CONSTITUTION LAW 1.
Structural (not philosophical) parts borrowed from
UNIT - I: Salient Features of the Indian Constitution:
1. Most lengthy and detailed in the world originally 395
Articles, 8 Schedules; today, many more.
a. Incorporates experiences of all known Constitutions of
world democracies; avoids their defects
b. A constitution of States, not just the Union
c. Reproduces part of Government of India Act (1935);
provides administrative details
d. Has technically elaborate, highly legal Bill of Rights
(Chapter of Fundamental Rights)
e. Provisions regarding federal (i.e., Union and State)
relations
f. Vastness of country; diverse populace; variety of
problems  necessitated elaborate provisions. E.g.:
problems of Anglo-Indians, SC & ST; backward classes,
official language, etc.
2. Federal in character  provides for division of powers
between the Union and the States  creates a very strong
center.
3. It is flexible; has been amended more than 90 times so far
 Most provisions in the Constitution can be amended by
the Parliament; only few amendments need ratification by
States
4. It makes an attempt  to reconcile the theory of
parliamentary sovereignty and the principle of “supremacy
of written constitution.”
5. Constitution makes provision for “directive principles”
(fundamental for governance of nation.)
6. Has a chapter on fundamental duties of citizens
7. Constitution provides for an independent judiciary - with
power of judicial review it balances parliamentary
supremacy with judicial review
8. Is federal in nature yet provides for single citizenship of
the Union. No State citizenship (e.g., like in the USA).
9. Concept of a secular state complete freedom of religion;
to pursue any religious belief of choice (a fundamental
right). No State religion  42nd Amendment (1976)
introduced “Secular” in the Preamble.
10. Abolition of communal electorates  for sake of national
solidarity  no voting on communal lines. Few seats
reserved temporarily for SCs and Anglo-Indians.
11. Adult franchise  every citizen >18 years (when
Constitution was enacted, it was 21 years) has right to
vote. But, voting is NOT a duty (like in some European
countries)
12. Superimposes an elected President over the Cabinet system
(responsible to the Parliament) of government.
Basic Structure of Constitution: Parliament CANNOT alter this
structure / framework - Swami Kesavananda Bharati vs. State of 1. Formation: Federations elsewhere have resulted from... a
Kerala (AIR 1973 SC 1461). Justice Shelat & Justice Grover 
noted 6 basic elements of Constitution (Basic Structure Theory):
1. Supremacy of the Constitution
2. Sovereignty of the country; Unity and integrity of the
nation amidst diversity
3. Republican and democratic forms of government
4. Secular & federal structure of the Constitution
5. Demarcation of powers between executive, legislature and
judiciary
6. Dignity of the individual.
Sources of the Indian Constitution: Some original concepts,
e.g., Panchayats. Yet:
Government of India Act (GoI Act), 1935.
2. Chapter on Fundamental Rights inspired by Bill of Rights
(in USA Constitution)
3. Directive Principles of State Policy  inspired by Irish
Constitution
4. Principles of Cabinet government; relations between
Cabinet and Executive  British
5. Union-State relations  from GoI Act, 1935; and, Canadian
and Australian Constitutions
6. Inter-State trade, commerce and intercourse  resemble
Australian Constitution.
Federalism and its characteristics:
1. Federation / Federalism  2 sets of Government operate
and function simultaneously (e.g. USA)... Both
Governments exercise direct and simultaneous authority in
their limited spheres over the same territory.
2. Dual Government policy: A political contrivance  to
reconcile national unity with maintenance of State
autonomy.
3. Dividing power at national and regional levels...
distribution of legislative and executive powers.
4. State handles matters like education, health, police, etc.,
independently... Matters of national importance (defense,
foreign affairs, coins & currency, etc.) are handled by the
Central (or Federal) Government.
5. Supremacy of Constitution  Division of power must be
evidenced in a written document... the Constitution - a
fundamentally important document  federal polity
derives its existence from it.
6. Authority of Courts  interpretation of the Constitution is
paramount... power of interpretation is vested in the
judiciary... a custodian of the Constitution Courts can
declare any action of Government as ultra vires.
Nature of federal system in the Constitution: Art. 1 states,
“India, or Bharat, shall be a union of States.” “Federal” or
“federalism” do not appear in the Constitution. Yet,
superficially viewed, all characteristics of federalism may exist
in the Indian Constitution... but, not so.
 Prof. Wheare... “The Indian Constitution provides a unitary
State with subsidiary federal features, rather than federal
State with unitary features
 It is neither purely federal, nor purely unitary  a
combination of both. It is a union or composite State of a
new type...it enshrines the principle... in spite of
federalism, national interest is paramount
 Others consider it to be federal; but, it can be converted
into a unitary State during emergency or national peril.
Federal Characteristics of the Indian Constitution
voluntary agreement amongst a number of sovereign,
independent States advantage: common administration.
In India, not integration... but, decentralization. The
unitary State during the imperialistic British Raj was
converted into a democratic union.
2. Distribution of Legislative Powers: (a) Union List  Matters
in List I of the 7th Schedule... Parliament, i.e., Union
Legislature has power to make laws. (b) State List  List II
of 7th Schedule... State Legislature has powers (c)
Concurrent List List II in 7th Schedule... both Parliament
and State Legislatures have joint powers. In case of
conflict... Center will prevail. (d) Residual power...
Parliament has exclusive power to make any law. (e)
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 Legislation for effectuating international agreements 
Parliament.
a. The scheme of legislative power can be altered by
proclamation of emergency... threat to security of
India by internal disturbance or external aggression...
b. Even during peace time, with 2/3rd majority in the
Rajya Sabha (Council of States), a subject in State List
can be deemed to be in the Concurrent List for a
period of 1 year.
c. All the above point to a STRONG CENTER... the
Union and States are NOT equal partners - the former
has more authority and control
3. Citizenship: Single citizenship for whole Union...no State
citizenship
4. Judiciary: no bifurcation between State and Federal
judiciaries. Same system... with SC at the apex adjudicates
on cases pertaining to Union and State laws.
5. Election, Accounts & Audit: The machinery is integrated
and unified... Union may give directions to State
Governments to comply with legislative and administrative
action of the Union.
6. Constitutional Machinery: If it fails in a State...President
can suspend the State Legislature and assume responsibility
for administration of the State... Parliament will legislate
for such a State
7. Council of States: Rajya Sabha...Not constituted on
principle of  Equal representation of the States
8. Formation of new states: Parliament... power to form new
states... increase / decrease areas of existing States, i.e.,
alter boundaries names, etc.
 DEMOCRATIC: government by the people, of the people, for
Commencement and Repeals: The Constitution came into
th
force... 26 Jan. 1950. It repealed  Indian Independence Act,
1947; Government of India Act, 1935.  Fundamental Principle government is carried on for the
The 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 26th day of November, 1949,
do hereby adopt, enact and give to ourselves this constitution.
Objects of the Preamble:
 The Preamble is an introduction to the Constitution...A
statement of the purposes.
 Serves 2 purposes:
1. Gives source for the Constitution - the Indian people, the
source of political power in the Indian Republic - power
vests with people. Our Constitution is broad-based - it is
NOT imposed by any external authority (like the
Government of India Act, 1935).
a. The Constituent Assembly (framed the
Constitution)... it wasn’t elected by people; the draft
of the Constitution wasn’t subjected to a vote, i.e., a
referendum.
b. Yet, Constituent Assembly - fairly representative
of all sections of populace.
2. Throws light on the aims and objects - to secure justice,
liberty, equality and fraternity to all citizens of India... it
expresses political, moral and religious values.
a. Constitution is a living and organic instrument...
has great claim to be construed broadly and liberally
 SC observed... Constitution is not merely ‘law,’ but
the machinery by which all laws are made. (Goodyear
India Ltd., vs. State of Haryana, AIR 1990 SC 781)
 SOVEREIGN - India is a State, within which exists a supreme
and absolute power... no other State or power or country is
deemed superior  Effect: State has power to legislate on
any subject...in accordance with the Constitution
(Synthetics and Chemicals Ltd. vs. State of UP, AIR 1990 SC
1927)
 Two kinds: (a) External (b) Internal
 State  Externally sovereign, when it is independent of the
will of other States. Passing of Indian Independence Act,
1947... India ceased to be a dependency... of British
Empire. Indian sovereignty... resides in its people.
Membership of UN or Commonwealth of Nations imposes no
limitation on sovereignty...no external control.
 Internally sovereign is about relationship between the
State and its people (i.e., citizens). Indian Constitution
power divided between the Union and the States... only
nominally. Sovereignty resides in the Republic of India
(includes both Union and the States)... not in one of the
component parts.
 India can acquire new territories; cede part of its territory
to a foreign State... if constitutional requirements are
satisfied - Maganbhai Patel vs. Union of India (1970) 3 SCC
400.
the people... Abe Lincoln a government in which the
adult population has a direct or indirect share.
benefit of the governed.
 Two kinds: direct and indirect.
 Direct  whole body of people exercises political power
directly (e.g., Ancient Rome). E.g., referendum...
 Indirect = Representative democracy (as in India) - the
entire mass of people, the electorate chooses
representatives, who form Government... Strictly,
sovereignty rests amongst representatives, not people.
Exercise of electorate’s will  through representatives.
 Art. 378 of the Constitution states powers of amendment
of the Constitution are vested, not in the electorate, but in
the legislature.
 SOCIALIST: Not originally in Constitution... added by the
42nd Amendment. Concept of socialism  implicit in the
Indian Constitution.
 Constitution envisages private ownership of property and
business... but, ‘socialism’ enables courts to lean towards
“nationalisation and State ownership of industry.” (Excel
Wear vs. Union of India, AIR 1979, SC 25)
 Democratic socialism aims ending poverty, ignorance,
disease and inequality of opportunity ... Implementation of
concept in the true spirit of the Constitution vital (GB Pant
University of Agriculture & Technology vs. State of UP, AIR
2000 SC 2695).
 SECULAR: Added by the 42nd Amendment... Art. 25 to 30
further make India secular... no official religion  full
opportunity to every person to (or not to) profess and
practice a religion of his/her choice. No religion is given
preferential status.  Religious impartiality, or
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 comprehension and forbearance  key role to play in
national and international life.
 REPUBLIC: Two connotations. Narrow sense... as the
opposite of ‘monarchy.’
 Wider sense  no one holds public power as a proprietary 
right. All power exercised for public good - inhabitants are
subjects and free citizens at the same time.
 Constitution uses the term ‘Republic’ in both ways.
Four “Golden Goals” set out in the Constitution:
 SOCIAL JUSTICE: Requires abolition of all sorts of inequities
amongst people... of wealth, power, opportunity, race,
caste and religion.  e.g., Humane conditions at work,
maternity relief, banning of forced labor, etc. (Part IV of
the Constitution)
 Social justice and equality are complementary... so both
maintain their own vitality  The rule of law is a patent
instrument of social justice to bring about equality. (CERS
vs. Union of India, AIR 1955 SC 922)
 Social justice enables courts to (a) protect interests of
weaker sections (b) remove economic inequalities (c)
provide a decent standard of living to all inhabitants.
 LIBERTY - of thought, expression, belief, faith and
worship Constitution deems it essential for development
of individual, society and nation.
 EQUALITY - of status & opportunity. Achieved by:
a. Art. 15: making illegal...discriminatory action and
legislation of the State amongst citizens on grounds
of religion, race, caste, sex and place of birth
b. Art. 15(2): opening public places to all people
c. Art. 14: guaranteeing equality before law and
equal protection of laws
d. Art. 17: abolishing untouchability
e. Art. 18: abolishing titles of honor
 FRATERNITY: Special significance... requires sharing of a
feeling of commonness, care and concern for one
another... It depends upon a condition that ensures bare
minimum for all
 The 7th Amendment introduced, Art. 1(2) The States and
the territories thereo shall be as specified in the 1st
Schedule.
 28 states (incl. Goa) and 7 union territories - Chattisgarh,
Uttaranchal and Jharkhand carved out of earlier states.
Art. 2 Parliament may by law admit into the Union, or
establish new States... on terms and conditions it deems
fit. Sikkim was added to the Union - 36th Amendment.
 Art. 3 A new State can be formed by law (i) separation
of territory of existing State (ii) union of two or more
States (or parts thereof), or (iii) uniting any territory to an
existing State...
 Area of any State can be increased or diminished... the
name or boundary of any State can be altered too.
 Procedure for forming new State (added through the 5th
Amendment) legislation of Union Parliament - subject to
no Bill being introduced in either House of Parliament for
this purpose without the recommendation of the President.
 Procedure for altering area, boundaries, or name of any
State First the President must ascertain the views of the
Legislature of that State... for expressing its views within
the time period specified - either specified in the reference
or further allowed by the President.
 The view of the State Legislature is not binding on
Parliament. (Babulal vs. State of Bombay, AIR 1960 SC 51)
 a departure from the strict federal principle... proves
the inequality between the Union and States.
 Only Parliament (Union legislature, not State legislature)
has the power to (a) change boundaries, (b) merge two
or more States (c) change name.
 Art. 4 Any law referred to in Art. 2 or Art. 3 shall contain
such provisions for amendment of the 1st and 4th Schedules
as may be necessary to give effect to the provisions of
law... it may also contain such supplemental, incidental
and consequential provisions - such as representation in
Parliament and in the Legislature(s) of the State(s) - as
Parliament may deem necessary.
 No such law (under Art. 2 & 3) shall be deemed to be an
amendment of the Constitution for the purpose of Art. 368.

Legal position and Utility of the Preamble Citizenship:

 Well-established rule of interpretation  only when an Act
is ambiguous, can the Preamble be used for clarity on
legislation... it can’t be used to control a clear and
unambiguous enactment... ambiguity cannot be created or
imagined (Gopalan vs. State of Madras, 1950 SCR 88)
 The Preamble (a key to open the mind of its makers)...
Reflects the basic structure of the Constitution... it can’t
be amended through Art. 368.
 SC has held: “...the Preamble is not a part of the
Constitution...” - with great respect to their Lordships of
the SC, the view is incorrect  Preamble is a significant
part of the Constitution.
The Union and Its Territory:
 Provisions of an Act or Code are contained in sections. The 
Indian Constitution... follows the USA system  it uses the
word ‘Article’ instead of ‘Section.’
 Art. 1(1)  India, that is Bharat, shall be a Union of
States.
 Art. 1(3)  The territory of India comprises: (i) the
territories of the State and the Union Territories as
specified in the 1st Schedule and (ii) such other territories
as may be acquired.
 Who can be a citizen of India? Arts. 5-8 make a mention. 4
classes of persons can be.
 Art. 5 Citizenship conferred on every person with
domicile in India at the commencement of the
Constitution, i.e., 26th Jan. 1950, AND:
o Born in India; OR
o Either of whose parents was born in India; OR
o Has been resident in India for not less than 5 years...
immediately prior to Jan. 26, 1950
 In all 3 cases nationality of the person or his/her parent
is entirely immaterial
 Concept of domicile... easy to illustrate; tough to define.
Domicile = place where one intends to reside permanently,
or at least indefinitely
So, domicile  acquired by residence. But, residence in a
place doesn’t necessarily mean domicile in that place... it
is mere residence if the intention of making it permanent
home isn’t there...so, one can have MANY residential
places; but, only ONE domicile.
 Central Bank of India vs. Ramanarain (1955 SCJ)  SC
noted: “a person may have no home, but he cannot be
without a domicile, and the law may attribute to him a
domicile in a country where in reality he has not.”

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 Even a vagrant  say, living in a yacht, or roaming from
one European city to another  will be arbitrarily ascribed
as a domicile of one particular place. Everyone MUST
always have a domicile.
 So domicile = residence + a certain state of mind
 Domicile is not the same as nationality. A national of one
country can be domiciled in another.
 Dr. Pradeep Jain vs. Union of India & Others (AIR 1984 SC
1420) SC observed... Constitution only one domicile, that
of India. So, it’s not right to say a domicile in India is
domiciled in one of the States of India.
 Art. 6 A migrant from Pakistan can be a citizen of India...
if 2 (actually 4) conditions are fulfilled:
o S/he (or either of his/her parents or any of his/her
grandparents) was born in India
o (a) If the person migrated prior to 19th July, 1948, s/he
should have resided in India since then... (b) if the
migration is on or after 19th July, 1948, s/he should
have registered (by applying with a duly appointed
officer of GoI) as a citizen of India  (c) but, the
person must’ve resided in India for 6 months prior to
the application.
 Effect of conditions above  those who migrated after 25th
July 1949 (i.e., 6 months before 26th Jan. 1950) could not
fulfill the 6-months condition for residence to apply for
registration.
 Art. 7 Those who migrated to Pakistan after 1st Mar. 1947
CANNOT be citizens of India.
o If the person returned to India... on a permit or
resettlement or permanent return... would be deemed
as migrated after July 18, 1948.
 Art.7 refers to 2 classes of persons:
(a) Those who left for Pakistan after Mar. 1947 they could
NOT become Indian citizens... even if they qualified in Art.
5 & 6.
(b) Those who left for Pakistan as in (a), but re-emigrated 5
conditions to fulfill:
i. S/he (or any of his parents or grandparents) was
born in India
ii. Returned to India under a permit for resettlement
or permanent return
iii. Resided in India (after re-migration) for 6 months
iv. Applied for registration to Officer appointed
v. Registered as a citizen by such Officer.
 Art.8 Confers citizenship on persons... born (or, whose
either parent or any grandparent was born) in India...
resident outside India...provided: s/he’s registered as a
citizen of India...by diplomatic or consular representative
of India (in the country where s/he resides... whether
before or after the commencement of the Constitution.
 Term ‘India’ in Art. 8 refers to ‘undivided India’ i.e., as
defined in Government of India Act, 1935.
 The only Article that provides for citizenship even after
commencement of the Constitution... domicile of India is
NOT necessary under Art. 8. E.g., person born in India,
residing in USA on Jan.26, 1950 can become an Indian
citizen by: (a) applying in prescribed form to the
diplomatic / Consular representative of GoI in USA, (b) the
application approved... and, the person gets registered (by
the diplomatic / Consular rep)
 Who CANNOT be a citizen of India (Arts. 7 & 9)  (1)
Persons who migrated from India to Pakistan after 1st Mar.
1947... (2) Thos who’ve voluntarily acquired citizenship of
a foreign State.
 Arts. 11 Every citizen, or person deemed to be
citizen...under any provision in the Constitution, continues
to be a citizen... subject to any law made by Indian
Parliament  it includes provisions in any law for
acquisition + termination of citizenship... and other related
matters too)
a) Parliament has been invested with plenary
(complete, absolute or unqualified) powers... to deal
with matters related to citizenship... restrict or revoke
citizenship acquired
 Articles for acquiring citizenship make no provision for
persons born after 26th Jan. 1950 (commencement) of the
Constitution... or for their children... or persons who may
wish to acquire Indian citizenship by domicile.  Article
leaves this matter to Parliament
a) Modes of acquisition of citizenship... in Citizenship
Act, 1955.
 The Citizenship Act, 1955gives provisions for acquisition
(and renunciation) of citizenship... for persons born after
26th Jan. 1950.
 5 distinct modes
1. By birth Every person born in India after 26th Jan. 1950.
Exceptions: (a) parent(s) (father?) possessed immunities
from suits and legal process... given to: (i) an envoy, or;
(ii) a foreign sovereign, or; (iii) any person who is not a
citizen of India, but is accredited to the President of India,
or; (iv) father is an enemy abroad and the birth occurs in a
place under enemy occupation
 By Descent Person born outside India on or after 26th Jan,
1950, becomes a citizen of India... if his father is a citizen
of India at the time of birth. But
a) If the father (of such a person) was a citizen by
descent... then ‘citizenship by birth’ doesn’t apply as
above... unless his (the father’s or child’s) birth has
been registered at the Indian Consulate within 1 year
of: (a) his birth, or (b) the commencement of
Citizenship Act... whichever is later, or (c) with the
permission of the Central Government after that
period, or (d) unless the father is at the time of birth,
in the service of GoI.
b) Any person born outside undivided India who was, or
was deemed to be, a citizen of India at the
commencement of the Constitution, is also deemed to
be citizen of India by descent only.
 By Registration per Citizenship Act... Subject to
restrictions and conditions... as prescribed... by
appropriate authority... on an application... if the person
belongs to one of the following categories:
a. Persons of Indian origin... ordinarily resident in
India so resided for 6 months immediately before
making an application for registration.
b. Persons of Indian origin... ordinarily resident in
any country outside undivided India
c. Women married to citizens of India
d. Minor children of Indian citizens
e. Citizens (of full age and capacity) of US, New
Zealand, Canada, Australia, Ceylon, Pakistan,
Rhodesia, South Africa, Ireland they’ve to take an
oath of allegiance before registration.
Persons who have (a) renounced (b) been deprived of (c)
had terminated... Indian citizenship CANNOT be registered.
 By Naturalization Persons (if NOT from a few specified
countries) of full-age and capacity can apply, subject to 7
conditions:
a. (Quid pro quo) Not a subject or citizen of a nation
where Indian citizens are prevented by law (or
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 practice) from becoming subjects or citizens of that
country by naturalization...
b. Should renounce previous citizenship notify
Central Government of renunciation
c. Residing in India... or in the service of GoI...or
partly in one or the other - for a full 12 month
period... prior to date of application.
d. During 7 years preceding the 12-month period in
(c) he should’ve (i) resided in India, or (ii) been in the
service of GoI, or (iii) partly in one or other for FOUR
years in the aggregate.
e. Have good character
f. Have adequate knowledge... of a language in the
7th Schedule to the Constitution.
g. Intend to (i) reside in India, or (ii) enter, or (iii)
continue in Government service, or (iv) serve an
International organization, of which India is a member,
or (v) serve under a society, company or body of
persons established in India.
Even if not compliant with ALL or ANY of the above
conditions, one can acquire citizenship by naturalization...
i.e., if in the opinion of the Central Govt.  the person has
rendered distinguished service to the cause of science,
philosophy, art, literature, world peace or human progress
 By incorporation of territory Central govt. may (by
incorporation) specify who will be citizens of India.
 Termination or deprivation of citizenship By Section 9 of
Citizenship Act, if a person... voluntarily... acquires
citizenship of another country, he ceases to be a citizen of
India it’s analogous to Art. 9, which lays down... no one
can be or be deemed a citizen of India by virtue of Arts. 5
and 8... if he has voluntarily acquired citizenship of a
foreign State.
 Under Section 10 of Citizen Act, citizenship can be
deprived... on making due inquiry into the matter.
Fundamental Rights:
 Part 3 of the Constitution is a declaration of Fundamental
Rights framed on the Irish, US and recent continental
constitutions.
 It enshrines: (1) classic guarantees of individual liberty (of
French & American declarations) (2) statements of political
fundamentals of the State.
 Constitutional guarantee of “civil liberty” protects the
individual from oppressive public authority...
 Few fundamental rights (i) Freedom of speech (ii) right
to freely profess, practice and propagate religion (iii) right
to know charged if accused of crime (iv) right to secure
assistance of counsel (v) protection against unreasonable
searches and seizures (vi) twice being put in danger of life
and limb for the same offence; (vii) right not to be
deprived of life or personal liberty, except per procedure
established by law...
 Fundamental rights vitally necessary for attainment of
individual’s full moral and spiritual stature... to enable him
to develop his potential.
 Art. 12 Definition gives extended meaning to term
“State” it includes (a) Government and Parliament of
India (b) Government and the Legislature of each State (c)
local or other authorities within the territory of India or
under the control of the government of India.
 “Other authorities” has been left to courts to put meaning
into... if a particular authority cannot be looked upon as a
‘State’... then, fundamental rights would not be available
against it.
 Shamdasani vs. Central Bank of India, AIR (1952) SC 59 
fundamental rights are available only against the State and
its instrumentalities...not against private bodies.
 Vibhu Kapoor vs. Council of ICSE (AIR 1985, Del 142) 
Petitioner not issued a pass certificate... on grounds of
using unfair means not given a chance to defend
himself... action was challenged  arbitrary and contrary
to natural justice.
a. Respondent’s contention writ petition not
maintainable... Council of ICSE not a State
b. Court negated Respondent’s contention 
respondent had entered into an arrangement to
discharge Government’s public function of imparting
education so, it had authority, concession and
privilege to conduct public exams... also, statutorily
recognized as a body or Society recognized by Govt.
c. Hence rules and regulations of respondent
government supervision, if not control
 Statutory authorities fall under the ambit of the
expression, ‘the State’:
a. Int. Airport Authority of India (IAAI) ... is an
instrumentality or agency of the Government- RD
Shetty vs. IAAI, 1979 SCC 489.
b. BPCL is a State within Art. 12 same
constitutional limitations as Govt.  SP Rekhi vs.
Union of India; AIR 1981 SC 212.
c. LIC, ONGC, Rajasthan Electricity Board fall
under definition of ‘State’ - Sukhbeo Singh vs. Bharat
Ram (1975) I SCC 421; Electricity Board, Rajasthan vs.
Mohan Lal, AIR 1967 SC 1857.
d. Patna University a State: Umesh vs. VN Singh,
AIR 1968, Pat. 3
e. FCI (Food Corp. of India) is an instrumentality of
the State, covered by the expression, ‘other
authority’ The Workmen vs. FCI, AIR, AIR 1985 SC
670
f. Housing Board is a ‘State’- a writ petition can be
filed against it Bhagat Singh Negi vs. HP Housing
Board, AIR 1994 HP 60
g. Bank of India and SBI (other nationalized banks,
too) are ‘States’  BoI vs. UP Swarnanakar, AIR 2003
SC 858
 SC ‘the State’ is to be construed in its distributive
sense SC Advocates-on-Record Asso. Vs. Union of India,
AIR 1994 SC 268
 BCCI a State? Negative... SC held: BCCI is not financially,
functionally or administratively dominated by the
Government; not under control of govt. either. Hence, not
a ‘State.’ Zee Telefilms Ltd. vs. Union of India, AIR 2005
SC 2677
 Ajay Hasia vs. Khalid Mujib Sehravardi (AIR 1981 SC 487)
Admissions to Regional Engg. College established and
maintained by a society registered under Societies
Registration Act. A State? Affirmatively answered.
 Propositions for determining whether a body is a State:
a. Entire share capital of corp. held by govt.
b. Financial assistance of State is so much that it
meets almost all expenditure of corp.
c. Corp. enjoys a monopoly status which is State
conferred or State protected.
d. Deep and pervasive State control
e. Functions of corporation are of public
importance... closely related to governmental
functions.
f. If a department of Government is transferred to a
corp.
Page 5
 Art. 13 Validity of Pre-Constitutional and Post-
Constitutional Laws:
a. All laws in force... in the territory of India
immediately before the commencement... if
inconsistent with provisions in Part III shall, to the
extent of such inconsistency, be void.
b. State shall NOT make any law which takes away or
abridges the rights conferred in Part III... any law
contravening Part III shall be void (to the extent of
contravention).
 Fundamental rights included in the Constitution to
preserve certain basic human rights which are...
protected by the State... &, State too has no right to
interfere.
 Fundamental rights are express constitutional
provisions...limiting legislative power and controlling the
temporary will of a majority by a permanent and
paramount law settled by the deliberate wisdom of the
nation.
Effect of Art.13 On existing laws inconsistent with
Constitution:
1. All laws in force at the commencement of the Constitution,
which were inconsistent with the fundamental rights
conferred by Part III of the Constitution, become, to that
extent, void (Keshavan v. State of Bombay - 1951).
2. Didn’t make inconsistent law void ab initio (void from the
time such laws were made... The entire Part III is
prospective...not retrospective...so, inconsistency didn’t
affect transactions taken place before the commencement
of transaction (Lachmandas v. State of Bombay - 1952)
3. Didn’t mean... inconsistent procedure laid down by a pre-
Constitution Act...to be followed in pending
proceedings...or in new proceedings of pre-Constitution
rights and liabilities (Abdul Kader v. State of Mysore - 1951)
4. If proceedings complete, i.e., final, before Constitution
commencement... then valid... nothing in Part III can
operate retrospectively...to affect proceedings - Qusaim
Razvi v. State of Hyderabad - 1953.
5. If deprivation of right under a pre-Constitution order is
continued from day-to-day, such order... became void...as
soon as Constitution came into force. (Santisarup v. Union
of India - 1955)
Post-Constitution laws...inconsistent with Constitution
1. Any law made by legislature or other authority... after
commencement of Constitution... is void... to the extent of
contravention...
 In US Constitution... no specific provision analogous to Art.
13... judgments have established the position as same
there also.
2. Anything done under an unconstitutional law... whether
complete or incomplete... will be wholly illegal...
appropriate relief can be given to affected person
(Keshavan v. State of Bombay - 1951)
3. Distinction made... between a law, which is
unconstitutional for lack of legislative power... and an
unconstitutional law in violation of fundamental rights...
M.P. v. Sundararamaieer v. State of A.P - 1958.
 A law... unconstitutional due to legislative competence
is void ab initio... law, which violates fundamental
rights, is unenforceable as long as it continues to
violate constitutional limitations...it is eclipsed... by
fundamental rights, and remains in a moribund
condition...till shadow of fundamental rights is
removed (if at all)...then law begins to operate from
the date of that removal... unless it is retrospective -
Bhikaji v. State of MP (1955)
 Doctrine of Eclipse... the law is eclipsed by the shadow
of unconstitutionality... shadow removal = Law
becomes valid and operative.
 Deepchand v. State of UP (1959) SC-Majority
judgment Art. 13(2) goes to the root of legislative
power...it takes away the power of the State to make
a law inconsistent with fundamental right... it doesn’t
overrule the decision in Sundaramaieer’s case... it
didn’t consider The law on this question is not well
settled.
4. Art 13(2) does not authorize Courts...to interfere with
passing of bills, if enacted...as potentially void ...on
grounds of violation of fundamental rights. (Chotey Lal v.
State of UP - 1951)
5. Expression “to the extent of such inconsistency”... “to the
extent of contravention”...if some of the provisions of a
statute are unconstitutional on account of
inconsistency...only the repugnant provisions of the law in
question are to be treated by the Court as void... not the
whole statute (Habeeb v. State of Hyd. - 1953) rule
applicable only when repugnant provisions are severable
from the rest of the statute (State of Kerala v.TM Peter)
 SC held: courts should adopt constructive
approach...when part is unconstitutional
6. (Gokalnath v. State of Punjab - 1967) 17th Amendment
restricted some fundamental rights... challenged... grounds
that Parliament has no power to curtail fundamental rights.
SC held: Constitution Amendment Acts were law within
meaning of Art. 13(2)...so, if they restricted fundamental
rights... they would be invalid. To reverse this decision...
Parliament passed 24th Amendment, to clarify that Art.13 is
inapplicable to any amendment of the Constitution under
Art.368...challenged in Swami Kesavananda Bharati v. State
of Kerala 24th Amendment was held valid...by full bench
of SC
Conflict between 2 fundamental rights
 Q: 2 fundamental rights come into conflict...and one is
sought to be extended to its extreme logical conclusion...at
expense of other... Court...would be slow to recognize and
uphold such an extension of a fundamental right, which
infringes / violates another.
Who can challenge the constitutionality of a statute?
 SC held: Only the one whose rights are directly affected by
a law can raise the question of constitutionality of that
law. (Chiranjit lal v. Union of India - 1950... a person on
whom a fundamental right is not conferred cannot
challenge the validity... of any law on the ground that it is
inconsistent with a fundamental right (Nabhirajiah v. State
of Mysore - 1952)
 If a statute operates on a contract...either party
to the contract can challenge the validity of such a
statute (Bombay Dyeing v. State of Bombay - 1958)
 Company = a juristic entity, distinct from its
shareholders... it cannot be a citizen of India...
therefore cannot attack the infringement of
fundamental right conferred only on citizens (State
Trading Corp. v. CTO - 1963)
 But, if statute which infringes rights of the
company also affects fundamental rights of its
shareholders... such shareholders (who are citizens)
can challenge statute’s validity (RC Cooper v. Union of
India, 1970; Benett Coleman v. Union of India; 1973)
Can a fundamental right be waived?
 Difference of judicial opinion...Q. not finally decided by
SC.
Page 6
 (Bohman Behram v. State of Bombay- 1955) majority
view: Fundamental rights, though for benefit of
individual..., have been put on grounds of public policy...
in pursuance of objectives declared in Preamble. So, such
rights can’t be waived. Justice Venkatarama... of opinion,
it can be waived
 Basheeshar Nath v. Commissioner of IT - 1959 opinion
wasn’t unanimous.
o J. Bhagwati and J. Subbarao held that a
fundamental right (being in the nature of a prohibition
addressed to the State) can’t be waived by
individual...Distinction between Indian & US
constitutions... led to conclusion no limitations should
be placed on fundamental rights (other than those in
Constitution).
o Justices Das & Kapur... fundamental rights are
intended primarily for benefit of individual... so can be
waived. No distinction between US and Indian
constitutions... so, doctrine of waiver applicable to the
former, and not the latter. American view:
fundamental rights can be waived by individual
Right to Equality (Art. 14-18)
Art. 14: Equality before the law:
 State shall not deny... (1) Equality before law or (2) the
equal protection of the laws... within the territory of
India... consists of 2 parts.
 The 1st phrase... owes origin to English common law.
Equality before law means... the absence of any special
privilege or favor... of any individual... and equal
subjection of all classes to the ordinary law...Means... law
should be equal and should be equally administered... like
should be treated alike... There shall be no discrimination
before the law... on extraneous grounds like rank, office,
etc.
 The 2nd phrase... owes origin to American constitution...
while both expressions, ‘equality before the law,’ and
‘equal protection of the laws’ aim for equality of legal
status to all...yet, some differences.
 The former: a negative concept...implies absence of any
special privilege in favor of individuals. The latter...
positive... implies equality of treatment in equal
circumstances (Shivshankar v. MP State Govt. - 1851).
 Right of equality in Art. 14 is available to both citizens and
non-citizens...it establishes rule of law in India.
 What is the test for determining whether an impugned law
violates Art.14? The effect of the impugned Act on Art.
14... has to be ascertained ... if found to infringe... the
object of the Act, howsoever laudable... would not be able
to counteract the prohibition of Art. 14. Test approved by
SC in: State of Bombay v. Bombay Education Society - 1955.
 Equal protection of the laws right to equal treatment in
similar circumstances... both in privileges conferred and
liabilities imposed by the law... i.e., no discrimination in
subject matter of the legislation...if position of the persons
is same. (Chiranjit Lal v. Union of India - 1951)
 Doctrine of ‘equal pay for equal work’...reiterated by SC...
in P.Sarita v. Union of India - 1985. Court held - where all
relevant considerations are the same... persons holding
identical posts and discharging similar duties should not be
treated differently.
 Principle of equality...doesn’t mean universal application
of every law... for all persons who are NOT by nature,
attainment or circumstances...in same position.
 Varying needs of...different classes of persons... often
require separate treatment...so, political theory of
equality is confronted with practical fact of inequality.
 So American courts applied...doctrine of classification... it
lays down that... the principle of equality doesn’t take
away power of the State... to classify persons for
legitimate purpose ...due to diverse problems,
administrative convenience, hard facts of life, etc,
...arising from different varieties of human relations.
 Legislature determines classes to create... the
classification must have reasonable and just relation to the
subject of the specific legislation.
 Un-equals may be treated unequally... equal treatment,
when given to un-equals, amount to inequality.
 PS Doshi v. State of MP, 1990 Q: Whether a rule allowed
10 marks to be added to those securing a distinction in
each subject is valid? Negative... it was held such a rule
has no rational basis. One securing a distinction already has
an edge... so adding 10 marks is superfluous... double
advantage for one performance.
 Differential treatment...by itself doesn’t violate Art. 14. It
guarantees...equality... when there is no reasonable basis
for differentiation. Key: well-defined (and well-justified?)
it doesn’t amount to denial of equal protection.
 Kar. HC held: provision exempting Sikhs from mandatory
wearing of helmets on 2-wheelers, doesn’t violate Art.14
(K. Veeresh Babu v. Union of India, 1994)
 Art.14 forbids class legislation...not reasonable
classification for purposes of legislation. Yet, to pass the
test, 2 conditions must be fulfilled:
1. The classification is to be founded on intelligible
differentia... distinguishing persons or things grouped
together... from others outside the group
2. Differentia must have a rational relation...to
objects...sought to be achieved by the statute in
question (Budhan v. State of Bihar; 1955)
 3rd criteria (in State v. VC Shukla - 1980)... constitutional
validity of the Special Courts Act was in question So, SC
added... there must be a nexus between the
differentiation, which is the basis for the classification, and
the object of Act.
 SC observed... in VC Shukla’s case... Parliament is not
barred from passing a permanent Act... to deal with
specified class of persons who occupy high public &
political offices and often misuse or abuse them, and
held... Special Courts Act... not violative of Art. 14.
 A classification may be reasonable...even if a single
individual is in a class by himself... if there are special
circumstances or reasons applicable to him...that are not
applicable to others. (Charanjit Lal v. Union of India).
 Basis for classification geographical, historical,
occupational, etc... Art.14 doesn’t insist...such legislative
classification should be scientifically perfect or logically
complete.
 Ganga Sugar Corp. vs. State of UP (1980) SC confirmed:
Legislature has freedom to choose the basis for
classification... it’s not for the Court to substitute a
different criterion... proper in the Court’s opinion.
 Classifications upheld by courts (a) Rulers of Indian
States and other persons (b) Ordinary suits and suits on
negotiable instruments (c) Vexatious litigants and other
litigants (d) Defamed public servants and defamed private
persons (e) Juvenile offenders and other offenders (f)
Employers and employees (g) Landlords and tenants (h)
Citizens and non-citizens.
Page 7
 Following held as no classifications (a) ‘persons of rank’
and others (b) habitual criminals with bad reputation and
habitual criminals without such a reputation (c) ‘rich’ and
‘poor’ (d) License-holders who are co-operative societies
and license-holders who aren’t (e) Undivided families and
other families.
 Parveen Hans v. Registrar (1990) held LL.B seats reserved
for employees of a University and their wards has no
reasonable nexus with the object of reservation... so,
violates Art.14.
 Charles S. Karia v. Dr. C Mathew(1980) 2% seats reserved
for candidates from other universities (in rest of India) for
PG courses in medicine in Kerala - 98% for candidates of
two universities in Kerala ... Struck down as
unconstitutional...SC held: not sufficient fulfillment of Art.
14 & 15. Fundamental rights of candidates do not depend
on the grace of a government... Indians aren’t aliens in
own motherland... so, need equal opportunity
 Nagpur Improvement Trust v. Vithal Rao & Others...case
related to acquisition of land SC held: nothing wrong in
‘bettering the lot of millions of Indians’...but, cannot be
done so as to flout...guarantee of equality... a
classification which is based on nature of public purpose...
not a permissible classification... State cannot...
circumvent equality have one law for acquiring land of
school buildings, another for government buildings, another
for slums and so on.
 Kerala Hotels & Restaurants v. State of Kerala (1990)... Can
State impose higher tax on sale of cooked food in more
expensive restaurants and exempt cooked food @lower
prices in modest eating places...SC: invalid.
 Doctrine of equal protection law of taxation... no
exception taxing statute will be struck down if no
reasonable basis for classification... e.g., when
differentiation is made between tax evaders in same
class... just because evasion was detected by different
means (ITO v. Lawrence, 1968)
Special Courts:
 Guarantee of equal protection applies substantive and
procedural laws...latter means all similarly-situated
litigants can avail themselves of the same procedural rights
for relief and for defence without discrimination...
 Acts have prescribed...two different procedures for the
trial of criminal offences... special courts set up under
several State laws...different from Criminal Procedure
Code... so, challenged... Art. 14 violated due to alleged
procedural inequality.
 State of West Bengal v. Anwar Ali Sarkar (1952) SC held:
majority judgment... WB Act void... it conferred
unfettered and arbitrary power on government to classify
offences or cases at its pleasure... Preamble of Act
referred to a need for speedier trials... vague,
uncertain...so, didn’t afford rational classification.
 Same Q... Kathi Rani Rawat v. State of Saurashtra 
similar ordinance challenged... same Bench of SC: held it
valid. Preamble of the Ordinance gave guidance to
Government to classify offences and cases to be tried by
special procedure...however, dissenting judgment in the
case is sounder.
 Kedar Nath Bajoria v. State of WB (1953) SC held by
majority: conferring discretion to State Government...to
refer cases to Special Tribunals... didn’t violate Art.14, as
the discretion had to be exercised in light of the policy of
the Act.
Art.15: Prohibition of discrimination on grounds only of religion,
race, caste, sex or place of birth: Rights and privileges...open
only to citizens of India...non-citizens can benefit.
 In Nabhirajiah v. State of Mysore (1952) a person on
whom... a fundamental right was not conferred... cannot
challenge the validity of a law on the ground that such a
law is inconsistent with the fundamental right... Deals with
4 related topics, viz.:
1. Art. 15(1): Discrimination on the grounds of religion, race,
etc.:
 Wide clause... Leveled against any State action relating to
citizens’ rights, whether political, civil or otherwise.
 Guarantee of equality is secured with: (i) Art. 326 - Adult
suffrage (ii) Art. 16(2) - Equality in employment (iii)
Eligibility for the office of President, membership of
Parliament, etc., which can be held by any citizen of
India... so on.
 Nain Sukh Das v. State of UP (1953) SC held: Law
unconstitutional if it allows election to local bodies on the
basis of separate electorates for members of different
religious communities...unless the law is protected by Art.
15(4)
 State of Rajasthan v. Pratap Singh (1960) A Notification
passed under Police Act...to impose an extra levy... in one
area...because inhabitants of that locality harbored dacoits
and caused riots... Muslims and Harijans were exempted
o SC held: absence of proof...all Muslims and
Harijans in the locality were law-abiding... plus, there
were law-abiding persons belonging to other
communities... so notification discriminated...on
grounds of Art. 15(1)
2. Art. 15(2): Religious or racial disabilities in connection with
access to shops, hotels, wells, tanks, etc.
 Art 15(2) No restrictions or conditions... in access to
shops, public restaurants and places of public
entertainment...plus... use of wells, tanks, bathing ghats,
roads and places of public resorts, maintained wholly or
partly out of State funds...or dedicated to the use of the
general public...
 Spirits of Mahatma’s teachings in this clause
 Term ‘public’ used repeatedly... the Art. Does NOT
authorize use of somebody else’s private property.
 Prohibits discrimination on certain grounds... OK for law-
abiding lepers to be forbidden from using public places
mentioned in the article... Lepers Act prohibits lepers from
using public carriages, bathing places, etc.
3. Art. 15(3): Special provisions for women and children:
 Nothing will prevent the State from making special
provision for women and children... intention to protect
interests of women and children.
 So, Art.42’s provision of maternity relief for women
workers... or Art. 45’s free education for children... or Art.
39(f)’s measures for prevention of children’s exploitation...
won’t contravene Art. 15.
 1st point Drafting of the clause leaves much to be
desired... Art. 15(1) doesn’t include age as a criterion for
discrimination... so, the reference to children in Art. 15(3)
serves no purpose.
 2nd point But, it doesn’t authorize discrimination against
women... it does not use the expression ‘discriminate
against’...but, ‘special provision for...’
Page 8
 Dattatraya Motiram v. State of Bombay Bombay HC held: 2.
State could discriminate in favor of women against
men...not vice-versa.
 Rajesh Kumar Gupta v. State of UP Reservation of 50% of
posts in favor of female candidates has been held to be 
NOT violative of Art.15.
