either parent was a

citizen. OCIs can register if they have 5 year standing with 1 year residence in India before applying.

4. By naturalization: If a person has resided in India for 12 years before applying

5. By incorporation of a territory: If India acquires some new territory then those people will be given a choice.

Loss of citizenship (citizenship act, 1955)

1. By renunciation If a person acquires citizenship of other country & renounces his Indian citizenship. In the

case every minor child also loses citizenship

2. By termination If a person voluntarily acquires citizenship of another country & does not renounce, then GoI

can terminate

3. By deprivation Central govt can terminate on certain grounds such as misrepresentation or concealment of

facts. This is applicable only to naturalized citizens (by registration, by naturalization)

Overseas Citizens of India

1. GoI appointed the LH Singhvi committee in 2000 to inquire into the matter of granting citizenship to PIOs. As

per the recommendations OCI was created in 2003 by amending the citizenship act, 1955

2. Under the scheme PIOs living in any part of the world except in Pak & Bangladesh are eligible to apply for OCI.

But OCI is also available to people other than PIOs.

Benefits

1. Can travel to India without visa, will get a travel document similar to passport.

2. Parity w.r.t. NRIs in economic, financial and educational fields

3. Property and investment in India will get domestic treatment.

Limitations

1. Can't - hold a nal office / vote / contest any election.

2. Doesn't get equality in treatment under Art 16 for public offices.

PIO OCI

Criteria (a) they held an Indian passport at some time, or (b) their

lineage can traced upto 3 generations (either of which were born in

India & were permanent resident according to GoI act, 1935). But

they should not be a citizen of Pakistan, Bangladesh, Afghan,

Bhutan, Nepal, China, SL

Criteria (a) they were eligible to become

citizens on 26th Jan, 1950 or they were

citizens on or after this date, or (b) children &

grandchildren of such parents

No registration is required if stay < 180 days No registration required at all

PIO card issued for 15 yrs (visa free travel) Lifelong visa free travel

Parity with NRIs in all economic, financial & educational fields

except for acquiring agricultural property

Same

PART III FRs

General

Significance & criticism

Theory of separation of powers

1. It was proposed by French philosopher Montesquieu. It proposed that there be 3 departments of govt (E, L, J)

which will be separated from each other. Such separation will be watertight so that (a) there is no

concentration of power within 1 organ (b) individual liberties are safeguarded.

2. US was the 1st written to adopt TSP. Since US provides for a presidential system, TSP was incorporated

fully. However the provided for doctrine of checks & balances because of which the separation was not

watertight.

3. Indian incorporates TSP explicitly u/a 50 & implicitly under part V & VI. To implement Art 50 govt enacted

the CrPC 1973 which separated the E from J by taking away the judicial powers of district magistrate. However

since Indian provides for a parliamentary system, TSP has been incorporated partially in the sense that E &

L are not separated. Further the incorporation has been modified in the sense that DofC&Bs is also there in

Indian

4. Underscoring the importance of TSP in a democratic setup, SC ruled that TSP is a part of basic structure of

Doctrine of checks & balances

1. The concept originated in the US . It means that 1 organ of the govt can exercise control over the other 2

organs to limit their power within their nal authority.

2. SC in kanadasan vs SoTN, 1996 case ruled that the Indian incorporates in itself this doctrine.

Art 12 Definition of state

Judicial review

1. JR is the powers of higher courts (SC and HCs) to declare a law unnal and void if it is inconsistent with any of

the provisions of , to the extent of such inconsistency

2. The courts while declaring a law as invalid, do not suggest improvements or alternatives. It is left to the state

to take necessary steps. JR is available against both L and E. It is applied against the states (and not individuals)

action

3. As a concept it originated under the US . JR w.r.t to FRs is conferred explicitly in Art 13(2). For other nal

provisions JR is found implicitly under the writ jurisdiction of SC and HC.

4. Conditions while applying JR (a) If a law is capable of 2 interpretations, one which validates the law and

second which invalidates it, then court will give effect to the 1st one and uphold the validity of law (b) However

if there is only 1 interpretation which clashes with the , then court will declare the law as unnal and void

(c) Ordinarily, court will not pronounce on the validity of law with pending legal enforcement (d) Ordinarily

the court shall not apply JR suo moto.

5. SC in 1973 held JR to be a part of the basic structure of the .

Amendability of FRs

Art 13(2)

1. It says the state shall make no laws that takes away or abridges one or more FRs. If done so, the law will be

declared unnal

Shankari Prasad v UoI, 1951

1. The court ruled that the legislature enjoyed 2 types of law making powers (a) ordinary L.P. under which the

legislation made is law & comes under scope of Art 13(2). (b) Constituent L.P. under which the legislation is

CAA & outside the scope of Art 13(2). Thus parliament can amend any part of the , including FRs, by way of

a CAA

2. The court maintained its progressive interpretation until the Sajjan Singh case (1965)

Golaknath v S of Punjab, 1967

1. The court overruled its earlier decisions & ruled that Art 368 only provided the procedure, and not the power,

to amend. Thus parliament enjoyed only O.L.P & cannot amend FRs

2. Moreover FRs have been given a transcendental position by the , which no authority functioning under the

can amend

24th CAA, 1971

1. Govt amended Art 13 & 368, and gave itself the power to amend the u/a 368 with the provision that

nothing under Art 13(2) shall be applicable to an amendment made u/a 368

Keshavananda bhArti v S of kerala, 1973

1. Court upheld the validity of 24th CAA & stated that parliament can amend any part of the , including FRs.

However the power is limited to the extent of not destroying the basic structure of . Basic structure can

defined as those parts of the , without which would lose its basic character.

2. SC did not define basic structure, but it has indicated it in a no of cases since 1973. It includes sovereign nature

of state, secularism, balance of powers, TSP, free and fair elections, RoL, JR etc.

42nd CAA, 1976

1. The govt responded by inserting clause 4 & 5 in Art 368, which said that a CAA cannot be challenged in any

court & amending powers of the parliament are unlimited.

Minerva mills v UoI, 1980

1. The court held clauses 4 & 5 to be unnal & void on the grounds that they took away the powers of JR &

disturbed the balance among the organs of govt, which are a part of the basic structure of .

2. So the present position is that parliament can amend any part of the without disturbing the basic structure

of . This will continue unless the court overrules its decision in keshavananda bhArti case by a bench > than

a 13 judge bench

Right to equality (Art 14-18)

Art 14

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

India.

Equality before law

1. The concept originated in England. It is a negative concept in the sense that, no special privilege will be given

to anyone in the eyes of law.