4. Art. 15(4): Special provisions for socially and economically
backward classes
 Nothing in this article... and in Art.29(2)... deter the State
from making special provisions...to advance socially and
educationally backward SC and ST classes in the citizenry.
 Champakam Dorairajan v. State of Madras (1951) Art.
15(4) was added as a result of the HC verdict... upheld by
SC.
 MR Balaji v. State of Mysore (1963) validity of reservation
for SC&T came up before the Supreme Court... Mysore
Government’s reservation of 68% of seats for SC&T and for
Backward Classes... was challenged. Held Impugned
order classified only on caste, disregarding other relevant
factors... such classification: not permitted under Art.
15(4).
 SC noted: Such reservation should be less than 50% (how
much below - not specified)...hence void...
 Art. 15(5) inserted in the 93rd Amendment, 2005 State to
make special provisions for the advancement of socially
and educationally backward classes of citizens or of
SC&T...for special provisions related to their admission to
educational institutions... including private educational
institutions... whether or not aided by the State... other
than minority educational institutions referred to in Art.
30(1).
 Sexual harassment of working women SC has held... it
violates rights under Arts. 14, 15 and 23. Taking
widespread harassment of women...at workplaces... the
Court formulated detailed guidelines (Vishaka v. State of
Rajasthan - 1997)
Art. 16: Equality of opportunity in matters of public
employment: It contains 7 clauses... protections are like Art. 15
- available only to citizens.
1. Art. 16(1): Equality of opportunity for all citizens in
matters relating to employment or appointment to any
office under the State:
 Our Civil Service...based on English model. The “spoils
system” (also called “patronage system”) prevailing in
US...has no place in our Constitution... the practice
rewards government jobs to voters after winning an
election... it is an incentive to keep voters working for
party.
 Our system... awards offices based on some measure of
merit independent of political activity.
 In fact... the principle of recruitment by open competition 
existed in India...even before its introduction in England...
 Indra Sawhney v. Union of India (2000) Parliament and
Legilatures can’t transgress the basic tenet of equality
enshrined in our Constitution... Art.16(1) is a facet of
that... it doesn’t confer a right to obtain public
employment... only t opportunity for being considered... It
doesn’t prohibit selective texts; nor does it preclude
stipulation of qualifying criteria... of physical fitness,
moral integrity, mental ability, sense of discipline, etc.
Art.16(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.
Janakiraman v. State of AP (1959)... removal of a
government servant only because he wasn’t born in AP...
violates Art.16(2)...no distinction between temporary and
permanent jobs in the clause.
 Dr. Pradeep Jain v. Union of India (1984) SC said:
residence and place-of-birth...2 distinct concepts...Art.
16(2) prohibits discrimination on ground of place of
birth...not on ground of residence. So, if a residence
requirement is prescribed in a State for admission to
medical college... the article is not violated.
3. Art. 16(3): Parliament shall have right to prescribe any
requirement as to residence in a State in respect of any
particular class or classes of employment in that State or
Union territory: Public Employment (Requirement of
Residence) Act, 1957...passed.
4. Art. 16(4): State, however, has power to make provisions
for reservation of appointment or posts in favor of any
backward classes of citizens which, in the opinion of the
State, is not adequately represented in the services under
the State: Under Art. 320...it is mandatory for Government
to consult... UPSC or SPSC... for matters of public service,
civil services and posts... this is an exception to the rule in
Art.16(1).
 Nothing will prevent State from making reservations... in
promotions, with consequential seniority, to any class or
classes of posts, in services under the State, in favor of
SC&T...which are not adequately represented in the
Services.
 Government... can treat unfilled vacancies (reserved for
SC&T) of a year...as a separate class of vacancies to be
filled up in succeeding year(s).
5. Art. 16(5): Offices connected with religious or
denominational institutions...may reserve for members
professing / belonging to particular religion / denomination
 Exception to equality in Art. 16...logical result of Right to
Freedom (of religion) in Arts.26 & 27. Object
clear...prevents a person professing one religion...
occupying a post in different religion.
 SC held: setting qualifications for a particular post based
on rational differentia...ok (SC Jain v. Delhi Electrical
Supply Undertaking - 1981)
Art.17: Abolition of Untouchability: Untouchability is abolished,
and its practice in any form is forbidden. Enforcement of any
disability arising out of ‘untouchability’ shall be an offence
punishable in accordance with law.
Foremost of MKG’s visions... adopts Gandhian idea without
qualification. Word ‘untouchability’ hasn’t been defined
yet, like slavery, untouchability amounts to denial of
human equality.
 The term untouchability is used in inverted commas...
suggests... subject-matter is not untouchability in its literal
or grammatical sense...but, the practice developed
through ages in India.
 In 1955, Parliament passed the Untouchability (Offences)
Act... renamed Protection of Civil Rights Act....makes
provisions with respect to forms of untouchability (thro’
Page 9
 fine & imprisonment) to prevent, on grounds of  Hamdard Dawakhana v. UoI, 1960 Q: whether an ad
untouchability)...
1. Entering, worshipping and performing any religious
services any public place of worship, or bathing in any
sacred tank, well, spring, etc.
2. Denying access to any shop, public restaurant, hotel,
or place of public entertainment
3. Enforcing against any person, any disability with regard
to the practice of any profession or the carrying on of 
any occupation, trade or business.
4. Denying use of public conveyance, dharma-shala,
musafir-khana, etc. open to public.
5. Refusing admission in any hospital, dispensary,
educational institution, etc., established or maintained 
for the benefit of the general public.
Art. 18: Abolition of titles: Conferment of titles by the State
abolished... except in the case of military or academic
distinctions...
 Citizens prohibited from accepting titles from foreign
states... Even non-citizens can’t accept a title from a
foreign state if they hold any office of profit or trust
under the State... without the consent of the President.
 So also, no person who’s holding any office of profit or
trust under the State... can accept any present,
emolument or office of any kind from or under any foreign
State, without the consent of the President.
 Titles abolished for they tend to create unwanted
distinctions amongst people... not in line with ideals of
social, economic and political justice.
 Doesn’t provide (unlike Art. 17 or Art. 23) that any breach
will be an offence punishable under law.
 It prohibits conferment of titles... not awards... so, Padma
Shri or Bharat Ratna...not hit
Right to Freedom (Arts. 19 and 358)
Art. 19: Right to Freedom: Enshrines several important liberties 
of citizens... comprehensive list these rights... enjoyed by all
citizens... are NOT absolute... they are qualified and limited.
 First declared in absolute terms... then qualified
 The restrictions imposed by legislature for public good
 Constitution-makers... included the essence of other
constitutions... but, unlike the American Constitution...
they’ve been properly codified.
 7 important heads:
1. Art. 19(1)(a) Freedom of Speech & Expression: All citizens
have right to freedom of speech and expression... subject
to the power of the State to make any laws imposing
reasonable restrictions on such right...
a) In the interest of (i) sovereignty and integrity of
India, (ii) security of the State; (iii) Friendly relations
with foreign states; (iv) Public order (v) Decency (vi)
Morality... OR
b) In relation to (i) contempt of court, (ii)
defamation (iii) Incitement of an offence.
 Jamuna Prasad v. Lacchi Ram, 1954 SC held: Ss. 123(5)
and 124(5) of the Representation of People Act... does not
interfere with a citizen’s fundamental right to freedom of
speech...it prescribes conditions to be observed if he
wished to become an MP...
 The right to contest an election is NOT a common law
right...but, a right created by a statute... to be exercised
according to conditions prescribed.
designed to promote the sale of certain medicines was
covered by the guarantee of freedom of speech and
expression SC held: Negative... advertisement was a
form of speech; the right to publish and distribute a
commercial ad (advertising an individual’s commercial
business) was not part of freedom of speech with
Constitutional guarantee
Rajni Kant v. State, 1958 Allahabad HC use of
mechanical instruments, like loudspeakers and amplifiers
not covered by the guarantee of speech and expression...
so, a bye-law of a Municipality requiring a permit is not
violative of Art. 19(1)(a)...
Guj. HC held: freedom of speech and expression extends to
mechanical devices... likely to cause disturbance and
nuisance... reasonable restrictions okay.
 Other cases have held that a citizen also has the right not
to hear and not to be bombarded with loud noises.
 2 conditions to be satisfied if a restriction is to be held
constitutional:
a) It must be reasonable... courts have no power to
decide if the legislation itself is reasonable ... only
whether the restriction is reasonable. So, history of
legislation, duration; extent of restriction, etc. are
considered...no fool-proof test of reasonableness, or
otherwise.
b) Such a restriction should relate to one of the 9 heads
enumerated above.
 UoI v. Hindustan Development Corp SC held: concept of
reasonable restriction finds its manifestation in the ideal of
social and economic justice..., which inspired the Directive
Principles.
 Narendra Kumar v. UoI, 1960 For a while...there was a
conflict of decisions on the point whether the word
‘restriction’ would also cover prohibition ... SC held:
restriction would include prohibition also...yet, prohibition
should be reasonable
Reasonableness of restriction is a justifiable issue... this
has introduced the ‘doctrine of judicial review’ into our
Constitution. The expression ‘reasonable restrictions’ has
indirectly introduced the due process clause of the
American Constitution... But, not correct view. Power of
the SC of USA is very wide because of the ‘due process
clause’... not so in India. Courts in India can merely
consider the reasonableness of the restrictions, and not the
reasonableness of the legislation itself... which is possible
in the US under the ‘due process’ law. SC has held
(repeatedly): Due process doesn’t apply in India.
FREEDOM OF PRESS:
 Not separately guaranteed... however, 19(1)(a) doesn’t
mention the freedom of the press; courts have held:
freedom of speech and expression,
 Romesh Thappar v. State of Madras: SC held: Art. 19
includes freedom of the press and circulation... which
ensure freedom of propagation of ideas...
 Bennett Coleman v. UoI SC held: Fixing the max no. of
pages for a particular price would amount to a violation of
the right of freedom of the press, as it would affect vol.
and circulation.
 Prof. Manubhai D. Shah v. LIC , 1981 Consumer Education
and Research Center (CERC) published a scientific research
study on the working of LIC “A Fraud on Policy-
holders”... it tried to portray discriminatory practices of
LIC... adversely affecting large no. of policy-holders. The
Page 10
 LIC published a reply in ‘The Hindu’ challenging the
conclusions of CERC; it was reprinted in Yogakshema, a LIC
publication. CERC sent a rejoinder and wanted LIC to
publish it in Yogakshema... LIC refused...
 Guj. HC held (on above facts): Every citizen has a right to
call upon the State to make available to him a particular
channel for publishing his studied criticism of a branch of
public administration. Giving an opportunity (make funds
available) to an admirer... deny it to a critic...is to deny
freedom of speech and expression. Violates guarantee of
equality... so. LIC action violative of Arts. 14 & 19(1)(a)
 Sakal Papers v. UoI SC held: requiring a newspaper to
reduce its space for ads ... constitutes a violation on the
freedom of press... it results in an increase in price
 COMMERCIAL EXHIBITION OF FILMS: Sitar Video v. State of
UP Allahabad HC held: exhibition of films through video
on a commercial basis is not a fundamental right under Art.
19... cannot be compared with circulation or distribution of
newspapers freedom of speech and expression doesn’t
cover... right to exhibit films by a video parlous.
 BANDH: CPI v. Bharat Kumar, 1998 Doesn’t fall under the
scope of fundamental rights of speech and expression. It is
a warning to citizens...if he goes to work, school or
college, or opens his shop...he would be forcibly prevented
from doing so. So, fundamental rights of people as a whole
can’t be sacrificed by a section of persons claiming to
exercise their ‘fundamental rights’. Even if no law
prohibiting a ‘bandh’... courts can interfere to protect
right to work or the right to study.
 SINGING OF NATIONAL ANTHEM: Bijoe Emmanmel v. State
of Kerala, 1987 3 children didn’t join te singing of the
National Anthem in a school... their religious faith,
although they stood up... out of respect when the anthem 
was sung. 3 children were expelled from school... SC held:
such an expulsion is violative of their fundamental rights
under Art. 19(1)(1) and Art.25(1)
2. Arts. 19(1)(b) and 19(3): Freedom of Assembly Right to
assemble peacefully is guaranteed and without arms...and
hold meetings and take out processions too.
 Gopal Charan v. Daitary Nandy (1961) Held: the right to 
lead a procession is neither an easement, not a customary
right... but, a fundamental right.
 Govt. being a republic... it means right to meet peacefully
for consultation for public affairs. Guaranteed with 3
limitations (1) assembly must be peaceful (2) It must be
unarmed (3) State may impose any reasonable restriction
for public order, sovereignty and integrity of country.
 Rameshwar v. State, 1957 Representation of People Act,
1951 challenged as unconstitutional... it prohibits the
holding or attending of any meeting on the date on which
polling takes place. Court held: A law relating to public
meetings passed in the interest of public order...so, valid.
 State v. Mangala, 1957 Held: UP Opium Smoking Act,
which prohibited assembly for smoking opium did NOT
violate Art. 19(3).
 S. 141 of IPC lays down assembly of 5 or more persons
becomes an unlawful assembly when the common object is,
by means of criminal force or show of criminal force, to
overpower the Government or any public servant in the
exercise of lawful powers, or to take possession of any
property to deprive any person of the enjoyment of his
incorporeal rights, etc.  Law may impose reasonable
restrictions on the enjoyment of such a right in the interest
of public order... so, when Govt. of Bihar promulgated
certain Rules... the Court held such Rules were void.
3. Art. 19(1)(c) and 19(4): Freedom to form associations or
unions: All citizens have this freedom. Right... subject to
the power of the State to make any law imposing
reasonable restrictions on such right, in the interest of
sovereignty and integrity of India, public order and
morality.
 Ramkrishnaiah v. The President, District Board, Nellore,
1952 Govt. issued an order... requiring Municipal
teachers NOT to join unions other than those officially
appointed by it. Order challenged ...it violated freedom to
form associations and unions... struck down by Madras HC.
 State of Madras v. Row, 1952...The leading case on Art.
19(1)(c) State govt. issued a notification declaring
“People’s Education Society”... to be an unlawful
association. Objects of Society broadly described as
‘advancement of knowledge’... govt. alleged...this was a
camouflage... funds were used for helping the Communist
Party - which had been declared unlawful... SC held:
matter left to the subjective satisfaction of the
Government...and, not justiceable. No obligation on govt.
to give notice before declaring an association as unlawful.
Court held: such a restriction was unreasonable and
violative of fundamental right to form associations and
unions.
 Sitharamachary v. Sr. Dy Inspector of Schools, 1959
Art.19 (1)(c) also implies a right not to be compelled to
form or join an association. HC of AP held: rules which
make it compulsory for all teachers of elementary schools
to become members of an association were void... violative
of Art. 19(1)(c).
SC also has also considered the Q of whether there is a
fundamental right to strike...and answered the Q in the
negative.
4. Art. 19(1)(d): Freedom to move freely in India: Necessary
for liberty... India in one...so, any internal barriers... will
deprive a citizen of the right to move as he pleases in any
part of India.
State may impose reasonable restrictions upon his
freedom...in the interest of general public... and for
protection of interests of any Scheduled Tribe. Like other
rights, this right is not absolute...
 True even in England restrictions imposed by law in all
countries to prohibit, deny movement under Official
Secrets Act in protected areas... similar movement and
access restrictions in the case of epidemics, contagious
diseases, etc.
 Gopalan v. State of Madras (1950) Free movement
guaranteed by Art. 19(1)(d)... not for general right of
locomotion...but, for moving from one part of Indian
territory to another... without any discriminatory barriers
between one State and another or different parts of same
State.
 Dr. Khare v. State Orders of externment (order to leave a
district or area = typically issued to goondas) and
Internment fall under this Art. Duration of externment...
provided for by law is a relevant consideration in
determining the reasonableness of the restriction ... a law
providing for externment for indefinite periods... would be,
prima facie, an unreasonable restriction, but not so. If the
statute itself is temporary enactment... the order of
detention made under the Act cannot possibly extend
beyond the expiry of the Act.
Page 11

5. Arts. 19(1)(e) & 5: Freedom to reside and settle in any part
of India A necessary corollary of Art. 19(1)(d)... if one
can freely move around in the country, he should be able
to settle down as well. State may impose reasonable
restrictions...in the interest of any Scheduled Tribe.
 Dr. Khare v. State (1950) Qs of violation of Arts.19(1)(d)
and 19(1)(c) have been raised in externment orders. In this
case, an Act empowered the Govt. or a District Magistrate
to extern persons (the order of the authority was final)...
challenged. By a majority of 3 to 2, the SC upheld the
validity... as being a reasonable restriction on the
fundamental right.
 Gurbachan Singh v. State of Bombay (1952) SC also
upheld S. 27(1) of the Bombay Police Act, authorizing an
order of externment... reasonable restriction in public
interest.
 State of MP v. Baldev Prasad (1961) The above cases of
externment were held not to apply to an order under the
Central Provinces & Barar Goondas Act, 1946... The District
Magistrate had failed to ascertain whether the person was
indeed a goonda... the Act too didn’t provide any
guidelines in this respect... plus, no opportunity for the
person to prove he was NOT a goonda... So, SC held that...
however laudable the object of the Act, it was void... it
failed to provide the necessary safeguards
 State of UP v. Kaushailiya (1964) SC upheld the validity of
S. 20 of the Suppression of Immoral Traffic in Women and
Girls Act, 1956, and observed... if the activities of a
prostitute in a particular area are so subversive of the
public morals and so destructive of public health, it is
necessary to deport her from that place... the restriction is
reasonable.
6. Art. 19(1)(f) & (5): Freedom to acquire, hold and dispose of
property:- (removed...from chapter on Fundamental Rights
in 1978... no longer valid.
 Position before the 44th Amendment Right to
property consisted not merely in ownership and
possession, but in the unrestricted right of use and
disposal... not an absolute right. State could impose
reasonable restrictions in the interest of general
public... or the protection of interests of Scheduled
Tribes.
 Chiranjit Lal Chowdhuri v. Union of India (1951)
Held: right to possess as well as to enjoy all the
benefits... attached to ownership of property... also
includes the right to enjoy all the concrete rights
which follow.
 Ganpatsinghji v. State of Ajmer... the Court held (by a
majority) right to hold a fair on one’s own land is a
fundamental right can be restricted only in the matter
provided for by Art. 19(5).
 The Q. of whether a customary or statutory right of
pre-emption on the ground of vicinage (vicinity)
violates Art. 19(1)(f) had formerly given rise to a
conflict of judicial opinions... Allahabad & Rajasthan
HC’s had held: a law of pre-emption violated 19(1)(f)
and was therefore void... HC’s of Nagpur and Punjab
heldnot void. SC resolved the conflict in Bhav Ram v.
Brij Nath (1962) the Court held by a majority (of 3 v.
2) that pre-emption on the ground of vicinage was
void.
 SC in Chiranjit Lal’s case gave a restricted meaning to
term ‘property’... denying the protection of Art. 19 to
incorporeal property. The trend was reversed by the
SC in Lakshindra’s case (1954), where a wider meaning
was given to the word ‘property’... as used in Art.
19(1) of the Constitution...should not be given a liberal
and wide connotation, and should not be extended to
those well-recognized types of interest which have the
insignia or characteristics of proprietary right.
 Arts. 19(1)(f) and 31...deal with the right to acquire,
hold and dispose off property. Cl. (1) of Art.31
guarantees the right not to be ‘deprived of one’s
property save by the authority of the law.’ Cl. (2) of
Art. 31 guarantees that private property cannot be
acquired or taken possession of by the State except for
public purposes and after payment of compensation.
 The opinion in Gopalan’s case was that the capacity to
exercise the right guaranteed under Art. 19(1)(f) does
not exist when property is compulsorily acquired under
Art. 31(2).
 So, citizen has no right to inquire into the
reasonableness of a law coming under Cl. (1) or (2) of
Art. 31... held willful burning of a copy of the
Constitution is NOT included in the fundamental right
to acquire, hold and dispose of property.
 Position after the 44th Amendment Drastic step of
far-reaching significance...whereby Art. 19(1)(f),
which gave every citizen the freedom to acquire, hold
and dispose off property, was omitted from Chapter III
of the Constitution (dealing with Fundamental Rights).
This right is no longer enjoyed.
 A reference may be now made to Art. 300-A, which
provides that no person can be deprived of his
property save by authority of law.
7. Arts. 19(1)(g) and 6: Freedom to practice any profession:
Right to choose any employment or to take up any trade or
calling, subject only to the limits as may be imposed by the
State in the interest of public welfare. This Article does not
guarantee a monopoly to any individual or association to
carry on any occupation.
 Right to carry on any occupation implies... right to close
it also.
 19(1)(g) confers a right, and not an obligation... subject to
reasonable restrictions... when the business carried on is a
public utility service, or when the closure assumes the form
of a ‘lockout’ and raises an industrial dispute... legislature
seeks to prevent. The right of a lawyer to practice is not a
natural or absolute right, but is subject to the terms and
conditions laid down in the Bar Councils Act, which requires
an Advocate to get himself enrolled before he can practice
in different courts of India.
 Nagar Rice Mills v. NTC Bros (1971) There is no
fundamental right of existing traders to be free from
competition of new traders
 Formerly... if the State itself wished to carry on trade or
business ousting private traders, wholly or partially, the
State could be justified in doing so... only if it was
reasonable... But, Constitutional Amendment of 1951...now
exempts the State from the condition of reasonableness, by
laying down that the carrying on of any trade, business,
industry or service by the State cannot be questioned on
the ground that it’s an infringement of the rights
guaranteed by Art. 19(1)(g)... so, the State is now free to
compete with private traders or even to create a monopoly
in favor of itself, without being called upon to justify its
action.
Page 12
 Under Art. 19(6), the State may:
a) Impose reasonable restrictions upon the freedom
of trade, business, occupation, or profession...in
general public’s interest
b) Prescribe the professional or technical
qualifications necessary for carrying on any
occupation, trade or business
c) Carry on any trade, business, industry or service...
by itself or through a corporation controlled by the
State - to the exclusion of private citizens, wholly or in
part.
 ‘Reasonable restrictions’... SC observed... the greater the
restriction, the more is the need for strict scrutiny by the
Courts.
 Chintamanrao v. State of MP (1950) An Act of MP
government empowered the Deputy Commissioner to
prohibit manufacture of bidis... during the agricultural
season... in villages of his choice. SC held: provision void...
it violates Art. 19(1)(g), since a total prohibition of the
manufacture imposes an unreasonable and excessive
restriction on the lawful profession of manufacturing bidis.
 Bombay Hawkers’ Union v. Bombay Municipal Corp. (BMC)
(1985) SC... BMC Act were challenged on the ground that
the authorities were conferred arbitrary power to grant or
refuse licenses for hawkers on public streets...and for
removal of unauthorized hawkers...without giving them an
opportunity to be heard. SC: Rejected the contention...
public streets by nomenclature and definition... meant for
use of the general public... No person has the fundamental
right to carry on any business, which causes nuisance,
annoyance or inconvenience to the public. So, held... BMC
Act imposed reasonable restrictions... so, not violative of
Art. 19(1)(g)
 State of Kerala v. Joseph Antony (1994)... A ban was
imposed on the use of mechanized fishing nets and mid-
water trawlers in territorial waters. This was done to
protect the livelihood of other poorer fishermen... to
protect the pelagic (oceanic) fish wealth of the territorial
waters... SC held: the restriction was a reasonable one; not
violative of Art. 19(6)
 A temporary legislation to control production, supply and
distribution of an essential commodity during a period of
emergency cannot be said to be unreasonable... the
principle has also been extended to normal times in respect
to an essential commodity... e.g., milk
 State of Bombay v. RMD Chamabaughwalla (1956)
whether there can be business of gambling... Court held:
there could not be... crime is certainly not a business...
prostitution and the running of brothels... are not
‘occupation’ or ‘trade’ or ‘business’ entitled to the
protection of Art. 19. Courts held: no fundamental right to
deal in smuggled goods or to carry on business of
adulterated foodstuffs.
 Mohd. Hanif Quareshi v. State of Bihar very important...
important case raised constitutional questions because of
strong feelings aroused... about slaughter of cattle,
particularly cows. Petitioners were Muslim butchers; they
challenged the laws of various States, which aimed to ban
cattle slaughter... SC ruled:
a) A total ban on the slaughter of cows of all ages is
quite reasonable and valid, and in consonance with the
Directive Principles laid down in Art.48
b) A total ban on slaughter of she-buffaloes or
breeding bulls, as long as they are useful as milch or
draught cattle, is also reasonable and valid
c) A total ban on the slaughter of she-buffaloes, bulls
and bullocks after they cease to be capable of yielding
milk or breeding or of working as draught cattle,
cannot be said to be reasonable in the interest of the
general public.
 To be shown: Law violates the right to carry on trade,
business or profession... to successfully challenge under
Art. 19(1)(g)...studying in an university is NOT an
occupation.
 A person can complain of the violation of a fundamental
right...it must be established the right claimed is, (1) a
legal right, and (2) a fundamental right. So, held: petition-
writer has no legal right, let alone a fundamental right, to
carry on his profession of business in the compound of the
Collectorate.
 Art. 358 provides that during a Proclamation of Emergency,
the State, including legislative, executive and local
authorities, shall be free from the restrictions imposed by
Art. 19... The Article revives as soon as the Proclamation
expires.
Protection In Respect Of Conviction for Offences
(Art. 20)
Art. 20: It enshrines a very valuable fundamental right, provides
3 basic guarantees as follows:
1. Art. 20(1): No person shall be convicted of any offence
except for violation of a law in force at the time of the
commission of the act charged as an offence, not be
subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the
offence.
2. Art. 20(2): No person shall be prosecuted and punished for
the same offence more than once
3. Art. 20(3): No person accused of any offence shall be
compelled to be a witness against himself.
Art. 20(1) Protection against ex-post facto laws: This
guarantee is similar to the one in the American Constitution.
Ex-post facto laws are laws which make unlawful and punish, an
act which had been lawful when done. SC held: What is
prohibited under Art.20 is any conviction or sentence under an
ex-post facto law, and not the trial thereof.
 2nd Part of Art. 20(1): It guarantees that no person shall be
subject to a penalty greater than that which might have
been inflicted on him under the law in force at the time
when the offence was committed. The prohibition under
Art. 20(1) prohibits all convictions under ex-post facto
laws, and it is immaterial whether such a law is a post-
Constitution or pre-Constitution enactment...
 Art.20(1) doesn’t apply to disciplinary proceedings
Pandurang Swamy v. State of AP, 1971...
 Jawla Ram v. State of Pepsu (1962) penalty referred to in
Art.20(1) must be a penalty for the offence. SC has held:
unauthorized use of canal water was not an offence, and
the imposition of an enhanced water charge under a local
Statute was not a penalty for an offence
Art. 20(2): Double Jeopardy:
 It guarantees against double jeopardy. No person can be
prosecuted and punished for the same offense more than
once... to come under the ambit of Art. 20(2), the
person... must both be prosecuted and punished.
 Protection against double jeopardy is also found in the
Criminal Procedure Code and in the US Constitution. But,
the US Constitution prohibits not only a second punishment,
Page 13
 but also a 2nd trial. Art. 3(a) of the Japanese Constitution
also confers a similar guarantee.
 Thomas Das v. State of Punjab (1959) SC held (by 4:1
majority): To claim protection... necessary to prove 3
things:
1. That there was a previous prosecution
2. That as a result of this, the accused was punished; and
3. That the punishment was for the same offence.
 There is no punishment within the meaning of Art. 20(2),
unless it is preceded by a prosecution of a criminal nature.
 Maqbool Hasan v. State of Bombay (1953) X arrived at
airport... didn’t declare 107 tolas of gold... carried in
contravention of the law... Customs confiscated the gold...
a complaint was filed in the Court of the Chief Presidency
Magistrate... for offence under FERA... X pleaded before
the Magistrate that it would violate Art. 20(2)... he’d
already been prosecuted and punished (i.e., gold
confiscated). SC rejected the plea... Customs are not a
Court or Judicial Tribunal... no prosecution... the
confiscation was no punishment.
 SA Venkataraman v. UoI SC has held... that an inquiry
under the Public Servants (Inquiries) Act, 1850...was a fact- 
finding inquiry... and the dismissal of a public servant after
such an inquiry did not prevent a criminal prosecution
being launched against him for same acts.
 Sardul Singh v. State of Maharashtra (1964) Moreover, the
offence which is the subject-matter of the 2nd
proceeding...must be the same as that of the 1st
proceeding... for which he was prosecuted and punished.
So, previous conviction for one offence, (e.g., hurt) does
not bar a subsequent trial and conviction for a distinctly
separate offence (e.g., affray)... even if both offences are
out of the same facts.
Art. 20(3): Self-Incrimination:
 No person accused of an offence shall be compelled to be a
witness against himself... privilege against self-
incrimination. American Constitution guarantees a similar
right... the 5th Amendment
 This provision doesn’t prevent an accused from waiving this
privilege and being a witness in a criminal proceeding in
which he is an accused...
 Compulsion is an essential ingredient of this Art. So the
clause permits the admission of a confession (without
inducement, threat, promise)... even though it may be
retracted later.
 The compulsion need not necessarily be physical; it may
even be mental... self-incrimination means giving
information based on personal knowledge of the person
giving the info  cannot include merely the mechanical
process of producing documents in Court...which do not
contain any statement of the accused based on personal
knowledge
 Giving thumb-impression or impressions with foot, finger-
prints or specimen writing by way of identification are NOT
covered by the expression... ‘to be witness.’
 11 judges laid down 6 important propositions regarding the
protection:
1. Accused person cannot be said to have been compelled
to be a witness against himself, merely because he
made a statement while in police custody, without
anything more.
2. Mere questioning of an accused by a Police Officer,
resulting in a voluntary statement, is not compulsion.
3. ‘To be a witness’ cannot be said to be equivalent to
furnishing ‘evidence’
4. ‘To be a witness’ in the ordinary grammatical sense...
means giving oral testimony in Court. Case-law has
gone beyond this interpretation ... given wider
meaning... it now means imparting knowledge in
respect to relevant facts by an oral statement or a
statement in writing, made or given in a Court or
otherwise.
5. Giving thumb-impressions, finger-prints, etc. are not
included in the expression, ‘to be witness’
6. For protection of Art. 20(3), the person must have
been an accused person at the time he made the
statement in question. It is not enough if he became an
accused at any time after the statement was made.
 Narayanlal Bansilal vs. MP Mistry (1961) SC to decide the
Q on whether compulsory production of documents by a
company to an investigating inspector (under S.240 of the
Companies Act) is hit by Art. 20(2). Court... Art. 20(3) is
not applicable... as the investigating officer is NOT a Court;
and, there is no accused person, and no accusation.
Balkrishna Devidayal vs. State of Maharashtra (1980) SC
held that a person against whom no formal accusation is
made at the time of recording a confessional or
incriminating statement by an RPF officer in the course of
an inquiry under the Railway Property (Unlawful
Possession) Act, 1966... is not covered by Art. 20(3)... so,
statement can be used as evidence against him
 Mohd. Dasdadagir v. State of Madras (1960) X went to
Superintendent of Police to give a bribe. SP threw the
envelope at X, who picked it up... Some policemen then
seized the envelope... X argued the envelope should not be
produced at a trial... amount to compelled evidence
against himself... SC Held: Art.20(3) doesn’t apply... (1) no
compulsion or duress on X (2) at the time the cover was
seized, X was no accused.
 VS Kuttan Pillai v. Ramkrishnan SC held...that if the
accused’s premises are searched under a general search
warrant and incriminating evidence is recovered, such
recovery... out of passive submission of the accused to the
search... can’t be a violation of Art. 20(3)... even if
documents contain incriminating statements attributable to
the personal knowledge of the accused.
Art. 21: Protection of Life and Personal Liberty
 No one will be deprived of life or personal liberty except
according to procedure established by law... this is a
restraint upon the Executive...
 Art. 21, along with Art. 22, contains provisions relating to
deprivation of life or personal liberty, as distinguished from
restriction of the right to move freely throughout the
territory of India, guaranteed under Art.19(1)(b) and (5).
 5th Amendment in the US declares... no one shall
be...deprived of his life, personal liberty or
property...without due process of law.
 14th Amendment in US imposes a similar restriction on State
authorities. These two provisions are conveniently referred
to as the due process clauses  defined as... process of
law which hears before it condemns; which proceeds upon
enquiry and renders judgment only after trial.
 The American judiciary has a right to declare a law as
bad... even though the competence of the legislature to
enact such a law is perfectly within the bounds of the
Constitution.
Page 14
 Every citizen shall hold life, liberty and property and
immunity under protection of the general rules, which
govern society.
 Due process...in a criminal trial = no person is to be
punished except for a violation of definite and validly
enacted laws of the land, and after trial conducted... per
specific procedural safeguards... in Bill of Rights to secure
a fair trial
 In England, Magna Carta... no man shall be taken or
imprisoned or outlawed or exiled or in any way destroyed,
save by lawful judgment of his peers or by the law of the
land... the Privy Council maintained: no member of the
Executive can interfere with the liberty or property of a
British subject... except on the condition that he can
support the legality of his action before a Court of Justice.
 In India, the duty... no member of the Executive interferes
with the liberty or property of citizens, except on the
condition that he can support the legality of his action...
devolves on the Court... but, Indian Constitution doesn’t
guarantee the right to any particular procedure. Though SC
has denied to itself the right to examine the
reasonableness of any law depriving a person of his liberty,
it has, in fact interfered in many cases with such orders
depriving the liberty of the citizens...on grounds that the
procedure laid down by the law, which authorizes such
deprivation has NOT strictly been followed... in a
proceeding for habeas corpus...Court will set the person at
liberty... this principle has been applied both in case of
punitive as well as punitive detention.
 Gopalan v. State of Madras (1950) SC examined scope of
Art. 21 in detail. It rejected the argument that the Art.
Contains the American “Doctrine of Due Process.” Plus, SC
noted that...“liberty” is qualified by the adjective
personal. So, Art.21 guarantees the fundamental right of
“personal liberty”... completely different from the rights
guaranteed by Art.19. SC held: a law with reference to
Art.21 cannot be challenged on the ground that it violates
Art.19.
 A majority of the Bench of SC (in Gopalan case)... held: the
word ‘law’ (occurring in Art. 21) is to be understood as
State-made law and NOT as natural law, i.e., the word is
NOT used in the sense of ‘jus’. Dissenting judgment of
Fazal Ali... makes a strong and convincing case to interpret
law as meaning ‘natural law’ (Lex naturalis ...refers to use
of reason to analyze human nature and deduce binding
rules of moral behavior... positive law, in contrast, is
“man-made law”)
 SC decision in Gopalan case has been profusely criticized...
(1) the term ‘law’ ought to have been interpreted as
meaning ‘natural law.’ (2) SC interpretation on whether
Art. 19 controls Art.21 is technical... Better to hold
that...a law under Art. 21 must satisfy the test of Art.19.
 Kachunni v. State of Madras (1960) In this later case, SC
analyzed the Gopalan judgment... Subba Rao J said... “Had
the question been res integra... some of us... agreed with
dissenting view.” So, had the Gopalan’s case had been
heard by other Judges of SC, the decision would’ve perhaps
been different.
 Maneka Gandhi v. Union of India (1978) formal reversal of
Gopalan’s judgment... SC specifically overruled the
majority view in Gopalan’s case... laid down that Art.21 is
controlled by Art.19. Held if there is a law which
prescribes a procedure for depriving a person of personal
liberty, there may be no infringement of Art.21... but, such
law can still be challenged... on the ground that it takes
away any fundamental right under Art.19.
 In later decisions... SC has held Art.21 requires the
authority of law even for restrictions on personal liberty...
E.g.,
1. Kharak Singh v. State of UP (1963) Interference of a
person’s freedom at home, by, for instance,
domiciliary visits by the police at night
2. State of Maharashtra v. Prabhakar (1966)
Interference with the right of a prisoner in jail to
publish a book outside the jail
 The expression ‘personal liberty’ in Art.21 has been
interpreted in a broad sense. It connotes the personal right
NOT to be subjected to imprisonment, arrest or other
physical coercion, in any manner that does NOT admit of
legal jurisdiction.
 Hussainara Khatoon & Others v. State of Bihar (1979) SC
held there is no provision of law under which a woman
can be kept in jail by way of ‘protective custody’, or
merely because she is required for giving evidence...
Court ‘protective custody’ is a euphemism coined to
disguise what is nothing but imprisonment... it’s a blatant
violation of personal liberty guaranteed in Art.21... SC
ordered all women & children in Bihar jails under
‘protective custody’ to be released and taken to welfare or
rescue homes.
 When a person is deprived of his life or personal liberty by
a law prescribing a procedure for the same, Art.21 is NOT
violated... so, confinement of an under-trial prisoner or the
arrest & detention under CPC is NOT violative of Art.21.
 Dr. Malhotra v. State of MP (1994) Held by MP HC: the
right to life guaranteed by Art.21 also includes the right to
live with human dignity. An open drainage would endanger
public health, the Municipal Corp. was directed to take
necessary measures to eradicate the menace.
 Bhudan v. State of AP (1974) Protection of Art.21 is
available to both citizens as well as non-citizens. The
protection is equally available to a convict, subject to the
limitations imposed by his conviction.
 Nieon Sangma & Others v. Home Secretary, Govt. of
Meghalaya (1980) SC held... detention of a large number
of under-trial prisoners for a considerable period without a
trial violates Art.21 of the Constitution
 Other rights under Art.21 Unnikrishnan v. State of AP
(1993) SC held... the expression ‘personal liberty’ is of
the widest amplitude... it covers several non-enumerated
rights of... (a) going abroad (b) privacy (c) legal aid (d) live
with human dignity (e) healthy environment (f) health (g)
fair trial (h) shelter (i) protection against hazardous
industries (j) against custodial violence, etc.
 Hussainara Khatoon v. State of Bihar (1979) Held...
under Art.21, the term ‘procedure’ refers to a just, fair
and reasonable procedure... free legal services to the poor
is an essential element of the same.
 Olga Tellis v. Bombay Municipal Corp. (1986) CM of
Maharashtra announced that all pavement dwellers in
Bombay would be evicted forcibly and deported to their
respective places of origin or removed to places outside
city of Bombay. Court held... right of life includes the right
to livelihood because no person can live without the means
of living. Such deprivation would not only denude life of its
effective content and meaningfulness, but it would also
make life impossible to live.
Page 15
 Right to education P.Cherriyakaya v. Union of India
(1994) Kerala HC held... right to educationis to be
understood in the background of Arts.41 and 45.
 Custodial death DK Basu v. State of WB Right against
custodial violence and death has its source in Art.21... SC
observed that... this is one of the worst crimes in a
civilized society governed by the rule of law
 Delay in trials State of Maharashtra v. Champalal
(1981) SC held... inordinate delay in bringing an accused
to trial or in preferring an appeal against his acquittal
violates Art.21, if there is no fault on the part of the
accused 2.
Art.21A: Right to Education
 It is now a fundamental right... Until 2002, provision for
free and compulsory education for children was only a
directive principle of state policy (under Art.45). However,
the 86th Amendment, 2002, has made it a fundamental right
by introducing Art.21A... so, a child who is between the
ages of 6 and 14 has a fundamental right to free education.
Art. 22: Protection against Arrest & Detention in Certain
Cases
 Art.22 has 2 parts: (1) One part deals with persons arrested
under the ordinary law of crimes; (2) persons detained
under the law of preventive detention.
1. A. Under the ordinary law [Art. 22(1) to (3)]
 Art.22(1) No person who is arrested can 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.
 Art. 22(2) Every person who is arrested and
detained in custody must be produced before the
nearest magistrate within a period of 24 hours
(excluding the time for bringing him to the
magistrate), and no person can be detained in custody
beyond the said period without the authority of a
magistrate.
 Art. 22(3) Clauses (1) and (2) do not apply to ...
(a) any person who is an enemy alien, or (b) any person
who is arrested or detained under any law providing
for preventive detention.
 The object of conferring a right on an arrested
person... is to enable the application for bail or moving
of a Court for habeas corpus. This safeguard also
enables the arrested person to prepare his defence in
time for the purpose of his trial.
 Janardhan v. State of Hyderabad (1951) SC
clarified... the right to be defended by a legal
practitioner does not guarantee any absolute right to
be supplied with a lawyer; it only guarantees a right to
have the opportunity to engage a lawyer.
 Ganpati v. Nafisul Hussain (1954) SC held... if a
person is arrested under a warrant issued by the
speaker of the State Legislative Assembly... and is NOT
produced before a Magistrate within 24 hours of his
arrest, it would be a violation of Art. 22(2), and the
person should be ordered to be released... this view is
open to question due to a later SC ruling in Sharma v.
Sinha (1960) case... the Search Light case.
 State of Punjab v. Ajaib Singh (1953)SC
examined scope of clauses Art.22 (1) & (2)... it held:
language of Art. 22(1) & (2) shows it affords
protection against such arrests as are effected
otherwise than under a warrant.
 Madhu Limaye case (1969) SC held: the language
of this Art. suggests that it protects against those
arrests which are NOT under a warrant issued by a
Court, on the allegation or accusation that the
arrested person is suspected to have committed an act
of a criminal or quasi-criminal nature or some activity
which is prejudicial to the public or the interests of
the State.
B. Preventive Detention [Art. 22(4) to (7)] provide
certain limitations upon the power of the Union and State
Legislature to make any law providing for detention
without trial.
 Art. 22(4) Preventive detention... means a person
without trial... the evidence in possession of the
authority is NOT sufficient to make a legal charge or to
secure the conviction of the détenue by legal proof,
but may still be sufficient to justify his detention.
 Gopalan v. State of Madras (1950) Object of punitive
detention is to punish; that of preventive detention is
to prevent him from doing something that is likely to
be injurious to the security and safety of the State or
the public... preventive = prevent an individual, not
merely from acting in a particular way, but also from
achieving a particular object.
 No law providing for preventive detention... can
authorize detention of a person for a period > 3
months, unless an Advisory Board, constituted in
accordance with the recommendations of the Chief
Justice of the appropriate HC has reported, before the
expiration of the said period of 3 months, that there
is, in its opinion, sufficient cause for such detention.
 No case of preventive detention can detain one beyond
the maximum period of 3 months; beyond this period
without trial, the Advisory Board must make a report
that there is sufficient cause for such detention... the
Advisory Board = a chairman + not less than two other
members. The Chairman must be a serving Judge of
the HC; other members may be either serving Judges
of retired Judges of HC.
 Art. 22 (5) & (6) In pursuance of an order made
under any law providing for preventive detention, the
authority making the order must communicate to such
person, the grounds on which the order has been
made, and must afford him the earliest opportunity of
making a representation against the order. The
authority concerned is NOT required to disclose any
facts which it considers against the public interest to
disclose.
 Saleh Mohammed v. Union of India (1981) SC held...
a détenue is entitled to have his representation
considered within a reasonable time. His
representation was lying unattended in the office of
the Superintendent of the Jail for over 3 weeks... SC
held such a delay amounted to violation of Art.
22(5), the détenue was, therefore, entitled to be
released forthwith.
 Art. 22(7) Parliament may, by law, prescribe... (a)
The maximum period for which any person may, in any
class or classes of cases, be detained under any law
providing for preventive detention...; (b) the
procedure to be followed by an Advisory Board in an
inquiry.
Page 16
 Under the Indian Constitution, persons can be kept in
preventive detention both in normal times as well as in
times of emergency. No other ‘democratic’ country
contains such provisions in times of peace. In
emergencies (e.g., war), any enactment or law,
howsoever tyrannical or harsh, may be tolerated.