2. It includes in itself the concept of rule of law, which has the following 3 elements

a. Absence of arbitrary power, that is, no man can be punished except for the breach of law

b. Equality before law, i.e., equal subjection of all citizens (rich/poor, high/low, official/unofficial) to

ordinary law of land administered by ordinary law courts.

c. The primacy of the rights of the individual, i.e., is a result of ordinary law of the country. However

this stands modified in India where is the supreme law of the land.

d. SC held that Rule of law as embodied in Art 14 is a basic feature of the

3. Exceptions

a. Immunities conferred on President / Governor

b. No MP/MLA/MLC shall be liable for proceeding in any court for anything said or any vote given in the

legislature or any committee (Art 105 & 194)

c. Art 31-C

d. Diplomatic immunity

Equal protection of laws

1. It is a positive concept which says that people in equal circumstances be treated equally i.e. like should be

treated alike.

2. However where equals and unequals are treated differently Art 14 does not apply. While it forbids class

legislation, it permits reasonable classification of persons, objects and transactions by law. That means the

classification should be proportionate, scientific, rational (i.e. people in the group satisfy the property and not

in the group don't satisfy) and directly linked to the objective

Art 15 No discrimination

15 (1) State shall not discriminate on basis only of rrscb (race, religion, sex, colour, place of birth).

15 (2) No state or private discrimination on basis only of rrscb with regard to access or use of public places

15(3) State can make special provisions for women and children.

15(4) State can make special provisions for socially & educationally backward classes.

15(5) Reservations in educational institutions including private whether aided or unaided (except minority unaided) for

socially & educationally backward classes

1. It is available only to the citizens and not to non-citizens.

2. All reservations for women are justified on the basis of Art 15(3).

3. Art 15(4) was the 1st CA Act, 1951.

4. Art 15(5) was the 93rd CA Act, 2005. Centre enacted a law in 2006 to provide 27% quota to OBCs. SC in 2008

directed the centre to exclude creamy layer of OBCs.

Art 16 Equality of opportunity in public employment

16(1) Equality of opportunity in public employment

16(2) No discrimination on basis only of rrsb, caste, descent, residence or any of these.

16(3) Residence is a valid ground of discrimination in certain categories of public employment.

16(4) Reservation in favour of backward classes if not adequately represented

16(4A) Reservation in promotions for SCs and STs ok, which are not adequately represented in service in view of state

16(4B) Carry forward rule valid for SCs & STs even if it violates 50% principle.

16(5) A law can say that office holder of a particular religious or denominational body, or member of its governing body

should belong to the particular religion

1. It is available only to the citizens and not to non-citizens.

2. Reservation u/a 16(3) is only for a temporary period

3. 50% rule states that reservation for BCs shall not exceed 50% under any circumstances

4. Art 16(4B) was added by 81st CAA, 2000. It allowed the unfilled seats reserved for SCs and STs to be carried

forward to the next year, even if the total reservations exceeded 50%.

Indra sawhney case (Mandal commission case) 1992

1. Court clarified that 16(4) is an enabling clause & does not confer a FR on the person to demand reservation

2. The court laid down requirements for reservation social & eco backwardness, adequate representation not

given in view of state, 50% rule, creamy layer, efficiency of administration should not be affected

3. Court also held that economic backwardness in upper classes is not a ground for reservation

4. Court held that u/a 16(4) reservation was only allowed at the entry level, thus reservation in promotions are

unnal. Parliament responded by enacting 77th CAA, 1995 which inserted 16(4A). In Nagaraj case (2006) court

upheld the CAA but laid down the requirements of social & economic backwardness, adequate

representation not given, and efficiency of administration. The court insisted that the state shall provide

quantifiable date to support the 3 requirements.

Horizontal & vertical reservation

1. Vertical reservation is the 50% rule excluding reservations for women, war widows, physically challenged

2. Horizontal reservation is subdivision of section of backward classes provided the classification is reasonable.

SC is Muralidhar Rao case held that reservation of 4% of seats (out of 27%) in favour of socially & educationally

backward Muslims to be valid, as it was rational and not based on religion

Analysis of Art 16(4)

1. SC in the past has raised doubts that reservation on the basis of caste might perpetuate the caste itself. With

the ever expanding scheme of reservations we have digressed from our original objective of furthering the

equality of opportunity. Why the creamy layer doctrine is only for BCs & not for SC or STs? Unfortunately

neither the SC nor the parliament in interested in discussing that. Do we want equality of opportunity or do

we want to get rid of the caste system? If we want both we better show that the reservation policy is helping

in doing this.

Art 17 Abolition of untouchability

1. It abolished untouchability & forbids its practice in any form

2. SC has held that the right is available against individuals & it is nal obligation of state to take necessary

measures to protect this right

Art 18 Abolition of titles

18(1) State cannot confer titles on any individual

18(2) No citizen can receive titles from a foreign state. However can receive awards.

18(3) No foreigner in the service of state can receive any title w/o the permission of the president

18(4) No citizen or foreigner in the service of state can receiver present, emolument or office from a foreign state w/o

the permission of the president

1. States can recognise academic or military distinctions. Such distinctions are awards and not titles.

2. Art 18(3) is to ensure loyalty to the state.

3. Art 18 is declaratory in nature as it neither declares that violation of Art 18 is a punishable offence, nor the

parliament has enacted any law for this

Right to freedom (Art 19-22)

Art 19 The six freedoms

1(a) Freedom of speech and expression

1. According to SC it is a composite right & contains in itself other inferred rights. It confers the right to give

opinion openly & w/o fear of state or any individual. Citizen can choose any means of communication to

express his opinion. It also confers right to express opinion of others i.e. the freedom of press. It also confers

right to information, as info is required to express correctly the opinion of others & make informed choices

2. Subject to sovereignty and territorial integrity of India, public order, defamation, contempt of court, morality

or decency, security of state, friendly relations with foreign states, incitement to an offense.

1(b) Freedom of assembling peacefully and without arms

1. Subject to sovereignty and territorial integrity of India, public order.

1(c) Freedom of forming associations or unions or cooperative societies

1. Subject to sovereignty and territorial integrity of India, public order and morality

1(d) Freedom to move freely throughout the territory of India

1. Its purpose is to promote national feeling. It guarantees only internal freedom. External freedom is

guaranteed u/a 21

2. Subject to public interest and rights of STs.

1(e) Freedom to reside and settle in any part of the country

1. Residing is temporary, whereas settling is permanent. This freedom is intended to remove internal barriers

within the country. It is regarded as complimentary to the previous right.

2. Subject to public interest and rights of STs.

1(g) Freedom to practice any profession/occupation/trade/business

1. Subject to public interest, public sector monopoly and fulfilment of technical qualifications.

Art 20 Protection in respect to conviction of offences

20(1) No ex-post facto laws

1. It prohibits the legislature from enacting a retrospective criminal legislation. Punishment given will be

according to the law at that time only. However civil legislations can be given retrospective effect.

20(2) No double jeopardy

1. No person can be prosecuted & punished more than once for the same offence. This applies only in case of

judicial decisions. A person after being convicted can be punished for the same offence by a non-judicial body.

Also non-judicial bodies can punish for more than once for the same offence.

20(3) No self-incriminating evidence

1. Evidence can include medical tests, handwriting, signature etc. But tests such as brain mapping, polygraph,

narco-analysis on the accused & the witness done against their consent are unnal & void because of violation

of Art 20(3) and Art 21 (right to privacy).

Limitations

1. Protections are only available in criminal proceedings

2. A formal accusation has to be made before the person can claim such immunity.

Art 21 Protection of life & personal liberty

Nature & character of Art 21

1. It says that the state shall not deprive any individual of his life & personal liberty except according to procedure

established by law. It has undergone the greatest changes due to liberal interpretation provided by SC. It is

the right to live life with dignity & includes all such things like clean environment, health, privacy etc.

required for a dignified human existence.

2. Since the purpose of all other FRs is to extend quality of life, Art 21 implicitly contains all of them & is rightly

regarded as fundamental to all FRs. It is the backbone of part III & IV of the .

Evolution

1. In AK Gopalan v S of Madras, 1950, SC gave a narrow interpretation to liberty & said that liberty means

personal liberty (bodily liberty) & not full liberty. Further it said that Art 21 incorporated the procedure

established by law i.e. state can deprive life and liberty by means of law.

2. In Meneka Gandhi case, 1978 SC overruled its earlier decision & said that liberty cant be further qualified.

Therefore there is no difference b/w personal liberty & liberty. Further Art 21 incorporates PNJs, thus there is

no difference b/w procedure established by law & due process of law

Procedure established by law

1. This doctrine originated in the English . It means according to the usage & practise as laid down in statute.

2. When an E action is challenged, the court will apply 3 tests (a) Whether there is a law authorising E to deprive

individual of life & liberty (b) Whether the law is passed by a competent L (c) Whether the L followed the

procedure while enacting the law

3. Thus the court does not look into the motive behind the law & cannot rule it to be unnal for being oppressive.

Thus this doctrine depends of the good sense of L & strength of public opinion in the country

Due process of law

1. This doctrine originated in the US . In case an E action is challenged, apart from applying the above 3 tests,

court could look into the motive behind the law & declare it unnal for being unfair or unjust or oppressive.

Principles of natural justice

1. They are (a) No man shall be punished w/o being heard (b) No man shall be judge of his own case (c) An

authority shall act bonafide i.e. in good faith.

2. They are not mentioned in any official document, but are born out of the human ability to think & reason.

They are universal principles which seek to restrict arbitrary decision making, & to humanise & rationalise it.

3. According to SC these are the inherent principles of the

Euthanasia - Aruna Shanbugh Case 2011

1. SC in 2011 recognised for the 1st time right to die with dignity. It said that if the person is brain dead or in a

permanent vegetative state, and the doctors have lost hope of reviving him even with the most advance

medical equipment, life support systems can be withdrawn after an order from the HC, which will be given

after a bonafide & informed consent is given by the relatives.

2. However the court still held active euthanasia to be illegal, in which lethal drugs are injected to take life of the

patient. It recommended the parliament to enact a law regarding euthanasia

3. SC held sec 309 of IPC (incriminalizes suicide) to be an anachronistic law & recommended the legislature to

delete it. A person attempting suicide is in the need of help and not punishment.

4. http://www.economist.com/node/21607854/print

Santhara

1. It is a religious practise among Jains. It is a spiritual decision to abandon the body when the person feels that

life has served its purpose.

2. It has been often argued that the practise is nothing but an exercise of committing suicide. However the

supporters argue that unlike suicide which is a decision taken in haste & emotion, it is done with the full

knowledge of the person. Further it can be supported by Art 25 & 26 as well as u/a 29. So far, no law has

declared it unnal

Art 21A Right to Education

1. The state shall provide free & compulsory education to all children in the age group of 6-14 yrs in a manner as

prescribed by law.

Evolution

1. Originally the provided free & compulsory education for all children b/w 0-14 yrs u/a 45

2. SC in Unni Krishnan case, 1993 ruled that right to primary education is a FR u/a 21

3. 86th CAA, 2002 added Art 21A & 51-A(k) in the . The latter provided the 11th FD for all parents to extend

opportunities for education to their children aged b/w 6-14 yrs.

4. Right of children to free & compulsory education act, 2009 was enacted to implement Art 21(A)

RTE act, 2009 provisions & problems

a) Provisions

1. 8 yrs of elementary education to be given in an appropriate classroom in the neighbourhood

2. Admission cannot be denied for want of documents

3. State shall also ensure attendance & completion of 8 years of schooling

4. Private schools shall have 25% children from weaker sections & disadvantaged communities, whose expense

will be borne by the state

b) Problems in implementation

1. There is a lack of necessary infrastructure as well as trained teachers

2. States are against the current resource sharing formula (68:32) & are demanding full commitment from centre

3. Without providing any economic incentive, it is extremely difficult to sustain the children in school and help

them complete 8 years of schooling

4. It is said that the act is all about ensuring the right to enrolment.

Art 22 Protection against arrest & detention

If a person is arrested then he has the following rights

1. Right to be informed about the grounds of arrest

2. Right to consult & defended by a legal practitioner

3. Right to be produced before the nearest judicial magistrate in 24 hours excluding time of journey

4. Right to be released within 24 hours unless the magistrate furthers the detention

These rights are not available to enemy aliens & persons under preventive detention

Preventive detention

1. It means detention w/o trial merely on the grounds of suspicion. If not prevented the person will commit a

crime that will affect the interest of the country at large. Generally legislation regarding this is in the form of

sunset legislation

(a) Safeguards

1. A person can be detained under preventive detention only for up to 3 months. After that his case has to be

produced before an Advisory Board which shall decide if the detention is justified.

2. The person has to be informed of the grounds of his detention as soon as may be, by the detaining authority

except when it is against public interest.

3. The person must have earliest opportunity to make his case against detention

(b) Position of preventive detention in

1. Parliament has exclusive authority to make a law of preventive detention related to defence, foreign affairs &

security of India. All other matters (like public order) are in the concurrent list.