 State of Punjab v. Jagdev Singh Talwandi (1984) SC
cautioned against the indiscriminate use of preventive
detention...called it ‘a necessary evil.’ Deprivation of
personal liberty, if at all, has to be on the strict terms
of the Constitution.
 Constitutions of US, UK and Japan do recognize
preventive detention; yet, it is restricted to times of
emergency. There is no such provision during times of
peace.
 Art.22 provides a limitation on the power of the
Legislature conferred by Art. 21, to make any law for
the deprivation of the personal liberty of the citizen.
So, it follows that the Indian Constitution has given
legislative powers to the State and the Central
Government to pass laws permitting preventive
detention.
 Art.22 prescribes the min. procedure to be included in
any law permitting preventive detention. When such
requirements are not observed, the detention, even if
valid ab initio, ceases to be in accordance with the
procedure established by law, and infringes the
fundamental right of the détenue guaranteed under
Arts. 21 and 22(5) of the Constitution.
 The Constitution draws a distinction between the
grounds which must be communicated to the détenu,
& facts which may NOT be disclosed if it is against the
public interest to disclose. Grounds are conclusions
drawn by the authority and indicate the kind of
prejudicial acts which the détenu is suspected of being
engaged in.
 Contrarily facts constitute the reasons or the evidence
for arriving at the conclusion.
 Plus, are the grounds vague or not? That is to be
determined by considering circumstances in each case.
A communication which is not readily intelligible to a
layman without legal aid = vague. A communication in
English to one who is NOT conversant in it = invalid.
But, vagueness cannot be urged when there is an
obvious mistake or verbal inaccuracy in stating the
ground.
 State of Bombay v. Atmaram Vaidya (1951) SC
held... a détenu has the right to be furnished with
particulars to enable him to make a representation
against his order of detention. The sufficiency is a
justiceable issue, the test being whether such
particulars are sufficient to enable the detained person
to make an effective representation against his
detention.
 Prem Nath v. Union of India (1957) Punjab HC
considered various SC verdicts and derived 5
propositions established by the SC, viz.:
1. Whether the grounds given are sufficient or not is
within the jurisdiction of the Court.
2. There must be a rational connection between the
grounds stated by the Government and the objects
which are to be prevented under the statute
3. The grounds must not be vague.
4. Even if one of the grounds is vague, and others are
not, the detention would be illegal
5. A détenu can challenge his detention in the Court
of Law on the grounds of mala fides.
 Court has to be eternally vigilant in case of preventive
detention. No freedom is higher than personal
freedom... no duty higher than to maintain it
unimpaired. The Court’s writ is the ultimate insurance
against illegal detention.
 Conclusion Object behind constitutional status to
preventive detention... was to prevent anti-social and
subversive elements from undermining the welfare of
the infant Republic.
 The restrictions imposed on preventive detention:
1. Under Art. 21 (a) Preventive detention cannot
be ordered by the executive without the authority
of law and unless it is in conformity with the
procedure laid down herein (b) The law must be a
valid law, i.e., within the competence of the
legislature.
2. Under Art. 22 (a) No law can provide for
detention for a period of more than 3 months,
unless the cause for detention is investigated by
an Advisory Board, within the said period. (b) A
state law cannot authorize detention beyond the
maximum period prescribed by Parliament (c)
Parliament cannot make a law authorizing
detention beyond 3 months, without the
intervention of an Advisory Board - unless the law
conforms to Art. 22 (d) Parliament may prescribe
the procedure to be followed by Advisory Boards
as a safeguard against any arbitrary procedure. (e)
A person detained has a right to obtain
information as to the grounds of the detention and
has also the right to make a representation
protesting against an order of preventive
detention.
 Powers of Courts in cases of preventive detention:
1. Court may examine the validity of the law itself;
either on the ground of the competence of the
legislature or on the ground of such law being
ultra vires Art. 22 of the Constitution.
2. Laxminarayan v. Province of Bihar (1950) When
a preventive detention law is challenged, the
Court may consider the true nature and character
of the legislation, and decide whether it is really
on the subject of preventive detention or not.
3. Gopalan v. State of Madras (1950) The Court
may examine if the grounds for preventive
detention are relevant. The bona fides of the
order can be examined too; the Court will
interfere if it is mala fide.
4. State of Bombay v. Atmaram (1951) The Court
may examine the grounds communicated to the
détenue to see if they are sufficient to enable him
to make an effective representation
 Bhim Sen v. State of Punjab (1952) Courts are
not competent to enquire into the truth or otherwise
of the facts which are mentioned as grounds. Similarly
the Court cannot go into the question whether, on
merits, the detaining authority was justified in making
the order of detention or in continuing it.
Right against Exploitation (Arts. 23-24)
 Art. 23 Traffic in human beings, begar and
other forms of forced labor are prohibited and made an
offence. But, the State can impose compulsory service for
public purposes. But, in imposing such service, the State
Page 17
 cannot make any discrimination on grounds only of religion,
race, caste or any of them.
 Begar (definition not in Constitution) = labor or
service exacted by a Government or a person in power
without giving remuneration for it. The word thus refers to
forced labor for which no pay is given.
 The sagri or hali system of Rajasthan is an
example of forced labor. Under the system, a creditor gives
a loan to a debtor on the condition that until the loan is
repaid with interest, the debtor (or any member of the
family) is to render labor or personal service to the creditor
or any other person nominated by him.
 Kahaosan Thangkhul v. Simirei Shailei (1961) The
custom in Manipur was that each house-holder in a village
had to offer 1 day’s free labor to the headman of the
village. Court upheld the contention of the appellant in this
case that the custom was violative of Art. 23.
 Due to Art. 23, as many as 12 Acts sanctioning
forced labor under certain circumstances, became void
once the Constitution was enacted. So, relief was given to
many people subject to forced labor.
 The term “traffic in human beings” applies to
women for immoral purposes. The Suppression of Immoral
Traffic in Women & Girls Act, was passed by Parliament in
1956.
o Sharma v. State of UP (1959) The Allahabad HC
has held that such a law is valid, and is NOT
inconsistent with the fundamental right to carry on a
business, trade or profession.
 But, compulsory service for public purpose is NOT
prohibited. This provision... would enable government to
conscript people in times of major national calamities like
war, flood, etc.
o State of Jorawar (1953) Held... conscription for
social service, as for instance spread of literacy, is a
public purpose.
 Art. 24 No child below the age of 14 years can
be employed to work in any factory or mine or engaged in
any other hazardous employment
 This is consistent with the Convention of ILO
(International Labor Organization). Several Acts also give
effect to this provision of the Constitution, e.g., the
Employment of Children Act, the Factories Act, etc.
Right to Freedom of Religion - 4 Heads (Arts. 25-28)
Art. 25: Right of conscience and free profession of religion
 Art. 25(1) provides that all persons are equally entitled to
freedom of conscience, and the right to freely profess,
practice and propagate religion. This is, however, subject
to public order, morality and health.
 India is a secular State, but not an anti-religious State.
Equal rights are therefore given in respect of freedom of
conscience and religion.
 The word “religion” in Art.25 is to be construed in its strict
etymological sense. In short, it is that which binds a man
with his Creator. SC held... A religion is NOT merely an
opinion, doctrine or belief, but has its outward expression 
of acts as well.
o Ratilal v. State of Bombay Religious practices or
performance of acts in pursuance of religious beliefs
are as much a part of religion as faith or belief in
particular doctrines.
 But, it is expressly provided that Art. 25 shall NOT prevent
the State from making any law:
1. Regulating or restricting any economic, financial,
political or other secular activity which may be
associated with religious practice
2. Providing for social welfare and reform, or the
throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus.
 State can override religious injunctions prohibiting certain
classes from entering the temples or other religious
institutions of Hindus.
 Wearing and carrying of Kirpans is also deemed to be part
of the Sikh religion. A reference to Hindus includes those
professing Sikh, Jain or Buddhist religions also.
 Quareshi v. State (1958) Q: does prohibiting cow-
slaughter affect the religious right of Mohammedans? The
petitioner argued that the sacrifice of a cow on Bakr-Id day
was a part of Muslim religion and also approved by Koran.
SC rejected it... held: satisfactory evidence to support it
had NOT been produced.
 John Valiamantlam v. Union of India (2003) SC held that
Art.25 merely protects the freedom to practice rituals,
ceremonies, etc., which are an integral part of a religion.
Making gifts for charitable or religious purposes may be a
pious act of a person; but, the same cannot be said to be
an integral part of any religion.
 Church of God v. KKR Majestic Colony Welfare Ass. (2000)
SC held... no religion prescribes prayers should be
performed by disturbing the peace of others. Religion
preaches the use of voice amplifiers or the beating of
drums. Such a practice should NOT adversely affect the
rights of others NOT to be disturbed in their activities.
Art.26: Freedom to manage religious affairs:
 Art.26: Subject to public order, morality and health, every
religious denomination or any section thereof has the right
to
a) Establish and maintain institutions for religious
and charitable purposes;
b) Manage its own affairs in matters of religion;
c) Own and acquire movable and immovable
property; and
d) Administer such property in accordance with law.
 Art.26 is the corollary of Art.25. Freedom of religion is
meaningless if there is no liberty to maintain and manage
the religious institutions.
 The word ‘denomination’ means... a collection of
individuals classed together under the same name. It refers
to a religious sect or body having a common faith and
organization and designated by a distinctive name. A
“math” is a religious denomination within the meaning of
this article.
 Clause (b) above gives a right to every religious
denomination to manage its own affairs in matters of
religion. So, held... according to ceremonial law relating to
temples, persons who are entitled to enter the temples for
worship, the places where they’re entitled to stand, the
hours when members of public are to be admitted, and how
the worship is to be conducted, are all matters of religion.
Held Sacrifice of cow is NOT essential to the Muslim
religion.
 Commissioner v. Shirur Mutt (1954) leading case on Arts.
25 & 26... SC held whereas in US & Australia, freedom of
religion was declared in absolute terms, Courts had to
evolve exceptions to that freedom. Arts. 25 & 26 embodied
the limits of that freedom in the Constitution itself. SC
Page 18
 struck down certain provisions of a local Act passed by the
Legislature of Tamil Nadu.
 Durga Committee, Ajmer v. Syed Hussain Ali (1961) SC
observed... clauses (c) and (d) of Art.26 have NOT created
any rights in favor of any religious denomination; rather,
they’ve merely safeguarded and guaranteed the
continuance of rights that such denomination had.
 US Constitution Guarantees freedom of religion... US SC
held: reading of an official prayer in a NY Public School is
unconstitutional.
Art.27: Freedom from payment of taxes for promotion of any
particular religion
 Art.27: No person can 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.
 Public funds raised by the taxes are NOT to be utilized for
the benefit of any particular religion or religious
denomination. State imposes tax for the promotion of, say,
the Hindu religion; it would be quite lawful for a person to
refuse to pay such tax.
 LT Swumiar v. Commissioner HRF, Madras (1952) SC
held... if a tax is imposed on persons belonging to a
particular religion in order to meet the expenses of that
particular religion, such tax is void.
 Commissioner HRF v. Lakshmindra (1954) SC held: Art.27
does NOT prohibit the levy of a ‘fee’ for the defraying of
the expenses of the State for regulating the secular
administration of religious institutions. The prohibition in
this Art. Is not attracted in such a case, as there is no
question of favoring any particular religion or religious
denomination by such an imposition.
Art.28: Freedom to attend religious instructions:
 Educational institutions wholly maintained out of State
funds cannot provide religious instruction. Even those
institutions which are recognized by the State or receive
aid from the State cannot compel any person to attend
religious worship that may be conducted in such
institutions, without the consent of such a person, and in
case of a minor, without the consent of his guardian.
 This Art. Is confined to education institutions maintained,
aided or recognized by the State. It does NOT relate to
institutions other than these, which have no connection
with the State.
 This Art. Applies only to religious instructions. It does NOT
prohibit moral instructions.
Cultural and Educational Rights: 2 heads (Arts. 29-30)
Art. 29: Protection of interests of minorities:
 Any section of citizens residing in India and having their
distinct language, script or culture are guaranteed the right 
to conserve the same. A citizen is not to be denied
admission in any educational institution maintained by the
State, or receiving aid out of State funds, on grounds only 
of religion, race, caste and language.
 The Art. Shows that educational institutions falling under
the clause are not debarred from imposing conditions or
limitations other than those specified, such as previous
training, physical fitness, vaccination, discipline and the
like.
 State of Bombay v. Bombay Education Society (1955) This
Art. Does NOT take away the right of an institution to
refuse admission or to expel a student on a valid ground,
like indiscipline, provided the discretion is NOT abused.
 DAV College, Bhatinda v. State of Punjab (1971) In the
Guru Nanak University case, the petitioner, an educational
institution registered as a society comprised of Arya
Samajis, challenged a circular issued by the Punjabi
University, whereby Punjabi was to be the sole medium of
instruction (& of exams) for all pre-University studies...
grounds: it violated Arts. 26(1), 29(1) and 30(1).
o Respondents raised a preliminary objection that
the Arya Samaj was NOT a linguistic or religious
minority; nor was it a religious denomination.
o The Court dismissed this and held that... it is
sufficient for the petitioners if they could establish
that they had a distinct script of their own and they
were a religious minority, to invoke the protection of
Arts. 29(1) and 30(1).
o Court also held... Hindus being a majority in India
are NOT a religious minority in Punjab ... and that the
Arya Samajis who are part of Hindu community in
Punjab are a religious minority, who also had a distinct
script of their own (Devanagari script), which entitled
them to invoke the guarantees under the aforesaid
provisions of the Constitution.
Art. 30: Right of minorities to establish and administer
educational institutions:
1. All minorities, whether based on religion or language, have
the right to establish and administer educational
institutions of their choice.
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.
 The Constitution has used minority without defining it. In
Kerala Education Bill (1958)... the SC held a minority
community is one that is numerically <50%. It, however,
left open the question as to 50% or what? Of the whole
country? Or, the State in question? A particular city or
town?
 In later cases, SC has taken that ‘minority’ has to be
determined in relation to the particular legislation which is
challenged before the court.
 For e.g., SC in the Guru Nanak University case, rejected
the contention of State of Punjab that a religious or
linguistic minority is to be determined in relation to the
entire population of India. If a State law is in question,
such minority is to be determined with reference to the
State population. So... Hindus in Punjab constitute a
religious minority. Likewise, Arya Samajis in Punjab also
constitute a religious minority, having their own distinct
language and script.
It has been held that the Anglo Indians constitute a
religious as well as a linguist minority. But, Theosophical
Society cannot be regarded as a religious minority.
State of Bombay v. Bombay Education Society Scope of
Arts. 29 & 30 was fully considered by the SC. In this case,
an Order was issued denying admission to English-medium
schools to those whose mother tongue was NOT English.
The Order was issued with a view to promote the Hindi
language. SC held... it is violative of Art. 29. Court
observed... the object of the Order may be laudable, but
the method of achievement of the objects was inconsistent
with the right guaranteed by Art. 29.
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 Shri Krishna v. Gujarat University (1962) Gujarat HC
held... validity of an Act which prohibited the use of
English as a medium of instruction. Court held... the Art.
Violated Arts. 29 & 30. University of Gujarat went into
appeal but, lost it.
 44th Amendment if a law is made for the compulsory
acquisition of any property of an educational institution
established and administered by a minority [Clause (1)
above], the State must ensure that the amount fixed 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.
 The All Saints High School v. The Govt. of AP & Others
(1980) SC, after exhaustive analysis of its earlier
decisions, held... the exact scope and ambit of Art.30...
this Art. Is in consonance with the secular nature of
democracy and the Directives of the Constitution. Court
observed... unlike Art.19, the right under Art. 30 is
absolute and unconditional... this doesn’t mean that it
contains a free license for maladministration, so as to
defeat the very object behind Art.30, i.e., advancement of
excellence and perfection in the field of education.
 St. Stephen’s College v. University of Delhi (1992) Delhi
University issued 2 circulars... the college was directed to
extend the last date for admitting applications and also to
admit students on the uniform basis of marks secured in
the qualifying exam. College contended... circulars
violated its right under Art. 30(1). Court held: the college
was established and administered by the minority Christian
community... so it is entitled to the right guaranteed under
Art. 30(1). Further held... the state was authorized to
frame regulatory provisions; the basic right of minorities to
manage educational institutions cannot be taken away.
Right to Property (Arts. 31-31B & Sch. 9)
 2 aspects... (1) Right to acquire, hold and dispose of
property. (2) Right NOT to be deprived of such property
acquired or held.
 Formerly Art. 19(1)(f) and (5) (now deleted) provided for
the right to acquire, hold and dispose of property as a
fundamental right, and laid down the limitations
permissible on such right.
 Arts 31 (now deleted), 31A and 31B deal with the second
aspect of the right to property. Before its omission, Art.
31(1) provided that no person shall be deprived of his
property, except by authority of law. The rest of the
Article dealt with the nature of the law that could deprive
a person of his property.
 The central idea behind the right of the State to take away
the property of an individual is based on the doctrine of
‘eminent domain.’ The right of a nation or a State to take
public property for public use is eminent or paramount. It
is a right superior to the right of an individual to hold
property. It is inherent in the nature of sovereignty.
 Government has the right to acquire private property for
public use (a necessity from time to time), even when the
owner of the property objects to giving it up; if it were
otherwise, government would NOT be able to perform its
functions... Public purpose e.g.: Navy-yards, post-offices,
Custom-house, schools, parks, highways, etc. But, such
acquisition... has to be under the authority of law, and
such laws must satisfy certain minimum requirements
provided for by the law.
 Right to property is no longer a fundamental right (by
virtue of the 42nd Amendment). Dealt under 2 heads:
1. A. Position before the 44th Amendment, 1978: Provisions
of Art. 31 before its deletion:
 Art.31 (1): No person shall be deprived of his property
save by the authority of law.
 Art.31 (2): No property shall be compulsorily acquired
or requisitioned save for a public purpose and save by
authority of a law which provides for
compensation...for the property so acquired or
requisitioned, and either fixes the amount of the
compensation or specifies the principles on which and
the manner in which the compensation is to be
determined and given; and no such law shall be called
in question in any court on the ground that the
compensation given by that law is inadequate.
 Note: Bank Nationalization case: RC Cooper & Others
v. Union of India (1973)... Art. 31(2) as it stood at the
time... in this case, Court laid down 2 important
principles:
i. Under Art. 31(2), compensation should be just. If
no method of valuation is laid down or if such
method is not reasonable, Courts would certainly
interfere in the matter.
ii. Any acquisition of property must satisfy NOT only
Art. 31(2), but also Article 19(1)(f).
 To reverse both, the above principles enunciated
by the decision, Parliament reacted promptly, and
passed the 25th Amendment to the Constitution,
whereby the word ‘compensation’ was replaced by
word ‘amount.’ The Amendment clarified that such
amount could be paid otherwise than in cash.
 It was further provided by the Amendment that
Art. 19(1)(f) would NOT apply to any law relating to
the acquisition or requisition of property for a public
purpose...
 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 Art. 30(1), the State shall ensure tha 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.
 Swami Kesavananda Bharati v. State of Kerala
(1973) 25th Amendment challenged... Full bench of
SC upheld the amendment in substance. However, it
ruled that the courts could decide on the point as to
whether a particular amount paid for property
acquired by the Government is or is NOT adequate.
The Courts would be competent to see whether the
amount is arbitrary or illusory in a given case.
 Art. 31(2-A) Where a law does NOT provide for
the transfer of the ownership or right to possession of
any property to the State or to a corporation owned or
controlled by the State, it shall NOT be deemed to
provide for the compulsory acquisition or requisitioning
of property, notwithstanding that it deprives any
person of his property.
 Art. 31(2-B) Nothing in Article 19(1)(f) shall
affect any law as is referred to in Clause (2) above.
 Art. 31(3) provided that if a law relating to
compulsory acquisition or requisition of property has
been passed by a State Legislature, it would NOT have
effect, unless the President assents to it.
Page 20
 Art. 31(4)... if at the commencement of the
Constitution, a Bill pending in a State Legislature has
been passed by such Legislature and has received the
President’s assent, it could NOT be called into
question on the ground that it contravenes Art. 31(2)
of the Constitution.
 Art. 31(5)... Nothing in Art.31(2) shall effect:
i. The provisions of any existing law other than a law
to which the provisions of clause (6) apply; or,
ii. The provisions of any law which the State may
hereafter make... (a) for the purpose of imposing
or levying any tax or penalty, or (b) for the
promotion of public health or the prevention of
danger to life or property, or (c) in pursuance of
any agreement entered into between the
Government of the Dominion of India or a
Government of India and the Government of any
other country, or otherwise, with respect of
property declared by law to be evacuee property.
 Art. 31(6)... made certain provisions for State laws
enacted before the Constitution came into being.
 Compulsory acquisition of property can be only for
a public purpose. It is open for Courts to inquire into
the question as to whether compulsory acquisition
under a particular statue is for a public purpose.
 State of Bihar v. Kameswar Singh (1952) SC
held ... the definition of ‘public purpose’ is elastic,
and the concept changes with time and state of society
and its needs.
 No satisfactory definition of the term public
purpose has been arrived at by the Courts. The
expression can only be defined by a process of judicial
inclusion and exclusion. Two theories appear in judicial
attempts to list the type of objects covered by the
expression. The 1st Limits its connotation to public
use, occupation or employment; the 2nd (more liberal
one) makes it synonymous with public advantage and
public benefit.
 In view of the complex conditions prevailing in
today’s society, the second interpretation is to be
preferred:
 Summary of salient features of Art. 31 as it stood
before the 44th Amendment:
1. State of WB v. Subodh Gopal (1954) No one shall
be deprived of his property save by authority of
law. So, there can’t be deprivation of property
under an executive order.
2. Property can be compulsorily acquired or
requisitioned only under the authority of law.
3. Such law must be a valid law.
4. Such acquisition or requisition must be for a public
purpose.
5. The law authorizing such act must provide for
compensation or specify the principles on which
the compensation is to be determined. (After 25th
Amendment, the word ‘compensation’ was
replaced by the word ‘amount’)
6. The amount payable on compulsory acquisition or
requisition can be paid otherwise than in cash.
7. Swami Kesavananda Bharti’s case Courts will be
competent to see if the amount paid for
compulsory acquisition or requisition is illusory or
arbitrary in any given case.
8. If law doesn’t provide for the transfer of the
ownership or right to compensation of any
property to the State or to a corporation owned or
controlled by the State, it does NOT amount to
compulsory acquisition or requisition. As a result
of the amendment of the Constitution (4th
Amendment) Act, 1955, a law will no longer be
open to the attack that the compensation payable
is NOT adequate. If the law is one made by the
legislature of a State, it shall NOT be effective
unless it is reserved for consideration of the
President and his assent is obtained.
2. B. Position after the 44th Amendment The Constitution
(44th) Amendment Act, 1978 brought about a drastic change
in respect of the right to property. This Amendment
omitted Art.31 completely from the Chapter on
Fundamental Rights.
 A new Chapter, viz., Ch. IV was introduced in Part XII
of Constitution... this chapter now contains a new
Article, Art. 300A.
 Art. 300A It provides no person shall be deprived of
his property save by authority of law. The effect of
this Amendment is as follows:
1. The right to property is no more a fundamental
right. It is relegated to Ch. IV of Part XII of the
Constitution.
2. The new Art.300A is identical in terms with the
former Art. 31(1). So, the comments and judicial
observations on Art. 31(1) would also hold good for
Art.300A.
3. There are NO provisions now corresponding to sub-
clauses (2) to (6) of Art. 31.
Art. 31A: Saving of laws providing for acquisition of estates,
etc.
 Notwithstanding anything contained in Art.31, no law
providing for:
1. The acquisition by the State of any estate or of any
rights therein or the extinguishment or modification of
any such rights; or,
2. The taking over of the management of any property by
the State for a limited period either in the public
interest or in order to secure the proper management
of the property; or,
3. The amalgamation of two or more corporations either
in the public interest or in order to secure the proper
management of any of the corporations, or
4. The extinguishment or modification of any rights of the
managing agents, secretaries and treasurers, managing
directors, directors and managers of corporations, or
of any voting rights of shareholders thereof; or,
5. The extinguishment or modification of any rights
accruing by virtue of any agreement, lease or license
for the purpose of searching for, or winning, any
mineral or mineral oil or the premature termination or
cancellation of any such agreement, lease or license...
...shall be deemed to be void because it is inconsistent
with, or takes away or abridges any of the rights conferred
by Art.14 or Art.19.
 Where such a law is a law made by the Legislature of a
State, the provisions of this Article shall NOT apply, unless
such law, having been reserved for the consideration of the
President, has received his assent.
 Also, if any law makes a provision for the acquisition by the
State of any estate and if any land comprised therein is
held by a person under his personal cultivation, it shall NOT
be lawful for the State to acquire any portion of such land
as is within the ceiling limit applicable to him under any
Page 21
 law for the time being in force, or any building or structure
standing thereon or appurtenant thereto, unless the law,
relating to acquisition of such land, building or structure,
provides for payment of compensation at a rate which shall
not be less than the market value thereof.
 Golak Nath’s case Constitutional validity of Art.31A
challenged. SC held Art.31A to be valid. The note struck by
later cases reversing Golak Nath’s case does NOT militate
against the vires of Art.31A.
 Kesavananda Bharti’s case Art.31A was upheld by 13-
member bench of SC.
 Ambica Prasad Mishra v. State of UP et al (1980) Art. 31A
was challenged as unconstitutional...SC upheld it.
 Waman Rao v. Union of India (1981) SC held... Art.31A
does not damage or destroy the basic structure of the
Constitution, and is, therefore valid.
Art.31B- Validation of certain Acts & Regulations
 It provides that certain Acts & Regulations specified in the
9th Schedule to the Constitution shall NOT be void on the
ground that they are inconsistent with, or that they take
away or abridge, any fundamental right guaranteed under
the constitution.
 9th Schedule... contains a long list of about 284 Acts saved
by S.31B. E.g.: Bihar Land Reforms Act, 1950; Bombay
Tenancy and Agricultural Lands Act, 1948; UP Zamindari
Abolition and Land Reforms Act, 1950; Gujarat Agricultural
Land Ceilings Act, 1950; Industries (Development &
Regulation) Act, 1951.
 Art.31A and 31B did NOT find place in Constitution as
originally framed; they have been incorporated later. Their
effect is to ensure that no law providing for the acquisition 2.
of estates or of any rights therein or for the modification of
such rights is held void on the ground that if infringes any
of the fundamental rights guaranteed by the Constitution.
 Early in 1951, some of the State laws providing for the
abolition of the Zamindari system (Bihar Land Reform Act,
1950) were held void by the respective State High Courts,
on the ground that they contravened some of the provisions
dealing with fundamental rights.
 Governments... were anxious to abolish the Zamindari
system, and to reform land tenure system... so, these Arts.
31A &B were added (by passing the 1st Amendment) to
remove constitutional obstacles from the path of legislation
providing for measures of land reforms.
 Kesavananda Bharati’s case: SC held: amendments made to
the 9th Schedule, before the decision, were valid.
 Waman Rao v. Union of India But, Acts further included
in the Schedule after the decision date (of the case, i.e.,
24th Apr. 1973), would have to satisfy the test of damage to
the basic structure or essential features of the
Constitution.
Art. 31C: Saving of laws giving effect to directive principles
 Art. 31C is dealt with under 3 heads:
1. A. Position before the 42nd Amendment (1976)
 Prior to 1976... Art. 31C (which was introduced in
the 25th Amendment to the Constitution) provided that
notwithstanding anything contained in Art.13
(discussed earlier), no law giving effect to the policy of
the State towards securing...
a. Art. 39(b)...that ownership and
control of material resources of the community
are so distributed as best to sub-serve, common
good.
b. Art. 39(c)... that the operation of
economic system does NOT result in the
concentration of wealth and means of production
to the common detriment
...shall be void on the ground that it is inconsistent
with, or takes away or abridges, any of the rights
conferred by Art.14, Art. 19 or Art.31
 Swami Kesavananda Bharati v. State of Kerala
Art.31C came up for scrutiny... SC upheld it.
 25th Amendment... provides that no law containing a
declaration that it was for giving effect to the
principles contained in Art.39(b) or (c) (above) could
be called in question in any Court of Law on the ground
that it did NOT give effect to such policy. The majority
of the Full Bench in the above case struck down these
clauses, and held that the Court would have the power
to see whether any such enactment does really serve
such aims.
 This Amendment...was originally provided for the
assent of the President in cases where such law was
made by a State Legislature. It was struck down by the
majority of the Full Bench in the Kesavananda Bharati
case. The Court observed that Parliament alone would
have the right to abridge the fundamental rights. CJI
observed... if this power is given to State Legislatures,
it would enable them to apply one law to political
opponents of the ruling party... and another to
members of the party... it would enable a State
Legislature to set up complete totalitarianism in the
State.
B. Position after the 42nd Amendment (1976):
 The 42nd Amendment sought to widen the scope of
Art.31C, so as to include not only the Directive
Principle contained in clauses (b) and (c) of Art.39, but
all the Directive Principles laid down in Part IV of the
Constitution.
 Thus, it was provided that laws giving effect to all or
any of the Directive Principles were sought to be saved
from attack on the ground of infringement of
Fundamental Rights conferred by Arts.14, 19 and 31 of
the Constitution (effectively, #14 &19, since #31 has
been annulled by the 44th Amendment, 1978)
3. C. Position after the Minerva Mills’ Case (1980):
 Minerva Mills Ltd. vs. Union of India (1980) The
provision introduced by the 42nd Amendment (above) to
cover all Directive Principles, instead of only those
covered by clauses (b) and (c) of Art.39 was challenged
before the SC. 5-member Bench (Bhagwati J
dissenting) struck down this Amendment, holding that
to destroy the guarantees given by the Chapter of
Fundamental Rights, in order, purportedly, to achieve
goals of the Directive Principles would amount to
destroying the basic structure of the Constitution.
Court held... that this amendment being beyond the
amending power of Parliament, was void and
unconstitutional, on the ground that it would damage a
basic or essential feature of the Constitution.
Art. 31D: Saving of laws in respect of anti-national activities
(Deleted)
 The 42nd Amendment had introduced Art.31D, giving
power to Parliament to make laws to prevent or prohibit
anti-national activities, and to prevent or prohibit the
Page 22
 formation of anti-national associations. This Art. was later
repealed by the 43rd Amendment, 1977.
CONCLUDING NOTE:
 Fundamental rights... freedom of expression, freedom
of association, freedom of movement and the like... are
guaranteed only to citizens... while rights relating to
protection of life and personal liberty are guaranteed to
every person, irrespective of his / her citizenship. Rights of
the latter category are of greater human importance than
the former.
 While some fundamental rights (Arts. 14, 16, 20, 21
and 22) impose limitations upon State action, others (Arts.
15(2) and 17) impose limitations upon the actions of private
individuals.
Right to Constitutional Remedies (Arts.32-35 & 359)
 Ubi jus ibi remedium There is no right without a remedy.
Fundamental rights are useless unless there are adequate
provisions to enforce them. So, the right to enforce all the
fundamental rights is itself made a fundamental right.
Art.32: Summary:
 Art. 32(1)... The Constitution guarantees the right to move
the SC for the enforcement of the fundamental rights.
 Art. 32(2)... SC has the power to issue directions or orders
or writs including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, as
appropriate for the enforcement of any of the Fundamental
Rights discussed above.
 Art. 32(3)... The powers mentioned above can be exercised
by any other Court empowered by Parliament.
 Charles Shobraj v. Supted, Central Jail (1978) Art.32
enshrines a very valuable right. SC held... if a prisoner’s
fundamental right is flouted or legislative protection is
ignored, SC’s writ will run, breaking through stone walls
and iron bars, to right the wrong & restore rule of law.
Different Types of Writs:
1. Writ of Habeas Corpus: This writ is perhaps one of the most
important safeguards of personal liberty. It is available in
all cases of deprivation of personal liberty or wrongful
detention.
 On an application, the Court is empowered to direct
the detained person be produced before it, and is
entitled to inquire into the grounds of his detention. If
the Court is satisfied that such detention is illegal, it 2.
can order the immediate release of the person.
 Writ of habeas corpus... the most celebrated
prerogative writ in English constitutional law. It is a
process for securing the liberty, and ensuring the
protection and well-being of the subject wrongly
deprived of his personal liberty. It is addressed to him
who detains another in custody and commands him to
produce the body, (i.e., the person himself), and his
further custody then depends on what the Court orders
in that behalf.
 Formerly under English law, if an application was
rejected by one judge, a person could make a fresh
application to another judge of the same Court, and
could go on and on, from one judge to another, till a
merciful judge could be found. In 1960, an end was put
to this practice. So, if an application is rejected, a
fresh application cannot be made to another judge on
the same grounds.
 In India also, no fresh application can be made to other
judges of the same Court, if an application has been
heard and refused by one judge of that Court.
 The object of habeas corpus is remedial; not, punitive.
The writ is meant to determine the legality or illegality
of a detention, and its object is NOT to punish a person
for any offense. Where a person was arrested and ill-
treated in a jail but later released, it was held that a
petition for habeas corpus would NOT lie after his
release.
 Normally, it is for the arrested person to make an
application for habeas corpus. If for any reason, he is
unable to do so, a friend or a relative can also make an
application for his release.
 Prem Shankar Shukla v. Delhi Administration (1980) 
SC case... a telegram by a prisoner to a Judge was
treated as a Habeas Corpus... Observed: no longer is
this writ trammeled by traditional limits of English
vintage... our founding fathers exceeded the
inspiration of the prerogative writs by phrasing the
power in larger diction. So, in India (as in US), the
broader horizons of habeas corpus spread out beyond
the orbit of release from illegal custody, into every
trauma and torture on persons in legal custody, if the
cruelty is contrary to law, degrades human dignity, or
defiles his personhood...”
 Sunil Batra v. Delhi Administration (1980) though a
lawyer generally draws out a formal habeas corpus, no
set form is necessary. A letter a prisoner in Tihar Jail
wrote directly to a Judge of SC, complaining that a Jail
Warden had pierced a baton into the anus of another
prisoner to extract money from the victim’s visiting
relatives, was deemed a habeas corpus petition.
Proceedings were initiated.
 Habeas Corpus case... Add. Dis. Magistrate, Jabalpur v.
Shivkant Shukla SC held...by 5:1 majority... a person
who is detained under MISA (Maintenance of Internal
Security Act) could not move a Court and ask for his
release, as long as the enforcement of fundamental
rights remains suspended during emergency. In a
strong dissenting judgment, Mr. Justice Khanna held...
Constitution doesn’t empower any authority to suspend
the power of the HC to issue writs of habeas corpus
during an emergency.
Writ of mandamus: Literally means “we command”... is a
high prerogative writ of a remedial nature. In its original
form, it was a command issued in the King’s name... from
the King’s Bench Division of the HC of Justice, and directed
to any person, corporation or inferior Court of Judicature,
requiring him to do something stated therein relating to his
office, and which the Court felt was in the interests of
justice.
 This writ is used principally for public purposes and to
compel the performance of public duties. It is also
used to enforce private rights when they are withheld
by public officers.
 Mandamus lies not only against executive authorities,
but also against judicial and quasi-judicial authorities.
 4 conditions to be satisfied before a writ of mandamus
can be issued are:
a. The petitioner must show that he has a legal right
to obtain performance of a legal duty.
Page 23
 b. Such a duty must be one which is imposed by the
Constitution or any other law (but not under a
contract).
c. Such a duty must be a ministerial duty and NOT
discretionary in nature.
d. The right which is claimed should be a judicially 4.
enforceable right.
 Union of India v. Anglo-Afghan Agencies (1968)
SC held... if an individual has acted upon a
representation or promise made by the Government,
he can successfully file a Petition for mandamus to
compel the Government to perform that promise...
even though the promise may be contained in a non-
statutory or executive instruction.
 N Baksi v. The Accountant General, Bihar Held
that the Accountant-General of Bihar... was under an
obligation to grant a passage benefit to the wife and
children of the Petitioner, and his refusal to do so was
arbitrary and unwarranted. As no other adequate
remedy was available, the Court issued a Writ of
Mandamus against him.
 Kasturbhai v. Gujarat University (1960) Guj. HC
held... the VC of Gujarat University was under a public
duty to allow the university Senate to discuss certain
matters within its powers, and that this duty was not a
matter of discretion, but was obligatory. So, when the
VC did not allow the Senate to discuss the matter, he
was held to have failed in his duty, and as there was
no other adequate remedy, a writ of mandamus was
issued to secure its performance.
 Mandamus when NOT issued... it is NOT granted
against the following classes of persons:
a. The President or the Governor
b. The HC or a Judge of the HC, acting in a judicial
(as distinguished from administrative) capacity.
c. Central or State Legislatures
d. Persons who do not hold public offices
e. A company registered under the Companies Act,
even if it is a ‘government company’ as defined in
that Act - unless it is an agency or instrumentality
of the Government.
3. Writ of Prohibition: The writ of prohibition has been
described as a ‘judicial writ, issuing out of a Court of
Superior jurisdiction, and directed to an inferior Court, for
the purpose of preventing the inferior Court from usurping
a jurisdiction with which it is NOT legally vested...’ i.e., to
compel Courts entrusted with judicial duties, to keep
within the limits of their jurisdiction.
 A Writ of prohibition orders the immediate stoppage of
the trial of the case in the lower Court. A writ can be
issued against a judge of an inferior Court if that judge
is interested in the case, or is otherwise biased.
 A writ of prohibition is issued on a notice of motion or
an application supported by an affidavit. If the judge 5.
or any party proceeds with the case in spite of a writ
of prohibition, contempt of Court proceedings can be
started against the person concerned. The writ of
prohibition can also be issued to non-judicial public
bodies in cases where such bodies take quasi-judicial
decisions.
 Courts have issued Writ of Prohibition to prevent a
Tribunal from proceeding further in a matter, when
the Tribunal:
a. Is acting without jurisdiction
b. Is acting beyond its jurisdiction
c. Is acting in violation of the rules of natural justice
d. Is proceeding under a law which is
unconstitutional or ultra vires;
e. Is acting in contravention of a fundamental right
Writ of Certiorari: Certiorari means... to be more fully
informed of (something)... Such a writ is issued by a
superior Court and is directed to the judge or other officer
of an inferior Court of record. It requires that the record of
the proceedings in some cause or matter pending before
such inferior Court be transmitted to the superior Court to
be there dealt with, in order to ensure that the applicant
will have sure and speedy justice.
 The ancient writ of certiorari in England is an ‘original
writ’ which may issue out of a superior Court requiring
that the record of the proceeding in some case or
matter pending before an inferior Court should be
transmitted to the superior Court to be there dealt
with.
 The writ is so named because in its original Latin form,
it required that the King should be certified of the
proceedings to be investigated.
 The object of this writ is to ensure, by the exercise of
the authority of a superior Court, that the jurisdiction
of the inferior Tribunal is properly exercised.
 This writ does NOT issue to correct purely executive
acts; but, on the other hand, its application is NOT
narrowly limited to an inferior Court in the strictest
sense. Broadly speaking, if the act done by the inferior
body is a judicial act, as distinguished from a
ministerial act, certiorari will lie.
 The remedy, in point of principle, is derived from the
superintending authority which the Sovereign’s
Superior Courts, and in particular the Court of King’s
Bench, possess and exercise other inferior jurisdiction.
 Province of Bombay v. KS Advani (1950) The SC has
laid down that 2 conditions must be satisfied before a
writ a certiorari can be asked for:
a. The decision of authority (which is challenged)
must be judicial or quasi-judicial in nature
b. The challenge must be in respect to excess or
want of jurisdiction of the deciding authority.
 The writ of Certiorari is normally issued for:
a. Enforcement of fundamental rights;
b. Quashing a decision which is without, or in excess
of, jurisdiction;
c. Quashing a decision which has ‘an error of law
apparent on the face of the record’; and
d. Violation of the principles of natural justice.
 A writ of Prohibition differs from a writ of
Certiorari; the former can be brought at an earlier
stage of the proceedings complained of. It is a
preventive, rather than a remedial measure.
Writ of Quo Warranto: It is issued to prevent the illegal
assumption of any public office or usurpation of any public
office by anybody.
 It means... by what warrant, or by what authority. It
may be issued by a Court, when a person acts in a
capacity in which he is NOT entitled to act. It is a writ
of right issued by a Court against a person who claims
or usurps any office, franchise or liberty.
 It requires the person against whom it is issued to show
as to by what authority he supports his claim, so that
the same may be determined.
Page 24
  The writ of Quo Warranto is in the nature of an
injunction. In England, Edward I started Quo Warranto
proceedings against those barons who were holding
baronial courts without the authority of the king.
 A Court will issue a writ of quo warranto under 5
conditions:
a. The office must be a public office
b. The office must be substantive in nature.
c. Such office must have been created under the
Constitution or by a Statute.
d. The Respondent must have asserted his claim to
such office.
e. The Respondent should NOT be legally qualified to
hold the office or remain in office, because of
contravention of a constitutional or statutory
provision.
 This writ lies only when the person against whom
it is directed occupies a public office; or, at least, if
duties attached, to such office are of a public nature.
Once this condition is satisfied, any private person can
apply for the writ.
 Held... that a Chief Minister, a Judge of the High
Court, an Advocate-General, the chairman of a
Municipality and a member of a University Senate are
all persons who hold a public office, and so, a writ of
quo warranto can be prayed for against their
appointment.
Pubic Interest Litigation
 The trend in SC... in entertaining, even encouraging writs
filed in public interest, has given a healthy boost to ‘public
interest litigation.’
 Normally only that person whose individual right has been
violated would have locus standi to file a writ petition for
the enforcement of a fundamental right. However, when
there is a breach of some public duty or a breach of a
constitutional provision which causes injury to the general
public, any person may be allowed to file a writ petition
for such violation.
 Prem Shankar Shukla v. Delhi Administration & Sunil
Batra SC has looked into conditions in jails and other
similar institutions in public interest... to remedy
conditions prevailing therein. So, legal formalities have
been cast aside, and as seen above, letters and telegrams
have been treated as writ petitions.
 Bandhu Mukti Morcha v. Union of India (1984) SC has
reiterated the view that a letter addressed to the SC by a
person acting pro bono publico, can be treated as a writ
petition. It would neither be right nor fair to expect such a
person to incur expenses from his own pocket to go to a
lawyer and have a regular Writ Petition filed in Court. A
simple letter complaining of legal injury to the writer (or to
a class of persons who on account of poverty or disability or
socially or economically disadvantaged position, cannot
approach the Court for relief) can be tried and disposed of
as Writ petition.
 Gupta v. Union of India (1982) Following the same
principle, a member of the Bar was allowed by the SC to
challenge the constitutionality of mass orders of transfers
of Judges.
 Sanjit v. State of Rajasthan (1983) The Director of Social
Welfare was allowed to challenge the system of payment of
wages to famine relief workers.
 Dr.U Baxi v. State of UP (1987) 2 professors of Delhi
University sent a letter to the SC regarding the inhuman
and degrading living conditions of inmates of the protective
home in Agra, which was a blatant violation of Art.21 of
the Constitution. The SC treated this letter as a writ
petition and permitted the professors to maintain a PIL (in
the form of a writ) for enforcing the constitutional rights of
those inmates.