2. However no democratic country has made preventive detention as an integral part of the as has been done

by India

Right against exploitation (Art 23 & 24)

Art 23 Ban on human trafficking, begar, and similar forms of forced labour

1. Violation of the Article is a punishable offence & parliament has enacted laws for this.

2. It is available to both citizens & non-citizens

3. However state can compel both citizens and non-citizens (conscription only in case of citizens) to provide a

service in public interest. While doing so the state shall not discriminate on the basis of rrcc (race, religion,

class, caste).

Art 24 Prohibition of employment of children < 14 yrs in hazardous employment

1. The child labour (prohibition & regulation) act, 1986 declared 14 industries to be hazardous like mining,

chemical, slate, firecrackers, matchstick. And it also regulates the employment of children in non-hazardous

industries.

2. In 2009 the state banned employment of children < 14 yrs in some of the unorganized sectors like restaurants,

hotels, household industry etc.

3. In 2012 the govt proposed an amendment to the 1986 act under which employment of children < 14 yrs will

be prohibited in all industries & those b/w 14-18 yrs will be prohibited in hazardous industries. RTE act, 09 is

also expected to solve the problem of child labour.

Right to freedom of religion (Art 25-28)

Art 25 - Freedom of conscience and freedom to profess, practice and propagate a religion

Freedom of conscience

1. It is absolute inner freedom to mould ones religious beliefs w/o any external intervention.

2. It also includes freedom from religion i.e. right to be an agnostic or an atheist

Freedom to profess

1. Declaration of ones religious beliefs openly & freely

Freedom to practice

1. Performance of religious worship, rituals, ceremonies & exhibition of beliefs & ideas in the form of symbols,

colours etc.

Freedom to propagate

1. It included spreading of religious beliefs & explaining the basic tenets of ones religion

2. However it does not include the right to forcibly convert another person to ones religion, as this impinges the

on the freedom of conscience

Limitations

1. State cannot interfere with religious belief or faith, but can impose restriction on religious conduct & practise

on grounds of public order, morality, health & other provisions of part III

2. Regulations can be made by state on any secular activity which may be associated with a religious practice

3. However it is available to both citizens & non-citizens

Art 26 Freedom to manage religious affairs

It protects the collective freedom of religion. Subject to public order, morality and health, religious denominations

have the

1. Right to establish & maintain institutions for religious & charitable purposes

2. Right to manage its own affairs in matter of religion

3. Right own & acquire movable or immovable property & administer it according to the law

A religious denomination, according to SC, is

1. a collection of individuals having a system of beliefs (doctrine), a common organisation & a distinctive name

Art 27 - State shall not use public funds for the promotion and maintenance of a particular religion

1. State is prohibited from patronizing any one religion. But it can patronize all the religions without any

discrimination

2. It is said that Art 27 truly reflects the secular character of Indian state

Art 28 Religious education in schools

1. No religious education can be given in schools owned & maintained wholly by the state

2. Religious education can be imparted on a voluntary basis in schools that either receive aid or are recognised

by the state

3. Compulsory religious education can be imparted in schools established by religious endowments or charitable

trusts, but administered by the state.

Cultural & educational rights (Art 29 & 30)

Art 29 - Protection of interests of minorities

1. Any section of citizens inside India having a distinct language, script or culture of its own shall have the right

to conserve the same. This provision underlines the importance of unity in diversity

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

Art 30

1. All minorities (religious of linguistic) have right to establish & administer educational institutions of their own

choice. Thus by giving this right recognises that to safeguard the minority character of a community

establishing education institutions is necessary.

2. Art 30(1A) - The compensation given by state while acquiring their property should be such that it does not

restrict or abrogate the above right

3. While granting aid state shall not discriminate any educational institution on the grounds that it is managed

by a minority community

Minority community is recognised by the state if

1. It is a non-dominant community in general population

2. It has a distinct well established identity of its own that is clearly recognised by the society

3. It has willingness to maintain a separate identity

Rights enjoyed exclusively by minority educational institutions

1. Art 30(1A)

2. Reservations made u/a 15(5) in favour of BCs in educational institutions does not apply to unaided MEI.

3. They have the right to reserve 50% for students coming from its own community.

4. MEIs which nether seek recognition nor aid from the state, are free to following their own admission

procedure provided it is merit based & transparent

5. However if the institutions ignores the interest of their community they can be stripped of the MEI status

Saving of certain laws (Art 31A, 31B, 31C)

Art 31: Right to property

Evolution

1. Initially right to property was a FR, subject only to - (a) reasonable restrictions to serve emergencies of public

welfare (b) reasonable restrictions to serve welfare of STs. No person could be deprived of his property except

according to law and such an acquisition could be made only - (a) for public purpose and (b) after paying

compensation.

2. The court held the word 'compensation' to mean full compensation (market value) which necessitated 4th

CAA, 1955 which clearly specified that the adequacy of such compensation shall not be challengeable before

court. The govt thought it would be unviable to undertake development if every piece of land nationalised has

to be paid at the market value. But court continued to maintain an adverse position.

3. By 25th CA Act, 1971 the word 'compensation' was replaced by the word 'amount'. But in Keshavananda bhArti

case the court again held that such an amount can't be illusionary and must be determined by a principle

which is relevant to the acquisition.

4. By successive amendments changes were introduced in Art 31 A-D by the government, to exclude the

obligation of paying compensation & push its agrarian reform agenda.

a. Art 31A was amended to state that a law made for land acquisition or temporary takeover shall be

valid even if it abridges Art 14 and 19.

b. Art 31B provides for blanket immunity to enactments placed in Schedule 9. (In 2007 SC in IR Coehlo v

SofTn, held that laws under schedule 9 are open to JR if they violated Art 14, 15, 19, 21 or the basic

structure. Originally schedule 9 contained 13 acts, while in 2013 it had 282 acts)

c. Art 31C provides for immunity for any laws made to implement DPSP in Art 39B & 39C even if they

contravene Art 14 and 19. SC crippled it saying that it took away powers of JR in cases when legislation

was in contravention to Art 14 & 19. In response to this govt enacted 42nd CAA, 1976 which sought to

give a blanket immunity to all laws passed to implement any DPSP. But in Minerva Mills case, SC struck

it down.

d. Art 31D has been repealed by 43rd CA Act, 1977.

5. 44th CA Act, 1978 took out the right to property altogether from Part 3 of and placed it under Art 300A.

Exceptions

1. If the property belongs to a minority educational institution.

2. If the property is personally cultivated and doesn't exceed the statutory ceiling. (Art 31A)

In both cases above, full compensation shall be paid.