 DS Nakara v. Union of India (1983) the SC explained the
scope of PIL... any member of the public having sufficient
interest can maintain an action for judicial redress for
public injury arising from breach of public duty or for
violation of some provision of the Constitution or the law
and seek enforcement of such public duty and observance
of such constitutional or legal provision.
 However, a 3rd party cannot seek a remedy under Art.32 or
Art.226 to remedy individual cases of wrong or injury.
 Govt. Servants Co-op. House Building Society Ltd. v. Union
of India (1994) The Delhi HC has held that PIL is not
maintainable in the case of judicial and quasi-judicial
matters.
 Delay in filing writ petitions: No prescribed period of
limitation for filing Writ Petitions... whether a Petition is
liable to be dismissed only on the technical ground of
laches (i.e., undue delay).
 Answer each case is to be considered in the background
of its peculiar facts and circumstances. Court expects a
person whose fundamental rights have been violated to
approach the Court with due diligence. Any unreasonable
delay on his part may induce the Court to come to a
conclusion that he has either slept over his rights or has
acquiesced in the alleged violation thereof.
 Hari Singh v. State of UP (1984) A Writ Petition was filed
2 and ½ after a Notification for the acquisition of certain
land was issued by the Government. SC held... that such a
Petition is to be dismissed on the ground of delay alone,
because any interference with acquisition proceedings
after 2 and ½ years would be likely to cause serious public
prejudice.
 GP Doyal & Others v. Chief Secretary, Govt. of UP (1984)
But there is NO hard and fast rule prescribing what
quantum of delay is fatal for a writ petition. SC refused to
dismiss a Writ Petition on the ground of delay, although the
Petition was filed challenging a provisional Seniority List,
12 years after the List was issued by the State Department.
During the 12 years, the concerned Department did NOT
finalize the List; nor did it reply to the representations
made to it by the Petitioners during this period. SC held...
the Petition was NOT bad on the ground of laches... the
Provisional Service List was held to be invalid.
Art. 33: Power of Parliament to modify rights conferred by
Part III in their application to Armed Forces etc.
 Parliament has the right to determine, to what extent any
of the fundamental rights may be restricted or abrogated
as regards the following classes of persons, so as to ensure
the proper discharge of their duties and maintenance of
discipline:
a. Members of Armed Forces; or
b. Members of Forces charged with maintenance of public
order; or
c. Persons employed in any bureau or other organization
established by the State for purpose of intelligence or
counter-intelligence; or,
d. Persons employed in, or in connection with, the
telecommunication systems set up for the purposes of
any Force, bureau or organization referred to in
clauses (a) to (c).
Page 25

Art. 359: Suspension of fundamental rights:
 This Article provides that where a Proclamation of
Emergency is in operation, the President may declare that
the rights to move any Court for the enforcement of the
rights conferred by this Part, and all proceedings pending
in any Court for the enforcement of such rights remain
suspended for the period during which the Proclamation is
in force. Every such order is also to be laid before each
House of Parliament.
Arts. 33-34, 352, 359 and 368: Law as to restriction or
suspension of fundamental rights:
 The Law as to restriction or suspension of fundamental
rights may be summed up as follows:
a. The Constitution allows reasonable restrictions to be
placed on the fundamental rights guaranteed by Art.19
provided they relate to matters (like public order,
etc.) specified in Art.19.
b. Art. 33: Parliament is authorized by the Constitution
to restrict or abrogate the fundamental rights in their
application to the Armed Forces, etc., with a view to
ensure the proper discharge of their duties by the
Forces and maintenance of discipline among them.
c. Art. 34: Parliament is empowered to indemnify any
person in the service of the State for acts done in any
area where martial law is in force, in connection with
maintenance or restoration of order. Parliament can
also validate any sentence passed or punishment
inflicted in such an area under martial law
d. Art. 358: When a Proclamation of Emergency has been
issued by the President under Art. 352, the
fundamental rights conferred on citizens by Art. 19 will
remain suspended while the Proclamation is in
operation. These rights include freedom of expression,
movement, assembly and association.
e. Art. 359: While a Proclamation of Emergency is in
operation, the President may, by an order, suspend the
right to move the Courts for enforcing such
fundamental rights as may be mentioned in the order.
Such orders must be laid before Parliament as soon as
possible, and Parliament has the right to modify or
rescind such orders.
 Habeas Corpus case... Add. Dist. Magistrate, Jabalpur v.
Shivakant Shukla (1976) A 5-judge Constitution Bench of
the SC delivered a decision... on the enforcement of
fundamental rights during emergency. By a 4-1 majority,
the Court held... no person detained under the
Maintenance of Internal Security Act (MISA) can move a
Court and seek his release, as long as the enforcement of
fundamental rights remains suspended during such
emergency.
Doctrine of Judicial review under the Indian Constitution:
 Every federal form of Government involves a distribution of
powers; it also requires a written Constitution. So, it falls
upon the Courts to decide whether a law violates the
limitations prescribed in the Constitution, and to declare it
void or ultra vires to that extent.
 The power of judicial review entrusted to the Courts by
Arts. 32 & 226 is however, not a new feature in India.
Although the Govt. of India Act, 1935, did not contain
analogous provisions, nevertheless, the Courts in India and
the Privy Council had always considered the vires of
legislation, declaring it to be invalid if it violated
constitutional limitations.
 In the Constitution, the doctrine of judicial review & the
principle of legislative supremacy have been harmonized ...
so far as the fundamental rights are concerned.
 Art.13 of the Constitution provides that any law, rule or
order inconsistent with Part III of the Constitution (which
provides for the fundamental rights) is void.
 Art.32 provides that... the SC is empowered to give relief
in the nature of a writ to any individual whose fundamental
rights have been infringed.
 Art.226 empowers HC to give similar remedies.
 Arts.13, 32 & 226 give an impression that the doctrine of
judicial review provided for in the Constitution is in an
undiluted form. But, on careful examination, it will appear
that certain rights are kept out of the process of judicial
review and in the case of those rights, the doctrine of
legislative supremacy prevails.
 Art.21 of the Constitution provides that no person shall be
deprived of his life or liberty except according to the
procedure established by law.
 Gopalan v. State of Madras... the meaning of ‘according to
procedure established by law’... interpreted by SC. It held:
“except according to the procedure established by law”
would NOT mean the same thing as “the due process of
law” clause of the American Constitution.
 Contrarily, the phrase would mean that any law could
prescribe a procedure for depriving a person of his life or
liberty. So, any law which prescribes the procedure for
deprivation of life or liberty of an individual would be valid
law.
 The constitutional validity of such a law CANNOT be
examined by the Court. To this extent, the right to
personal freedom is kept out of the working of the doctrine
of judicial review.
 Similarly, under Art.19, various freedoms, like that of
speech and expression, the freedom of association and the
freedom of movement... can be subject to reasonable
restrictions on grounds like public morality, order, etc.,
and further, such restrictions must be reasonable. The
Court can examine whether the restriction is reasonable or
not.
 There is a compromise struck between the doctrine of
judicial review & the principle of legislative supremacy.
Arts.32 & 226:
 The difference between the power and jurisdiction of the
SC and the HC under Arts.32 & 226, respectively, must be
noted.
 The SC under Art.32 has power to issue directions or orders
or writs for the enforcement of fundamental rights only,
but under Art.226, the HC have the power to issue such
writs for the enforcement of fundamental rights and for
any other purpose. The powers of the HC are, in this sense,
wider.
 The 42nd Amendment has deleted the words, ‘for any other
purpose’... thereby resulting in a restriction of the powers
of High Courts. But, the expression was restored by the 44 th
Amendment, conferring once again the powers earlier
conferred on the High Courts.
 Fertilizer Corporation Kamgar Union v. Union of India
(1981) Distinction between Art.32 & 226 was reiterated
by the SC in.
 The jurisdictions of the HC and the SC are concurrent for
the purpose of the enforcement of fundamental rights. So,
it is NOT obligatory on the petitioner to first move the HC
Page 26
 for the purpose of the enforcement of his right. He may
approach the SC directly.
 Daryao v. State of UP (1961) But, SC has held... that a
petitioner who has moved the HC for the enforcement of
his fundamental rights, and whose petition is dismissed,
CANNOT move the SC under Art.32 on the basis of the same
facts.
 Another point of difference is that under Art.32, a remedy
is available only if the fundamental rights are infringed by
the State, while under Art. 226, the High Courts can
provide remedies even if the fundamental rights are
interfered with by private individuals.
 Art.32 confers a fundamental right to move the SC for the
enforcement of fundamental rights conferred by Part III of
the Constitution; Art.226 does NOT confer any fundamental
right to move the HC for the enforcement of fundamental
rights.
Directive Principles of State Policy: Arts. 37-51 & 355
 Framers of our Constitution... chose middle path between
ideal and practicable...some salutary (= remedial;
providing beneficial effects) principles, though highly
desirable... could not be on the same level as fundamental
rights... Hence, these directive principles have been put on
a separate footing in Part IV of the Constitution.
 This part embodies... general injunctions, pious wishes...
which give an indication of the policy, which the Union and
the State ought to follow... they are directions to the State
to meet social, economic and cultural reforms... framers
looked upon as the ideas of the new order... didn’t give
legal effect in the framework.
 Nature of Directive principles...they are like instrument of
instructions... which were issued to the Governors of the
Colonies during the British Govt. under the 1935 Act. Diff...
these are instructions to the legislature and executive...
whenever there is grant of power in general terms, it is
necessary they be accompanied by instructions regulating
its exercise.
 Legal force Directive Principles of State Policy... can be
used for the purpose of private and political criticism...
they confer no legal rights and create no legal remedies...
they’re good guides; but, they can’t be enforced... they
are merely paper declarations... of no practical value.
 Directive Principles are excluded from the purview of
Courts... (Unlike Fundamental Rights) not justiceable...
nonetheless, they are fundamental in the governance of
the country... so, duty of State to apply these principles to
make law.
 Origin of Directive Principles a novel feature... in the
sense, nothing comparable is to be found in any of the
older Constitutions, e.g., American. The Weimer
Constitution of Germany did mention a few such
principles... but, these are not distinguished from
fundamental rights. It was the Irish Constitution that talked
of directive principles... distinctively from fundamental
rights ... like the Irish Constitution... our too is NOT
judicially enforceable.
 Yet... our Constitution lays down that Directive
Principles... are fundamental to the governance of the
country... and that it is the duty of the State to implement
with suitable legislation.
 State of Madras v. Shri Champakan, (1951) & State of TN v.
l. Abu Kavur Rai (1984) SC held: when there is a conflict
between Directive Principles and Fundamental Rights, the
latter shall prevail...
 Non-enforceability doesn’t mean no judicial notice is taken
of such principles... Important rule of interpretation (1)
An attempt must be made to harmonize the two (2) In
cases of irreconcilable conflict, the fundamental right will
prevail over Directive Principles... Any collision between
the two must be avoided to the extent possible.
 Under Art. 31C, if any law is passed to implement a
directive principle... covered by cause (b) or (c) of Art. 39,
such a law cannot be challenged... on grounds of taking
away, or abridging, curtailing fundamental rights conferred
by Art. 14 (Right to Equality) or Art. 19 (Right to Freedom).
 42nd Amendment, 1976...made an attempt to cover within
the ambit of Art.31C, not only the Directive Principles
mentioned in (b) and (c) of Art. 39, but all the Directive
Principles... SC struck the Amendment down. (Minerva Mills
case).
 State of Bihar v. Kameshwar Prasad (1952) SC went a
step further and relied upon the directive principles to
explain the implication of the words “public purpose” (in
Part III of Constitution.
 Directive Principles laid down in the Constitution are 17 in
number. To these, may be added an 18th... contained in
Art. 355.
1. Art. 38: Social order: State shall strive to promote the
welfare of the people, by securing and protecting, as
effectively as possible, a social order in which social,
economic and political justice, shall inform all the
institutions of national life... further provided that, (a)
inequalities of income to be minimized (b) inequalities in
status, facilities and opportunities are endeavored to be
eliminated... not only amongst individuals, but also
amongst groups of people residing in different areas, or
engaged in different vocations.
2. Art. 39: Principles of policy: State shall direct its policy
towards securing:
a) The right to an adequate means of livelihood for
all citizens, men and women.
b) The ownership and control of material resources
of the community are so distributed as best to sub-
serve the common good;
c) Operation of the economic system does not result
in the concentration of wealth and the means of
production to common detriment;
d) There is equal pay for equal work for both men
and women;
e) The health and strength of workers, men and
women and the tender age of children are not abused.
Citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength
f) Children are given opportunities and facilities to
develop in a healthy manner...and in conditions of
freedom and dignity; and, that childhood and youth
are protected against exploitation and against moral
and material abandonment.
Monopolies and Restrictive Trade Practices (MRTP) Act was
enacted to further the directive of Clause (c) above (it is
now the Competition Act).
3. Art. 39A: Equal justice and free legal aid: State shall secure
the operation of a legal system that promotes justice on a
basis of equal opportunity... and shall, in particular,
provide free legal aid (by suitable legislation or schemes or
in any other way) to ensure no citizen is denied justice, by
Page 27
 reason of economic or other disabilities... Legal Aid Clinics
have been set up.
 Aussainara Khatoon vs. Home Secretary, state of Bihar
(1980) SC observed that it is the constitutional right 10. Art. 45: Provision for early childhood care and education:
of every accused person who is unable to engage a
lawyer and secure legal services on account of reasons
such as poverty or indigence to have free legal
services... provided to him by State...the State is
under a constitutional mandate to provide a lawyer to
such accused person, if the needs of justice so require.
If not so... the trial itself may run the risk of being
vitiated as contravening Art.21.
4. Art. 40: Organization of Village Panchayats: State ... to
organize village panchayats and, endow them with powers
and authority... to enable them to function as units of self-
government. 73rd Amendment of the Constitution (1993) has
now introduced Chapter IX (with Arts. 243 to 243-O),
containing detailed provisions regarding Panchayats.
5. Art. 41: Right to work, to education and to public
assistance in certain cases: State, within the limits of its
economic capacity and development, make effective
provisions for securing these rights... plus, public
assistance in cases of unemployment, old age, sickness and
disablement and in other cases of undeserved want.
6. Art. 42: Provision for just and humane conditions of work
and maternity relief.
7. Art. 43: Living wage, etc. for workers: State shall
endeavor... to secure (by suitable legislation or economic
organization or in any other way)... to all workers,
agricultural, industrial or otherwise - work, a living wage,
conditions of work ensuring a decent standard of life and
full enjoyment of leisure and social and cultural
opportunities, and in particular, the State shall endeavor to
promote cottage industries on an individual or co-operative
basis in rural areas.
8. Art. 43A: Participation of workers in management of
industries: State shall take steps (by suitable legislation or
in any other way)... participation of workers in the
management of undertakings, establishments, or other
organizations engaged in any industry.
9. Art. 44: Uniform Civil Code: Various systems of ‘personal
law’ prevail in the country. Hindu Law (un-codified portion
based on ancient Sanskrit texts); Muhammadan law (based
on Koran); separate matrimonial laws for Christians,
Parsees, etc. As India has accepted the ideal of a secular
state, this principle seeks to replace various systems of
personal law by a UCC...
 Towards fulfillment of this goal, in 1955 and 1956,
Parliament codified Hindu laws relating to marriage,
divorce, minority and guardianship, succession,
maintenance and adoption. A secular bill governing
adoption of all children was also introduced in
Parliament, but was later withdrawn.
 Shah Bano’s case (Mohd. Ahmed Khan v. Shah Bano
Begum; 1985) celebrated & controversial case; SC
pleaded for a UCC throughout India... to avoid
conflicting ideologies.
 Jordan Diengdeh v. SS Chopra (1985) SC reiterated
the urgent need for a uniform Civil Code... it
observed: ‘time’s come... for complete reform of
marriage laws... and make a uniform law applicable to
all people, irrespective of religion or caste.’
The provision was introduced in the 86th Amendment, 2002.
Prior thereto, S.45 provided that the State would endeavor
to provide free and compulsory education to all children
under the age of 14. The position today is that, the State
shall provide early childhood care and education upto the
age of 6... this is a Directive Principle... whereas free and
compulsory education for all children between the ages of
6 and 14 is a Fundamental Right.
11. Art. 46: Promotion, with special care, of educational and
economic interests of Scheduled Castes, Scheduled Tribes
and other weaker sections: State shall also protect them
from social injustice and all forms of exploitation.
12. Art. 47: Nutrition, Public Health and Standard of living:
State shall regard the raising of the level of nutrition and
the standard of living of its people and the improvement of
public health as among its primary duties, and in
particular, the State shall endeavor to bring about
prohibition (of intoxicating drinks, drugs, etc., which are
injurious to health).
 In implementation of this Directive Principle, some
States (e.g., Gujarat) have enacted legislation.
13. Art. 48: Agriculture and Animal Husbandry: The State shall
endeavor to organize agriculture and animal husbandry on
modern and scientific lines, and take steps for preserving
and improving the breeds, and prohibiting the slaughter of
cows and calves and other milch and draught cattle.
 Md. Hanif Quaresh v. State of Bihar the SC relied
upon this Art. And held a law which prohibits slaughter
of cows and calves and other milch and draught cattle
capable of work, as valid and constitutional.
14. Art. 48A: Environment, Forests & Wildlife: Art. 48A
provides that the State shall endeavor to protect and
improve the environment, and to safeguard the forests and
wildlife of the country.
15. Art. 49: Monuments, Places & Objects of National
Importance: Obligation of State... to protect every
monument; place or object of artistic and historic interest,
declared to be of national importance, from spoliation,
disfigurement, destruction, removal, disposal or export...
Parliament has enacted the Ancient & Historical
Monuments and Archeological Sites & Remains (Declaration
of National Importance) Act, 1951.
16. Art. 50: Separation of Judiciary from the Executive: State
shall take steps to separate judiciary from the executive in
the public services of the State. Constitution... contains
stringent provisions which provide for independent
judiciary...totally free from executive control. Code for
Criminal Procedure, 1973, contains several provisions for
achieving this ideal of separation of the judiciary from the
executive.
17. Art. 51: International Peace & security: The State shall
endeavor to: (a) Promote international peace and security
(b) Maintain just and honorable relations between nations
(c) Foster respect for international law and treaty
obligations in the dealings of organized people with one
Page 28
 another; and, (d) encourage settlement of international
disputes by arbitration.
 SC has clarified: if ever there is conflict between
International Law and the internal law of India, the
Court must follow the latter.
 Gramaphone Co. of India v. Birendra Bahadur Pandey
(1984) In this case, the court concluded there was no
conflict
18. Art. 355: External Aggression and Internal Disturbances: It
shall be the duty of the Union to protect every State
against external aggression and internal disturbance, and
to ensure that the Government of every State is carried on
in accordance with the provisions of the Constitution.
Unity of Directive Principles
 Critics, at home as well as abroad, have pointed out that
the Directive Principles contained in Part IV of the
Constitution are neither properly classified nor logically set 
out. Most promises... are vague and represent ideals,
without being categorical on vital issues.
 Such criticism has some merit; yet, these directives do
serve an important purpose... they lay down the ideal of a
welfare State... and if properly and judiciously
implemented, they will lead India towards its goal of an
ideal welfare State.
 Moreover, they will also lend a continuity of policy to the
country. Governments may come and go, but these
directives will go on forever.
 The directives constitute a code of conduct in the hands of
all who may have to shoulder the responsibility of
administering the country. These directives are like the
constitutional conventions which prevail in England, and
should always remain in the forefront in the governance of
the country.
 Moreover, under Art.31C of the Constitution, laws passed
to implement directives covered by clauses (b) and (c) of
Art.39 are now immune from challenge under Art.14 (Right
to Equality) and Art.19 (Right to Freedom).
 Although the directive principles are not justiceable, the
judiciary has nonetheless respected these principles when
interpreting laws passed by the legislature. Often, the
constitutional validity of statutes has been decided on the
strength of directive principles.
 So, Art.42 was relied upon to uphold the reasonableness of
a restriction imposed under Minimum Wages Act. Also,
when deciding the reasonableness of a law relating to cow
slaughter, the SC turned to Art.48.
How far these Directives have been realized:
 India has gone a long way in implementing most of the
Directives contained in Part IV of the Indian Constitution.
Statutes on land reforms, nationalization of Banks and
Insurance Companies, promotion of cottage industries and
village panchayats are concrete examples of the
implementation of these directive principles.
 The enactment of codifying legislation in the hitherto
uncodified Hindu Law was also a bold step towards
codifying the personal laws of Hindus. So also, passing the
Monopolies & Restrictive Trade Practices Act (1969) - and
later, the Competition Act, 2002 - were direct attempts at
achieving the goal enshrined in Art.39.
 Yet, a lot remains to be done. We still do NOT have a
uniform civil code for all Indians; nor have we secured the
right to work to every able-bodied citizen of India; nor is
early childhood care and education available to all children
under 6 years of age.
 Ours is an infant democracy and one cannot expect to see
radical changes overnight. It is, therefore, heartening to
see that our Nation is, slowly but surely, marching ahead
towards its goal of a welfare State.
Art. 51A: Fundamental Duties:
 Prior to the 42nd Amendment of the Constitution... there
was no provision in the Constitution dealing with the
fundamental duties of citizens only... not to all persons.
 These duties were incorporated in the Constitution on the
recommendation of the Swaran Singh Committee. It is in
line with Art. 29(1) of the Universal Declaration of Human
Rights. Similar provisions are found in the Constitutions of
USSR, China and Japan.
 Originally, it had 10 duties... the 11th was added in 1977,
by the 86th Amendment in 2002.
Sachidanand v. State of WB (1987) Fundamental duties
have been invoked in litigation involving protection of the
environment.
 No provision in it...for enforcement of fundamental duties
of citizens... Swaran Singh Committee had suggested that
Parliament be empowered to impose punishment for
breach of fundamental duties... suggestion wasn’t
accepted.
 Mumbai Kamgar Sabha v. Abdulbhai, 1976 Art.51-A
cannot be enforced by a writ, its provisions can be used for
interpreting ambiguous statutes... Plus, courts take
fundamental duties into account while interpreting a
provision in an Act which admits of two possible
constructions.
 Art. 51A, which was introduced by this Amendment, now
provides for 11 fundamental duties of every citizen of
India:
1. Abiding by the Constitution, and respect its ideals and
institutions, the National Flag and the National Anthem
2. Cherish and follow the noble ideals which inspired our
national struggle for freedom
3. Uphold and protect the sovereignty, unity and integrity
of India
4. Defend the country and render national service when
called upon to do so
5. Promote harmony and the spirit of common
brotherhood amongst all people of India, transcending
religions, linguistic and regional or sectional
diversities; to renounce practices derogatory to the
dignity of woman;
6. Value and preserve the rich heritage of our composite
culture;
7. Protect and improve the natural environment,
including forests, lakes, rivers and wild life, and to
have compassion for living creatures;
8. Develop the scientific temper, humanism and spirit of
inquiry and reform
9. Safeguard public property and to abjure violence
10. Strive towards excellence in all spheres of individual
and collective activity, so that the nation constantly
rises to higher levels of endeavor and achievement,
and;
11. Of those who are parents or guardians, provide
opportunities for education to their children and
wards, or as the case may be, between the ages of 6
and 14 years.
Page 29
Parliamentary Government:
 India  multi-party federal, parliamentary democracy.
 Lower house = Lok Sabha (House of the People). Upper
House = Rajya Sabha (Council of States).
 The two houses along with the President constitute
Parliament (Art. 79).  Follows the British model = Crown
+ House of Commons + House of Lords.
 In USA, central legislature = Senate + House of
Representatives... unlike India & UK, the President is NOT
regarded as a constituent part of the Congress...due to
“doctrine of separation of powers.”
 All 3 organs are essential to the process of legislation by
Parliament.
 President doesn’t participate in deliberations in any House.
But, he has important functions (i) summons the Houses,
(ii) dissolves Lok Sabha, (iii) prorogues meetings of the
Houses; (iv) gives assent to the Bills passed by the two
Houses, etc.
 President, elected by an electoral college = chief of state =
constitutional head of the State... so, central executive is
NOT a Presidential executive.
 Prime Minister = head of government.
 Doctrine of Separation of Powers Though federal, Indian
Constitution has not adopted it (like in the USA)...
Executive (both at the Center and in the States) is based on
“Cabinet System of Government”  Cabinet is responsible
to the Parliament.
 Degree of adoption of ‘doctrine of separation of powers’ =
guarantees the independence of the judiciary...from
legislative and executive interference besides guarantees
on appointment, removal and service conditions, the
Constitution provides no discussion on conduct of an judge
of SC or HC in Parliament
 Art. 129 Only exception... steps can be taken to remove
a judge of SC.
 Art. 50 (dealing with Directive Principles)... State shall
take steps to separate the judiciary from the executive in
public services of the State.
 Gopalan’s case (AIR 1950 SC 27)... judge observed...people
of India delegated to the legislature, executive and
judiciary their respective powers... but, reserved to
themselves certain fundamental rights So, the judge
scrutinized the doctrine of separation of powers... &
accepted the British view (instead of US view) of the
maxim - delegate potestas non potest delgari (a delegate
cannot delegate).
 Art. 83(1): RS...is a continuing body - has rotational
Bicameralism:
 Justifications for a 2nd chamber:
a) A defining feature of “mixed government.” Require
concurrent majority to pass legislation
b) Rationale? Pro The 2nd chamber is a safeguard against
the possible tyranny of a unicameral Legislature.
 Anti critics - existence of upper house is inherently  House of Lords (HoL) one of the oldest chambers of the
undemocratic... subversive of the will of the people
(expressed through the directly elected Lower House)
 Houses of Parliament = different in many respects...
constituted on diff. principles... from a functional
viewpoint, they’re unequal in statuses.
 Lok Sabha (LS) = democratic chamber... elected directly by
people  basis: adult suffrage. Reflects popular will.
Council of ministers is responsible to the LS... it has last
word in taxation, expenditure of public money, etc.  Steps taken to rationalize the HoL structure The H.o.L
 Rajya Sabha (RS) = constituted by indirect election...
somewhat secondary role (despite some powers in Center-
State relations, which can be exercised only by RS, and not
LS). Constitutionally council of ministers is not responsible
to it.
 Design of RS:
i. Envisaged as a forum for seasoned and experienced
public men (talent + knowledge + experience)... air
opinion; apply mature judgment and wisdom for
solving country’s problems...without contesting
elections.
ii. Debating chamber... revising chamber (no pressure of
public opinion or heat of the moment) not a popular
chamber... All proposals and programmes of govt.
debated twice... RS can improve Bills passed by the LS.
iii. RS a chamber where States of the Union are
represented as States consistent with federal
principle... hence RS given some federal functions.
 Art. 80(1)(b) RS = 250 members; 238 elected reps of
States & Union Territories.
 Art. 80(1)(a) & (c) 12 nominees of President. Selected
from those who have special knowledge or practical
experience in literature, science, arts and social services.
 In Constituent Assembly, view expressed (similar to
American Senate) RS should have equal representation
irrespective or area or population of member States... view
didn’t prevail seats are fixed on population weighted
slightly in favor of smaller, less-populous States.
 Reps of a State in RS elected by the elected members of
the Legislative Assembly of corresponding State... per
system of proportional representation... through a single
transferable vote. System ensures only those familiar with
needs & attitudes of the State concerned go to RS.
 Eligibility for RS person need NOT be either (i) a rep of
the State beforehand, or (ii) an elector or a registered
voter, or (iii) a resident of the State.
 Method of electing RS members of UTs = prescribed by
Parliament by law.
 In Constituent Assembly, nominations of (12) RS members
were objected to... runs contrary to principle of election in
our legislative bodies... might lead to favoritism...
representation of non-political interests.
 In nomination of RS members President acts on advice of
Council of Ministers... Courts don’t interfere with that
presidential power of nominations... No difference of
status between nominated & elected RS members... except
that the latter participate in election of President of India;
the former don’t.
system...not subject to dissolution. 1/3rd of its members
retire every two years... vacated seats filled by fresh
elections and presidential nominations... each State
Legislative Assembly elects a few RS members periodically
 so, prevailing party strengths, contemporary views &
attitudes in the State are reflected.
world... Composition NOT rational - no elective or popular
element in it... has hereditary peers created by the Crown
on the advice of Ministers... mostly landlords or leaders of
trade & industry  inherit peerage (also conferred for
‘political and public service’ traditional aristocratic
character is diluted) & right to sit in the House from
ancestors... regarded as ‘indefensible anachronism’...
consists primarily unelected hereditary peers.
Act, 1999 passed hereditary life peers reduced to 92 out
of 721...old rule barring woman peeresses has been
Page 30
 abrogated... Provision to confer life peerage (on women,
too)... life peers can sit and vote in the House. Peerage Act
enables a hereditary peer to renounce title.
 No hereditary principle in RS. It is elected, though
indirectly...and represents public opinion to some extent...
its membership is not for life, but for 6 years. HoL has no
place in modern democracies.
 FederationsIn USA, the Senate (based on federal
principle) reflects interests & views of constituent States...
to protect States and their inhabitants against improper
federal measures... each constituent State, irrespective of
size or population, sends two Senators... equality of
representation.
 Partly federal, partly national character of US Congress...
result of dispute between smaller & bigger States during
Constitution-making. Smaller States, feared they’d be
overwhelmed by the more
Doctrine of Separation of Powers:
 The Indian Constitution, though a federal Constitution, has
NOT adopted the doctrine of separation of powers, unlike
the American Constitution, where the working of this
doctrine is well-exemplified.
 Executive in India, both at the Center and in the States, is
based on the Cabinet system of government and is
responsible to the Parliament. President of the Union of
India is the constitutional head of the State, and so, the
central executive is NOT a Presidential executive.
 The only extent to which the doctrine of separation of
powers is adopted in the Constitution is to that of
guaranteeing the independence of the judiciary.
 Elaborate provisions are made to ensure the independence
of the judiciary from legislative and executive
interference.
 Besides guarantees regarding... appointment, removal and
service conditions of Judges, the Constitution further
provides that no discussion shall take place in Parliament
with respect to the conduct of any judge of the SC or of a
HC in the discharge of his duties... the only exception...
Art.129. under which steps can be taken to remove a judge
of the Supreme Court.
 Art.50 (dealing with Directive Principles) also provides that 
the State shall take steps to separate the judiciary from
the executive in the public services of the State.
 Gopalan’s case (1950) Patanjali Shastri J of SC...
observed...in delegating to the legislature, the executive
and the judiciary their respective powers, the people of
India reserved to themselves certain fundamental rights.
After examining the doctrine of separation of powers the
learned Judge accepted the British, as opposed to the
American, view that the maxim delegata potestas non
potest delegari (a delegate cannot delegate) did NOT apply
to legislatures in India... and that the Indian constitution, 
unlike the American one, was NOT based on the doctrine of
separation of powers.
THE PRESIDENT OF INDIA (Arts.52-62; 73)
 The President of India is the MOST important executive
officer in the Constitution... he’s the supreme executive
authority of the Union... occupies almost the same position
as the King under the English Constitution.
 He is the head of the State, but NOT of the Executive. He
represents the nation, but does NOT rule it. He is the
symbol of the nation. His place in the administration is that
of a ceremonial seal by which the nation’s decisions are
made known.
 Art.52: There shall be President of India. The executive
power of the Union is vested in him, and is exercised by
him either directly or through officers who are subordinate
to him. Also vested in him is the supreme command of the
Defence Forces of the Union.
o Executive Power: Definition... the executive may
be deemed as the authority within the State which
administers the law, carries on the business of
Government and maintains order within, and security
from without, the State.
o Various powers included within the comprehensive
expression ‘executive power’ in a modern State have
been grouped by political writers under:
1. Administrative power... i.e., the execution of the
laws and the administration of Government
2. Diplomatic power - conduct of foreign affairs
3. Military power - organization of armed forces and
conduct of war
4. Legislative power - summoning, prorogation, etc.
of the Legislature, and
5. Judicial power - granting pardons, reprieves, etc.
to persons convicted of crime.
Art.73: Extent of Executive power of the Union
 Art.73 provides that the executive power of the Union
extends to matters with respect to which Parliament has
the power to make laws. But such executive power does
NOT extend in any State to matters with respect to which
the Legislature of that State has also the power to make
law.
 What Art.73 lays down is that the Union has exclusive
executive power for - (a) the administration of laws made
by Parliament under its exclusive powers; and (b) exercise
of its treaty powers.
 While executive authority in regard to matters in the
Concurrent List is ordinarily left to the States, Parliament
is entitled to provide that in exceptional cases, the
executive power of the Union shall also extend to these
subjects.
Art. 77(1): All executive action of the Government of India
is taken in the name of the President.
 Art. 59: He is entitled to a free official residence and such
other emoluments and allowances as are determined by
Parliament by law and until such determination, the
President shall get Rs.1,50,000 p.m. (When enacted, it was
Rs.10,000 p.m.) The emoluments of the president are NOT
subject to reduction during the terms of his office.
 Art.56: He holds office for 5 years unless he, by writing
under his hand addressed to the VP resigns his office, or is
removed from office for violation of the Constitution.
Art.57: A person holding the office of the President is also
eligible for re-election.
 Art.60: Before entering upon his office, the President has
to make and subscribe in the presence of the CJI (or, in his
absence, the senior-most Judge of the Supreme Court
available) an oath or affirmation in the prescribed form.
 Art.77(2): All orders and other instruments made and
executed in the name of the President are to be
authenticated in such manner as may be specified by him,
and the validity of an order or instrument which is so
authenticated cannot be called in question on the ground
that it is NOT an order or instrument made or executed by
him.
Page 31

Arts.54-55; 58-59 & 71: Rules as to Election of President
 Art.54: The President of India is elected by the members of
an electoral college consisting of:
1. The elected members of both Houses of Parliament,
2. The elected members of the Legislative Assemblies of to be eligible for election as President.
the States
 Art.55: As far as practicable, there must be uniformity in
the scale of representation of the different States at the
election of the President. For this purpose, the number of
votes which each elected Member of Parliament and of the
Legislative Assembly of each State is entitled to is to be
determined as under:
a. Each elected member of the Legislative Assembly has 
as many votes as there are multiples of 1000 in the
quotient obtained by dividing the population of the
State by the total number of the elected members.
b. If, after taking the said multiple, the remainder is NOT
less than 500, then the vote of each member is to be
increased by one.
c. Each elected member of either House of Parliament
has such number of votes as may be obtained by
dividing the total number of votes assigned to the
Legislative Assemblies of the States by the total
number of elected members of both the Houses of
Parliament, any fraction exceeding half being counted
as one
 Art. 55(3): The President’s election is to be held in
accordance with the system of proportional representation 
by means of a single transferable vote, and the voting at
such election is to be by secret ballot.
 Proportional representation by means of a single
transferable vote It is adopted, not only for the election
of the President, but also for the election of
representatives of the States in the Council of States [Art.
80(4)] and for election of members of the Legislative
Council of a State. [Art. 171(4)]
 Essential features of this device...elections are held by
general constituencies. Candidates who compete for the
seats allotted to a constituency have their names printed
on one ballot paper.
 Each elector has only one vote, in the sense that he’s
capable of electing one candidate only. But that vote will 324, 338 & 344: Executive Powers
NOT be wasted in case the candidate whom he wishes to
elect has NOT got more than the required number of votes,
called the ‘quota.’ The voter is required to indicate his
first, second and third preferences and so on, by placing
the figure 1, 2, 3 etc. against each candidate.
 At the time of the 1st count, only the first preference votes
of all the candidates are counted, and a candidate getting
an absolute majority of first preference votes is declared to
be elected.
 In an election, if a candidate secures 50% or more of 1 st
preference votes, then he’ll be declared to be elected.
 But, if there is no absolute majority of 1st preference votes
in favor of a candidate, a 2nd count is resorted to. At the
stage of the 2nd count, the candidate getting the minimum
number of 1st preference votes is eliminated, and the votes
from such ballot papers are transferred to the other
candidates, according to the preferences on these ballot
papers.
 Art.55... a reference to the population of a State. The
expression ‘population’ means the population as
ascertained at the last Census of which the figures are
published. This shall be a reference to the 1971 Census,
until the figures for the 1st Census taken after the year
2026 have been published.
Arts.58-59: Qualifications for election: (Art. 58)  To fulfill
1. He must be a citizen of India
2. He must have completed the age of 35.
3. He must be qualified for such election.
 A person is NOT eligible for election as President, if he
holds any office of profit under the Government of India (or
the Government of any State or under any local or other
authority subject to the control of any of the said
Governments).
A person is NOT to be deemed to hold any office of profit,
by reason only that he is the President or VP of the Union
or the Governor of any State or is a Minister either for the
Union or for any State.
 Art. 59:  The President cannot be a member of either
House of Parliament or of a House of the Legislature of any
State, and if he is, then he is deemed to have vacated his
seat on his assumption of office as President. Further, he
CANNOT hold any office of profit.
 Art.71 provides... all doubts and disputes, arising out of or
in connection with elections of the President & VP, are to
be decided by the SC, whose decision is final. Subject to
this, Parliament is empowered to regulate any matter
relating to the election of the President.
However, it is expressly provided that the election of a
person as a President is NOT to be called in question on the
ground of the existence of any vacancy (for whatever
reason) among the members of the Electoral College
electing him.
 Art.71(4) If the election of a person as President is
declared void, acts done by him in exercise and
performance of the powers and duties of the office of
President on or before the date of the decision of the SC
are NOT invalidated by reason of that declaration.
Arts.3, 53, 72-77, 85-87... & 392: Powers of the President
Arts.74-76, 77, 124, 148, 155-156, 217, 263, 280, 299, 316,
 Art.77(1) All executive action of the Government of
India is to be expressed to be taken in the name of the
President
 Art. 77(2) All orders and other instruments made and
executed in the name of the President are to be
authenticated in such manner as may be specified by him.
The validity of an order or instrument which is so
authenticated cannot be called in question on the ground
that it is NOT an order or instrument made or executed by
him.
 Art. 299(1) All contracts made in the exercise of the
executive power of the Union or a State are to be made by
the President, and all such contracts and all assurances of
property made in the exercise of that power are to be
executed on behalf of the President or by such persons and
in such manner as he may direct or authorize.
 The President also has the power to appoint:
1. Art.74: The PM of India and other Ministers of the
Union
2. Art.76: The Attorney-General for India
Page 32
 3. Art.148: The Comptroller and Auditor-General of India
4. Art.124: The Judges of the SC
5. Art.217: Judges of the High Courts of the States
6. Art.155: The Governor of a State  At 1st glance, this law-making power of the executive may
7. Art.263: An Inter-State Council
8. Art.316: Union Public Service Commission and a joint
Commission for a group of States
9. Art.280: The Finance Commission  The Ordinance, so passed, has to be placed before both the
10. Art.324: Election Commissioners
11. Art.338: Special Officer for Scheduled Castes and
Scheduled Tribes  The Article empowers the President to legislate by
12. Art.344: A Commission on Languages
 Art.156(1): The President also has the power to remove:
1. Art.75(2): The Ministers
2. Art.76(4): The Attorney-General for India
3. Art.156(1): The Governor of a State
Art. 53(2): Military Powers
 The President is the Supreme Commander of the Defence
Forces. But, Art.53 of the Constitution specifically provides 
that the exercise of military power by the President is to
be regulated by law. Parliament has the right to make the 
laws for the raising, maintenance, control and employment
of the Defence Forces.
 Parliament also has the right to lay down, by law, the
method of declaring war and making peace. The Indian
President CANNOT declare war or employ force without, or
in anticipation of, the sanction of the Parliament.
 The Indian President does NOT possess the wide power
which the American President does in this field.
Art.3, 85-87, 112, 115, 117, 123, 151, 247, 338: Legislative
Powers:
 The legislative powers of the President are as follows:
1. Art.85: The power to summon, prorogue and dissolve
Parliament.
2. Art.87: The right to make an opening address
3. Art.86: The right to address and send messages
4. Art.112: The power to cause certain reports and
statements (e.g., Annual Financial Statement) to be
laid before Parliament, so that Parliament may have
the opportunity to take its action upon them.
5. Art.151: The power to cause the Report of the
Comptroller and Auditor-General of India relating to
the accounts of the Government of India to be laid
before Parliament.
6. Art.3 & 117: Power of sanctioning introduction of
certain legislative measures, e.g., for alteration of
State boundaries (Art.3), Money Bill (Art.117), etc.
7. Art.123: Power to legislate by Ordinances during
recesses of Parliament
Art.123: Power to promulgate Ordinances during recess of
Parliament
 Art. 123(1): Ordinance when promulgated: At any time
(except when both Houses of Parliament are in session), if
the President 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 require.
 Promulgation of an Ordinance can be made ONLY when the
Legislature is in recess... & not in session.
 Executive is given the power to issue Ordinances and
thereby promulgate a law for a short period of time. This
technique of law-making is obviously devised to enable the
executive to meet unforeseen or urgent situation arising in
the country at a time when the country’s legislature is NOT
in session.
appear to be undemocratic. But, when properly analyzed,
the provisions of Art.123 clearly indicate that this power
can be used only in situations of necessity.
Houses when they assemble and it can be disapproved by
them.
Ordinance, to meet with any circumstances that require
immediate action, when Parliament is NOT in session. A
session = the period of time between the first meeting of
Parliament and its prorogation or dissolution, whichever
takes place earlier.
 An Ordinance made by the President under the present
Article [or by a Governor under Art. 213(1)] will be void if
it is promulgated before an order of prorogation of the
legislature is made and notified.
Art. 123(3): Its effectsSuch an ordinance has the same
force and effect as an Act of Parliament.
Art. 123(2)(a): When inoperative Such an Ordinance
may be withdrawn at any time by the President. It must
also be laid before both houses of Parliament, and it ceases
to operate at the expiry of 6 weeks from the reassembly of
Parliament, or, if before the expiry of that period,
resolutions disapproving it are passed by both Houses -
upon the passing of the second of those resolutions.
 Art. 123(3): When void... If an Ordinance under this
Article makes any provision which Parliament would NOT
under this Constitution be competent to enact, the
Ordinance would be void to that extent.
 This Article makes the legislative power of the President
co-extensive with the power of the Parliament itself. So,
he CANNOT enact what the Parliament could not. So, an
Ordinance violating any fundamental right would be void.
 Whether the Ordinance-making power is to be exercised on
the personal satisfaction of the President Although
Art.123 confers the Ordinance-making power on the
President, as in all other matters, he would have to act on
the advice of the Council of Ministers.
 Bank Nationalization case... RC Cooper v. Union of India
(1970) SC Held... the Ordinance is promulgated in the
name of the President, & in a constitutional sense, on his
satisfaction; but, it is in truth promulgated on the advice of
his Council of Ministers & on their satisfaction.
 Whether an Ordinance is subject to judicial review? In
the Bank Nationalization Case, the Central Govt. had issued
an Ordinance under which it sought to nationalize several
banks. This Ordinance was challenged before the SC,
contending that the condition precedent contained in
Art.123 had NOT been fulfilled.
 The argument was that Art.123 does NOT make the
President the final arbiter of the exercise of the conditions
on which the power of Ordinance making may be exercised.
Govt. argued that the satisfaction of the President was
purely subjective and Govt. was under no obligation to
disclose the existence of, or justify, the circumstances
which made it necessary to take immediate action.
 The Court cleverly left the Q open holding that... as the
Ordinance had already been converted into an Act of
Parliament, it was only academic.
 AK Roy v. Union of India (1982)... National Security
Ordinance that provided for preventive detention the
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 issue of judicial review of the President’s satisfaction was
raised in the SC. Again SC left the Q open. It observed...
judicial review of the Q on the President’s satisfaction is
NOT totally excluded.
 T Venkata Reddy v. State of AP (1985)... SC has held... the
power to promulgate an Ordinance is a legislative - and not
an executive - power, its exercise cannot be questioned on
grounds such an improper motive or non-application of
mind or on the grounds of its propriety, expediency or
necessity.
 K Nagaraj v. State of AP (1985) SC observed... The power
to issue an Ordinance... is the power of the executive to
legislate. This power is plenary, within its field like the
power of the legislature to pass laws... so, no limitations
upon that power, except those to which the legislative
power of the legislature is subject. Though an Ordinance
can be invalidated for contravention of the constitutional
limits which exist on the power of a legislature to make
laws, it CANNOT be declared invalid for the reason of non-
application of mind, any more than any other law can be.
An executive act is liable to be struck down on the ground
of non-application of mind; not the Act of a legislature.
 In all the above cases, SC appears to have treated
Ordinance on the same footing as a law made by the
legislature... but, this exaggerated immunity sought to be
extended to Ordinances may NOT be justified.
1. Whilst legislation is made through an elected body, an
Ordinance is NOT.
2. The process of legislation is open and transparent,
with an inbuilt mechanism of debating its pros &
cons...not only inside, but outside legislature too.
3. An Ordinance is a legislative act, it is NOT a legislative
act of the legislature, and thus, should be open to
attack on the ground of mala fides.
Arts.77, 101, 118, 318 & 320 Rule-making powers:
 Art.77: The President is empowered to make rules for the
more convenient transaction of the business of the
Government of India and for the allocation of such business
amongst the Ministers.
 Art. 101: If a person is chosen both as a MP as well as a
Member of a State Legislature, his seat in Parliament
becomes vacant according to the rules made by the
President in this connection.
 Art. 118: In consultation with the Chairman of the Rajya
Sabha and the Speaker of the Lok Sabha, the President is
empowered to make rules as to the procedure to be
followed at joint sittings of the 2 Houses and for
communication between the 2 Houses.
 Art. 318: President may, by regulation... (a) determine the
# of members of the UPSC, the Joint Commission, and their
conditions of service; and, (b) make provisions with respect
to the # of members of the staff of these Commissions and
their conditions of service.
 Art. 320: The President can also make regulations
specifying the cases in which it would not be necessary to
consult the Public Service Commission while making
recruitments to the services under the Union. But, all such
regulations are to be laid before the Parliament.
Arts.72 & 143: Judicial Powers mainly two:
 Art. 72: The President has the power to grant pardons,
reprieves, respites, or remissions of punishment; and to
suspend, remit, or commute sentences of persons
convicted of any offence...
a) In all cases where the punishment or sentence is by a
Court Martial; or
b) Where the punishment or sentence is for an offence
against any law relating to a matter to which the
executive power of the Union extends; or
c) Where the sentence is a sentence of death.
 Clause (a) above does NOT affect any power conferred by
law on any Officer of the Armed Forces of the Union to
suspend, remit or commute a sentence passed by a Court
Martial.
 Clause (c) above does NOT affect the Governor’s power to
suspend, remit or commute a death sentence under any
law for the time being in force.
 Types of pardon may be full, limited or conditional:
a) Reprieve... it refers to the stay of execution of a
sentence or of the enforcement of a penalty. When a
reprieve is granted, the execution of a sentence is
suspended.
b) Respite... it means awarding a lesser sentence instead
of the penalty prescribed (literal meaning is to
discharge or dispense with)
c) Remission... it reduces the quantum of sentence
without changing its character. E.g., RI of 1 year is
reduced to RI of 6 months.
d) Commutation... It is a change to a lighter penalty of a
different form. E.g., Death sentence is commuted to
imprisonment for life.
 Art. 143: Power to consult the SC... 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 SC 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.
 The President, as the executive head of the Union, it
empowered to refer questions of law or fact to SC.
 The power to consult the SC is called consultative power of
the President. The word ‘may’ indicates no obligation is
cast on the SC to give its opinion in a given case.
 President can also refer to the SC, any dispute arising out
of any treaty, agreement, engagement, sanad (a deed
granted to native rulers confirming them in their states, in
return for their allegiance) or other similar instrument
executed before the commencement of the Constitution. In
such cases, it is obligatory on the SC to give its opinion.
Arts.352-360 & 365: Emergency Powers Discussed later
Financial Powers of President
 Tt the start of every financial year, the President is
authorized to table before Parliament a financial statement
showing estimated receipts and expenditure of the Union
for that year. No demand for a grant can be made except
on the recommendation of the President.
 President also has power...to distribute between the Union
and States, shares from income tax, and to assign to
Assam, Bihar, Orissa and WB, grant-in-aid in lieu of their
shares from Jute export-duty.
 The President is also empowered to set up a Finance
Commission.
Art. 392: Miscellaneous Powers
 Power to remove difficulties: The President may, for the
purpose of removing any difficulties (particularly in relation
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 to the transition from the provisions of GoI Act, 1935, to
the provisions of the Constitution) by order direct that the
Constitution shall have effect subject to such adoption,
whether by way of modification, addition or omission, as he
may deem to be necessary or expedient. But no such order
can be made after the 1st meeting of Parliament, and every
order so made is to be laid before Parliament.  Arts.63 & 64: The VP shall be ex-officio Chairman of the
 This Article is to-day of academic interest... it was
designed to remove difficulties
Art. 361: President’s Privileges 4 main privileges:
1. The President... NOT answerable to any Court for the
exercise and performance of the powers and duties of his
office or for any act done by him in the exercise and
performance of those powers & duties. The President’s
conduct may be brought under review by a Court, body or
Tribunal appointed by either House of Parliament for the
investigation of a charge under Art. 61.
2. No criminal proceedings whatsoever can be instituted or
continued against the President in any Court during his
term of office.
3. No process for the arrest or imprisonment of the President
can issue from any Court during his term of office.
4. No civil proceedings, in which relief is claimed against the
President, can be instituted during his term of office in any
Court, in respect of any act done (or purporting to be done)
by him in his personal capacity, whether before or after he
entered upon his office as the President, until the expiry of
2 months notice in writing delivered to the President (or
left at his office) stating:
 The nature of the proceedings
 The cause of action therefore,
 The name, description and place of residence of the
party by whom such proceedings are to be instituted,
and
 The relief which he claims.
Arts.61 and 361(1): Procedure for impeachment of the
President
 This power of parliament...to impeach the President... acts
as an effective check against the dictatorial use of
Presidential powers it has never been invoked till date
 Art. 61(1) President can be impeached ONLY for violation
of the Constitution and nothing else. The 3 steps of this
procedure are:
1. The charge must first be preferred by either House of
Parliament. But, no charge can be preferred unless:
The proposal to prefer such a charge is contained in a
resolution which has been moved after at least 14
days’ notice in writing, signed by not less than 1/4th of
the total # of members of the House, has been given,
of their intention to move the resolutions; &
The resolution has been passed by a majority of not less
than 2/3rds of total membership of the House
2. Art. 361(1)When a charge is so preferred by either House
of Parliament, the other House must investigate the
charge, and the President has the right to appear and to be
represented at such investigation. The conduct of the
President can be brought under review by any Court,
Tribunal or body appointed or designated by the House of
Parliament for the investigation of a charge under Art.61.
3. If as a result of the investigation, a resolution is passed by
a majority of > or = 2/3rd of the total membership of the
House by which the charge was investigated, declaring that
the charge preferred against the President has been
sustained - such a resolution has the effect of removing the
President from his office as from the date on which the
resolution is so passed.
Arts.63-71: VICE-PRESIDENT OF INDIA
Council of States - Rajya Sabha (RS). The VP acts as the
President in the event of any vacancy in the office of the
President by reason of his death, resignation or removal.
 Likewise, when the President is unable to discharge his
functions owing to absence, illness or any other cause, the
VP discharges the functions of the President until the date
on which the President resumes his duties.
 Salary of VP = Rs. 125,000 per month.
 Art. 66(1) & 66(2): The VP is elected by the members of
both Houses of Parliament assembled at a joint meeting
following the system of proportional representation by
means of a single transferable vote.
 The VP cannot be a member of either House of Parliament
or of a House of the Legislature of any State, and even if he
is, he is deemed to have vacated his seat on the date on
which he enters upon his office as VP.
 Arts. 67 & 68 - Term of office: The term of office of a VP
is 5 years, unless he resigns or is removed from office
 An election to fill a vacancy caused by the expiry of the
term of office of the VP is to be completed before the
expiration of that term. But, if the vacancy occurs by
reasons of his death, resignation or removal or otherwise,
the election is to be held as soon as possible after the
occurrence of the vacancy.
 The person who is elected in such circumstances is entitled
to hold office for the full term of 5 years from the date on
which he enters upon his office.
 A VP holds office until the appointment of his successor,
even though his office has expired.
Arts. 66(3); 66(4) & 71: Qualification for election as VP
 Art. 66(3): A person is NOT eligible for election as VP,
unless he:
i. Is a citizen of India;
ii. Has completed the age of 35 years; and,
iii. Is qualified for election as a member of the Council of
States.
A person holding any office of profit under the Govt. of
India or the Govt. of any State or under any local or other
authority subject to the control of any of the said
Governments is NOT eligible for election as VP.
 Art.66(4): But a person is NOT to be deemed to hold any
office of profit by reason only that he is the President or
the VP of the Union or the Governor of any State or is a
Minister of the Union or of any State.
 Art.71: All doubts and disputes arising out of or in
connection with the election of the VP are to be decided by
the SC, whose decision is final. Subject to this, Parliament
is given power to regulate any matter relating to the
election of the VP.
 But, it is expressly provided that the election of a person as
a VP is NOT to be called in question on the ground of the
existence of any vacancy (for whatever reason) among the
members of the Electoral College electing him.
 Art.71(4): If the election of a person as VP is declared
void, acts done by him in exercise and performance of
powers and duties of the office of VP on or before the date
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 of such decision (voiding the election) are NOT to be
invalid by reason of that declaration.
 Art.69: Oath of Office: The VP must, before entering upon
his office, make and subscribe before the President (or
some person appointed in that behalf by him), an oath or
affirmation in the prescribed form.
 Art. 67(a): The VP may, by writing under his hand
addressed to the President, resign his office.
 Art. 67(b): The VP may be removed from his office by a
resolution of the RS passed by a majority of all the then
members of the Council and agreed to by the Lok Sabha -
House of the People. But, no such resolution can be moved
unless at least 14 days notice has been given of the
intention to move the resolution.
Arts. 74-75, 78 & Sch. 3: COUNCIL OF MINISTERS (COM)
 Nature of Council of Ministers (COM): It is the smaller body
of ministers who form the advisory council of the
President, with the PM at its head, and by whom the
general policy of the executive (as also of the more
important legislative measures introduced by the
Government in Parliament)... The duty of COM is to aid &
advise the President in the exercise of his functions.
 Before 42nd Amendment of the Constitution (came into
force on 1st Feb. 1977), a hotly-debated question was
whether the President was bound to accept the advice of
the COM... i.e., whether he was a mere nominal executive 
head, a figure-head... or whether he enjoyed some real
power.
 Before the Amendment, nowhere was it laid down in the
Constitution that the President shall accept the advice of
his ministers. Conclusion... President of India was NOT a
mere figure-head, but, enjoyed real power.
 Only Q: To what extent could the President exercise his
power? In ordinary & normal day-to-day administration, he 1. Responsibility to Legislature: Art.75 provides that COM is
would act on the advice of his COM. But, in extra-ordinary
situations, it was said the President might NOT follow the
advice of the ministers, if it was in the best interest of the
nation to do so.
 It was opined that the Indian President was, by no means, a
mere figure-head, but, unlike the English King, had real
power.
 After 42nd Amendment... the above discussion assumes a
purely academic nature... it is clear that the President is
bound by the advice of the COM. For this purpose, Art.74
was amended, &... it is now provided... the President shall
act in accordance with such advice.
 The 44th Amendment, 1978, further provided the President
may require the COM to reconsider their advice, either
generally or otherwise. When after reconsideration, advice
is tendered to him, the President must act in accordance
with such advice.
Arts.74-75 & Sch.3: Council of Ministers
 Art. 74(1): The Constitution provides for a COM, headed by
the PM, to aid & advise the President in the exercise of his
functions.
 91st Amendment, 2003, provides that total # of ministers in
the COM, including PM cannot exceed 15% of the total
number of members of LS.
 Art. 75(1)-(3): PM is appointed by the President, and the
other ministers are appointed by the President on the
advice of the PM, but all of them hold office during the
pleasure of the President, and they are collectively
responsible to the LS (House of People). If ministers lose
confidence of the House, they can be required to resign.
 Art. 74(2): The question whether any, and if so, what
advice was tendered by the ministers to the President
cannot be inquired into by any Court.
Collective Responsibility:
 The doctrine of collective responsibility applies to ministers
of the Union... it is both salutary and necessary.
 it connotes that members of the Ministry are jointly and
severally to the House of People, for every legislative and
executive act of the Government... as also every legislative
measure introduced in Parliament with the authority of the
Government.
 It means that the Government must maintain a majority in
the Lok Sabha as a condition for its survival
 The responsibility of Ministers, individually and
collectively, is secured by the fact... ministers can be
dismissed from office... as soon as they loose the
confidence of the House of People.
 SC view (KM Sharma v. Devi Lal, 1990) Object of
collective responsibility is to make the whole body of
ministers vicariously responsible... for such acts as
others...as are referable to their collective violation. So
even if an individual minister is not personally responsible
for an act, he would be deemed to share the responsibility
with those who really committed the act.
The principle of collective responsibility secures the unity
of the Cabinet and the Council of Ministers. It doesn’t mean
that every minister should take an active part in the
formulation of policy...not possible in a large COM.
Nature of Ministerial Responsibility at the Center:
 The system of ministerial responsibility is similar to that
which prevails in England. 2 aspects, viz.:
collectively responsible to the LS. The result is that the
House of the People can dismiss the Ministry by passing a
vote of no-confidence against it or rejecting a Bill
introduced by the Ministry.
 Salaries & allowances of ministers are to be such as
Parliament may, from time to time, by law,
determine. Result... House of People can force a
minister to resign by reducing his salary to a nominal
amount or rejecting it altogether to dispose off
individual (rogue) ministers.
 As is the practice in England, in India also, when the
Ministry is out-voted in the House of People (HOP), it
may refuse to resign. It may request the President to
dissolve the HOP in order to know the will of people. If
at the new election, the old Ministry secures a
majority in the HOP, it continues to remain in office. If
it does NOT win the requisite majority, it has to resign.
2. Responsibility to the President: Constitution provides that
the PM be appointed by the President... and other
ministers are appointed (by President) on the advice of PM.
Ministers are to hold office during the pleasure of the
President.
 Thus, the President can dismiss any minister he
pleases. But, in practice, the President will exercise
this power only on the advice of the PM.
 Reason... if the President dismisses a minister without
or against the PM’s advice, it will lead to the
resignation of the whole ministry. In such an
eventuality, the President has to find an alternative
Page 36
 Ministry to carry on the administration of the
country... this many not be possible, especially if the
old Ministry has a comfortable majority in the HOP. So,
discretion will force the President to use his power of
dismissal of ministers only on the advice of the PM.
Relationship between President & the Cabinet
1. Before the 42nd Amendment: View 1... The Indian
Constitution... is essentially one that provides for a Cabinet
system of Govt. responsible to the Parliament. So,
President was just a constitutional head, and held a
position similar to the monarch in UK... so, many wrote:
The President reigns, but does NOT rule. Other view...
Despite a Cabinet system of govt., the President was NOT
just a figure-head. In exceptional circumstances, his office
can be an office of effective powers.
 Examination of controversy in light of constitutional
provisions: Art.74 provides for COM with the PM at the head
to aid & advise the President in the exercise of his
functions. Art.75 provides that ministers shall hold office
during the pleasure of the President. These 2 provisions
have been interpreted differently. Reasons to hold the view
the President was a constitutional head:
i. Art.64 provides for a COM. The absence of ministers
and the President acting without the aid and advice of
such ministers amounts to a departure from the
Constitution.
ii. British Cabinet system was the model for Indian COM.
So, conventions adopted in the British Constitution
must be followed here.
iii. President cannot act independently of the aid and
advice of COM. If the President acts independently ...
he might take a political decision and expose himself
to political controversies.
iv. Essence of the Cabinet System of Govt. is the Cabinet’s
responsibility to Parliament. If the President were to
act independently of the advice of the COM, such
action would NOT fall within the sphere of
Parliamentary responsibility.
v. If the President were to act independently, it would
lead to a kind of personal despotism in view of his
apparently vast powers.
vi. A President might dissolve the Parliament, proclaim an
emergency and suspend elections, and so virtually
convert the Indian Constitution into an instrument of
despotism.
 Raj Sahib v. State of Punjab (1955) SC decision supports
the above view... SC held: English system of parliamentary
executive has been adopted in our Constitution... so, the
President & Governors are only constitutional heads; the
real executive powers being vested in the COM.
 Others held the opposite view that, under certain
exceptional circumstances, the President might act
independently of the aid and advice of PM or the COM.
Arguments advanced in favor of this view were:
i. The Constitution originally framed, only provided for
COM; nowhere did it categorically state that the
President has to act only on the aid & advice of the
COM (Now, of course, after the 42nd Amendment, it is
specifically so stated.)
ii. Our Constitution = federal nature... so, no reason to
believe that all the conventions of the British
Constitution should be invariably followed in India.
iii. So far as federal & national problems are concerned,
the President who’s been elected by the Parliament
and the Legislative Assemblies of the States, may be
made a representative of the nation, rather than the
PM, who would be just a leader of a majority party in
the Parliament. So, in case of a conflict between the
interest of the nation as a whole and the view of the
majority party in Parliament, it might be proper for
the President to act in the interest of the nation.
iv. The President is NOT a hereditary monarch, but an
elected representative (indirect)... so, no reason to
shun political controversies.
v. The British practice of the requirement of the
signature of ministers before affixing the Royal Seal is
NOT adopted in India. So, there is no constitutional
difficulty even if the President were to act without the
aid and advice of the COM.
 The letter of the Constitution of India might justify the
view that in certain exceptional circumstances the
President might act independently, yet it would be wrong
to believe that the Indian Constitution is a compromise
between the Presidential system of Govt. and the Cabinet
system of Govt.
 Essentially, the President of India was considered to be the
constitutional head of the cabinet... this tradition was
more than justified as a result of the constitutional
practice since the commencement of the Constitution.
2. Position after the 42nd Amendment (1977): Art.74 was
amended to provide that... President of India is bound by
the advice of the COM. This confirms the view that the
President is ONLY a constitutional head of the nation.
Indeed... he reigns, but does NOT rule!
Art.75: Other provisions as regards Ministers:
 Before a minister enters office, the President must
administer to him, the oaths of office and of secrecy...
according to prescribed forms.
 A minister, who for any period of 6 consecutive months is
NOT a member of either House of Parliament, at the
expiration of that period, ceases to be a minister.
Arts. 75 & 78: The Prime Minister: The PM is appointed by the
President, and holds office during the pleasure of the President.
Art.78: Duties of PM:
To communicate to the President, all affairs & decisions of
the COM relating to the administration of the Union
and proposals for legislation.
To furnish such information, relating to affairs &
administration of the Union and proposals for
legislation, as the President may call for
If the President so requires, to submit for the consideration
of COM, any matter on which a decision has been taken
by the minister, but which has NOT been considered by
the Council.
 The PM has a position of superiority over other ministers.
He’s the ‘keystone of the cabinet architecture,’ i.e., a
primus inter pares (first among equals) = an
understatement. A powerful PM has no equals.
 The superiority of PM is evident, for he recommends to the
President, the appointment of other ministers.
 PM can recommend dismissal of any minister. A minister
who does not agree with the PM (or openly criticizes the
PM) can’t continue in the Ministry & has to resign. Such
behavior would be incompatible with the basic tenets of a
cabinet system of govt.
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 Again, PM defends the cabinet on the floor of the house.
His resignation = fall of the entire cabinet. A person with a
strong personality & a comfortable majority in the LS can
be a very powerful PM. So, it is said, the office of a PM is
what its holder chooses to make it.
 Another weapon in the hands of PM... he can advise the
President to dissolve the LS. This potent power gives the
PM full control over the LS, rather than vice-versa. With a
relatively weak President, the PM can almost become an
elected dictator.
Arts.76, 88 & 124: ATTORNEY GENERAL FOR INDIA (AGI)
 Art. 76(1): The President appoints a person who is
qualified to be appointed a Judge of the SC to be Attorney- 
General for India.
 Arts. 76(1) & 124: AGI Qualifications: The
qualifications of AGI are the same as those of SC judge (laid
down in Art.124), viz.,
1. He must be a citizen of India
2. (i) He must have been, for at least 5 years a Judge of a
HC, or of 2 or more such Courts in succession... OR (ii)
He must have been, for at least 10 years, an advocate
of HC, or of 2 or more such Courts in succession... OR
(iii) he is, in the opinion of the President, a
distinguished jurist.
o Art. 76(4) The AGI holds office during the pleasure of the
President, and receives such remuneration as the President 
may determine
 Art. 76(2): AGI Duties His duties are to advise the
Govt. of India upon such legal matters, and to perform
other such duties of a legal character, as may be referred
or assigned to him by the President, and to discharge the
functions conferred on him by this Constitution.
o Under the Rules made by the President of
India, the AGI has to advise the Govt. of India on legal
matters, and also appear on behalf of the Govt. of
India in cases before the SC and the HC’s, if called
upon to do so. He also has to represent the Govt. of
India in any reference made by the President to the SC 
under Art.143.
 Arts. 76(3) & 88: AGI Rights
o Art. 76(3): The AGI has the right of audience
in all Courts in India,
o Art. 88: The AGI has the right to speak in and 
to take part in the proceedings of the LS or RS; any
joint sitting or the Houses, or any Committee of
Parliament of which he may be named a member, but
is NOT by virtue of this Article entitled to vote.
o As the head of the Indian bar, he is also
entitled to precedence in all Courts.
o In England, the office of the AG is regarded as 
a political office, in the sense that he is a member of
the Ministry, and stands and falls with the Ministry.
Contrarily, in India, the AGI (theoretically, at least)
does NOT belong to the COM and the dismissal of a
particular Ministry would NOT affect his post.
PARLIAMENT (THE UNION LEGISLATURE)
Arts. 79-122 & 330-331, 334 & Sch.3 & 4: Parliament
 Parliament = Central Legislature of India...is a sovereign
body. It is independent of all external authority.
 Great difference between the English & Indian
Parliaments whereas no Act of the English Parliament can
be challenged in Courts, an Act of the Indian Parliament
will be subject to judicial review, i.e., the Judiciary in
India has the power to declare an Act of Parliament to be
unconstitutional and void... a powerful safeguard of the
liberty of subjects...it prevents the executive from
infringing the liberty of people in an unconstitutional
manner.
Arts.79-88, 330-331, 334: Composition of Parliament
 Art. 79: Union Parliament consists of the President and 2
Houses known as the Council of States (RS) and the House
of People. Hence, a ‘law of the Parliament’ means... a law
passed by the 2 Houses, followed by the assent of the
President.
Stockdale v. Hansard (1839) Resolutions of either House
of Parliament by themselves are NOT equivalent to laws
made by Parliament.
Arts.80, 80(1), 84 & 89-92: Council of States:
 Arts.80 & 83: Composition of RS: The Council of States
consists of:
1. 12 members, to be nominated by the President,
consisting of persons having special knowledge or
practical experience in respect of literature, science,
art and social service, and.
2. Not more than 238 representatives of the States and
Union Territories... Total: 250 in all.
Arts. 80(1), (3) & (4) No provision for the direct election
to the RS. Members are elected by the elected members of
the Legislative Assemblies of the States in accordance with
the system of proportional representation by means of a
single transferable vote
 Art. 80(2) The allocation of seats in the Council of States
to be filled by representatives of the States and of the
Union territories is in accordance with the provisions in
that behalf contained in the 4th Schedule
 Art. 80(5) The representatives of the Union territories in
the RS are to be chosen in such manner as Parliament may
by law prescribe.
Art. 83(1): The RS is not subject to dissolution, but 1/3rd of
the members thereof retire on the expiry of every 2nd year.
This is to prevent the House from being turned into a
body...& to have continuous flow of fresh talents... So, RS
is a permanent house...not subject to dissolution...
Art.84 Qualifications for its membership: A person is
qualified to be a member of the RS, if...
o He is a citizen of India
o He is at least 30 years of age, and
o He possesses such other qualifications as may be
prescribed by Parliament.
Arts.89-92: Chairman & Deputy Chairman of RS: The VP
of India is the ex-officio Chairman of the Council of States,
which Council may choose its Deputy Chairman, who must
vacate his office if he ceases to be a member of the
Council.
 In the absence of the Chairman, the Deputy Chairman
performs all his functions and duties. He may, by writing
under his hand addressed to the Chairman, resign his
office... he may after 14-days’ notice be removed from his
office by a resolution of the Council passed by a majority of
all the then members of the Council.
 The Chairman or the Deputy Chairman respectively cannot
preside while a resolution for his removal from office is
under consideration.
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 The Chairman has the right to speak in... and otherwise to 
take part in the proceedings of the RS, while any resolution
for the removal of the VP from his office is under
consideration, but he is NOT entitled to vote on such
resolution or on any other matter during such proceeding. 
Arts. 81-84, 93-96, 100, 112, 330-334: Lok Sabha (LS)
 Art.81 - Composition: The House of People is a.k.a. The
Lower House. Subject to provisions of Art.331, the LS
consists of the following:
(a) Not more than 530 members directly elected by the
people. The constituencies are to be territorial and the
election is to be on the basis of adult suffrage, i.e.,
every citizen who is NOT < 18 years of age, and is NOT
otherwise disqualified on the ground of non-residence,
unsoundness of mind, crime or corrupt or illegal
practice, is entitled to vote.
(b) Not more than 20 members to represent the Union
Territories, chosen in such manner as Parliament may
be law provide.
 For the purposes of sub-clause (a) of clause (1)
(a) There is to be allotted to each State, a number of
seats in the LS, in such manner that the ratio betweenArts.101-104: Disqualification of Members
that number and the population of the States is, so far
 Art. 102: It lays down 5 important circumstances which
as practicable, the same for all States; and,
(b) Each State is divided into territorial constituencies, in Parliament, i.e., member of either the Council of States or
such a manner that the ratio between the population
of each constituency and the # of seats allotted to it
is, so far as practicable, the same throughout the
State.
 Art.82: Upon completion of each census, the allocation of
seats in the LS and the division of each State into territorial
constituencies is to be readjusted by such authority and in
such manner as Parliament may by law determine. Such re-
adjustment cannot affect the representation in the House
of People until the dissolution of the existing House.
 Art. 83(2) - Its duration: Unless sooner dissolved, the LS
continues for 5 years, and the expiry of such a period of 5
years operates as a dissolution of the House. The said
period may, while a proclamation of Emergency is in
operation, be extended by Parliament for a period NOT
exceeding 1 year at a time, and NOT extending, in any  While Art.84 lays down the positive qualifications required
case, beyond a period of 6 months after the proclamation
has ceased to operate.
 Art.330-334: In spite of the provisions for universal adult
suffrage, some special provisions have been made for the
representation of minorities (Scheduled Castes; Scheduled
Tribes) in the LS. Additionally, the President may, if he is
of the opinion that the Anglo-Indian community is NOT
adequately represented in the LS, nominate one member of
that community to the LS.
 Art.331: The reservation of seats for the SC&T as also the 
Anglo-Indians under this Article is to cease after 60 years
from the commencement of the Constitution.
 Art.84: Qualification for membership of LS...  Art. 101(3) & (4): Member’s seat, when becomes
a. Must be a citizen of India
b. Must NOT be <25 years of age; and
c. Must possess such other qualifications as may be
prescribed by Parliament
Arts.93-96: Speaker & Deputy Speaker of the LS:
 The House of People chooses 2 members of the House to be
Speaker & Deputy Speaker thereof. Either of them is liable
to vacate his office if he ceases to be a member of the
House of People.
He may, at any time by writing under his hand addressed, if
such member is the Speaker to the Dy. Speaker and if such
member is the Dy. Speaker then to the Speaker, resign his
office.
He may also be removed from his office by a resolution of
the House (moved after 14-days notice) passed by a
majority of all the then members of the House, and neither
can preside while a resolution for his removal from office is
under consideration.
 In the absence of the Speaker, his duties are to be
performed by the Dy. Speaker.
Arts. 94(c), 100(1) & 112(3)(b): Position of Speaker
 The Speaker’s position is sought to be made impartial &
independent by the following provisions in the Act:
1. Art.112(3)(b): His salary & allowances are charged on
the Consolidated Fund
2. Art. 94(c): He can be removed only by a resolution of
the House passed by a majority of all the then
members of the House
3. Art. 100(1): He has no vote, except in case of a tie.
will disqualify a person from being a member of the
the House of the People, as follows:
A member of either House of Parliament shall be
disqualified in any of the following 6 cases:
1. If he holds any such office of profit under the Govt. of
India or the Govt. of any State, as is declared by
Parliament by a law to disqualify its holder; or
2. If he is of unsound mind, and stands so declared by a
competent Court; or
3. If he is an undischarged insolvent; or
4. If he is not a citizen of India or has voluntarily acquired
the citizenship of a Foreign State; or
5. If he is so disqualified by or under any law made by
Parliament; or
6. If h is disqualified under the 10th Schedule to the
Constitution (on the ground of defection).
for membership of either House of Parliament; Art.102 lays
down the negative requirements, i.e., the disqualifications
Art. 103(1) If any question arises as to whether a
member of either House of Parliament has become subject
to any of the disqualifications mentioned above, the
question is to be referred for the decision of the President
and his decision is final. Before deciding, the President
must obtain the opinion of the Election Commission, and
must act accordingly to such opinion.
Art. 101(3): Effect of disqualification If a member of
either House of Parliament becomes subject to any of the
disqualifications, his seat thereupon becomes vacant
vacant A member’s seat becomes vacant in 3 cases:
1. If a member resigns his seat (by writing under his hand
addressed to the Chairman or the Speaker), his seat
becomes vacant.
2. If for a period of 60 days, a member of either House of
Parliament is, without the permission of the House,
absent, from all meetings thereof, the House may
declare his seat vacant.
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 3. Lastly, if a member of either House of Parliament,
becomes subject to the disqualifications mentioned in
Art. 102, his seat thereupon becomes vacant.
 Art.104: Penalty for voting by a non-qualified or
disqualified person If a person sits or votes as a member
of either House of Parliament before taking the oath or
affirmation as required by Art.99, or when he knows that
he is NOT qualified or that he is disqualified or that he is
prohibited from so doing by any law... he becomes liable in
respect of each day on which he so sits or votes to a
penalty of Rs.500 to be recovered as a debt due to the
Union.
Arts. 101, 105-106: Disabilities, Powers, Privileges &
Immunities of Parliament And its Members
 Arts. 101(1) & (2): The disabilities of a Member of
Parliament are two, viz.
1. No person can be a member of both Houses of
Parliament
2. No person can be a member both of Parliament and of
a House of the Legislature of a State, and if a person is
chosen a member both of Parliament and of a House of
Legislature of a State, then at the expiry of such 2.
period as may be specified by the rules made by the
President, that person’s seat in Parliament becomes
vacant, unless he has resigned his seat in the
Legislature of the State.
 Arts. 105-106: Powers, Privileges & Immunities of MPs:
These are 4.
1. Privilege 1 (Doctrine of Immunity): Freedom of speech in
parliament. The freedom is subject to: (a) The other
provisions of the Constitution (as for instance, discussion
regarding HC and SC Judges in Parliament), and; (b) The
Rules & Standing Orders regulating Parliamentary
procedure.
 As free, frank and fearless discussions in Parliament 3.
are the touchstone of democracy, total freedom is
guaranteed by the Constitution... This freedom
immunizes them from the fear of being hauled up in a
Court for words uttered inside the House.
 The origin of this right can be traced to England. In 17th
century, Sir John Eliot was convicted by the court for
seditious speeches in the House of Commons. The
House of Lords reversed the decision on the ground
that words spoken in Parliament can be judged only
within the 4 walls of Parliament. The right was
included in the English Bill of Rights.
 Tej Kiran Jain v. Sanjiva Reddy (1970) Certain
derogatory remarks made in Parliament against
Jagadguru Shankaracharya... who had allegedly made
some remarks about untouchability at the World Hindu
Congress in Patna in 1969. His disciples filed a suit for
damages against 6 MPs; the HC rejected the plaint and
SC, in appeal, upheld the decision of the HC.
 Rules of procedure made by Parliament do curtail this
right... so, this freedom may NOT, in a given case,
degenerate into an unrestrained license to speak
whatever a MP wants. If such rules are breached, only
the Speaker or the House itself can deal with the
matter. A person aggrieved by such words has no
remedy in a court of law.
 Again, Art.121 of the Constitution provides that no
discussion can take place in Parliament with respect to
the conduct of a Judge of a HC or of a SC - except
when a motion for his removal is being considered by
the House.
 Jatish Chandra v. Hari Mukherji (1961) Though a
slanderous parliamentary speech enjoys complete
immunity, if the Member of the House publishes the
same speech outside Parliament, he makes himself
liable in a Court. In this case, the Member gave notice
of intent to ask certain Q’s in the House; the Speaker
disallowed them. Yet, the Member got the Q’s
published in a journal. SC held... the publication did
NOT enjoy Constitutional immunity as it did NOT relate
to something said or any vote given in the House.
 Wason v. Walter English Courts take a more liberal
view... certain allegations disparaging the character of
the plaintiff were made during a debate in the House
of Lords. A faithful report of this debate was published
in the Times. The plaintiff sued the Times for libel, the
court dismissed the case, observing that the advantage
to the community as a whole from the publication of
proceedings of the House would be greater than the
occasional inconvenience caused to an individual.
Privilege 2 (Doctrine of Immunity): No MP is liable in any
proceedings in any court in respect of anything said or any
vote given by him in Parliament or any Committee thereof.
No person can so become liable in respect of the
publication of any report, paper, votes or proceedings by,
or under the authority of, either House of Parliament.
 Petitions were filed before HC and a Full Bench of HC
passed an order restraining the Speaker of the
Assembly from issuing warrants against 4 persons.
 The President then made a reference to the SC under
Art.143 of the Constitution; the SC decided various Q’s
formulated and referred to it, including whether the
legislature was competent to take action against
Judges of a HC.
Privilege 3 (Doctrine of Immunity): Art. 105, provided that
in other aspects, powers, privileges and immunities of each
House of Parliament may be as defined by Parliament
itself, and until so defined, such privileges would be the
same as those of the House of Commons of UK existing on
the date of commencement of the Constitution (Jan. 26,
1950). A conscious reference was made to the privileges
enjoyed by the Member of House of Commons, perhaps on
the ground that such privileges have NOT been exhaustively
catalogued even in the UK. Summary of privileges &
immunities:
Members of the House have freedom from civil arrest for a
period which begins with 40 days before the session of
the Parliament, and extends upto 40 days after such
session. Arrest on a criminal charge or under a law
relating to preventive detention is allowed, but such
arrest or detention, with reasons thereof, must be
communicated to the House.
Art.105 A Member of the House has freedom of speech,
debate and proceeding.
Art.105 The English Bill of Rights provides that the
freedom of speech, debate or proceedings in
Parliament ought NOT to be impeached or questioned
in any Court.
House has the privilege to exclude strangers from the
House, and of prohibiting publication of its debates
and proceedings.
The House has the power to enforce its privileges, and to
protect itself from insult, indignity or obstruction. This
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 itself is a privilege, and it consists in the power to
commit a person to prison for a contempt of the
House.
 In the course of time, it was realized - rightly or
wrongly - that it was an anomaly if the Constitution of
a sovereign country expressly makes a reference to the
privileges enjoyed by Members of the Parliament of
another country. So, Art. 105 was amended by the 44th
Amendment to provide that in other respects, the
powers, privileges and immunities of each House of
Parliament and of the members and the committees of
each House shall be those of that House, and of its
members and committees, as on 1st Feb, 1977 (date
the 42nd Amendment came into force) and as may be
evolved by such House of Parliament from time to
time.
 Art.105(3): Amended by the 44th Amendment, 1978,
now provided... the powers, privileges and immunities
referred to above shall be those of that House, and its
members and committees immediately before the
coming into force of the 44th Amendment Act.
 Although a direct reference to the English Parliament
has been deleted from Art.105, an indirect reference
will still be necessary. The reason is that, to find out
the privileges of the House at the date of enforcement
of the said Amendment, it will still be necessary to
find out ultimately what the privileges of the English
Parliament were on the specified date. The deletion of
the reference is only a cosmetic act... one of political
jugglery, unless Parliament enacts a law defining its
own privileges, a reference to Parliament of UK
remains inevitable.
4. Art. 106 - Privilege 4: Members of either House are
entitled to receive such salaries and allowances as may be
determined by Parliament by law from time to time.
 PV Narasimha Rao v. State (1998) A landmark
judgment on parliamentary privilege... 2 important Q’s
were posed before a 5-member Bench of the SC. In
1993, the PVN Rao ministry did not enjoy a majority in
the LS... a vote of no-confidence was sought to be
moved against the Govt. by the Opposition parties. To
avoid facing defeat on the floor of the House, the
ruling party paid large sums of money to certain MPs
(of another party) who then voted against the No-
confidence motion, defeating the motion on the floor
of the House.
 With a background of these facts, the Q’s: (a)
Whether a MP is a ‘public servant’ within the meaning
of the term as defined in the Prevention of Corruption
Act, 1988? (b) Keeping in mind provisions of Art.105,
whether a MP could claim immunity from prosecution Art.99 & Schedule 3: Oath by members Every member of
before a criminal court on a charge of bribery in
relation to certain proceedings in Parliament?
 5-member Bench unanimously answered the 1st Q the prescribed form (contained in Sch.3).
in the affirmative...for he holds an office and is
authorized and required to carry out a public duty,
viz., effectively representing his constituency
 2nd Q: Bench was divided... 3 Judges took a very
broad view of Art.105... an MP is protected in court
proceedings in any matter which relates to, or has a
nexus with, anything said or any vote given in
Parliament. Yet, they held: bribe-givers (also MPs) can 
claim no immunity under Art.105, but the MPs who
took the bribe would be protected under the said Art.,
as the bribe could be seen as a ‘motive or reward’ for
defeating the no-confidence motion. A clear nexus
with their voting.
 Minority Judges... preferred a narrower
interpretation of Art.105. They observed: a criminal
liability incurred by a MP for voting in a particular
manner cannot be regarded as a liability in respect of
‘anything said or any vote given in Parliament’... so,
bribe-takers could be prosecuted for a criminal
offence.
 Submitted with great respect, the minority view
makes better sense. In a country... where corruption is
the rule rather than the exception, the view taken by
the majority is capable of throwing open all gates for
corruption in legislatures at the national & state
levels. Hope.. the view expressed by the majority is
reconsidered by the SC in the near future.
Arts.85-88, 99-100, 104, 121-122 & Sch.3: Conduct of
Parliamentary Business
 Art.85: Summoning The President, may from time to
time, summon the House or either House, to meet at such
time and place as he thinks fit; he can also prorogue either
House or dissolve the House of the People, but 6 months
should NOT intervene between their 1st & last sittings.
 Adjournment, Prorogation & Dissolution:
Prorogation refers to the termination of a session,
whereas adjournment is an interruption in the course
of one and the same session.
 Dissolution means the end of the life of the House
itself, & calls for fresh election.
Art. 86 & 87: President’s address
 Art. 86: The President may address either House (or both
Houses assembled together)... for that purpose, may
require the attendance of members. He may send messages
to either House of Parliament, whether with respect to a
Bill then pending in Parliament or otherwise. The House to
which any message is so sent shall, with all convenient
dispatch, consider any such matter required by the
message.
 Art. 87: The President must, at the commencement of the
1st session after each general election to the House of
People and at the commencement of the 1st session of each
year, address both Houses of Parliament assembled
together and inform Parliament of the causes of its
summons.
 It may be noted that while Art. 87 makes it obligatory upon
the President to make the ‘opening address’ to Parliament,
Art.86 enables him to address Parliament (either or both
Houses) at any time for any purpose.
either House of Parliament, before taking his seat, must make
and subscribe before the President, an oath or affirmation in
Arts.100 & 104: Voting of Houses
 Art. 100(1): All Q’s at any sitting of either House or joint
sitting of the Houses are to be determined by a majority of
votes of the members present & voting. The Chairman or
Speaker cannot vote in the 1st instance, but has a casting
vote in the case of an equality of votes.
Some constitutional provisions require a special majority,
e.g., Arts. 61(2)(b); 61(4); 94(c); 108(4); 218; 249(1) & 368.
Page 41
 Art. 104: If a person sits or votes as a member of either
House before he has taken the oath as above, he becomes
liable in respect of each day on which he so sits or votes to
a penalty of Rs.500, to be recovered as a debt due to the
Union.
 Art. 122(1): The validity of any proceedings in Parliament
cannot be called in question on the ground of any alleged
irregularity of procedure.
Art. 100(3) & (4): The quorum: The quorum to constitute a 1. A Bill which originated in the RS and is still pending there
meeting of either House of Parliament is 1/10th of the total # of
members of the House.
 Art. 100(4): It is further provided that if at any time
during a meeting of a House there is no quorum, it is the
duty of the Chairman or Speaker either to adjourn the
House or to suspend the meeting until there is quorum.
Arts. 107-111: Legislative Procedure
 Art. 107: Provision as to introduction and passing of
bills The Union Parliament = President + 2 Houses. Art.
107 provides for the introduction and passing of all Bills
other than Money & Financial Bills. For the latter, there is
a special procedure laid down in Arts.112-117.
 3 points have to be noted in connection with the
introduction and passing of ordinary Bills.
1. Art. 107(1): As to originating a Bill A Bill may originate
in either House of Parliament.
 Art. 109(1): The 2 houses enjoy equal powers for
legislation. The only inequality... Financial Bills cannot 
be introduced in RS.
2. Art. 107(2): As to the passing of a Bill It is NOT to be
deemed as having passed by Parliament unless it has been
agreed by both the Houses. The process regarding Money
Bills is separately dealt with in Art. 109. When a Bill is
passed in one House, and then sent to the other - the latter
may adopt one of the following 4 options:
i. Art. 111: If the other House agrees to the Bill
without amendment, it will be deemed to have passed
both Houses, and will be presented to the President for
assent.
ii. Art. 108(1): The other House may reject the Bill
altogether. Then the President may apply provisions of
joint sittings for the passing of Bill.
iii. Art. 108(1)(b): The other House may pass the Bill
with amendments. The Bill will be returned. If the
originating House accepts the amendments, then it is
presented to the President for assent. But, if the
originating House does NOT agree with the
amendments, and no final agreement is reached by
negotiation in the Houses, then the President may call
a joint sitting of both Houses.
iv. Art. 108(1)(c): The other House may take no
action on the Bill, i.e., let the Bill lie with itself
without being returned to the originating House. Then,
when 6 months elapse since the date of the receipt of
the Bill by the other House, the President may summon
a joint sitting.
In a joint sitting, the 2 Houses of Parliament have equal
powers as regards Bills other than Money Bills. At the joint
sitting, the LS may dominate proceedings owing to its
numerical strength.