Right to constitutional remedies (Art 32-35)

Art 32 Remedies for enforcement of FRs

1. A person can go directly to SC for the enforcement of FRs

2. Further SC has the power to issue writs to enforce FRs

3. Parliament can give above powers to any other court w/o prejudicing the powers of SC

4. Right to move to SC shall not be suspended except otherwise provided by , which has provided suspension

of FRs during national emergency

Ambedkar on Art 32

1. He referred this Article as fundamental to all FRs, as without it other FRs will be without a remedy & would

be a nullity

Writ jurisdiction of SC v HC

1. SC has the duty to enforce FRs u/a 32 since the remedy itself is a FR, while HC has no such duty u/a 226

2. SC can issue writs to enforce only FRs, while HC can do this for other legal rights also

3. Thus writ jurisdiction of HC is wider in this sense, but narrower in territorial extent

Different types of writs

1. Habeas corpus It literally means to have the body of & is issued to protect the liberty of a person who is

wrongfully (by a private org) or illegally (by a public org) detained. However physical presence of detained is

not needed is all material facts relating to the case are made available to the court. Locus standi is not

applicable i.e. it can be filed by any indv/org & not necessarily by the aggrieved party

2. Mandamus It is issued when a public official or public authority has failed to discharge their duties resulting

in the violation of legal rights of the petitioner. It literally means command & order the official or authority

to do or not to do something. It cannot be issued against president or governor. Locus standi is applicable

3. Prohibition It literally means to forbid & is issued when judicial or quasi-judicial body has taken a case in

excess or absence of jurisdiction, and it prohibits them from proceeding further. Locus standi is applicable.

4. Certiorari Similar to prohibition except that it is issued after the J/Q-J body has given judgement. Purpose is

to quash the judgement if given in excess or absence of jurisdiction

5. Quo-warranto It is issued to ensure that a person holding the public office is qualified to hold it. It has an

immediate effect of removing the person. Locus standi is not available & thus it can be filed by any individual

Art 33 Armed forces & FRs

1. It empowers the parliament to restrict or abrogate FRs of members of armed forces, para-military forces,

police forces & persons employed in intelligence agencies & in relation to communication systems for these

forces, to ensure proper discharge of their duties & maintenance of discipline among them

2. Also it empowers the parliament to exclude court martials from writ jurisdiction of SC & HC in relation to FR

3. No law under this Article can be questioned in any court on grounds of contravention to FRs

Art 34 Restriction of FRs while martial law is in force

1. Parliament can indemnify any govt servant or any other person for any act done by him in relation to

maintenance or restoration of order in any area where martial law is in force. Act of indemnity cannot be

questioned on grounds of contravention to FRs

2. Also the parliament can validate any sentence passed, punishment inflicted, forfeiture ordered or other act

done under martial law in such area

Martial law

1. It means military rule i.e. a situation when the civil administration is run by military authorities

2. It is implicitly contained in this Article & has no specific provision in the

3. It suspends the FRs, govt and ordinary law courts. However SC has ruled that it does not ipso facto leads to

suspension of habeas corpus

4. It can applied to a specific area & not the whole of country

Art 35 Effecting certain FRs

1. It gives the power to give effect to certain FRs to parliament. SL are not given the power, to maintain uniformity

w.r.t those FRs

2. Parliament shall have the power to make laws regarding (a) Prescribing residence as a condition u/a 16 (b)

Empowering other courts to issue writs u/a 32 (c) Art 33 & 34

3. Parliament shall have the power & shall make laws for prescribing punishment for those acts declared to be

offences under FRs. These are (a) Art 17 (b) Art 23

4. It should be noted that this Article gives power to parliament for certain items in state list

PART IV DPSPs (Art 36-51)

Features

1. These have been borrowed from the Irish , who further borrowed it from spanish . Along with the FRs,

they contain the philosophy of the

2. They seek to establish a welfare state rather than a regulatory state & are in the form of general directions or

instruction given to the state

3. Art 37 DPSPs are non-justiciable, but they are nevertheless fundamental in the governance of the country

and it shall be the duty of the State to apply these principles in making laws

4. They constitute a very comprehensive social, economic & administrative programme for a modern democratic

state

Socialistic principles

Art 38 To promote welfare by providing social, economic and political justice & minimising inequalities

Art 39 State shall direct its policy towards securing (a) adequate means of livelihood for all (b) equitable distribution

of material resources of the community for common good (c) prevention of concentration of wealth & means of

production (d) equal pay for equal work (e) preservation of health & strength of workers & children against abuse (f)

opportunities for healthy development of children

1. 39 (b) & (c) have been majorly implemented by land reforms

2. 39 (d) has been implemented by Equal Remuneration Act, 1976

3. 39 (e) & (f) (a) National commission for protection of child rights act (b) Measures taken u/a 23 & 24 (c)

Guidelines in MC Mehta v S of TN, 97 case Setting up of child labour rehab fund, fine of 20k, govt must find

a suitable job for 1 adult member of childs family failing which the state should deposit an additional 50k per

child

Art 39A To provide equal justice & free legal aid to the poor

1. National legal services authority act, 1977 to provide free legal aid to the poor

2. National legal literacy mission, 2005

Art 41 To secure right to work, to education and to public assistance in cases of unemployment, old age, sickness and

disablement

1. Right to work has been secured by programmes like NREGA, no of rozgar & employment programmes like

NREP, IRDP etc.

2. Currently 141 centrally sponsored schemes, out of which 8 are flagship schemes. They are under state subject,

but partially or fully implemented by centre

Art 42 To make provisions for just & humane conditions of work & maternity relief

Art 43 To secure a living wage, decent standard of life & social & cultural opportunities for all workers

Art 43A To take steps to ensure participation of workers in management of industries

Art 47 To raise the level of nutrition & standard of living & to improve public health

Gandhian principles

Art 40 - Organisation of village panchayats (73rd CAA, 1992)

Art 43 To improve cottage industries on an individual or cooperation basis in rural areas

1. Number of boards have been set up. E.g. all India handloom board, all India handicrafts board, silk board etc.

Art 46 To promote educational & economic interests of SCs, STs & other weaker sections & protect them from social

injustice & exploitation

Art 47 To prohibit the consumption of intoxicating drinks & drugs injurious to health

Art 48 To prohibit slaughter of cows, calves & other milch & draught cattle & to improve their breeds

Liberal intellectual principles

Art 44 Uniform civil code

Art 45 - Provision of early childhood care & education of children < 6 yrs

1. Integrated child development scheme (ICDS)

Art 48 To organise agriculture & animal husbandry on modern scientific lines

Art 48A To protect & improve the environment & safeguard forests & wildlife

1. Has been implemented via various acts related to wildlife protection & environment

Art 49 To protect monuments, places & objects or Artistic & historic interest

1. Ancient & historical & archaeological sites (declaration of national importance) act, 1951

2. Setting up of ASI

Art 50 To separate J from E

1. In 1973 CrPC was amended to away criminal cases out of district magistrates jurisdiction. However he still can

adjudicate civil cases

Art 51 To promote international peace & security & maintain just & honourable relations b/w nations; to foster

respect of international law & treaties, and to encourage settlement of international disputes by arbitration

DPSP vs FR

1. Current position is DPSP and FRs have to be read harmoniously by the court instead of giving any general

preference to DPSP.

2. Until the re Kerala Educational Bill, 1958 case, SC held that DPSP are inferior to FRs and no law implementing

DPSP but violating FR shall be constitutional. But in this case it gave the doctrine of harmonious reading i.e. FR

and DPSP complement each other and there is no inherent conflict between them. So as far as possible a

harmonious reading of both should be carried out and if 2 interpretations of a law are possible where one is

harmonious and other conflicting, the harmonious one should be given effect. But if eventually there is a

conflict, FR shall prevail.

3. Then came the 25th CA Act, 1971 which introduced Art 31C saying - (a) if there is any law enacted to give

effect to DPSP Art 39 (b) and (c) and in the process violates Art 14, 19 and 31, then it shall be valid. (b) Any law

declaring that it is to give effect to Art 39 (b) & (c) can't be questioned in a court.

4. SC in the Keshavananda case upheld the first part but struck down the second.

5. Then came 42nd CA Act 1976 which amended Art 31C to say that if state gives effect to any DPSP by enacting

a law and such a law violated Art 14, 19 or 31 then it shall be valid. In Minerva Mills case, this was struck down

as it disturbed the balance between Part 3 and 4 of the which was a basic feature.

Directive outside part IV

1. Claims of SCs and STs to services (Art 335, Part XVI) The claims of members of SCs and STs shall be taken into

consideration, consistent with the maintenance of efficiency of administration, in the making of appointments

to services and post in connection with the affairs of Union or a state

2. Instruction in mother tongue (Art 350-A, Part XVII) It shall be the endeavour of every state and authority

within it to provide adequate facilities for instruction in mother tongue at the primary stage of education to

children belonging to linguistic minority groups

3. Development of the Hindi language (Art 351, Part XVII) It shall be the duty of the union to promote the

spread of Hindi language and to develop it so that it may serve as a medium of expression for all the elements

of composite culture of India.

PART IVA FDs

Duties in the

It shall be the duty of every citizen of India

1. to abide by the and respect its ideals and institutions, the National Flag and the National Anthem;

2. to cherish and follow the noble ideals which inspired our national struggle for freedom;

3. to uphold and protect the sovereignty, unity and integrity of India;

4. to defend the country and render national service when called upon to do so;

5. to promote harmony and the spirit of common brotherhood amongst all the people of India transcending

religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of

women;

6. to value and preserve the rich heritage of our composite culture;

7. to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have

compassion for living creatures;

8. to develop the scientific temper, humanism and the spirit of inquiry and reform;

9. to safeguard public property and to abjure violence;

10. to strive towards excellence in all spheres of individual and collective activity so that the nation constantly

rises to higher levels of endeavour and achievement;

11. who is a parent or guardian to provide opportunities for education to his child between age of 6-14 years

Evolution

1. They are inspired by the of erstwhile USSR. Currently no major democratic , except japan, specifically

contain a list of duties of citizens

2. On the recommendations of the Swaran Singh Committee, the 42nd CAA incorporated part IVA & Art 51A in

the

Verma committee on FDs (1999) observations

It identified the existence of legal provisions for the implementation of some of FDs

1. Prevention of Insults to National Honour Act (1971) prevents disrespect to , flag and Anthem

2. Criminal laws punishes for encourage enmity between different sections on grounds of rrcb etc.

3. IPC protects national integration

4. Protection of Civil Rights Act (1955) provides punishment for offences related to caste and religion

5. UAPA, 1967 declared communal organisations as unlawful

6. RPA, 51 disqualifies MPs/MSL if they get votes on ground of religion or promote enmity

7. Wildlife Protection Act (1972) and Forest Conservation Act (1980)

PART V THE UNION

The Executive Chapter I

President

Elections

1. Elected indirectly by elected members of parliament, state legislative assemblies & UTs of Delhi & Puducherry

2. To provide uniformity in scale of representation of different states & parity b/w states as a whole & union,

fixes vote values.

a. Vote value of MLA =

b. Vote value of MP =

c. To win the candidate needs =

+ 1

3. The election is held by a system of proportion representation by way of single transferrable vote. PR is said to

be a misnomer as only 1 person has to be elected.

4. All disputes regarding election of P & VP are inquired into & decided by SC whose decision is final

5. Takes oath in the presence of CJI

Qualifications

1. Citizen + 35 yrs + eligible to be member of LS + no office of profit

2. A sitting P/VP/Governor/Minister is not deemed to hold any office of profit & hence eligible

Conditions of presidents office

1. When elected, he is deemed to have vacated the seat (if any) of parliament or state legislature

2. No office of profit

3. Entitled to use official residence w/o rent

4. Emolument, allowances decided by parliament & cannot be diminished during the term

Immunity

1. He is not legally liable for his official acts

2. Criminal proceedings (even for personal acts) cannot be initiated during his term. He can neither be arrested

nor imprisoned.

3. Civil proceeding (for personal acts) can be initiated after giving a 2 months notice

Vacancy

1. Election shall be held within 6 months after the vacancy arises

2. P VP CJI seniormost judge of SC

3. He submits his resignation to VP

Why there is a vacancy? Who acts as president?