3. Arts. 107(3), (4) & (5): As to the lapsing of Bills A Bill
pending in Parliament does NOT lapse by reason of
prorogation of the Houses. Nor does a Bill which was
introduced in the Council of States (& pending there) lapse
by a dissolution of the LS. But, a Bill which is pending in
the LS, or which, having been passed by the LS, is pending
in the RS, does lapse on a dissolution of the House of
People.
1. A bill may be pending in the LS itself; or, having passed
the LS, the Bill may be pending in the RS. In either
case, the Bill lapses on dissolution of LS. An exception
to this is Art. 108(5), discussed below.
Effect of Dissolution on Pending Bills It is as under:
(not having been passed by the House of People) will NOT
lapse on account of dissolution of the LS
2. But, a Bill which is pending in the Council after having been
passed by the LS, will lapse on such dissolution. Also, a Bill
pending in the LS, whether originating in the LS or sent to
it by the RS, lapses on such dissolution.
3. Art. 108(1)(5): In cases under (1) above, the Bill will NOT
lapse if the President has, prior to the dissolution, notified
his intention to summon a joint meeting of the two Houses.
 In England, the effect of a dissolution of Parliament - and
even a prorogation - on pending Bills is that they lapse
altogether. This Article relaxes this rule as regards Bills
pending at the time of prorogation and certain Bills
pending at the time of dissolution.
 Note: A Bill which has been passed by both Houses and is
waiting the President’s assent at the time of dissolution,
does NOT lapse by virtue of anything contained in the
Constitution.
Arts. 108 & 118: Joint sitting of both Houses in certain
cases Both Houses have equal power; so, it is possible
that a deadlock might arise between the two. Art.108 is
enacted for resolving such a deadlock. It authorizes the
President to convene a joint sitting of both Houses under
the following circumstances:
a. Art. 108(1): When? A joint sitting can be
convened if, after a Bill (other than a Money Bill) has
been passed by one House and transmitted to the other
House (a) the Bill is rejected by the other House; or
(b) the Houses have finally disagreed as to the
amendments to be made in the Bill; or (c) more than 6
months elapse from the date of the reception of the
Bill by the other house without the bill being passed on
it.
b. Arts. 108(1) & 118(4): Who convenes a joint
sitting? And, how? The President may notify the House
(by message, if they’re sitting or by public notification,
if they’re not in session) his intention to summon a
joint sitting...to deliberate and vote on the Bill. In
such a joint sitting, the Speaker of LS will preside. Any
one of the conditions mentioned above must exist
before the President can convene a joint session and
submit the Bill to it.
o In the reckoning of 6 months in clause (c), the
period during which the House is prorogued or
adjourned for > 4 days Is NOT to be counted.
o Art.107 specifies the cases where a Bill would
lapse by reason of the dissolution of the LS. A
lapsed bill cannot be tabled in a joint session. But,
if prior to the dissolution of the LS, the President
notifies his intention to submit the Bill before a
joint sitting, the Bill does NOT lapse by reason of
dissolution. This provision does not apply to money
bills.
c. Art. 108(3) & (4): Once the President has
notified his intention to summon the Houses to meet in
a joint sitting, then neither House can proceed further
Page 42
 under the Bill. At the joint sitting, if the Bill, with or
without amendments, is agreed to, then it is passed by
a majority of the members of both houses present &
voting.
o But, if the Bill having passed by one House has
NOT been passed by the other House with
amendments and returned to the House in which it
originated - no amendment can be proposed to the
Bill (other than amendments, if any, as are made
necessary by the delay in the passage of the Bill).
So also, if the Bill has been so passed & returned,
only such amendments as aforesaid can be
proposed to the Bill and such other amendments
as are relevant to the matters with respect to
which the Houses have not agreed; and the
decision of the person presiding as to the
amendments is to be final.
o This clause limits the amendments which can
be moved to a Bill during its consideration at a
joint sitting of the 2 Houses, its object being to
ensure that the proceedings at the joint sitting are
NOT unnecessarily delayed.
d. Art. 108(5): Where a joint sitting has been
summoned prior to the dissolution of the LS, the Bill in
respect of which the joint was convened does not lapse
on the dissolution of LS.
Arts.109-110 & 117: Money Bills: Finance contributes to the
well-being of an individual or a nation. The Constitution has few
special & important provisions on Money Bills.
Art.110: Money Bill defined: A Money Bill is one which deals
with any of the following, viz.:
1. The imposition, abolition, remission, alternation or
regulation of any tax.
2. The regulation of the borrowing of money or the giving of
any guarantee by the GoI, or the amendment of the law
with respect to any financial obligations undertaken by the
GoI.
3. The custody of the Consolidated Fund or the Contingency
Fund of India, the payment of moneys into or the
withdrawal of moneys, from any such fund.
4. The appropriation of moneys out of the Consolidated Fund
of India
5. The declaring of any expenditure to the expenditure
charged on the Consolidated Fund of India or the increasing
of the amount of any such expenditure.
6. 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.
7. Any matter incidental to the items mentioned above.
 A Bill is NOT 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
licenses or fees for service rendered, or by reason that it
proves for the imposition, abolition, remission, alternation
or regulation of any tax by any local authority or body for
local purposes.  5 stages in the procedure relating to financial matters:
 The decision of the Speaker of LS is final in determining 1.
whether a Bill is a Money Bill or not.
 When a Money Bill is transmitted to the RS under Art.109,
and when it is presented for the President’s assent under
Art.111, there must be endorsed on every such Bill, a 2.
certificate of the Speaker of the LS, signed by him that it is
a Money Bill.
Arts.109-110(4) & 117: Special Procedure in respect of
Money Bills:
 Art.117(1): A Bill or Amendment making provisions for any
of the matters specified in clauses (1) to (6) above cannot
be introduced or moved except on the recommendation of
the President, and a Bill making such provision cannot be
introduced in the RS.
 3 important steps in this special procedure are laid down in
Arts.109 & 110 as under:
1. Art. 101(1): A Money Bill can’t be introduced in the RS.
2. Art. 109: After a Money Bill is passed by LS, it must be
transmitted to the RS for its recommendation. The RS
must, within 14 days from the date of receipt of Bill, return
the Bill to the LS with recommendations, and the LS may
thereupon either accept or reject all or any of the
recommendations of the RS. But, if the Bill is NOT
returned, it is to be deemed to have been passed by both
Houses at the expiration of the said period in the form in
which it was passed by the LS.
3. Art. 109: If LS accepts any of RS’s recommendations on the
Money Bill, it is deemed to have been passed by both
Houses with the RS-recommended amendments accepted
by the LS. But, if LS rejects any of the RS
recommendations, the Money Bill is deemed to have been
passed by both the Houses in the form in which it was
passed by the LS, without any of the amendments
recommended by the RS. Thus, the provisions of the
Constitution establish a definite superiority of the LS in
respect of Money Bills.
Art.111: General Legal Procedure regarding President’s
assent to Bills: A Bill does NOT become law unless and until the
President assents to it. A Bill will NOT be an Act of the Indian
Parliament until it receives the President’s assent.
o When a bill is presented to the President, after its passage
in both Houses of Parliament, the President is entitled to
take any of the following 3 steps:
1. He may declare his assent to the Bill; or
2. He may declare he withholds assent to the Bill; or
3. He may, in the case of Bills other than Money Bills,
return the Bill for reconsideration of the Houses, with
or without a message suggesting amendments.
 In case the President exercises the 3rd option (above), and
the Bill is passed again by both Houses with or without
amendment, and again presented to the President, it is
obligatory upon him to assent to it.
 The above provision does NOT apply to Money Bills because
Money Bills are introduced only on the recommendation of
the President; so, if the President recommends it and it is
passed by the LS, he is presumed ipso facto to have given
his assent.
 Pocket Veto of the President: Art.111 does not prescribe
any time-limit within which the President has to declare his
assent or refusal or to return a Bill. He may thus
indefinitely postpone a Bill. This enables him to exercise a
‘pocket (delaying) veto’ under the Indian Constitution by
simply postponing it indefinitely.
Arts.112-117: PROCEDURE IN FINANCIAL MATTERS
Presentation of the Annual Financial Statement (AFS): The
President must cause the AFS (a.k.a. the Budget) to be
tabled in both Houses for the ensuing year. Usually, the
Finance Minister presents it each year.
General discussion in both Houses: This follows the
presentation of the Budget.
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3. Voting on the demands by the LS: The RS has no further say
in the matter beyond the general discussion. In the LS,
after the general discussion is over, the estimates are to be
submitted in the form of demands for grants on the
particular heads followed by that House’s vote. The LS has
the following powers in respect of each demand: (i) to
assent to the demands; or (ii) to refuse it; (iii) to reduce it.
The LS has NO power to increase a demand, or to alter the
destination of a grant, or to put any condition as to the
appropriation of the grant. The LS thus has exclusive right
of granting supplies.
4. The Appropriation Act: The grants, as voted by the House
of the People, will be embodied in a Money Bill and passed
by Parliament as such. This Act is known as the
Appropriation Act and is the sole legal authority for the
appropriation of money from the Consolidated Fund of
India.
5. The Finance Act: Also, the new taxing proposal of the
Budget will get embodied in another Bill and passed as the
Annual Finance Act.
Arts.112-113 & 117(3): Annual Financial Statement (AFS)
 Art. 112(1): Definition The AFS, a.k.a. the Budget is a
statement of the estimated receipt and expenditure of the
Govt. of India for the year.
 Art. 112(1): Laying of the AFS before the Houses Every
financial year, the President must cause the statement to
be laid before both Houses of Parliament. The Financial
Year is a period of one year from 1st Apr. of a year till 31st Arts.113-115: Appropriation Bills The 3rd financial matter
Mar. of the next year.
 Art. 112(1) & (2) The AFS shows separately the sums
required to be met: (i) the expenditure charged upon the
Consolidated Fund of India, & (ii) other expenditures
proposed to be made from the Consolidated Fund of India;
it also distinguishes expenditures on revenue account from
other expenditures.
 Art. 112(3): What expenditure can be charged on the
Consolidated Fund of India AFS lays this down; only the
following expenditures can be charged on the fund:
1. The emoluments, allowances, salaries and pension
payable to: (i) The President (ii) The Chairman & Dy.
Chairman of the RS and the Speaker & Dy. Speaker of
the LS (iii) Judges of the SC and HC’s; and (iv) the
Comptroller & Auditor General of India.
2. Debt charges for which the GoI is liable, including
interest, sinking fund charges redemption charges, and
other expenditure relating to the raising of loans, and
the service and redemption of debt.
3. Any sums required to satisfy any judgment, decree or
award of any Court or arbitral Tribunal; and
4. Any other expenditure declared by the Constitution by
Parliament to be so charged.
 Art. 113(1) Also, expenditure charged upon the
Consolidated Fund of India cannot be submitted to the vote
of Parliament. But, this Article does NOT prohibit
discussion (by either House) and criticism of expenditure
charged on the Consolidated Fund. But, neither House can
vote on upon the Fund.
 Art. 117(3) A Bill, which if enacted & brought into
operation, would involve expenditure from the
Consolidated Fund of India, cannot be passed by either
House of Parliament, unless the President recommends the
consideration of the Bill to that House.
Art. 113: Procedure in Parliament as to Estimates
 2nd ‘financial matter’ provided for in the Act is one relating
to estimates discussed in Art.113. It prescribes a short
procedure as follows:
1. Art. 113(1): Estimates relating to expenditure charged
upon the Consolidated Fund of India are NOT submitted to
the vote of Parliament, but the Parliament has power to
discuss any such estimates.
2. Art. 113(2): So much of the said estimates as relate to
other expenditure are submitted in the form of demands
for grants to the LS, and the LS has the power to assent or
to refuse to assent to any demand; or, to assent to any
demand, subject to a reduction of the amount specified
therein.
3. Art. 113(3): No demand for the grant can be made except
on the recommendation of the President.
 Art. 113(3) enacts the well-known principle of public
finance that no proposal for the imposition of taxation, or
for the appropriation of public revenues, nor any proposal
affecting or imposing any charge upon these revenues, can
be made except on the responsibility of the Executive. So,
it is provided that the President as one in whom the
executive power of the Union is vested, must recommend
every demand for a grant. Plus, it ensures that the
Executive is solely responsible for the expenditure of public
money, whether that takes place through a Money Bill or
indirectly through some general statute involving
expenditure.
 What is an Appropriation Bill: It is one which provides for
the appropriation out of the Consolidated Fund of India of
money required to meet: (a) The grants made by the House
of the People; and (b) the expenditure charged on the
Consolidated Fund of India (CFI); but not exceeding the
amount shown in the statement previously laid before
Parliament.
 The procedure relating to an Appropriation Bill: 3 points
are to be noted:
1. No amendment can be proposed to an Appropriation
Bill in either House, which would have the effect of
varying the amount or altering the destination of any
grant so made, and the decision of the person
presiding as to whether an amendment is inadmissible
under this clause is final
2. No money can be withdrawn from the CFI except under
an appropriation made by law passed in accordance
with the provision of Art. 114.
3. If the amount authorized by Art.114 is found to be
insufficient for the purpose of that year, or when a
need has arisen during the current financial year for
supplementary or additional expenditure upon some
new service not contemplated in the annual financial
statement for that year, or if any money has been
spent on any service during a financial year in excess
of the amount granted for that service and for that
year, the President must cause to be laid before both
the Houses of Parliament another statement showing
the estimated amount of that expenditure or cause to
be presented to the House of the People a demand for
such excess, as the case may be, whereupon the
provisions of Art. 112, 113 & 114 are to have effect in
relation to any such statement and expenditure or
demand.
Art. 116: Votes on Account, Votes of Credit & Exceptional
Grants Apart from normal demands for grants, President is
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authorized to place before Parliament, if he deems it
necessary, demands for additional or supplementary or excess
grants, and the same procedure must be gone through in
respect of such grants, as in the case of the normal annual
demands for grants. The LS has been empowered to make
advance grants, or even exceptional grants, to which also the
normal procedure for grants or appropriation will apply. They
can be made by the LS only as under:
1. Art. 116(1)(a): Votes on account The LS has the power
to make any grant in advance in respect of the estimated
expenditure for a part of any financial year, pending the
completion of procedure for the voting of such grant and
the passing of the law in accordance with the provisions of
Art.114 in relation to that expenditure.
 Votes on Account: This term refers to provision for
grants in advance to be made by the House for
enabling the departments to carry on until the passing
of the AFS is complete. Votes on account may be
passed on any day subsequent to the presentation of
the Budget.
2. Art.116(1)(b): Votes of credit The LS also has the power
to make a grant for meeting an unexpected demand upon
the resources of India when, on account of the magnitude
or the indefinite character of the service, the demand
cannot be stated with the details ordinarily given in an
annual financial statement.
 Votes on credit: At times it happens that owing to an
unexpected demand for money caused by some
national emergency, the Govt. may require funds for
which it is NOT possible to give detailed estimates. In
such a case, the House would grant the money needed
by a vote of credit passed in the same way as annual
grants.
3. Art. 116(1)(c): Exceptional grants The LS also has the
power to make an exceptional grant which forms no part of
the current service of any financial year. Parliament has
the power to authorize by law the withdrawal of money
from the Consolidated Fund of India for the purpose for
which such grants are made.
Arts.120-121: General Provisions
1. Art. 120: Language to be used in Parliament: Hindi or
English are the languages for the transaction of business in  SC Advocates-on-Record Ass. V. Union of India: In a case
Parliament... subject to the provisions of the Constitution
in respect to the official language.
 Unless Parliament otherwise provides, at the
expiration of 15 years from the commencement of the
Constitution, this language is to be only Hindi. It is
provided that the Speaker, or the Chairman, as the
case may be, may permit any member having
inadequate knowledge of Hindi or English to address
the House in his mother tongue.
2. Art.121: Restriction on discussion in Parliament No
discussion can take place in Parliament with respect to the
conduct of any Judge of the SC or of a HC in the discharge
of his duties, except upon a motion for presenting an
address to the President praying for the removal of the
Judge as provided for in Art.124
3. Art. 122: Court not to inquire into proceedings of
Parliament: Validity of any proceedings in Parliament
cannot be called in question on the ground of any alleged
irregularity of procedure, and no officer or MP in whom
powers are vested by or under the Constitution for
regulating procedure or the conduct of business, or for
maintaining order in Parliament is subject to the
jurisdiction of any Court in respect of the exercise by him
of those powers.
Arts.124-145: The Union Judiciary
2 heads:
1) Arts.124-128, 374 & Sch.2-3: SC Judges
 Art.124: Provides for a SC of India consisting of a CJI and
25 other Judges, who are appointed by the President.
Parliament though has the power to increase the # of
Judges. The Judges of SC hold office until the age of 65. A
Judge may, by writing under his hand addressed to the
President, resign his office.
 It has also been provided that the age of a Judge of the SC
is to be determined by such authority and in such manner
as Parliament provides by law.
 Art. 124(3)(1)- His qualifications: A person is NOT
qualified for appointment as a Judge of a Supreme Court,
unless he is a citizen of India, (a) has been, for at least 5
years, a Judge of a HC or of 2 or more such Courts in
succession; or (b) has been, for at least 10 years an
advocate of a HC or of two or more such Courts in
succession; or (c) is, in the opinion of the President, a
distinguished jurist.
 How appointed: Every SC Judge is to be appointed by the
President, by warrant under his hand & seal, after
consultation with such of the judges of the SC and of the
HC’s in the States as the President may deem necessary for
the purpose. To appoint every Judge other than the CJ, the
CJI is always to be consulted.
 Before entering office, every Judge must make and
subscribe before the President (or some person appointed
by him on his behalf) an oath or affirmation.
 No person who has been a Judge of the SC can plead or act
in any Court or before any authority within the territory of
India. The CJI draws a salary of Rs. 100,000 p.m., and the
other Judges Rs. 90,000 p.m.
 Every Judge of SC is also entitled without payment of rent
to the use of an official residence, pension, traveling
allowance and leave allowance, as set out in the 2nd
Schedule to the Constitution. Such privileges & allowances
cannot be varied to his disadvantage after his appointment.
involving the policy to be followed in the appointment of
SC Judges, it has been held by the SC that there is a
constitutional convention to the effect that the opinion of
the CJI has primacy in the matter. Such a convention is
now well-established & must be read in Art.124...SC held:
the matter of appointment & transfer of HC & SC Judges.
 Art. 124(4) & (5): How removed A SC Judge cannot be
removed from his office, except by an order of the
President passed after an address by each House of
Parliament, supported by a majority of the total
membership of the House and by a majority of not less than
2/3rd of that House present & voting has been presented to
the President in the same session for such removal on
ground of proved misbehavior or incapacity.
o For this, Parliament may regulate the process for
presenting an address & for investigation & proof of his
misbehavior or incapacity.
o If Art. 125 is read along with the above clauses (4) and
(5) of Art.124, it will be seen how the independence of
the Judiciary is sought to be safe-guarded by our
Constitution to a great extent.
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 Art. 125(2): 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.
 Art. 360: When, however, a Proclamation of
Emergency is in operation, the President has the power to
reduce the salaries & allowances of the SC Judges.
Arts.127-128: Appointment of ad hoc Judges
 Art. 127: At any time, if there is no quorum of Judges of
the SC available to hold or continue any session of the
Court, the CJI may (with the previous consent of the
President & after consultation with the CJ of the HC
concerned) request, in writing, the attendance at the
sittings of the Court, as an ad hoc Judge, for such period as
may be necessary, of a Judge of a High Court, who
thereupon must attend the sittings of the SC, and has all
the jurisdiction, powers & privileges, and shall discharge
the duties, of a Judge of the Supreme Court.
 Art. 128: The CJI may, with the previous consent of the
President, request any person who has held the office of a
Judge of the SC or of the Federal Court, to sit & act as a
Judge of the SC. Is such a person consents to so sit & act,
he is entitled to such allowances as the President may by
order determine, and has all the jurisdiction, powers &
privileges of a Judge of that Court.
Independence of the SC ... of utmost importance. In a
Constitution which has a federal scheme of distribution of
powers, the judiciary is the custodian & guardian of the
Constitution. So, SCI, which is the highest judicial organ, and
therefore entrusted with that ultimate task has to be
independent of influence by the Government concerned. Also,
SCI is the highest Court of Appeal, and is also a Court entrusted
with the function of protecting the fundamental rights of
individuals.
 The framers of the Constitution have tried to secure the
independence of the SC by various measures. While
providing for safeguards, the framers drew inspiration from
the US, Swiss & British examples. These are:
1. Appointment: It is lifted from the realm of pure politics for
a Judge of SC is appointed by the President by a warrant
under his hand & seal, after consultation with such of the
Judges of the SC and of the HC in the States, as the
President may deem fit for the purpose, and holds the
office until he attains the age of 65 years.
 SC Advocates-on-Record Ass. v. Union of India (1994)
SC observed...an independent judiciary, will sink in
the long run if the Govt., who is a major litigant,
enjoys absolute authority in the nomination of Judges
of superior Courts.
2. Removal: A Judge of SC cannot be removed from his office
except by an order of the President passed after an address
by each House, supported by a majority of the total
membership of that House and by a majority of not less
than 2/3rd of the members of that House present & voting,
presented to the President in the same session for such
removal, on the ground of proved misbehavior or
incapacity.
3. Salaries & allowances of Judges: They’re fixed by the 2nd
Schedule, and cannot be altered or varied to their
disadvantage after his appointment. However, when a
Proclamation of Emergency is in operation, the President
has the power to reduce such salaries & allowances.
4. Art. 146(3) - Charge on the Consolidated Fund of India
(CFI): The administrative expenses of the SC, including
salaries, allowances & pensions payable to Judges & other
officers & servants of the Court, are charged upon the CFI;
any fees & other moneys taken by the Court form part of
that fund. The sums which are charged upon the CFI are
NOT put to the vote of Parliament.
5. Art. 146(1) - Appointment of officers of SC: These are
made by the CJI or such other Judge or officer of the Court
as he may direct, provided that the President may, by rule,
require that in such case as may be specified in the rule, no
person not already attached to the Court can be appointed
to any office connected with the Court, save after
consultation with the UPSC.
6. Art.121 - Conduct not open to discussion in Parliament:
The Constitution forbids any discussion of the conduct of a
Judge in Parliament except upon a motion for his removal.
7. Art. 124(7) - No right to practice: A person who has been
a Judge of the SC cannot plead or act in any Court or
before any authority of India. This provision would also go a
long way in ensuring the independence of the Judges of the
SC.
Arts.32, 129-137, 143, 145, 363: Supreme Court of India
 Art. 129: The SCI is a Court of Record, and has all the
power of such a Court, including the powers to punish for
contempt of itself.
 What is a Court of Record: A Court of Record is a Court
whose acts & proceedings are enrolled for perpetual
memorial and testimony, and which can impose fine &
imprisonment for contempt of its authority.
 Art.130 - Seat of Supreme Court: SCI shall sit in Delhi or in
such other places as the CJI may, with the approval of the
President appoint.
Arts.32, 131-139, 142-145, 363 & 374: 3 Important Kinds of
Jurisdiction of the Supreme Court:
1. Arts.32, 131, 143 & 363 - Original Jurisdiction: The SC
exercises original jurisdiction in 3 kinds of disputes only:
a) Any dispute between the Govt. of India & one or more
States; or
b) Any dispute between the Govt. of India and any State
or States on one side and one or more States on the
other; or
c) Any dispute between 2 or more States;
Art.131: in so far as the dispute involves any question
(whether of law or fact) on which the existence or extent
of any legal right depends.
 3 types of disputes are expressly excluded from the original
jurisdiction of the SC, viz.:
A) Art. 131: The original jurisdiction does 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 the Constitution continues in operation
after such commencement, and which provides that the
said jurisdiction shall not extend to such a dispute.
 Art. 143(2): But it is open to the President to
refer such disputes to the SC for opinion; the SC, after
such hearing as it thinks fit, must report to the
President its opinion thereon.
B) Art. 363: Neither the SC nor any other Court has
jurisdiction in any dispute arising out of any provision of a
treaty, agreement, covenant, engagement or sanad
entered into or executed before the commencement of the
Constitution by any Ruler of an Indian State and to which
the Govt. of the Dominion of India was a party.
Page 46
C) Art.262: Parliament may provide for the adjudication of
any dispute or complaint with respect to the use,
distribution or control of the waters in any inter-State river
or river valley. Parliament may further provide that neither
the SC nor any other Court shall exercise jurisdiction in any
such dispute or complaint.
 State of Bihar v. Union of India (1970): SC held...
apart from the 3 matters cited above, the following 3
matters also appear to be excluded from the original
jurisdiction of the SC... and vested in other tribunals
of the Constitution, viz.:
i. Art. 280: Matters related to the Finance Comm.
ii. Art. 290: Adjustment of certain expenses between
the Union & the States; and
iii. Art. 131: Reference to the SC under Art. 143(2),
read with the Proviso to Art. 131.
 Original Jurisdiction of the SC It is strictly limited by
Art.131... it is NOT a Court of ordinary Original
Jurisdiction in all matters and between all parties. In
order to invoke the original jurisdiction of the SC, 3
conditions must be satisfied:
i. The parties to the dispute should be those
specified above (i.e., Center and / or States)
ii. The dispute should involve a question relating to a
legal right as distinguished from a political right
over which Courts have no jurisdiction.
iii. The Q must not be one which is excluded by
Art.131 itself or by any other provision of the
Constitution.
 Art.32 empowers the SC to issue directions or orders in
the nature of writs of habeas corpus, mandamus,
prohibition, quo warranto & certiorari, or any of them,
for enforcement of fundamental rights. It is to be
noted that this jurisdiction is NOT exclusive. It is
concurrent, & the High Courts of States have also been
granted similar powers.
 Art.139 also invests the SC with exactly similar
powers. It lays down... Parliament, may, by law,
confer on the SC power to issue directions, orders or
writs... for any purpose other than those mentioned in
Art.32(2).
2. Arts. 132-138: Appellate Jurisdiction 2 aspects of
appellate jurisdiction of SC... (a) SC has the power to hear B)
appeals about interpretation of the Constitution related to
civil, criminal or other proceedings. (b) Appeals lie to the
SC in civil & criminal matters, when certain conditions
(described) below, are satisfied.
Arts.132-137: Appeals to the SC, when allowed 3 cases:
A) Art. 132(1): An appeal lies in the SC from any decree,
judgment, or final order of a HC in India, whether in a civil,
criminal or other proceeding. If the HC certifies that the
case involves a substantial question of law as to the
interpretation of Constitution.
 Shri Shailagouda & Others v. Gurusangappa Rama
Sangappa Desai (1980) SC clarified...in an appeal
under Art. 133(1), if there is a new point which has
NOT been argued before the HC, the Appellant can’t
raise it for the 1st time before the SC.
 Art. 133(2): A party appealing to the SC under Art. 133
may also urge, on grounds of appeal, that a substantial
question of law as to the interpretation of Constitution
has been wrongly decided.
 Art. 145(3): The minimum # of Judges who must sit for
the purpose of deciding any case involving a
substantial question of law as to the interpretation of
the Constitution is 5.
 Biswabani Pvt. Ltd. v. Santosh K Dutta (1980): When a
certificate to file an appeal before SC is granted by
HC, adequate reasons are to be given by the HC. But if
the certificate is defective, the appeal is NOT liable to
be dismissed only on this ground, when a substantial
question of law of general public importance is raised,
and when special leave could have been obtained from
the SC itself.
 Appeals involving Constitutional Q’s: Art. 132 deals
with appeals for interpreting the Constitution, arising
out of any proceedings in a HC - civil, criminal or
otherwise. The Art. ensures that a HC may pronounce
upon the validity of an Act or decide any Q involving
the interpretation of the Constitution, but the final
authority is the SC, whatever be the nature of the suit
or proceeding.
o Under Art.132, two conditions are to be
met... (a) The case must involve a Q of law as to
the interpretation of the Constitution; and (b) it
should be a substantial Q. Under this provision, no
appeal can lie on a Q of fact.
o State of J&K v. Ganga (1960) The word
‘substantial’ in the expression ‘substantial
question of law’ doesn’t necessarily mean a Q of
general importance. The term also covers a case
whether there is a difference of opinion.
o Following are instances of substantial Q’s of
constitutional interpretation:
i. A suit challenging a statute as ultra
vires or inconsistent with a mandatory
provision of the Constitution.
ii. A conviction challenged as ultra vires
iii. Question on whether a law or an
executive order contravenes any fundamental
right.
o Following held NOT to involve Q of law as to
the interpretation of the Constitution, viz.:
i. A Q as to whether an Act has been
correctly applied to facts of a case
ii. Art. 311(2): A Q whether a
reasonable opportunity has been given
Art. 133: Appeals from HC in civil matters: An appeal
shall lie to the SC from any decree, judgment or final order
in civil proceeding, if the concerned HC certifies: (a) the
case involves a substantial Q of law of general importance,
or (b) that in the opinion of HC, the said Q needs to be
decided by the SC.
 Prior to the 30th Amendment Act, Art.133 also allowed
an appeal to the SC in cases where the amount or
value of the subject matter of the dispute was
certified by the High Court to be Rs. 20,000 or more. It
was felt that was NOT a rational yardstick for
conferring a right of appeal.
 It was rightly pointed out that an important Q of law
may arise even in suits of a small value. Conversely,
the test of valuation resulted in cases without merit
going in appeal to the SC, only on the ground that the
valuation test was satisfied.
 The commission drew attention to this anomaly; so,
the 30th Amendment was passed to rectify this.
 Art.133 is NOT merely about a Q of law, but a
substantial Q of law that is needed for the purpose of
Page 47
 the certificate. There may be some doubt or diff. of
opinion in the matter.
 Subba Rao v. Veeraju (1951) If there is divergence of
opinion amongst the HC’s, the fact that the rulings of a
particular HC (from which the appeal is sought to be
preferred) are uniform does NOT prevent the Q from
being a substantial Q of law.
 Plus... such substantial Q of law should also be of
general importance... it must be such that, apart from
the parties to the litigation, the general public should
also be interested in the determination of that Q by
the highest tribunal of the land.
 Art. 133(3): When no appeal lies to SC... Unless
Parliament by law otherwise provides, no appeal can
lie to the SC form the judgment, decree or final order
of one Judge of a HC.
C) Art. 134 & 136 - Appeal in criminal matters to the SC: It
lies from any judgment, final order or sentence in a
criminal proceeding of a HC in India, if the HC (Art.134)-
a) Has, on appeal reserved an order of acquittal of
an accused person and sentenced him to death; or
b) Has withdrawn for trial before itself any case from
any Court subordinate to its authority, and has, in such
trial, convinced the accused person and sentenced him
to death; or
c) Certifies that the case is a fit one for appeal to
SC.
 Art.134A - Certificate for appeal to SC: Every HC
passing a judgment, decree, final order or sentence
referred to in Art. 132(1), 133(1) or 134(1)-
i. May, on its motion, if it deems fit to do so;
and
ii. Must, if an oral application is made by or on
behalf of the aggrieved party immediately after
the judgment, decree, final order or sentence-
...determine the Q of whether a Certificate of the
nature referred to in Art.132 (1), Art.133 (1), or Art.
134(1) may be given in respect of that case.
 Art. 136- Special leave to appeal: Notwithstanding
anything contained in this Chapter, the SC may, in its
discretion, grant special leave to appeal from any
judgment, decree, determination, sentence or order
(other than an order under any law relating to the
Armed Forces) in any cause or matter passed or made
by any Indian Court or Tribunal.
 SC can grant special leave in any case - civil, criminal,
IT cases, etc. Such a Petition is often referred to as a
Special Leave Petition (SLP). The discretionary power
with which the SC is invested under Art.136 is to be
exercised sparingly and in exceptional cases only.
 Sudama Pandey v. State of Bihar (2002): In appeals
against acquittals, the SC doesn’t interfere with the
findings of the lower courts.
 Anvaruddin v. Shakour (1990): In appeals against
acquittals, the SC readily interferes when the approach 
of the HC is far from satisfactory.
 Bharat Bank Ltd. V. Its Employees (1950) The nature
of the jurisdiction of SC explained...held: the power
conferred by Art.136 was not controlled by the
limitations contained in the other Articles on the
Court’s powers to entertain an appeal. Court had the
power to grant such leave, not only in respect of final
orders, but also in respect of interlocutory orders.
 M/s Variety Emporium v. Mohd. Ibrahim Naina (1985)
SC observed that its jurisdiction under Art.136 is, no
doubt, to be exercised sparingly. If the appellant
shows that the concurrent decision of 2 or 3 lower
Courts are manifestly unjust, it is NOT only the right of
SC, but also its duty, to remedy the injustice. Court
held... injustice should not be perpetuated, just
because it’s been do so earlier.
 Dhakeswari Cotton Mills Ltd. v. CIT, West Bengal
(1955) No rules or principles can be laid down...as to
when such leave ought to be granted & when refused,
as each case depends on its own peculiar facts. The
discretionary jurisdiction vested in SC by Art.136 is
exceptional; so, the overriding power is exercised
sparingly & with caution in special cases.
 Nityanandarkar v. State of Orissa (1991) If a point
was not taken up or not pressed, before the HC, the SC
won’t allow such a point to be raised in it.
 There is no fetter on the power of the SC under
Art.136...yet, certain salutary principles have been
developed by the SC. Ordinarily, SC will NOT convert
itself into a 3rd Court of fact in civil or criminal cases.
But, it will interfere with findings of fact, if there’s
been an illegality or an irregularity of procedure, or a
violation of principles of natural justice... leading to
an unfair trial or a gross miscarriage of justice, or
where findings are vitiated by an error of law.
 Krishnan Lal v. State of Haryana (1980) SC held... in
the absence of exceptional circumstances, SC does not
sit in judgment over what is held by a HC and re-
appreciate the evidence under Art. 136.
 Ordinarily, SC will refuse to entertain an appeal under
Art.136 from the order of a tribunal where the litigant
has NOT availed himself of the ordinary remedies
available to him at law, as for instance, a statutory
right of appeal or revision.
 Special leave would NOT, as a rule, be granted where
the appeal has become academic, e.g., where the
relief sought has become nugatory in the light of
subsequent events.
 Delhi Administration v. Madan Lal Nangia (2003)
held... if a SLP is summarily dismissed, this cannot
prevent other parties from filing a SLP against the
same Judgment.
 In its 14th Report, the Law Commission commented
adversely on the frequency with which leave to appeal
was granted by SC under Art.136, especially in criminal
matters. Commission held... the decision of HC’s (in
appeal) would have no finality; & this doesn’t add
prestige or position to HC’s.
 Shantilal Maganlal v. Chunilal Ranchhoddas (1984) SC
itself has deprecated the practice of filing
indiscriminately SLP and Review Petitions in SC.
3. Arts. 143 & 145: Advisory / Consultative role &
Jurisdiction of judiciary Last form of Jurisdiction.
Art.143: It reads... if, at any time, it appears to the
President that a Q 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
SC upon it, he may refer the Q to that Court for
consideration, and the Court may, after such hearing as it
thinks fit, report to the President its opinion thereon.
o Min. # of Judges who hear such a reference = 5.
The judgment and the report is delivered in open Court
and with the concurrence of the majority of Judges
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 present. But, a Judge who does not concur may deliver
a dissenting judgment.
o By this Art., the President, as the executive head
of the Union, is enabled to refer Q’s of law or fact for
the ‘opinion’ & report of the SC. A Q may actually
arise or may be likely to arise, but it must be of a
nature of great public importance.
o The power to consult the SC is the consultative
power of the President. The Constitution is silent on
the Q as to whether the opinion of the SC is binding on
the President or not.
o The word ‘may’ above clearly shows no obligation
is cast on the SC to give its opinion on such Q of law or
fact, when sought for by the President.
o Ram Janmabhoomi - Babri Masjid controversy...
the Presidential reference was made to the SC...a 5-
member Constitutional Bench unanimously declined to
answer the controversial Q on whether a temple or
other Hindu religious structure was at the site of the
masjid demolition. The reference by the President was
dubbed: superfluous & unnecessary.
o Interestingly, the SC of USA has also refused to
give advice to the American President when requested
to do so.
o But, Art.143 authorizes the President to refer to
SC, any dispute arising out of any treaty, agreement,
covenant, engagement, sanad or other similar
instrument, which has been executed before the
commencement of the Constitution... but, which
continues in operation even after the Constitution was
adopted. In such cases, it is laid down that the SC shall
give its opinion thereon to the President.
o The word ‘shall’ shows that it is obligatory on the
SC to give its opinion in such cases.
 Re Allocation of Lands & Buildings (1943) The advisory
opinion of the SC under Art.143 is NOT a judgment; so, it
doesn’t furnish a good root of title, such as one which
might spring from a judgment of the SC. As there are no
parties before the SC in such a Reference proceeding, the
opinion of the Court is NOT binding on any party.
 Prima facie, an opinion given under Art.143 doesn’t fall
within the ambit of Art.141 (which lays down that the law
declared by the SC shall be binding on all Courts within
India). But, the opinion of the SC in the Delhi Laws Act has
been frequently referred to & followed by different HC’s.
 There’s been considerable controversy over the advisory
jurisdiction of SC. 2 schools of thought... (1) It is
undesirable to turn the apex Court into a consultative
department of the executive of the day. (2) There is
nothing wrong in such a procedure.
 Section 213 of the GoI Act, 1935 also contained a similar
provision. There is a similar provision in Section 4 of the
Judicial Committee Act of 1934.
 The advisory opinion of the SC has been invoked in several
cases, e.g., In Re Indo-Pakistan Agreement (1960). In the
matter of the Kerala Education Bill (1958); In Re Delhi Laws
Act (1951); In Re Art.143 of the Constitution of India
(1965).
Miscellaneous Provisions of SC:
1. Art. 137: The SC has the power to review any judgment
pronounced or order made by it.
2. Art. 139A: On its own motion, or on an application made
by the Attorney-General of India, or by a party to any such
case, the SC is satisfied that cases involving the same (or
substantially the same) questions of law are pending before
2 or more HC’s, and that such Q’s are substantial questions
of general importance, the SC may withdraw the case (or
cases) pending before the HC (or the HC’s, as the case may
be), and dispose of such cases itself. Likewise, if it deems
it expedient to do so for the end of justice, the SC may
transfer any case, appeal or other proceedings before a HC
to another HC.
 When the SC withdraws a case to itself, it may
determine the Q of law and then return the case to the
HC along with a copy of its judgment. Then, the HC
must proceed to dispose of the case in conformity with
such judgment.
3. Art.141: The law declared by the SC is binding on all courts
within the territory of India. It reiterates the theory of the
binding force of precedents (stare decisis) & gives it
constitutional sanction. But, decisions of even the highest
Court of land on questions of fact cannot be cited as
precedents; the binding force of a decision lies in the ratio
or principle laid down by the decision.
 Bengal Immunity Co. Ltd. v. State of Bihar (1955): The
expression “binding on all Courts”, used in Art. 141, is
wide enough to cover the SC itself, it has been held
that the expression doesn’t include the SC. In fact, no
final Court of Appeal (the House of Lords too) has held
itself to be absolutely bound by its judgments
delivered in the past. So, SC is free to depart from the
previous decision if it is satisfied of its error and its
baneful effect on the general interest of the public.
 Vaitheeswarana’s case (1983): In Feb.1983, SC held
that a 2-yr. delay in executing a death sentence, by
itself, is sufficient to entitle the accused to have it
reduced to a sentence of LI. But, in Mar.1983, this
decision was overruled by the SC in Sher Singh’s case
(1983), and it was held that there can’t be a hard-&-
fast rule for a certain delay to be the grounds for
commuting a death sentence to LI.
 Ramesh v. Union of India (1990) Decisions of SC are
binding on all Courts... it’s immaterial how the
conclusion of the majority of the SC was arrived at by
individual Judges on different grounds or by different
processes of reasoning.
 S.S.Kumar v. Jagdeeshan (2002) A HC cannot
overrule a decision of the SC on the ground that the SC
has given a judgment without considering a particular
point. Observed... it’s not only a matter of discipline
for the HC’s, but also a constitutional mandate laid
down by Art.141.
 MGM Medical College vs. State of Bihar (1994) Patna
HC held... an interim order passed by the SC in a
particular case can’t be taken as ‘law’ within the
meaning of Art.141.
 Bhavnagar Univ. v. Palitana Sugar Mills Ltd. (2003)  A
decision of the SC is an authority for what is decided -
& not what can logically by deduced there from. A
small difference in facts (or even a few additional
facts) can make all the difference & take away the
value of precedent from a SC decision.
 From SC observations in several cases, the following
categories of decisions of the SC will have no binding
force, viz.
a. Obiter dicta (i.e., ‘by-the-way’
statements made) that don’t form part of ratio
decidendi.
b. A decision per incuriam, i.e., a decision
given in ignorance of a statute.
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 c. A statute passed sub silentio, i.e.,
without any argument on the relevant question.
d. A consent order, i.e., an order passed
with the consent of the parties, & with the
reservation that it should not be treated as a
precedent.
4. Art. 142(1): SC may pass such decree, or make such order
as is necessary, for doing complete justice in any case or
matter pending before it, and any decree so passed or
order so made is enforceable throughout the territory of
India.
 Art. 142(2): Subject to the provisions of any
law made by Parliament, the SC has all the powers to
make any order for the purpose of securing the
attendance of any person, the discovery or production
of any document, or the investigation or the
punishment of any contempt of itself.
5. Art. 144: All authorities, civil & judicial, in the territory of
India, are to act in aid of the SC.
Judicial Restraint:
 A theory (opposite of judicial activism) of judicial
interpretation...encourages judges to limit the exercise of
their own power... judges should hesitate to strike down
laws unless they are obviously unconstitutional...
 In deciding questions of constitutional law, judicially-
restrained jurists go to great lengths to defer to the
legislature. Judicial restraint requires the judge to uphold
a law whenever possible.
 Judicially-restrained judges respect stare decisis, the
principle of upholding established precedent handed down
by past judges.
 Minimalism... Judicial minimalists argue that judges should
make only minor, incremental changes to constitutional law
in order to maintain that stability. They ask judges to do
this by creating small, case-specific rulings rather than
broad, sweeping rulings.
 The political question doctrine encourages courts to
decline to rule in certain categories of controversial cases. President (or some person appointed by him in that behalf), an
Under this theory, a court acknowledges that the
Constitution might have been violated but declines to act.
It is often described as a type of judicial restraint, although
it can be considered a form of judicial activism against
plaintiffs whose rights have been violated and find their
cases dismissed.
Judicial Activism
 Judicial activism... the philosophy which motives judges to
depart from strict adherence to precedents in favour of
progressive and new policies which are not always
consistent with the restraint expected by appellate judges. Arts.124 (4), 148(1): How removed: The CAG can be removed
If we regard judicial philosophy as a coin, one side of it is from office only in the like manner and on the like grounds as a
activism and other side is restraint.
 In order to respond to the hopes and aspirations of the
litigants, judiciary has to exercise a jurisdiction with a
courageous creativity. To have that courage, use of
practical wisdom in adjudicatory process helps a lot.
 Judicial activism is an unconventional role played by
judiciary by delivering valuable judgments and granting
reliefs to the aggrieved according to the moral and social
justice where statutory law is silent or even contrary.
Active interpretation of an existing provision with a view to 
enhance the utility of a legislation for social betterment,
can be regarded as a judicial activism. In brief, it can be
also assumed that judicial activism comes in to play when
there is a legislative shortsightedness or executive
arbitrariness or both.
 In the field of human right jurisprudence, environmental
aspects, anti death sentence cases judicial activism
contributed a lot. Scope of Art.21 expanded due to active
judicial interpretation.
 In Maneka Gandhi v. Union of India; Rudal shah v. State of
Bihari; Hussainara khatoon v. State of Biharii etc… it can be
seen. But it is also to be noted that judicial activism
should not become adventuralism.
 Choice between activism and restraint should be on the
basis of a clear and clean policy. Judicial self restraint is a
theory of judicial interpretation that encourages the judge
to limit their exercise of power. And the major restraint in
judicial creativity originates from the awareness of the
need to maintain a balance among the three branches of
government.
Just as too much of judicial interference impairs smooth
governance, the stand of restraint also affects the system
adversely. As too much judicial activism would produce an
adverse impact on the position of the Judiciary itself, too much
restraint would have a self annihilating effect. If the courts are
not able to check abuse of legislative and executive power by
the very raison d’etre of judicial institution would be defeated.
Such a failure on the part of the judiciary would destroy the
confidence of the people not only in judicial institutions, but
also in democratic process. A wise judicial policy has to be a
judicious blend of Activism and Restraint, the exact properties
of each varying with the exigencies of the situation is to be
welcomed. Court will not transgress into the fields of policy
decisions.
Arts.148-151, 124 & 377: Comptroller & Auditor-General of
India (CAG)
Art. 148: His appointment, oath, etc.: The CAG of India is
appointed by the President by warrant under his hand & seal.
Before entering office he has to make & subscribe, before the
oath or affirmation in the prescribed form.
 Neither his salary nor his rights in respect of leave, pension
or retirement age, can be varied to his disadvantage after
his appointment.
 After he has ceased to hold his office, he is NOT eligible for
further office either under the Govt. of India or under the
Govt. of any State.
 Term of office: Under Comptroller & Auditor-General
(Conditions of Service) Act-1953, passed by Parliament, he
holds office for a 6-yr. term & is entitled to pension
Judge of the SC.
 So, he CANNOT be removed from his office except by an
order of the President passed after an address by each
House of Parliament supported by a majority of total
membership of that House and by a majority of not less
than 2/3rd of the members of that House present & voting,
has been presented to the President in the same session for
such removal on the ground of proved misbehavior or
incapacity.
The administrative expenses of the office of the CAG,
including all salaries, allowances & pension are charged
upon the Consolidated Fund of India.
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Art. 149: His duties & powers: The CAG performs such duties & 
exercises such powers in relation to the accounts of the Union &
the States as may be prescribed by the President.
 KV Nair v. Union of India (1990) SC held... the
Constitution doesn’t preclude the President from referring
a matter to the Pay Commission, provided the final rules
are made after consulting the Office of CAG.
Art.150: Form of accounts: The accounts of the Union & of the
States are to be kept in such form as the President may
prescribe, on the advice of the CAG of India.
Art. 151: Audit reports: Reports of CAG of India relating to
accounts of the Union are to be submitted to the President,
who causes them to be laid before the Houses of Parliament.
 Likewise, the reports relating to the accounts of a State are
to be submitted to the Governor of the State, who causes
them to be laid before the State Legislature.
 Art.377: Of academic interest only... Constitution provides
that the Auditor-General of India holding office
immediately before commencement of this Constitution
shall become, on such commencement CAG of India.
THE STATES
Note: Unless the context otherwise requires, the expression
‘State’ does not include the State of J&K
 The essential principle of a federation applies to India,
viz., that in respect of subjects which are allotted by the
Constitution to the States, they have the power to pass
laws and administer them. But this principle is subject to
the following qualifications:
1. The Constitution authorizes the Governor of a State to
reserve a Bill for the consideration of the President. By
doing so, he acts on the advice of his Ministers, who are
responsible to the Legislature. So, also, under Art.31 of the
Constitution, a State Legislature cannot acquire property
for a public purpose, unless the Bill for such an acquisition
has been reserved for the consideration of the President
and has received his assent.
2. The previous sanction of the President is necessary for
introducing certain types of Bills in the State Legislature
and for promulgating certain types of ordinances.
3. The Union Parliament has also the power to make any law
for implementing any treaty or agreement with other
countries, even though the subject of such treaty falls
within the State List.
4. The Union Parliament has the power to legislate on a
specified State subject, provided a particular State
legislature passes such a resolution.
5. During an emergency, when the security of India is
threatened either by war or external aggression, the
President may, by a proclamation, empower the Union
Parliament to make laws even in respect of matters
enumerated in the State List.
6. The executive power of every State must be so exercised as
not to impede or prejudice the executive power of the
Union.
7. The Union decides the distribution of revenues between the
Union and the States
8. President has the power to appoint Governors of States.
 In view of the above facts, one feels there is over-
centralization; &, India could’ve avoided federalism. But,
this is not quite correct, for the foundations of the federal
system in India were laid in the Government of India Act,
1935.
The primary object of the GoI Act, 1935 was not to create a
Constitution as such, but to bring about a gradual transfer
of power. The States had no independent existence under
the 1935 Act; so, they had to accept the Constitution given
to them. The Center, no doubt, exercises an increasing
measure of control over all the federating units, but this is
so in an emergency only. Otherwise, the States are
independent to act as they like within the framework of
the Constitution and also within the framework of subjects
allotted to them in the State List.
Arts.153-164, 166, 167, 213: THE STATE EXECUTIVE
Constitutional Position of Governor of a state:
 Executive power of the State vests in the Governor ...just
like that of Center vests in the President.
 The executive machinery of the State, just like that of the
Union, is also Parliamentary...so same political system
operate.
 Governor is the executive head of the State; so, all
executive action is taken in his name. He is to act on the
advice of his Council of Ministers (real executive power is
vested in the Ministries, which is responsible for
legislation)...has considerable powers. Executive power of
State is vested in him (and exercised by him, either directly
or thru’ officers subordinate to him... all executive action
taken thru’ him, directly or indirectly... so, in his name.
 But, as matter of convention, he is to not exercise those
powers to the detriment of the State. He is a constitutional
Governor; so, is the constitutional head of State.
 Controversy Appointed by President...so, can he serve
any useful purpose... any merit in the principle of
appointment of governor? The original plan was to draft
Constitution with elected Governors (e.g., in USA), but
replaced with an appointed Governor for 5 reasons:
1. Save country from harmful consequences of another
election run on personal issues... detrimental to progress
and unity of the country
2. Elected Governor would consider himself superior to Chief
Minister (returned from one constituency) ... could lead to
friction between the two
3. A Governor elected on adult franchise... would prefer to be
CM... with effective powers. Party in power would put up
its candidate...a person perhaps not as outstanding as the
CM-to-be... so, Governor would become 2nd best man.
4. Appointed Governor will help President & the Union keep
control over the State...so, checks and balances enshrined
in Constitution.
5. Method of election might encourage separatist tendencies.
Stability and unity of nation at stake... a Governor not
from the same State is likely to integrate the country
better.
 Disadvantages of nomination (1) nominated Governor
may not be able to work for the welfare of... since
Governor is not from same State. (2) Friction between CM
& Governor... differences of opinion (more so if the CM
does NOT belong to the same party as the nominated
Governor... as has been seen in the recent past).
 The argument that the system of election would NOT be
compatible with a Parliamentary or Cabinet system of
Government is not quite correct, because at the Center,
there is an elected President, who is advised by a Council
of Ministers (COM). Of course, the Presidential election is
not direct. A nominated Governor would always act under
the instructions of the Center; & he is likely to create
constitutional deadlocks. The method of appointment of
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 the head of State executive by the federal executive is 3. Art. 164: The Governor appoints Ministers, who hold office
repugnant to the strict federal system which prevails in the during his pleasure.
USA & Australia. 4. Art. 166(1): All executive action of the State Govt. is
 Art.153: Each State has a Governor...same person can be expressed to be taken in the Governor’s name.
appointed Governor for 2 or more States 5. Art. 166(2): Orders & other instruments made & executed
in the name of the Governor are to be authenticated in a
Arts.155-159: His appointment; terms & conditions of office: specified manner; the validity of an order or instrument...
The Governor is appointed by the President by warrant under so authenticated can’t be questioned on the ground that it
his hand & seal; he holds office during the pleasure of the isn’t an order or instrument made or executed by the
President for 5 years or until his successor enters upon his Governor.
office. 6. Arts. 174-176: The Governor has a right of opening
 A person is not eligible for appointment as a Governor, address, of addressing & sending messages to and of
unless he is a citizen of India and above 35 years of age summoning, proroguing and dissolving the Legislature, just
 Such a person cannot be a member of either House of as the President has.
Parliament or of a House of the Legislature of any State. If 7. Art. 202(1): He has the power to cause the Annual
a member of either House of Parliament or of a State Financial Statement to be tabled in State Legislature.
Legislature is appointed as a Governor, he is deemed to a. Art. 207(1): He has the power to make
have vacated his seat in that House on the date on which demands for grants & recommending Money Bills.
he enters upon his office as Governor. 8. Art. 213: He has the power of promulgating Ordinances
 Art. 158(2): A Governor can’t hold any other office of during any recess of the Legislature.
profit. 9. Arts. 200-201: He has the power to veto State Bills with
 Art. 159: Before entering upon his office, the Governor power to reserve them for the consideration of the
must make and subscribe in the presence of the CJ of the President.
HC (or, in his absence, the senior-most Judge of that Court 10. Art.161: He has the power to grant pardon.
available), an oath or affirmation in the prescribed form.
 The Governor may, by writing under his hand addressed to Art.161: Power to grant pardons; remissions, etc.: The
the President, resign his office. Governor has the power to grant pardons, reprieves, respites or
 He is entitled to a salary of Rs. 110,000 per month, as also remissions of punishment; or to suspend, remit or commute the
the usual allowances. He is entitled to the same privileges sentence of any person convicted of any offence against any
to which the Governor of the corresponding provinces were law relating to a matter to which the executive power of the
respectively entitled immediately before the State extends.
commencement of the Constitution.  A comparison of the powers of pardon conferred shows that
 The Governor is also entitled, without payment of rent, to the President’s power (Art.72) is wider than that of the
the use of his official residence, & to such emoluments, Governors of States (Art.161).
allowances & privileges as Parliament may determine by  In Re Chennugadu (1954) In this case, the State Govt. had
law. Where the same person is appointed as the Governor ordered a total jail delivery to mark the establishment of
of 2 or more States, the emoluments & allowances payable the State. Pardoning power of the Governor was considered
to the Governor are to be allocated among the States in ... Court observed: a similar power was conferred by the US
such proportions as the President may by order, determine. Constitution on the President; & that the President and
The emoluments & allowances cannot be diminished during Governors in India also had the same power. Court held...
his term of office. the Order of the Government was constitutionally valid.
 All the provisions which apply to the President (refer  Nanavati’s case Full Bench of Bombay HC held...
above) also apply to a Governor... pardoning power of the Governor is similar to the
corresponding power possessed by the Crown of England &
Arts.154, 162-166, 174 & 213: Powers of a Governor by the President in the US... &, that his power can be
 The powers conferred by the Constitution on a Governor of exercised before, during, or after the trial.
a State are analogous to those of the President, except o KM Nanavati v. State of Bombay (1961) When KM
that the Governor has no ‘diplomatic,’ ‘military’ or Nanavati applied to SC for special leave to appeal, a
‘emergency’ powers. The main provisions include: Constitution Bench of SC, by 4:1 majority, held: the
1. Art. 154(1): Governor is head of the State executive. The Governor’s order was constitutionally invalid from the
executive power of the State is vested in him; and time the SC was seized of the matter.
exercised by him, either directly or through officers o A powerful, & perhaps more convincing, dissenting
subordinate to him in accordance with the Constitution. judgment delivered of Kapur, J was...the pardoning
2. Art. 162: Extent of executive power of a State It extends power could be exercised at any time, & that it did not
to the matters with respect to which the Legislature of the conflict with the power of the SC. The distinction
State has power to make laws. But, where the Legislature between executive & judicial control over sentences
of a State & Parliament have equal power, the power of was also stressed.
the State to legislate is subject to that of the Union... i.e.,  Sarat Chandra Rabha’s case (1961) This point was
power of the Union shall be supreme; & that of a State is considered again by SC... Court unanimously accepted the
subordinate. distinction between executive & judicial control over
a. Art. 246: It mentions 3 lists...viz., the Union sentences (in sync with the dissenting judgment in the
List, the State List & the Concurrent List. The Union Nanavati case)... so, though the Nanavati judgment hasn’t
will ordinarily make laws for all the subjects been overruled, it is clear that Sarat Chandra Rabha’s case
mentioned in the Union List. The States can make laws has deprived it of its binding efficacy.
on subjects mentioned in the State List

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Art. 213: Legislative power: Similar to the power conferred on
the President by Art.123 it deals with the Governor’s power
to promulgate Ordinances in certain cases.
 When can a Governor promulgate an Ordinance: (Except
when the Legislative Assembly of a State is in session, or
where there is a Legislative Council in a State, except when
both Houses of the Legislature are in session,) if at any
time the Governor is satisfied that circumstances exist
which render it necessary for him to take action
immediately, he may promulgate such Ordinances as the
circumstances appear to him to require. The Governor may
withdraw such Ordinances at any time.
 When a Governor cannot promulgate an Ordinance:
a. When the Legislative Assembly or Legislative Council is
in session, or
b. When - (i) a Bill containing the same provisions would,
under the Constitution, have required the previous
sanction of the President for the introduction thereof
into the Legislature; or, (b) the Governor 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 State Legislative containing the
same provisions would have been invalid unless, having
been reserved for the consideration of the President, it
has received the assent of the President.
 Its effect: An Ordinance promulgated under Art.213 has the
same force & effect as an Act of the Legislature of the
State assented to by the Governor.
 Subsequent procedure: Every such Ordinance is to be laid
before the Legislative Assembly of the State, or where
there is a Legislative Council in the State, before both the
Houses.
 Cessation? It ceases to operate at the expiry of 6 weeks
from the re-assembly of the Legislature, or if before the
expiration of that period, a resolution disapproving it is
passed by the Legislative Assembly & agreed to by the
Legislative Council, if any - upon the passing of the
resolution or, as the case may be, on the resolution being
agreed to by the Council.
 When void? If an Ordinance makes any provision which
would not be valid if enacted in an Act of the Legislature of
the State assented to by the Governor, such an Ordinance
would be void.
Art. 361: The Governor’s Privileges: They are mainly 4:
1. He is NOT answerable to any Court for: (a) the exercise &
performance of the powers & duties of his office; or, (b)
any act done (or purported to be done) by him in the
exercise & performance of those powers & duties. But, this
doesn’t restrict any person’s right to bring suitable
proceedings against the Government of the State.
2. No criminal proceedings whatsoever can be instituted or
continued against the Governor of a State in any Court
during his term of office
3. No process for the arrest or imprisonment of the Governor
can issue from any Court during his tenure.
4. No civil proceedings in which relief is claimed against the
Governor of a State can be instituted during his term of
office in any Court in respect to any act done (or
purporting to be done) by him in his personal capacity
whether before or after he entered upon his office as
Governor of such State, until the expiration of 2 months
after notice in writing has been delivered to the Governor
or left at his office stating: (i) the nature of the
proceedings; (ii) cause of action thereof (iii) name,
description & place of residence of the party by whom such
proceedings are to be instituted, and (iv) the relief which
he claims.
Arts.163, 164 & Sch. 3; Forms V & VI: THE COUNCIL OF
MINISTERS (COM)
 Art. 163(1): The Constitution provides for a Council of
Ministers (COM) with the CM at the head to aid and advise
the Governor in the exercise of his functions.
 Art. 163(3): The question whether any and if so what,
advice was tendered by the Ministers to the Governor
cannot be inquired into by any Court.
 Art. 163(2): If any Q arises whether any matter is or is not
a matter in which the Governor is to act in his discretion,
the decision of the Governor is to be final, and the validity
of anything done by the Governor cannot be called in
question on the ground that he ought or ought not to have
acted in his discretion.
 Art. 164(2): The COM is collectively responsible to the
Legislative Assembly of the State.
 Articles 163 & 164(2) above lay down in general terms the
principle of ministerial responsibility, viz., that the
Governor, in the various spheres of executive activity, has
to exercise his functions with the aid of the advice of his
ministers.
o Art. 163 (2) emphasizes the fact that the Governor
may act in his discretion in specific cases mentioned in
the Constitution. This provision means the Governor
must always act on ministerial advice, except in
specific cases where he is empowered to act in his
discretion.
o In other words, Art. 163 is to be read in
conjunction with such other Articles as specifically
reserved to the Governor the power to act in his
discretion.
o But, Art. 163 should NOT be construed as giving
the Governor power to disregard the advice of his
Ministers in any matter in which he decides to
disregard the same.
 But, the Q: Is the Governor always bound to take the
advice of the Ministry? Is he a mere ‘rubber stamp’ in the
hands of the Ministry, or has he got some real power? The
Constitution is silent on this point.
 But, the Governor is expected, at least normally, to act as
a constitutional head & to follow the advice of his
Ministers. For Art. 164(2) clearly lays down that the COM is
collectively responsible to the Assembly, i.e., a Ministry
enjoying the confidence of the people.
 Sunil Kumar’s case Cal. HC observed... Under the present
Constitution... the power to act in his discretion or in his
individual capacity has been taken away; &, so the
Governor must act on the advice of his Ministers. This
constitutional position explained by the Advocate-General
was accepted by the Court.
Art.164 - Appointment, oath & term of office of COM:
 Art. 164(1): The CM is appointed by the Governor and the
other Ministers are appointed by the Governor on the
advice of the CM, and the Ministers hold office during the
pleasure of the Governor.
 It is now provided by the 91st Amendment, 2003, that the
total # of ministers, including the CM, in the COM in a
State, cannot exceed 15% of the total number of members
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 of the Legislative Assembly of that State. Also, the #
cannot be less than 12.
 After the 94th Amendment, 2006, Art. 164(1) also lays down
that there should be a minister in charge of tribal welfare
who may also be in charge of the welfare of Scheduled &
backward classes or any other work.
 Art. 167: Duty of the Chief Minister: It is the duty of the
CM of each State to communicate to the Governor of the
State, all decisions of the COM relating to the
administration of the affairs of the State and proposals for
legislation as also to furnish such information as the
Governor may call for; and, if the Governor 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.
 Art. 177: Rights of a Minister: Every Minister has the right
to speak & take part in the proceedings of the Legislative
Assembly of the State (or, in a State having a Legislative
Council, in both Houses), but is NOT entitled to vote.
o Before a Minister enters upon his office, the
Governor administers to him the oath of office & of
secrecy according to the prescribed forms.
Arts.165, 177 & 217: Advocate General (AG) for the State b)
 Art.165 (1)(3): By whom appointed: The Advocate-
General is appointed by the Governor. He holds office
during the pleasure of the Governor, and receives such
remuneration as the Governor may determine.
 Art.217: His qualifications: Same as those of a HC Judge...
(a) be a citizen of India; (b) must have held a judicial office 
in India for 10 years, or been a HC advocate for at least 10
years.
o Karkare v. Shevde (1952) Under Art.217, a HC
judge has to retire at the age of 60, & therefore, a
writ quo warranto was filed challenging the
appointment of one past 60 as the AG of a State. Court
held... a person who’s completed 60 years can be
appointed as Advocate-General.
 Art. 165(2): His duties The AG has to give advice to the 
Govt. of the State upon such legal matters, & perform such
other duties of a legal character as may be referred or
assigned to him by the Governor.
 Art. 177: His rights He has the right to speak & take part 
in the proceedings of the Legislative Assembly or the
Legislative Council, but is NOT entitled to vote therein.
o Under the Advocates Act, the AG enjoys the
position of being an ex officio member of the State Bar
Council.
o Adi Gandhi v. HM Seervai (1971) SC observed...
The Advocates Act gives a right of pre-audience over
the Advocates to the AG, the Solicitor-General, the
Additional Solicitor-General & the Advocate General.
The right of pre-audience gives them a standing for
hearing of cases... but, it doesn’t confer on them any
other right.
 Whether AG holds a political office? Arts.165 & 177 clearly
show the Advocate-General does not hold a political or
ministerial office. This Art. doesn’t require him to be a
member either of the State legislature or the State
executive. He has a right to address the legislature, but has
no right to vote.
o Evidently, the framers of the Constitution did not
wish to make his office a political one, as in England.
Rather, they followed the corresponding provisions of
the GoI Act, 1935, where under his office was non-
political.
 Whether his statements bind the Govt.: Generally speaking,
when a concession is made by a Govt. pleader in a trial
court, it does NOT bind the Govt., unless it is in writing on
instructions from a responsible officer.
o Periyar v. State of Kerala (1990): principle above
doesn’t apply to a concession made by the AG, because
he is assumed to make statements responsibly.
Arts.168-172 & 333-334: THE STATE LEGISLATURE
Art. 168: Composition: For every State, there is a Legislature,
which consists of the Governor, and:
a) In the States of Bihar, Maharashtra, Karnataka, MP
& UP - two Houses - one known as the Legislative Council &
the other as the Legislative Assembly,
b) In all other States - one House, known as the
Legislative Assembly.
Art. 169: Abolition or creation of Legislative Council in
States: It confers a right to:
a) Abolish the Legislative Council on States having
such a Council; and,
Create a Legislative Council on States not having
such a Council
 The Legislative Assembly of the State concerned can pass a
resolution for the abolition or the creation of such a
Council (as the case may be), by a majority of the local
membership of the Assembly and by a majority of not less
than 2/3rd of the members present & voting.
When such a resolution is passed, Parliament must give
effect to it by abolishing or creating a Legislative Council,
as the case may be.
 When Parliament passes such a law, it is NOT deemed to be
an amendment of the Constitution for the purposes of Art.
368.
Arts.170, 172-173, 178-181, 333-334: The Legislative
Assembly
The Legislature of every State consists of the Governor and
1 or 2 Houses, as the case may be... (a) the Legislative
Assembly and Legislative Council, in case of 2 Houses; (b)
the Legislative Council in case of 1 House.
Arts.170, 172, 333-334: Its Composition & Duration:
These constitutional provisions are summarized as:
 The Legislative Assembly in each State consists of NOT >
500, & not < 60 (min. = 60; max. = 500) members chosen by
direct election from territorial constituencies in the State.
For this, the State is divided into constituencies such that
the ratio between the population of each constituency &
the number of seats allotted to it is, as far as practicable,
the same throughout the State.
 Population means the population as ascertained by the last
preceding census with published figures. It is further
provided that this shall be a reference to the 2001 census,
until the relevant figures for the first census taken after
the year 2026 have been published.
 Upon completion of census, the total # of seats in the
Legislative Assembly of each State & the division of each
State into territorial constituencies is to be readjusted by
such authority and in such manner as Parliament may by
law determine. Such readjustment does NOT affect
representation in the Legislative Assembly until the
dissolution of the then existing assembly.
Page 54
 The Governor of a State may... if he thinks the Anglo-
Indian community is not adequately represented and needs
representation therein in the Legislative Assembly of the
State...nominate 1 member of the community to the
Assembly as he considers appropriate. Such a reservation is
to cease after 60 years.
 Art. 172 - Tenure of Legislative Assembly: Unless sooner
dissolved... the tenure is 5 years, & no longer; the expiry
of the said 5 years operates as a dissolution of the
Assembly.
 The period of 5 years, while a Proclamation of Emergency
is in operation, be extended by Parliament for 1 year at a
time, and not exceeding in any case beyond 6 months after
the Proclamation has ceased to operate.
 Art.178-181: Its officers Every Legislative Assembly of a
State has a Speaker & Dy. Speaker, who must vacate their
seats if they cease to be members of the Assembly. They
may resign their office by writing under their own hands
addressed to each other. They may be removed from their
office by a resolution (moved after 14 days’ notice) passed
by a majority of all the then members of the Assembly.
 In the absence of the Speaker, his duties are to be
performed by the Dy. Speaker. The Speaker or the Dy
Speaker cannot preside while any resolution for his removal
from office is under consideration, but the Speaker has the
right to speak in, and otherwise to take part in the
proceedings of the Legislative Assembly while any
resolution for his removal from office is under
consideration, and is, notwithstanding anything in Art.189,
entitled to vote in the 1st instance, but not in the case of
equality of votes.
 Art. 173: Qualifications for membership of Legislative
Assembly: A person must be: (a) a citizen of India (b) at
least 25 years of age; and (c) must possess any other
qualification as may be prescribed by Parliament.
 Art. 188: Oath or affirmation: Every member of the
Legislative Assembly (or Council) of a State must, before
taking his seat, make & subscribes before the Governor (or
some person appointed in that behalf by him) an oath or
affirmation in the prescribed form.
 Art.193- Penalty for sitting and voting without oath etc.:
If a person sits or votes as a member of Legislative
Assembly (or Council) of a State without complying with
the requirements of Art.188, or when he knows that he is
not qualified or that he is disqualified for membership
thereof, or that he is prohibited from so doing by any law -
he becomes liable, in respect of each day on which he sits
or votes, to a penalty of Rs.500 per day to be recovered as
a debt due to the State.
 Art.191- Disqualification of members: A person is
disqualified for being chosen as, & for being, a member of
the Legislative Assembly (or Council) of a State-
a) If he holds any such office of profit under the
Government of India or the Government of any State
specified in the 1st Schedule, as is declared by
Parliament by law to disqualify its holder; or
b) If he is of unsound mind and stands so declared by a
competent Court; or
c) If he is an undischarged insolvent; or
d) 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; or
e) If he is so disqualified by or under any law made by
Parliament.
f) Under the 52nd Amendment, 1985, a person is also
disqualified from being a member of a State
Legislature if he is disqualified under the 10th Schedule
to the Constitution (i.e., due to defection)
 Art.190- Effect of disqualification: On his becoming
subject to any of the above disqualifications, a member’s
seat thereupon becomes vacant.
 Art.190: Resignation of a Member: A member of a House
of a State Legislature may resign his seat by writing
addressed to the Speaker or the Chairman (as the case may
be), and once such resignation is accepted, his seat
becomes vacant.
o But if, from information received or otherwise, the
Speaker or the Chairman as the case may be) is
satisfied that such resignation is not voluntary or
genuine, he shall not accept such a resignation.
 Art. 192: Decisions on questions as to disqualification: If
any question arises as to whether a member of a House of a
State Legislature has become subject to any of the
disqualifications mentioned in Art. 191 (above), the Q is to
be referred to the decision of the Governor, who has to
obtain the opinion of the Election Commission, and must
act according to such opinion.
Arts.171-173 & 183-185: The Legislative Council
 Arts.171-172: Composition & duration of the LC: It
consists of a total number of members not exceeding 1/3 rd
of the total # of members in the Legislative Assembly of
that State. The total # of members in the Council of a State
should be at least 40. Out of these:
a) 1/3rd are to be elected by electorates consisting of
members of Municipalities, District Boards & other
local authorities as are specified by the Parliament
b) 1/12th are to be elected by electorates consisting of
persons residing in the State who have been, for at
least 3 years, graduates of any university in the
territory of India;
c) 1/12th are elected by teachers of at least 3 years’
standing in educational institutions, not lower in
standard than that of a secondary school;
d) 1/3rd are elected by members of the Legislative
Assembly of the State, from amongst persons who are
not members of the Assembly; and
e) The remainder is nominated by the Governor. These
consist of those with special knowledge or practical
experience in literature, science, art, co-operative
movement & social service.
 The Legislative Council of a State is a permanent House not
subject to dissolution, but 1/3rd of the members thereof
retire on the expiry of every 2nd year as per provisions
made in that behalf by Parliament.
 Arts.182-185: Its Officers The Legislative Council of
every State chooses 2 members of the Council a Chairman
& Dy. Chairman, who vacate their office if they cease to be
members of the Council.
o They may, by writing under their hands, resign
their office. Or, be removed from their office by a
resolution of the Council passed (after 14 days’ prior
notice) by a majority of all the then members of the
Council. Such persons themselves cannot preside while
a resolution for their removal from office is under
consideration.
o But, the Chairman has the right to speak in, &
otherwise to take part in the proceedings of, the
Legislative Council while any resolution for his removal
Page 55
 from office is under consideration in the Council, but is
entitled to vote only in the 1st instance, but not in the
case an equality of votes.
 Arts. 173: Qualifications for membership: A member of
Legislative Council must be: (a) a citizen of India (b) not
less than 30 years of age; and (c) must possess such other
qualification as may be laid down by Parliament.
 Art. 188- Oath or affirmation: Explained earlier.
 Art. 193: Penalty for sitting & voting without oath, etc.:
Explained earlier.
 Art. 191: Disqualification of members: Explained earlier
under Legislative Assembly.
o Ramakrishna v. State of Karnataka (1993) An
‘office of profit’ is an office which is capable of
yielding a profit or pecuniary gain. An honorary
Chairman of a Board of Election cannot be said to hold
an office of profit.
 Art.190: Effect of disqualification: Explained earlier.
 Art. 190: Their disabilities: The disabilities of a member
of a LC are mainly two:
a) No person can be a member of both Houses of the
Legislature of a State; nor can he be a member of the
Legislature of two or more States specified in the 1st
Schedule.
b) If, for a period of 60 days, a member of a House of the
Legislature of a State is, without permission of the
House, absent from all meetings thereof, the House
may declare his seat vacant.
Art.194: Their powers, privileges & immunities of members
of State Legislatures:
1. There shall be freedom of speech in the Legislature of
every State.
2. No member of the Legislature of a State is liable in any
proceedings in any Court in respect of anything said or any
vote given by him in the Legislature or any committee
thereof, and no person can be so liable in respect of the
publication by or under the authority of a House of such a
Legislature of any report, paper, votes or proceedings.
 Art. 194(3) - Prior to 42nd Amendment, 1976 in other
respects, the powers, privileges and immunities of a House
of Legislature of a State (and of its members &
committees) shall be such as may be laid down by the
Legislature by law, and till then shall be the same as those
of the House of Commons of the UK
o After 42nd Amendment: Art.194 (3) was amended to
provide powers, privileges & immunities of a House of
a State Legislature... and, of the members &
committees as on the date when the 42nd Amendment
came into force, and as may be evolved by such House,
as far as may be in accordance with those of the Lok
Sabha, where such House is the Legislative Assembly,
and in accordance with those of the RS, where such
House is the Legislative Council
o After 44th Amendment: Undoing the above amendment,
the 44th Amendment, 1978, now provides that the
powers, privileges & immunities of a Legislature & its
members and committees shall be those of that House
and of its members & committees immediately before
the coming into force of the 44th Amendment, 1978.
 Utility of Legislative Councils: Several critics of
constitutional law have expressed their doubts on the
utility & desirability of having a 2nd Chamber (i.e., a
Legislative Council) in the States... Reasons:
a. Powers of such a Chamber are restricted.
b. In financial matters, such a Chamber is
powerless.
c. In non-financial matters, it has no effective
voice in the sphere of legislation. A non-Money-Bill can
be introduced in the Legislative Council, but it has no
power corresponding to that of the Assembly.
d. In the absence of a provision for a joint sitting
of the two Houses, the will of the lower House (i.e.,
LA) ultimately prevails... and the Council has merely
the power of delaying the passage of a Bill to which it
does not agree.
So, is it advisable to have Legislative Councils in States at
the cost of a heavy expense on the Treasury?
 Other constitutional pundits defend the 2nd Chamber’s
existence... Reasons: (a) It prohibits hasty legislation &
acts as a check on the Legislative Assembly. (b) It affords
an opportunity to give representation to the minority; and
(c) it enables the Govt. to secure the services of
experienced persons in the State Legislature.
 A careful analysis of the working of the Legislative Councils
in States where they exist shows that these 2nd Chambers
have served a useful purpose in such States.
Arts.174-176, 189 & 196-212: Procedure in the State
Legislature
The procedure to be followed in State Legislature is similar to
that in the Union Parliament. It can be studied in 3 heads:
A. Arts.174-176 & 189- General Procedure: 4 topics...
1. Art.174- Meeting of the Houses: The House or Houses of
the Legislature of the State is to be summoned to meet
twice at least every year; & 6 months (or more) must NOT
intervene between the 1st & last sitting.
The Governor may - (i) summon the House, or either House,
to meet at such time & place as he thinks fit; (ii)
prorogue the House or Houses; or (iii) dissolve the
Legislative Assembly.
2. Art. 175-176- Address of the Governor: The Governor may
address both Houses assembled together, and may, for that
purpose, require the attendance of the members. He may
send messages to the House or Houses of the Legislature of
the State, whether with respect to a Bill then pending in
the Legislature or otherwise.
 At the start of the 1st session after each general
election to the Legislative Assembly & at the start of
the 1st session of each year, the Governor must address
the Legislative Assembly or, in the case of a State
having a Legislative Council, both Houses assembled
together, and inform the Legislature of he causes of its
summons.
3. Art. 189(1) - Voting in the Houses: All questions at any
sitting of a House of the Legislature of a State are to be
determined by a majority of votes of the members present
& voting, other than the Speaker or Chairman, who cannot
vote in the 1st instance, but can exercise a casting vote in
the case of an equality of votes.
4. Art. 189(3) & (4) - Quorum: The quorum to constitute a
meeting of a House of the Legislature of a State is 10
members or 1/10th of the total # of members of the House,
whichever is greater. Also, it is provided that if at any time
during a meeting of the Legislative Assembly or the
Legislative Council of a State there is no quorum, the
Speaker or Chairman shall adjourn the House or suspend
the meeting until there is a quorum.
Page 56
B. Arts.196-210 - Legislative Procedure: Again 4 topics:
1. Arts.196-197: Introduction & passing of Bills:
a. Art. 196: A Bill may originate in either House
of the Legislature of a State which has a Legislative
Council. Such a Bill cannot be deemed to have been
passed by the Houses of the Legislature of a State
unless it has been agreed to by both Houses.
b. Art. 197: If after a Bill (other than a Money
Bill) has been passed by the Assembly of a State having
a Legislative Council & transmitted to the LC - (a) the
Bill is rejected by the Council; or (b) more than 3
months elapse from the date on which the Bill is laid
before the Council without the Bill being passed by it;
or (c) the Bill is passed by the Council with
amendments to which the Assembly does not agree,
the Assembly may pass the Bill again, in the same or in
any subsequent session, with or without such
amendments, and then transmit the Bill as so passed to
the Legislative Council.
 If after a Bill has been so passed for the 2nd time
by the LA & transmitted to LC - (a) the Bill is
rejected by the Council, or (b) more than 1 month
elapses from the date on which the Bill is laid
before the Council without the Bill being passed
by it; or (c) the Bill is passed by the Council with
amendments to which the LA does not agree - the
Bill is deemed to have been passed by the Houses
of the Legislature of the State in the form in which
it was passed by the LA for the 2nd time, with such
amendments, if any, as have been made or
suggested by the LC & agreed to by the LA
 Difference... between the 2 Houses of Union
Parliament is to be resolved by a joint sitting... no
such provision in State Legislatures. In the latter
case, the will of the Lower House, ultimately
prevails; the Council only has the power to delay
passage of the Bill
2. Art. 196- Lapsing of Bills: A Bill pending in the Legislature
of a State does not lapse by a reason of the prorogation of
the House or Houses thereof; nor does a Bill pending in the
LC of a State which has not been passed by the Legislative
Assembly lapse on dissolution of the Assembly. A Bill which
is pending in the Legislative Assembly of a State, or which
having been passed by the LA is pending in the LC, lapses
on a dissolution of the Assembly.
3. Arts.200-201- Governor’s Assent to Bills:
 Art.200: When he may, & when he must, assent:
When a Bill is passed by the LA of a State (or, in the
case of a bicameral Legislature, by both Houses), it is
presented to the Governor, who can: (a) approve the
Bill, or (b) withhold assent therefrom, or (c) reserve
the Bill for consideration of the President.
 But, Governor may return the Bill (if it isn’t a Money
Bill) along with a message requesting the House(s) to
reconsider the Bill or introduce any such amendments
as he may recommend in his message.
 When a Bill is so returned, the House(s) must
reconsider the Bill and if the Bill is passed again by the
House(s), with or without amendment, and presented
to the Governor for his assent, the Governor cannot
withhold assent therefrom.
 Art. 200: When he shall not assent: The Governor
cannot assent to, but must reserve for the
consideration of the President, any Bill which may
derogate from the powers of the HC as to endanger the
position in which that Court is, by this Constitution,
designed to fill.
 Art.201: Governor’s Powers to Veto: When a Bill is
presented to the Governor, after its passage by the
Houses of the Legislature, the Governor has the power
to take any of the following steps:
1. He may declare his assent to the Bill, in
which case the Bill becomes law.
2. He may withhold his assent to the Bill, in
which case the Bill fails to become law.
3. He may, in the case of a Bill other than a
Money Bill, return the Bill for reconsideration to
the House(s), with a message. But, if the Bill is
again passed by the Legislature with or without
amendment, it would be obligatory upon the
Governor to give his assent to the Bill, which will
thereupon become law.
4. The Governor may reserve a Bill for the
President’s consideration. In cases where the Bill,
if passed into law, would derogate the powers of
the HC under the Constitution, such reservation is
compulsory.
5. If a Money Bill is so reserved, the
President may either declare his assent or
withhold it. But, in the case of a Bill other than
the Money Bill, the President may, instead of
declaring his assent or refusing it, direct the
Governor to return the Bill to the Legislature for
reconsideration. In this latter case, the Legislature
must reconsider the Bill within 6 months, & if it is
passed again, the Bill is presented to the President
again. But, it is NOT obligatory upon the President
to give his assent in this case too.
4. Art. 199(1) - What is a Money Bill? A Money Bill deals with
the following matters, viz.:
a. Imposition, abolition, remission, alteration or
regulation of any tax;
b. Regulation of the borrowing of money, or the
giving of any guarantee by the State, or the
amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the
State;
c. Custody of the Consolidated Fund or
Contingency Fund of the State, the payment of money
into or the withdrawal of moneys from any such Fund
d. Appropriation of moneys out of the
Consolidated Fund of the State;
e. Declaration of any expenditure that is to be
charged on the Consolidated Fund of the State or the
increase of the amount of any such expenditure; or
f. Receipt of money on account of the
Consolidated Fund of the State or the Public Account
of the State or the custody or issue of such money;
g. Any matter incidental to any other matters
specified in sub-clauses (a) to (f) above.
Art.199 - What is NOT a Money Bill? A Bill is not deemed to be
a Money Bill merely because it provides for: (a) imposition of
fines or penalties, or (b) demand of fees for licenses or fees for
services rendered, or (c) imposition, abolition, remission,
alteration or regulation of a tax by any authority or body for
local purposes.
 If any question arises whether a Bill introduced in the
Legislature of a State which has a Council is a Money Bill or
not, the decision of the Speaker of the Assembly of such
State thereon is final.
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Art.198-199 & 207: Special procedure in respect of Money
Bills: Following 6 points to be borne in mind:
1. Art.207: A Bill or any amendment making provision for any
of the matters specified in sub-clause (a) to (f) of Art.199
cannot be introduced or moved except on the
recommendation of the Governor, & a Bill making such a
provision can’t be introduced in a Council. But, no such
recommendation is required for moving an amendment
making provisions for the reduction or abolition of a tax.
2. Art.198: A Money Bill can’t be introduced in the Council
3. Art.198: After a Money Bill has been passed by the
Assembly of a State having a Legislative Council (LC), it is
to be transmitted to the LC for its recommendation. The LC
must, within 14 days from the receipt of the Bill, return
the Bill to the LA with its recommendations, and the
Assembly may thereupon either accept or reject all or any
of the recommendations of the LC. If it is not so returned
within the said 14 days, it is to be deemed to have been
passed by both Houses, at the expiry of the said period, in
the form in which it was passed by the LA
4. Art.198: If the Assembly accepts any of the
recommendations of the LC, the Money Bill is deemed to
have been passed by both Houses with the amendments
recommended by the LC and accepted by the Legislative
Assembly.
5. Art.198: If the LA does not accept any of the
recommendations of the LC, the Money Bill is deemed to
have been passed by both Houses in the form in which it
was passed by the LA, without any of the amendments
recommended by the LC.
6. Art.199: There must be endorsed on every Money Bill, the
certificate of the Speaker of the LA signed by him that it is
a Money Bill.
C. Arts.202-207: Procedure in Financial Matters: 4 topics:
1. Arts. 202 & 207 - Annual Financial Statement (AFS):
 Art. 202(1): Its nature: The AFS is a statement of the
estimated receipt & expenditure of the State for the year.
The Governor must, in respect of every financial year,
cause it to be laid before the House(s) of the Legislature of
the State
 Art. 202(2): What should the estimates show? The
estimates of expenditure embodied in the AFS show
separately - (a) the sums required to meet the expenditure
described as expenditure charged upon the Consolidated
Fund of the State; and (b) the sum required to meet other
expenditure from the same Fund. It must, moreover,
distinguish expenditure or revenue-account from other
expenditure.
 Art. 202(3): What expenditure can be charged on the
Consolidated Fund: Art.202 corresponds to Art.112. The
following are charged on the CF of each State:
a. Emoluments & allowances of the Governor &
other expenditures relating to his office;
b. Salaries & allowances of the Speaker, Dy
Speaker of the LA & the Chairman & Dy Chairman of
the LC.
c. Debt charges, including interest, sinking fund
charges & redemption charges; and, expenditure
relating to the raising of loans; the service &
redemption of debt;
d. Salaries & allowances of HC Judges;
e. Any sums required to satisfy any judgment,
decree or award of any Court or arbitral Tribunal;
f. Any other expenditure declared by this
Constitution, or by the Legislature of the State, to be
so charged.
 Further, Art.207 declares that a Bill which, if enacted
& brought into operation, would involve expenditure
from the CF of a State cannot be passed by a House of
the Legislature of the State unless the Governor has
recommended the consideration of the Bill in that
House.
2. Art.203- Procedure for estimates: Art.203 corresponds to
Art.113. Two points to note-
a. Estimates relating to the expenditure charged
upon the Consolidated Fund (CF) of a State cannot be
submitted to the vote of the Assembly, but the LA may
discuss the estimates.
b. The said estimates as relates to other
expenditure is to be submitted in the form of demands
for grants to the Assembly, and the Legislative
Assembly has the power to assent, or to refuse to
assent, to any demand, or to assent to any demand
subject to a reduction of the amount specified therein,
and no demand for a grant can be made except on the
recommendation of the Governor
3. Arts.204-205 - Appropriation Bills: Arts.204 & 205 are
similar to Arts.114 & 115 (the comments are same). These
Bills provide for the appropriation, out of the CF of the
State, of all moneys required to meet - (a) the grants made
by the Assembly; and (b) the expenditure charged on the
CF of the State. These Bills are introduced after the grants
under Art.203 are made.
 Art.204(3): it proceeds to enunciate an key rule, viz.,
that no money can be withdrawn from the CFS, except
under appropriation made by law passed in accordance
with the provisions of that Article.
 Art. 204(2): No amendment can be proposed to any
such Bill in the House, or either House of the State
Legislature, which would have the effect of varying the
amount of altering the destination of any grant so
made or of varying the amount of any expenditure
charged on the CFS, & the decision of the person
presiding, as to whether an amendment is inadmissible
under the clause, is final.
 Art.205: If the grant under Art.204 is found to be
insufficient, or when a need has arisen for
supplementary or additional expenditure upon some
new service not contemplated in the AFS for that year,
or if any money has been spent on any service during a
financial year in excess of the amount granted for that
service, the Governor must cause to be laid before the
House(s) another statement showing the estimated
amount of that expenditure.