Expiry of term Either new, or incumbent will continue

Death, resignation, removal VP acts as

Absence, illness VP discharges

Election declared void VP

Impeachment

1. Being the highest authority president cannot be removed. He can only be impeached for the violation of

which is not defined by the

2. Impeachment is a quasi-judicial process. Any house may initiate the charge (supported by 25% members +

a 14 day notice). If passed by 2/3rd of total strength (toughest), it goes to the 2nd house which investigates the

charges. President has the right to defend himself

3. If 2nd also passes the resolution president stands impeached

Powers

Executive powers

1. U/a 53 executive power of the union is vested in the president

2. Makes rules for more convenient transaction of govt business

3. Appoints PM, CoM, Attorney General who hold office during his pleasure

4. Appoints CAG, UPSC & Finance Commission members & chairman, CEC, governors etc.

5. Appoints commission of SCs, STs, BCs, inter-state council

6. Administers UTs

7. Can declare any areas as scheduled area

8. U/a 78 his personal RTI

Legislative powers

1. Nominates members of LS (2) & RS (12)

2. Ordinance making power u/a 123

3. Summons, prorogues, and dissolves the parliament. Can summon joint sitting also

4. Address to the parliament, messages to the house

5. Appoint presiding officers in certain cases

6. Prior recommendation & assent to bills of parliament & in some cases of state legislature

7. Power to issue regulations in UTs

Veto powers

When a bill is presented to the president for assent, he has 3 alternatives u/a 111

1. Give assent

2. Absolute veto - Reject the bill. Can be applied to ordinary/money/financial bill. Usually it is exercised in case

of private member bill or when the cabinet resigns after the passage of the bill & new cabinet advises to

withhold assent.

3. Suspensive veto - Return the bill for reconsideration, which he shall pass if passed again by the parliament.

Can be applied to ordinary bills or financial bills u/a 117. Not in money bills

4. Pocket veto - Further prescribes no time for the president to give assent. So he may keep the bill pending

for an indefinite period

Presidential veto over state legislation

When governor reserves the bill for the consideration of the president (Art 200), president has the following option

u/a 201

1. Give or withhold assent

2. Use suspensive veto. But is not bound if legislature again passes the bill

3. Use pocket veto

4. In case on money bill the president can only give or withhold his assent. Nothing else.

Ordinance making powers

1. Provision of ordinance was borrowed from GoI act, 1935 to deal with emergent situations

2. U/a 123 president can promulgate an ordinance, when 1 or both the houses are not in session, if he is satisfied

about the necessity due to circumstance

3. Ordinance has same effect as that of an act of parliament, expect that it is temporary. It has to be approved

within 6 weeks after both houses reassemble

4. According to the rules of LS, a bill to replace the ordinance should be accompanied by a statement explaining

the circumstance

Cooper vs UoI, 1970

1. Satisfaction of the president is subject to limited JR & can be challenged on the grounds of malafide.

2. If the petitioner shall prima facie show the non-existence of circumstance, the court will shift burden of proof

on the president.

3. Further decisions taken under the ordinance will remain valid in any case.

38th CAA, 1975

1. Art 123 was amended to place ordinance making power beyond the scope of JR

2. However 44th CAA, 1978 restored the status

DC wadhwa vs State of Bihar, 1987

1. B/w 1967-81 the governor of Bihar promulgated 256 ordinances & many of them were kept alive for 1-14 yrs

by re-promulgation

2. SC said that re-promulgation w/o referring to the assembly is a fraud on the

Why undemocratic?

1. All modern democracies do not mention this power. India is perhaps the only one.

2. Also it still has a scope to be misused. Food security ordinance was promulgated just before the parliament

session

Governors ordinance making power

He has to take instructions from the president only in the following 3 cases

1. If bill would have required previous sanction of president for its introduction in SL

2. If governor would have deemed it necessary to reserve the bill for consideration of the president

3. If an act of SL containing the same provisions would have been invalid without presidents assent

Pardoning power

1. Art 72 empowers the president to grant pardons to persons who have been tried and convicted in cases where

- (a) Punishment or sentence is for offence against union law or, (b) It is by a court martial (military court) or,

(c) Death sentence

2. The objective of granting this power is (a) To keep the door open for correcting any judicial errors (b) To

afford relief from a sentence, which the president considers as unduly harsh

3. It includes (a) Pardon completely absolves the convict of all sentences, punishments and disqualifications (b)

Commutation substitutes the punishment with a lighter form (c) Remission reduces the period of sentence

without changing its character (d) Respite is awarding lesser punishment in place of one originally awarded

due to disability, pregnancy etc. (e) Reprieve implies stay of the execution of sentence (especially that of death)

to enable the convict to seep pardon or commutation

4. U/a 161 pardoning power of governor differs from the president in the sense that (a) He cannot pardon

court martials (b) He cannot pardon death sentences

5. The power is not subject to JR except when the decision of president/governor is arbitrary, irrational, mala

fide, or discriminatory.

Financial powers

1. Prior sanction to money bills

2. Contingency fund

3. Sets up state finance commission after every 5 years & can do even before 5 yrs

4. Present annual fin statement before the parliament

5. No demand of grant can be made w/o his consent

Judicial powers

1. Appointment & transfer of judges

2. Advisory reference u/a 143

3. Pardoning power u/a 72

Diplomatic powers

1. All international affairs & treaties are concluded on his behalf

2. He sends & receives diplomats

Military powers

1. He is the supreme commander of defence forces

2. Appoints chiefs of 3 forces

3. Can declare war, conclude peace

Emergency powers

Discretionary powers

1. Art 74 President can refer the advice of CoM for reconsideration

2. Art 78 The PM has the nal duty to inform the president about the affairs of the country. Correspondingly

president has the right to be informed

3. Veto Suspensive and pocket

4. Sends messages to the house

5. Art 85 Summon houses if not advised so by the CoM within a 6 months gap

6. When no party or coalition enjoys majority in LS, president can enjoy leader of that PP who in his opinion will

be able to provide a stable govt

7. President is bound to act on advice of the CoM only when they enjoy majority of LS. Thus he can keep a check

on the decisions of a caretaker govt

Vice-president

Election

1. Indirectly elected by all members of parliament

2. PR by STV

Qualification

1. Citizen + 35 yrs + eligible to be member of RS + no office of profit

Conditions of office

1. When elected, he is deemed to have vacated the seat (if any) of parliament or state legislature

2. No office of profit

Removal

1. No grounds are mentioned

2. A resolution passed by RS by effective majority & agreed to by LS. Requires 14 day notice.

Powers

1. Ex-officio chairman of RS

2. Acting as or discharging duties of president

Position

1. Modelled on the lines of American VP, but doesnt succeed the president in any case, as the American VP does

for the unexpired term

2. Thus the office was created to maintain political continuity

Prime Minister and CoM

1. Art 74

2. Art 75 collective responsibility + individual responsibility + 91st CAA

3. A minister who is member of one house has the right to take part in proceeding of other house

4. No legal responsibility

Art 78

1. 75(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by

the President on the advice of the Prime Minister.

2. [(1A) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed

fifteen per cent. of the total number of members of the House of the People.

3. (1B) A MP belonging to any PP who is disqualified for being a member of that House under paragraph 2 of the

Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the

period commencing from the date of his disqualification till the date on which the term of his office as such

member would expire or where he contests any election to either House of Parliament before the expiry of

such period, till the date on which he is declared elected, whichever is earlier.]

4. (2) The Ministers shall hold office during the pleasure of the President.

5. (3) The Council of Ministers shall be collectively responsible to the House of the People.

6. (4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of

secrecy according to the forms set out for the purpose in the Third Schedule.

7. (5) A Minister who for any period of six consecutive months is not a member of either House of Parliament

shall at the expiration of that period cease to be a Minister.

8. (6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law

determine and, until Parliament so determines, shall be as specified in the Second Schedule.

Art 77

1. All executive action of the GoI shall be expressed to be taken in the name of the President.

2. Orders and other instruments made and executed in the name of the President shall be authenticated in such

manner as may be specified in rules to be made by the President, and the validity of an order or instrument

which is so authenticated shall not be called in question on the ground that it is not an order or instrument

made or executed by the President.

3. The President shall make rules for the more convenient transaction of the business of the Government of

India, and for the allocation among Ministers of the said business.

Art 78

It shall be the duty of the Prime Minister

1. to communicate to the President all decisions of the CoM relating to the administration of the affairs of the

Union and proposals for legislation

2. to furnish such information relating to the administration of the affairs of the Union and proposals for

legislation as the President may call for

3. if the President so requires, to submit for the consideration of the CoM any matter on which a decision has

been taken by a Minister but which has not been considered by the Council

Attorney general

Refer nal bodies

Parliament Chapter II

Types of majority

1. Simple majority More than 50% of the members present & voting. Generally used in case of bills & motions

2. Absolute majority More than 50% of the total strength of the house. Legally not important, but politically

important.

3. Effective majority More than 50% of effective strength (total strength excluding vacancies) of the house.

Used in the removal of VP, Dep chairman of RC, speaker, deputy speaker

4. Special majority It is of 3 types (a) As u/a 249 & Art 312 (b) As u/a 368 (c) As u/a 61

Composition

1. It consists of president, council of states, house of people

Composition of CoS

1. States reps are elected by state MLAs. Representation varies with population.

2. Among UTs only delhi & puducherry have representation. Others are too small. As prescribed by parliament,

they have same procedure of election

3. Strength = 238 elected + 12 nominated (by president from field of science, Art, literature, social service;

governor has 1 extra option of cooperative also)

4. Elections are based on PR by means of STV

Relevance of CoS

1. It gives representation to the states

2. It is a not inferior to HoP & acts as a revisory chamber, which can give fair & balanced opinion

3. It has certain non-federal characters like UTs are represented, nominations are allowed, and states are

unequally represented

Composition of HoP

1. 530 members from states + 20 members from UTs + 2 Anglo-Indian members.

2. There shall be no reservation for minority communities.

3. Members from UTs may be chosen as prescribed by parliament, which has prescribed a direct election

4. Voting age was reduced from 21 to 18 yrs by 61st CAA, 1998

Comparison b/w HoP & CoS

HoP > CoS

1. Money bills, no confidence motion & motion to discontinue national emergency can be introduced only in LS

HoP = CoS

1. amendment bill, election & impeachment of president, approval of national & state emergency

HoP < CoS

1. For parliament to legislate on a state subject, creation of an all India service CoS has to pass resolution

2. Impeachment of VP can be initiated only in CoS

System of election to LS

Territorial constituencies

1. Each state is allotted seats such that

is same for all the states. Population of the state

should be 60 lacs for this provision to be applied

2. Each state is divided into constituencies such that

is same throughout the state

Delimitation

1. Art 82 allows the parliament by law to provide for delimitation acts. Accordingly parliament has enacted acts

in 1952, 62, 72, 2002

2. Delimitation is an exercise to redraw the boundaries of LS & SLA constituencies to maintain equitable

distribution of seats across constituencies. It is a very sensitive issue as boundary can be drawn keeping

support base in mind & thus is generally handled by a SC judge.

3. During the 1970s the southern states had largely implemented family planning measures & were having good

HDI indicators. But the northern states failed in these aspects & there population was increasing. Therefore to

prevent marginalisation of southern states, 44th CAA, 1976 froze delimitation, strength of LS & SLAs &

representation of state in LS till 2026, as per the 1971 census. It was expected that the population will stabilize

by 2026. Further the 87th CAA, 2003 provided for delimitation based on 2001 census figures. However this

should be done without altering the seats allotted to each state in LS & SLAs.

Reservation for SCs & STs

1. Seats are reserved & they are elected by all voters in a constituency

Territorial representation

1. It means that every MP represents a constituency

2. We did not adopt PR because difficult to understand for voters, instability in govt@

Duration

1. CoS is a continuous house which never dissolves. 1/3rd of members retire every 2 yrs.

2. HoP has a tenure of 5 yrs. It can be prematurely dissolved. It can be extended during a national emergency (1

yr at a time for any no of yrs)

3. State legislature can be extended for 1 yr at a time for a maximum of 3 yrs. J&K assembly has tenure of 6 yrs.

Membership of parliament

Qualifications

1. Citizen + subscribe to oath + 30 yrs (CoS)/25 yrs (HoP)

2. Additionally parliament requires the person to be a registered elector. Till 2003 domicile of the state, from

where the RS elections were contested, were required. This was amended in 2003 allowing the candidate to

be in electoral rolls of any constituency. Punchhi commission recommended to restore the previous position

as after all the RS member represents his state only.

Disqualifications

1. Art 102(1) For being chosen as or for being a MP

a. Office of profit. But parliament by law may specify which office of profit is exempted.

b. Unsound mind, undischarged insolvent, voluntarily acquired citizenship of another country.

2. Art 102(2) Anti defection law under schedule 10

3. Also for corrupt practises mentioned in RPA, 51

4. On disputes over disqualifications, president's decision in concurrence with EC will be final. (Art 103)

Vacating of seats

1. Double membership under RPA, 51 (a) A person elected 2 both RS & LS has to intimate his choice within 10

days, otherwise seat is RS becomes vacant (b) If a sitting member of 1 house gets elected to other house, his

seat in 1st house becomes vacant (c) If a person elected to 2 seats in a house does not choose 1, both seats

become vacant (d) If a person elected to both parliament & SL does not resign from SL within 14 days, seat in

parliament becomes vacant.

2. Disqualification, resignation, absence for 60 days w/o permission

3. Election declared void, or expelled by the house, or elected as P, VP, governor

Oath

1. Takes oath before the president or a person appointed