4. Art. 206- Votes on account, votes of credit & exceptional
grants The Legislative Assembly of a State has the
power: (a) to make any grant in advance in respect of the
estimated expenditure for a part of any financial year; (b)
to make a grant for meeting an unexpected demand upon
the resources of the State; and (c) to make an exceptional
grant, which forms no part of the current service of any
financial year, and the Legislature of the State may
authorize the withdrawal of moneys from the Consolidated
Fund of the State for the purposes for which the said grants
are made.
Miscellaneous Provisions
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Art.210- Language of Legislature: The business in the
Legislature of a State is to be transacted in the official
language of the State or in Hindi or in English.
 But, after 26th Jan. 1965, all business of a State Legislature 
must be carried on in the official language of the State or
in Hindi.
Art.211- Restriction on certain discussion: No discussion can
take place in the Legislature of a State with respect to the
conduct of any Judge of the SC or of a HC in the discharge of his
duties.
Art. 212(1)- Effect of irregularity in procedure: This Art. is a 
curative measure. It lays down that the validity of any
proceedings in the State Legislature cannot be questioned on
the ground of any alleged irregularity of procedure.
 No officer or member of the Legislature of a State in whom
powers are vested by or under this Constitution for
regulating the procedure or the conduct of business, or for
maintaining order, in the Legislature, is subject to the
jurisdiction of any Court in respect of the exercises by him
of those powers.
Arts.124, 214-230, 235: HIGH COURTS OF STATES
 The basic object of HC-related provisions in the
Constitution is judicial independence.
1) Arts.214-216, 226-228, 230 & 235: High Court:
 Art.214: There is a HC for each State.
 Art.215: The HC is a Court of Record, and has the power to
punish for contempt of itself.
 Art.216: Every HC consists of a Chief Justice and such  Art.226... provides that the power conferred on the HC by
other Judges as the President may appoint.
o Federation of Bar Association in Karnataka v.
Union of India (2000) SC held... no litigant can claim 
that the HC should be located within proximal distance
from his place of residence.
Arts.226-228, 230 & 235: Powers of HC
 Art.226- Power to issue certain writs: Art.226 empowers
the HC to issue, to any person or authority, including the
Govt. (in appropriate cases), directions, orders or writs,
including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto, certiorari, or any of them-
a) For the enforcement of any of the fundamental rights
conferred by Part III of the Constitution; or,
b) For any other purpose
 This article is as important as Art.32, and numerous cases
have been decided in this matter. It should be noted that
the HC can issue writs under (a) only after a decision that
the aggrieved party has a fundamental right which has been
infringed; and under (b) only after a finding that the
aggrieved party has a legal right which entitled him to any
of the aforementioned writs and that such right has been
infringed. Interim relief cannot be granted without
determining the rights of the parties in question in the
proceeding.
 KS Bhoir v. State of Maharashtra (2002) SC observed...
the power conferred on the HC by Art.226 of the
Constitution is to enforce the rule of law and ensure that
the State & other statutory authorities act in accordance
with the law.
 Ashok K Mishra v. Collector of Raipur (1980) SC held...
powers of the HC to issue writs is discretionary, and if the
HC finds that there is no satisfactory explanation for the
inordinate delay (laches), it may reject the petition, if it
finds that the issue of writ will lead to public
inconvenience & interference with the rights of others
RO Agarwal v. State of Maharashtra (1994) Bombay HC
observed... the existence of an alternate remedy is not a
bar to the exercise of the writ jurisdiction by a Court.
 A comparison between Art.32 & Art.226 clearly shows that
Art.32 guarantees the right to move the SC for the
enforcement of the fundamental rights, & this right is in
itself a fundamental right. Art. 226 only confers on the HC
the power to enforce the fundamental rights by
appropriate writs.
The scope of this Article has been the subject of great
controversy in many cases decided by various HC’s & the
SC. The consensus is that a person can move the HC only
when no other equally adequate, convenient & expeditious
remedy is available to him.
 SC’s held... if SC can’t refuse to interfere under Art. 32,
ipso facto the HC must also grant relief under Art.226.
 Art.226 also provides that a party against whom an interim
order is made-
a) Without furnishing him a copy of the petition & all the
supporting documents; and
b) Without giving him an opportunity to be heard- may
make an application to the HC for vacating such an
order, & furnish a copy of such an application to the
other party (or the party’s counsel). If this is done, the
HC must dispose of the application within a period of 2
weeks, and if it does not do so, the interim order is to
stand vacated at the expiry of the said period of 2
weeks.
Art.226 is not in derogation of the power conferred on the
SC by Art. 32(2).
MD, UP Warehousing Corp. v. VN Vijpayee (1980) The
Petitioner had directly approached the HC against his order
of termination, praying for a writ of certiorari. HC allowed
the petition, quashed the order of dismissal, & ordered
reinstatement with back wages. On appeal, the SC held
that...in the absence of finding of facts, the HC is only
entitled to quash the impugned order, & it cannot
ordinarily order reinstatement of the Petitioner.
2) Art. 227: Power of superintendence:
 Every HC shall have superintendence over all Courts &
tribunals throughout the territories in relation to which it
exercises jurisdiction (except a Court constituted by or
under any law relating to the Armed Forces)...For this
purpose, it may: (a) call for returns from such Courts, (b)
(subject to the prior approval of Governor) make & issue
general rules & prescribe forms for regulating the practice
& proceedings of such Courts, (c) prescribe forms in which
books, entries & accounts shall be kept by the officers of
any such Courts, and (d) settle tables of fees to be allowed
to the sheriff, clerks & officers of such Courts; & to
attorneys, advocates & pleaders practicing therein.
 Nizzar v. Varghese (1992) Power under Art.227 does NOT
vest the HC with unlimited prerogative to rectify all kinds
of hardship or wrong decisions made within the limits of its
jurisdiction.
 Mani v. Phiroz (1991) Likewise HC would not interfere
with a finding of fact, in cases where the subordinate
tribunal has jurisdiction, except where such a finding is
perverse or is NOT based on any material whatsoever.
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 O Mathai v. M Abdul Khadir (2002) SC held... powers
under Art.227 may be exercised in a fit case where it is
shown that grave injustice has been done to a party.
 Khimji Vishmi v. Premier High School (2000) Jurisdiction
under Art.227 must be sparingly exercised to correct errors
of jurisdiction, but NOT to upset pure findings of fact,
which is within the domain of an appellate court only.
3) Art.228: Power to withdraw cases to itself:
 If satisfied that a case pending in a subordinate Court
involves a substantial question of law about interpreting
the Constitution to dispose of the case, the HC has the
power to withdraw the case. It may then...
a) Dispose of the case itself, or
b) Determine the said question of law & return the case
to the Court from which the case has been so
withdrawn, along with a copy of its verdict on the Q.
On receipt thereof, the lower Court must proceed to
dispose off the case in conformity with the judgment.
4) Art. 229: Power of Officers & servants & the expenses of
HC:
a) Appointments of officers & servants of a HC are made by
the CJ of the Court or such other Judge or officer of the
Court as he may direct.
 But, the Governor of the State, by rule, may require
that in such cases as may be specified in the rule, no
person not already attached to Court can be appointed
to any office connected with the Court, save after
consultation with the State Public Service Commission.
b) Subject to the provisions of any law made by the
Legislature of the State, the conditions of service of
officers and servants of a High Court are such as may be
prescribed by rules made by the Chief Justice (CJ) of the
Court or by some other Judge or officer of the Court
authorized by the CJ to make rules for the purpose.
 It may be noted that the rules made under this clause,
so far as they relate to salaries, allowances, leave or
pension, require the approval of the Governor of the
State.
c) The administrative expenses of the HC, including all
salaries, allowances and pensions payable to or in respect
of the officers & servants of the Court, are to be charged
upon the Consolidated Fund of the State, and any fees or
other moneys taken by the Court form part of that Fund.
 Parliament may, by law (a) extend the jurisdiction of a
HC to, or (b) exclude the jurisdiction of a HC from, any
Union territory. Where the HC of a State exercise
jurisdiction in relation to a Union territory:
i. Nothing in the Constitution is to be construed as
empowering the Legislature of the State to
increase, restrict or abolish that jurisdiction; &
ii. The reference in Art.227 to the Governor is to be
construed as a reference to the President in
relation to any rules, forms or tables for
subordinate Courts in that territory.
5) Art.235- Control over subordinate Courts:
 Every HC has control over district Courts & Courts
subordinate thereto, including the posting and promotion
of, and the grant to leave to, persons belonging to the
judicial service of a State and holding any post inferior to
the post of district Judge.
 Art.231- Establishment of a common HC for 2 or
more States: (In spite of preceding provisions of this
Chapter), Parliament has the power to set up, by law, a
common HC for 2 or more States & a UT. With regard to
such HC:
a) The reference in Art.217 to the Governor of the State
is to be construed as a reference to the Governors of
all the States for which the HC exercises jurisdiction;
b) The reference in Art.227 to the Governor is, in relation
to any rules, forms or tables for subordinate Courts, is
to be construed as a reference to the Governor of the
State in which the subordinate Courts are situate; and
c) Reference in Arts.219 & 229 to the State is to be
construed as a reference to the State in which the HC
has its principal seat. And, if such a principal seat is a
UT, the references in Arts.219 & 229 to the Governor,
Public Service Commission (PSC), Legislature and
Consolidated Fund (CF) of the State are to be
construed as reference to the President, UPSC,
Parliament & CF of India respectively.
Arts.124, 217, 219-221, 224 & Sch.3: High Court Judge
Art. 217(1): His appointment & tenure: Every HC Judge is to
be appointed by the President by warrant under his hand & seal
after consultation with the CJI, the Governor of the State & the
Chief Justice of the HC. He holds office until he attains the age
of 62 years and may, by writing under his hand addressed to the
President, resign his office.
 If any question arises to the age of a Judge of a HC, the Q
is to be decided by the President, after consultation with
the CJI, and the decision of the President is final.
 SC Advocates-on-Record Association v. Union of India
(1994) SC over-ruled its earlier decision in SC Gupta v.
Union of India... it held: the fixation of the # of Judges of a
HC is a justiceable issue. It also held that in making a
review of the Judge strength of a particular HC, the
opinions of the CJ of that Court & the CJI carry weight.
Art. 124(4)- How removed: A HC Judge can be removed from
office in the same manner as a SC Judge, i.e.:
 By an order of the President passed after an address by
each House of Parliament, supported by a majority of the
total membership of that House & by a majority of NOT <
2/3rd of the members of that House present & voting has
been presented to the President for such removal on
grounds of proved misbehavior or incapacity.
Art. 217(2) - His qualifications: A person is NOT qualified to be
appointed as a HC Judge unless he is a citizen of India, &-
a) Has, for at least 10 years, held a judicial office in the
territory of India or
b) Has, for at least 10 years, been an advocate of a HC or of 2
or more HC’s in succession.
 The 42nd Amendment, 1976, has added a 3rd clause to
enable the appointment of a distinguished jurist as a HC
Judge although such a person may NOT have held a judicial
office or practiced as an Advocate for the stipulated
minimum period of 10 years. This clause was, however,
deleted by the 44th Amendment, 1978.
Art.219: His oath or affirmation: A HC Judge must, before
entering his office, make & subscribe before the Governor of
the State, an oath or affirmation in the prescribed form.
Art.221 & Sch.3- Salary, allowances, etc.: A CJ is entitled to
get Rs. 90,000 & the other HC Judges to Rs. 80,000 as salary
monthly. Their allowances & pension cannot be varied to their
disadvantage after their appointment.
Art.220: His disability: No person who, after the start of the
Constitution, has held office as a permanent Judge of a HC can
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plead or act in any Court or before any authority in India,
except the SC & the other HC’s. The expression ‘High Court’
does NOT include a HC for a State specified in Part B of the 1 st
Schedule as it existed before the start of the Constitution (7 th
Amendment, 1956).
 Art.220 previously provided that no person who has held
office as a Judge of the HC after the start of this
Constitution could plead or act in any Court or before any
authority within the territory of India.
 This Article was found to be too strict; so, it was amended
to allow able persons to give the benefit of their ability in
any other HC, i.e., other than the one in which they had
been Judges, and in the SC.
Arts.217 & 224: His office, how vacated:
 Art. 217: The Office of HC Judge is vacated by his being
appointed by the President to be a Judge of the SC, or by
his being transferred by the President to any other HC
within the territory of India.
 Art.224: If, by reason of any temporary increase in the
business of the HC by reason of arrears of work therein, it
appears to the President that the # of Judges of that Court
should be for the time being increased, the President may
appoint duly qualified persons to be additional Judges of
the Court for such period NOT exceeding 2 years as he may
specify. When any Judge of a HC other than the CJ is, by
reason of absence or for any other reason, unable to
perform his duties of his office or is appointed to act
temporarily as CJ, the President may appoint a duly
qualified person to act as a Judge of that Court until the
permanent Judge has resumed his duties.
Art.222: Transfer of Judges: The President is empowered to
transfer a Judge from one HC to another. But, this must be
done in consultation with the CJI, and the Judge so transferred
is entitled to an additional compensatory allowance.
 Union of India v. Sankalchand (1977) Constitutional
validity of a Notification issued by the President to transfer
a Judge from one HC to another was upheld... by a
majority of Judges of SC. Court held... to uphold & protect
the independence of the judiciary, it is NOT necessary to
construe Art.222 to mean that a judge can’t be transferred
to another HC without his consent.
 SP Gupta v. Union of India (1981)...a.k.a. Judge’s case 
Same Q before SC. Transfer of the CJ of Patna HC to
Madras HC was challenged. Court upheld the transfer. By
majority, SC held... the consent of the concerned Judge is
NOT a pre-condition to a transfer, if it is in public interest.
Personal inconvenience of the Judge is to be disregarded.
But, the Court cautioned...this power of transfer should
NOT be used by way of punishment for an oblique purpose,
as for e.g., against a judge who does NOT give judgments
in favor of the government.
Art.223- Appointment of Acting CJ: When the office of the CJ
of a HC is vacant or when such CJ is unable to perform his
duties (by reason of absence or otherwise), the duties of his
office are to be performed by such one of the other Judges of 
the Court as the President may appoint for the purpose.
Arts.233-234 & 236(a): Subordinate Courts
A) Arts.233-234 & 236(a) - Appointment of District Judge:
1. Arts.233(1) & 236: Appointment of District Judges (i.e.,
Judge of a City Civil Court, additional district judge, joint
district judge, assistant district judge, chief judge of a
small causes Court, Chief presidency magistrate, additional
chief presidency magistrate, sessions judge) in any State
are to be made by the Governor of the State in consultation
with the HC.
2. Art.234: Appointments of persons other than district
judges of the judicial service of a State are to be made by
the Governor of the State after consultation with the State
PSC & the High Court.
B) Art. 233(2) - Qualifications for appointment:
 For a person who is not already in the service of the Union
or of a State, to be appointed as a District Judge, the
candidate must have been for not less than 7 years, an
advocate or pleader, & should be recommended by the HC
for such appointment.
Art.238: REPEALED: The provisions relating to States in Part B
of the 1st Schedule have been repealed by the Constitution (7th
Amendment) Act, 1956. So, Art.238 has been omitted.
Arts.239 - 241 - The Union Territories (UT)
 Art. 239: It deals with the administration of the Union
territories, & provides that every UT shall be administered
by the President acting, to such extent as he thinks fit,
through an administrator to be appointed by him with such
designation as he may specify. In spite of anything
contained in Part IV, the President can also appoint the
Governor of a State as the administrator of an adjoining
UT, and where a Governor is so appointed, he must
exercise his functions as such administrator, independently
of his COM.
 Art. 239A: It empowers the Parliament to create, by law, a
local legislature or COM, or both, for the UT of
Pondicherry.
 It is specifically provided that such a law is NOT to be
deemed to be an amendment of the Constitution for the
purposes of Art.368, even if such a law contains any
provision which amends, or has the effect of amending, the
Constitution.
 Art.239AA: It is also provided that, after the 69th
Amendment of the Constitution, the UT of Delhi is to be
designated as the National Capital Territory of Delhi, and
provisions have been made for a Legislative Assembly and a
Lieutenant Governor for Delhi.
 Art. 239B: It deals with the power of the administrator to
promulgate Ordinances during the recess of the legislature
of the UT. Such an ordinance can be promulgated if the
administrator of such territory is satisfied that
circumstances exist which render it necessary for him to
take immediate action in the matter. But, before
promulgating such an Ordinance, the administrator must
obtain instructions from the President in that behalf.
 Art.240: It confers powers on the President to make
regulations for certain UT. Thus, he may make regulations
for the peace, progress and good government of UT of: (a)
Andaman & Nicobar Islands; (b) Lakshadweep; (c) Dadra &
Nagar Haveli; (d) Goa, Daman & Diu; and (e) Pondicherry.
Any regulation so made may repeal or amend any Act made
by Parliament or any existing law which is for the time
being applicable to the UT, and when promulgated by the
President, has the same force and effect as an Act of
Parliament which applies to that territory.
 Art.241: Parliament can constitute a HC for UT or to
declare any Court in any such territory to be a HC for all or
any of the purposes of this Constitution. Provisions relating
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 to the State HC apply in relation to every UT HC, subject to
such modifications or exceptions as Parliament may by law
provide.
 Subject to the provisions of the Constitution and to the
provisions of any law of the appropriate Legislature made
by virtue of powers conferred on that Legislature by or
under the Constitution, every HC exercising jurisdiction,
immediately before the commencement of the Constitution
(7th Amendment Act, 1956), with relation to any UT is to
continue to exercise such jurisdiction in relation to that
territory after such commencement. Nothing in this Article
derogates from the power of Parliament to extend or
exclude the jurisdiction of a HC for a State to, or from, any
UT or part thereof.
Arts.243-243O: The Panchayats
 Arts.243 to 243O were inserted into the Constitution by the
73rd Amendment
 They provide for Gram Sabhas & Panchayats. A Gram Sabha
is defined to mean a body consisting of persons registered
in the electoral rolls relating to a village comprised within
the area of a Panchayat at the village level. A ‘Panchayat’
is defined as an institution, by whatever name called, of
self-government, constituted under Art.243-B of the
Constitution.
 All the seats in the Panchayat are to be filled by persons
chosen by direct election from territorial constituencies in
the Panchayat area. For this, the Panchayat area is to be
divided into territorial constituencies in such a manner that
the ratio between the population of each constituency and
the # of seats allotted to it is, as far as possible, the same
throughout the Panchayat area.
 Provisions are also made for reservations of seats for the
Scheduled Castes and Scheduled Tribes and for women
belonging to such castes and tribes.
 Every Panchayat is to last (unless dissolved earlier) for 5
years from the date of its 1st meeting, and no longer.
 The State Legislature may endow the Panchayats with such
powers and authority as may be necessary to enable them
to function as institutions of self-government. The State
Legislature may, by law...
1. Authorize a Panchayat to levy, collect and appropriate
taxes, duties, tolls and fees (within specified limits);
2. Assign to a Panchayat, such taxes, duties, tolls and
fees as may be levied and collected by the State
Government;
3. Provide for making grants-in-aid to the Panchayats
from the Consolidated Fund of the State;
4. Provide for constitution of such funds for crediting all
money received by or on behalf of the Panchayats, &
for withdrawal of money therefrom.
 The superintendence, direction and control of the
preparation of electoral rolls for, and the conduct of, all
elections to the Panchayats are vested in the State Election
Commission (S.243-B)
 Art. 243O: Furthermore, no election to any Panchayat can
be called in question, except by an election petition
presented to such authority and in such manner, as may be
provided by the State Legislature.
 A Finance Commission is also to be constituted by the
Governor of the State to review the financial position of
the Panchayats and make necessary recommendations to
the Governor.
 State Legislature may also make provisions with respect to
keeping of accounts by the Panchayats, and for the
auditing of such accounts.
Arts.243-P to 243-ZG: The Municipalities
 Arts. 243P to 243ZG were inserted in the 74th Amendment,
1992.
 Art. 243-Q: It provides for:
1. A Nagar Panchayat - for a transitional area, i.e., an
area in transition from a rural area to an urban area
2. A Municipal Council - for a smaller urban area; and
3. A Municipal Corporation - for a larger urban area.
 Art. 243-R: It lays down that all seats in a Municipality are
to be filled by persons chosen by direct election from the
territorial constituencies in the Municipal area. For this,
each Municipal area is to be divided into territorial
constituencies known as ‘wards’.
 The State Legislature may provide:
1. For the representation in a Municipality of persons
having special knowledge or experience in Municipal
administration, MPs and MLA / MLC & Chairpersons of
the various Committees; &
2. For the manner of election of the Chairperson of the
Municipality.
 In all cases of a Municipality with a population of not < 3
lakhs, Ward Committee is to be established. The State
Legislature has to make provisions with respect to.
a) The composition and territorial area of a Ward
Committee; and
b) The manner in which the seats of a Ward Committee
are to be filled.
 Provisions are also made...for reservation of seats for the
SC & ST and for women belonging to such castes and tribes.
 Every Municipality is to continue (unless dissolved sooner)
for 5 years from the date of its 1st meeting, and no longer.
 The State Legislature may, by law, endow the
Municipalities with such powers & authority as may be
necessary to enable them to function as institutions of self-
government in particular, the State Legislature may, by law
-
a) Authorize the Municipality to levy, collect &
appropriate such taxes, duties, tolls & fees within
specified limits;
b) Assign to a Municipality, such taxes, duties, tolls &
fees as may be levied & collected by the State
Government;
c) Provide for constitution of such Funds for crediting all
money received by or on behalf of the Municipalities,
and for withdrawal of money therefrom.
 Art. 243-ZA: The superintendence, direction & control of
the preparation of electoral rolls for, and the conduct of all
elections to the Municipalities are vested in the State
Election Commission.
 Art. 243-ZG: Moreover, no election to any Municipality can
be called in question, except in an election petition
presented to such authority, and in such manner as may be
provided by the State Legislature.
Arts.244, 244A 312 & 5th & 6th Schedules: The Scheduled &
Tribal Areas
 Arts. 342(1): What is a ST? Art. 342(1) provides that the
President may, with respect to any State or UT (and in case
of a State, after consultation with the Governor of that
State), by public notification, specify the tribes or tribal
communities for the purposes of the Constitution.
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 Art. 244(1) & 5th Schedule: The provisions of the 5th
Schedule to the Constitution apply to the administration &
control of Scheduled Areas & STs in any State, other than
the State of Assam, Meghalaya, Tripura & Mizoram.
 The salient features of the 5th Sch. are:
1. Tribes Advisory Council (TAC): In every State having
Scheduled Areas therein, a TAC is to be appointed. This
Council is to consist of NOT more than 20 members, of
whom 3/4th must be representatives of the ST in the
Legislative Assembly of the State.
2. Duty of TAC... to advise on matters pertaining to the
welfare and advancement of the ST in the States as may be
referred to them by the Governor.
 The Governor may, by public notification, direct that
any particular Act of Parliament or of the Legislature
of the State shall NOT apply to a Scheduled Area in the
State or shall apply to Scheduled Area in the State
subject to such exceptions and modifications as he
may specify.
 He may also (after consulting he TAC), make
regulations for the peace & good government of a
Scheduled Area. Such regulations may: (a) prohibit or
restrict the transfer of land by or among members of
the ST in such area; (b) regulate the allotment of land
to members of the ST in such area; & (c) regulate the
carrying on of the business as money-lender by persons
who lend money to members of the ST in such area.
 All such regulations are to be submitted to the
President & until assented to by him, have no effect
3. The President may, at any time, by order:
a) Direct that the whole or any specified part of
Scheduled Area shall cease to be a Scheduled Area.
b) Increase the area of any Scheduled Area in a State
after consulting the Governor of that State
c) Alter any Scheduled Area - but only by way of
rectification of boundaries;
d) On any alternation of the boundaries of a State (or
on the admission into the Union or the establishment
of a new State), declare any territory not previously
included in any State, to be, or to form part of a
Scheduled Area.
e) Rescind, in relation to any State or States, any
order made as above, and make fresh orders redefining
the Scheduled Areas in consultation with the Governor
of the concerned State.
Art. 244(2) & 6th Sch., Paras 1-20: Administration of Tribal
Areas in Assam, Meghalaya, Tripura & Mizoram. Following are a
few salient features of the 6th Schedule.
1. Certain Tribal Areas are declared to be autonomous
districts, viz., (a) North Cachar Hills & Karbi Anglong
districts in Assam (b) Khasi, Jaintia & Garo Hills in
Meghalaya (c) Tripura Tribal Areas District (d) Chakma,
Mara & Lai districts.
2. Each of the above autonomous districts has a District
Council consisting of NOT > 30 members, of whom... (a)
Not more than 4 persons are to be nominated by the
Governor, & (b) The rest are to be elected on the basis of
adult suffrage.
3. Further there is a separate Regional Council for each area
constituting an autonomous region, as given above.
4. Each “Dist. Council” & “Regional Council” in the respective
district & region is a body corporate that has perpetual
succession and a common seal, and can sue and be sued.
The administration of an autonomous district is vested in
the District / Regional Council.
5. Regional & District Councils of an autonomous Region /
District have power to make laws with respect to the
allotment, occupation, use of land, the management of
forests, the use of any canal or water-course for the
purpose of agriculture, property inheritance, marriage,
divorce, social customs, etc. The Regional & District
Councils may constitute Village Councils or Courts for the
trial of suits & cases between parties all of whom belong to
the ST within such areas... and may appoint members of
such Village & Regional Councils.
6. The District Council has powers of an appellate Court over
both. Plus, the Governor may confer on Regional Council
powers under the CPC & the CrPC.
7. The Dist. Council for an autonomous district may set up,
construct, or manage primary schools, dispensaries,
markets, cattle pounds, ferries, fisheries, roads & water-
ways in the district - specifically, it may prescribe the
language & the manner in which primary education shall be
imparted in the primary schools in the district.
8. In each autonomous dist., there is a Dist. Fund & for each
autonomous region, and a Regional Fund to which all
moneys received by the district or Regional Council are
credited. Both the Councils have power to assess & collect
revenue & taxes on professions, trades, vehicles, etc. The
Dist. Council may also make regulations for the control of
money-lending & trading by non-tribals. The Governor may,
at any time, appoint a Commission to examine & report on
any matter relating to admin. of autonomous districts &
autonomous region in the State.
9. If the Governor is satisfied that an act or resolution of a
District or a Regional Council is likely to endanger the
safety of India or is likely to be prejudicial to public order,
he may annul or suspend such act or resolution. An order is
to be laid before the Legislature of the State as soon as
possible & shall remain in force for 12 months
10. The Governor may, on the recommendation of a
Commission, order the dissolution of a District or a Regional
Council and (a) direct that a fresh general election shall be
held immediately for the consideration of the Council, or
(b) assume the administration for a period not exceeding 12
months.
Arts.245-263; 369 & Sch.7: Centre-State Relations
 Division of sovereignty- Relates to power of Parliament
(a.k.a. “The Centre”) and the States to make laws. The
division of governmental powers, or rather, of the right to
exercise them, between the Union & State Governments is,
in constitutional parlance, spoken of as ‘division of
sovereignty.’
 Relation between the Union & the State is, according to
the Constitution Act, of 2 kinds: (1) Legislative (2)
Administrative.
Arts.245-254, 369 & Sch.7: Legislative Relations:
 Art.245: Parliament may make laws for the whole or any
part of the territory of India, & the Legislature of a State
may make laws for the whole or part of the State.
 Art.245 defines the territorial limits of the power of
legislation vested in the Parliament & the legislatures of
the States. Now, there are 98 matters in the 7 th Sch. over
which Parliament can exclusively legislate. This is known as
the Union List or List 1 of the 7th Sch.
 Art. 246(2) & List 1 of the 7th Sch.: Parliament has
exclusive power to make laws with respect to any of the
matters enumerated in the Union List. The following are
some of the matters enumerated in this list:
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1. Defence of India and every part thereof, including
preparation for defence & all such acts as may be
conducive in times of war to its prosecution & after its
termination to effective demobilization
2. Naval, military & air forces; and other armed forces of the
Union.
3. Delimitation of cantonment areas, local self-Government in
such areas, the constitution & powers within such areas of
cantonment authorities & the regulation of house
accommodation (incl. the control of rents) in such areas
4. Naval, military and air force works
5. Arms, firearms, ammunition and explosives
6. Atomic energy & mineral resources necessary for its
production.
7. Industries declared by Parliament by law to be necessary
for the purpose of defence or for the prosecution of wars.
8. Central bureau of intelligence & investigation
9. Preventive detention for reasons connected with Defence,
Foreign Affairs, or the security of India; persons subjected
to such detention
10. Foreign affairs (incl. UNO) of all matters which bring the
Union into relation with any foreign country
11. War & Peace
12. Citizenship, naturalization, aliens & extradition
13. Railways
Art. 246(2) & List III of the 7th Sch. - Concurrent List:
Parliament & the Legislature of any State also have power to
make laws with respect to any of the matters enumerated in
the “Concurrent List”, i.e., List III of the 7th Sch., some of
which are given below:
1. Criminal law, incl. all matters included in the IPC at the
commencement of the Constitution, but excluding offences
against laws with respect to any of the matters, specified
in List I or List II, & excluding the use of naval, military or
air force or any other armed forces of the Union in aid of
the civil power.
2. Criminal procedure, incl. all matters included in the Code
of Criminal Procedure at the commencement of the
Constitution.
3. Preventive detention for reasons connected with the
security of a State, the maintenance of public order, or the
maintenance of the supplies & services essential to the
community; persons subjected to such detention.
4. Removal from one State to another State of prisoners,
accused persons & persons subjected to preventive
detention for reasons specified in #3 above.
5. Marriage & divorce; infants & minor’s adoption; wills;
intestacy & succession; joint family & partition; all matters
in respect of which parties in judicial proceedings were,
immediately before the commencement of the
Constitution; subject to their personal law.
6. Transfer of property other than agricultural land;
registration of deeds & documents;
7. Contracts, including partnership, agency, contracts of
marriage, and other special forms of contracts, but not
including contracts relating to agricultural land.
8. Actionable wrongs
9. Bankruptcy & insolvency
10. Trusts, trustees; Administrator-General & official trustees
11. Forests; protection of wild animals & birds
12. Population control & family planning
13. Electricity
Art. 246(3) & List II of the 7th Schedule - State List:
 The Legislature of any State has exclusive power to make
laws for such State (or any part thereof) on matters
enumerated in the State List, as follows:
1. Public order (but not including the use of naval, military or
air forces or any other Armed Forces of the Union or of any
other Force subject to the control of the Union or of any
contingent or unit thereof in aid of the civil power)
2. Police, including railway & village police
3. Officers and servants of the HC; procedure in rent &
revenue Courts; fees taken in all Courts, except the
Supreme Court
4. Prisons, reformatories, Borstal institutions and other
institutions of a like nature, and persons detained therein;
arrangements with other States for the use of prisons and
other institutions.
5. Local Government, that is to say, the constitution and
powers of municipal corporations, improvement trusts,
district boards, mining, settlement authorities and other
local authorities for the purpose of local self-Government
or village administration.
6. Public health and sanitation, hospitals and dispensaries.
7. Pilgrimages, other than those to places outside India.
8. Intoxicating liquor, that is to say, the production,
manufacture, possession, transport, purchase and sale of
intoxicating liquors.
9. Relief of the disabled and unemployable.
10. Burials & burial grounds; cremation & crematoriums
11. Libraries, museums and other similar institutions
controlled or financed by the State; ancient & historical
monuments and records other than those declared by
Parliament by law to be of national importance.
12. Communications, that is to say, roads, bridges, ferries and
other means of communication not specified in List 1;
municipal tramways; ropeways; inland waterways and
traffic thereon subject to the provisions of Lists I and III
with regard to such waterways; vehicles other than
mechanically propelled vehicles.
13. Agriculture, including agricultural education and research,
protection against pests and prevention of plant diseases.
14. Fisheries
15. Markets & fairs.
 State alone has power to make laws in above matters.
 Art. 369: Notwithstanding the above, for a period of 5
years from the commencement of this Constitution,
Parliament had temporary power to make laws with respect
to certain matters in the State List as if they were matters
in the Concurrent List. These are:
o Trade & commerce within a State, & the supply,
production & distribution of cotton & woolen textiles;
raw cotton (including ginned cotton and unginned
cotton or kapas), cotton seed, paper (including
newsprint), food-stuffs (including edible oilseeds and
oil), cattle fodder (including oilcake and other
concentrates, coal (including coke & derivatives of
coal); iron, steel & mica;
o Offences against laws with respect to any of the
matters mentioned in clause (a), jurisdiction and
powers of all Courts, except the SC, with respect to
any of those matters, and fees in respect of any of
those matters, but not including fees taken in any
Court.
 But, any law made by Parliament, which Parliament
would not but for the provisions of the Article, have been
competent to make, would, to the extent of the
incompetency cease to have effect on the expiration of the
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 said period, except as respect things done or omitted to be
done before the expiration thereof.
State Legislature, not a delegate of the Union Parliament:
 State v. Narayandas (1958) The State
Legislature...is NOT a delegate of the Union Parliament...
both legislatures derive powers from the same
Constitution. The State legislature drawing its powers from
the State & Concurrent Lists. Within its appointed sphere,
the State legislature has independent legislative power.
 In Re Delhi Laws Act (1961) Both the Union & State
legislatures derive their respective powers from the same
written Constitution, which divides the legislative powers
between them, one legislature cannot by delegation of
subjects that are exclusively within its field, clothe the
other with legislative capacity to make laws on that
subject. Thus, Union Legislature cannot delegate or
transfer its powers to the State Legislature & vice versa. 3.
The legislature cannot delegate its essential functions:
 Though our Constitution has NOT adopted the strict
doctrine of Separation of Powers, nor embodied any
express prohibition against delegation of powers by the
Legislature to the Executive or any subordinate body, the
SC has held that the Legislature under the Indian
Constitution cannot delegate the essential functions that
it’s been entrusted with.
o Essential legislative functions are determination &
formulation of legislative policy... legislature can’t
delegate to another agency exercise of its judgment on
questions as to what the law should be.
o Power to modify an Act in its essential particulars
(so as to involve a change of policy) is also an essential
legislative function.
 It follows that the conferment of the power on the
Executive to modify an Act without any limitation on the
power to modify constitutes an unconstitutional delegation
of legislative function, for, in making modifications, the
whole aspect of an Act or a section may be changed.
Arts.248-253: When Parliament can legislate with respect to
matters in the State List or Concurrent List: 5 important
circumstances when Parliament can legislate on matters not in
the Union List:
1. Art.248 - Residuary powers of legislation: Parliament has
exclusive power to make any law on any matter NOT
enumerated in the Concurrent List or the State List. So, all
residual powers of legislation are with Parliament.
o Items in the 3 lists shows that they are
perhaps the most elaborate & exhaustive enumeration
in any federal constitution in the world. So, occasions
to resort to the ‘residuary’ Article is comparatively
rare. Yet, it is beyond the wit of man to anticipate all
matters of future legislation; so, residuary powers of
legislation are vested in Parliament.
2. Art. 249 - National interest: It lays down... If the RS
declares by a resolution (supported by not less than 2/3rd of
the members present & voting) that it is necessary or
expedient in the national interest that Parliament should
make laws with respect to any matter enumerated in the
State List specified in the resolution, it shall be lawful for
Parliament to make laws for the whole or any part of the
territory of India with respect to the matter, while the
resolution remains in force. Such a resolution remains in
force for 1 year only.
o But, Parliament may pass a further resolution
extending the continuance of the earlier resolution for
a further period of 1 year from the date on which the
earlier resolution would have otherwise ceased to be in
force.
o This Article confers power on Parliament to
legislate with respect to a matter in the State List in
national interest (as distinguished from provincial
concern)... if a resolution is so passed by the RS
backed by 2/3rd of the members present & voting.
o This power can be exercised not only in times
of emergency or national crisis, but also in normal
times. The only saving grace is that the Council of
States must vote on such a resolution. Since the RS
consists of representatives of various States, it can be
so expected that the interests of the States would be
duly protected.
Art.250 - During Proclamation of Emergency: While a
Proclamation of Emergency is in operation, Parliament has
the power to make laws for the whole or any part of the
territory of India with respect to any of the matters
enumerated in the State List.
o This Article provides that, during the
Proclamation of Emergency, the Union Parliament shall
have the powers of the Legislature of a Unitary State
for dealing adequately with any situation.
4. Art.252 - By consent of State: Parliament can legislate
for 2 or more States by their consent. It appears to the
Legislature of two or more States to be desirable that any
of the matters with respect to which Parliament has no
power to make laws (except as in Arts.249 & 250) should be
regulated by Parliament, & if resolutions to that effect are
passed by all Houses of the legislatures of such States, it
becomes lawful for parliament to pass laws for regulating
those matters in such States.
o But, such an Act of Parliament can be amended or
repealed only by another Act of Parliament... &, not
by an Act of the State Legislature concerned.
o While Art.263 gives for the creation of an Inter-State
Council for effecting co-operation between the States
in matters of common interest, the present Article
provides the legislative means to attain that object.
5. Art.253 - International Agreement: Parliament has the
power to make any law for the whole or any part of the
territory of India, for implementing any treaty, agreement
or convention with any other country or any decision made
at any international conference, association or other body.
Arts.251 & 254- Inconsistency between Union laws & State
laws: These Arts. declare the principle that when a State law
conflicts with a law made by Parliament, the latter shall
prevail; i.e., if a law made by Legislature is repugnant to any
provision of a law made by Parliament (whether passed before
or after the law made by Legislature of such State), then the
law made by Parliament shall prevail.
 The law made by the Legislature of the State shall, to the
extent of the repugnance be void.
 When a law made by a State Legislature in a Concurrent
List matter contains any provision repugnant to the
provisions of an earlier law made by Parliament or an
existing law with respect to the matter, then, the law so
made by the Legislature of such State shall, if it has been
reserved for the consideration of the President & has
received his assent prevail in that State.
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 Art.254(2): The provision above doesn’t prevent
Parliament from enacting at any time, any law related to
the same matter, including a law adding to, amending,
varying or repealing the law so made by the Legislature of
the State.
 It must be noted that when legislation is made, it may have
some provisions that incidentally fall beyond the list of its
powers. In such cases, the validity of the law will be
decided based on the doctrines above.
Doctrine of Pith & Substance
 When the legislative powers of the Union and the States
are divided in mutually exclusive lists... it is possible that a
query may arise in practice as to whether a law purporting
to be made under an entry in one list, falls in fact within
an entry in another list, over which such legislature has no
power to make laws.
 Privy Council... evolved the doctrine of pith & substance
important feature of Canadian & Australian Constitution...
one must see the true nature and character (its pith and
substance) of the legislation.
 If an Act falls substantially within the powers conferred
upon a legislature, such Act is not invalid merely because it
incidentally touches or encroaches on matters which have 
been assigned to another legislature.
 When the vires of a law is challenged, the encroachment
must be looked at as an organic whole...not a collection of
sections from different parts of such Act. If the impugned
Act is substantially within the legislative competence of the
legislature, it cannot be set (act) aside.
 Prafulla Kumar Mukherjee v. The Bank of Commerce
(1947)... argued: doctrine of pith & substance cannot be
applied in India... for the framers had provided 3 (not 2)
legislative lists. Privy Council... didn’t accept it. This case 
has been repeatedly followed by the SC... State of Bombay
v. Jethabhai (1951); State of Bombay v. FN Bulsara (1951) 
 Doctrine of incidental encroachment: It is a corollary of
the doctrine of pith & substance. It lays down... once a law
falls in pith & substance within a legislative entry, any
incidental encroachment on an entry in another list does
not, of itself, make it invalid. In Prafulla Kumar’s case,
held... the law fell in pith and substance within an entry in
List II. It was valid even though it touched another entry
contained in List I incidentally.
Doctrine of Severability
 Whenever 2 interpretations of a statute are possible...
one of which would make the law valid, and the other void,
the former is always to be preferred. However, if this is not
possible, the Court will have to decide whether the law is 
bad as a whole or whether the part which is bad can be
severed (i.e., separated) from the rest and declared void,
leaving the other parts of the statute intact.
 Thus, it is only if the valid and the invalid provisions
are separate and distinct... that this doctrine can be
applied, provided further... that after striking out the
invalid portions, what remains is itself a complete code
independent of the rest (which has been struck down). It
follows that if the valid and invalid provisions are so
inextricably mixed up that they cannot be separated, the
whole statute will be declared void.
 State of Bihar v. Kameshwar Singh, 1952 Held: valid
and invalid provisions are joined together by using words
‘and’ or ‘or’... the enforcement of the valid provision is
not dependent on the enforcement of the invalid provision.
 Superintendent, Central Prison v. Ram Manohar Lohia
(1960) If one doesn’t find several provisions joined
together, but only one provision covering valid as well as
invalid objects, which cannot be separated without altering
the language, and which is capable of being used for a legal
purpose as well as for an illegal purpose... it is totally
invalid... and will not be allowed to be used even for the
legal purpose.
Doctrine of Colorable Legislation
 When a legislature lacks legislative competence in a
particular field, it may frame its statute so as to make it
appear that the statute falls within one of the entries it has
power to legislate upon. This is called colorable legislation.
 Such a statute pretends to be on a subject falling
within the competence of the legislature... in reality it is a
law on a prohibited field. Such a law will be examined by
the Courts...and if found to be an instance of colorable
legislation... will be struck down as void.
 In a federal constitution, the transgression of its limits
by a legislature, central or state, may be at times open,
direct & overt. In other cases, it may be disguised, indirect
& covert, in the shape of colorable legislation.
The basic Q arises... if the particular legislature has
transgressed the limits of its constitutional powers. Before
applying the test of colorable legislation, the test of pith
and substance should be applied. If the legislature is
competent to pass a law and it incidentally encroaches on
the sphere of another legislature the law will be invalid.
 But, if the legislature which lacks competence purports
to act under a relevant entry...with a view to assuming
legislative competence. It would be a case of colorable
legislation... the law would be declared to be invalid.
Doctrine of colorable legislation looks to the
competence of a legislature, and not to motives.
KC Gajapati Narayan Deo v. State of Orissa (1954) If
a legislature is competent to make a particular law, its
motive in enacting it is NOT relevant.
 Bihar v. Maharaja Kameshwar Singh (1952) When the
legislature is competent to make the law, the fact that it
may operate harshly on some persons is irrelevant.
Legislative Relations between Union and the state:
 This is all about division of sovereignty. It is about the
power of Parliament (Center) and the power of a State to
make laws. The division of governmental powers, i.e., the
right to exercise them... between the Union and State is
referred to in constitutional parlance as “division of
sovereignty.”
Art. 245 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.
 There are 98 matters enumerated in the 7th Schedule...
that Parliament can exclusively legislate on. (List I of the
7th Schedule).
 Art. 246(2) & List I of the 7th Schedule (a.k.a. Union List)
Some matters enumerated in this list are: (a) All matters
related to defence of India - preparation and all acts in
times of war... and after termination of war, for
demobilization (b) Armed forces of India (c) Delimitation of
cantonment areas; local self-government in such areas;
regulation of housing in such areas... (d) Defence-related
factories and works (e) Arms, firearms, ammunition and
explosives (f) Atomic energy and mineral resources
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 necessary for its production (g) Industries necessary for
defence and prosecution of wars (h) CBI and investigation
(i) Preventive detention by reasons connected with
Defence, Foreign Affairs, or the security of India; persons
subjected to such detention (j) Foreign affairs - matters
related to Union and foreign countries (k) UNO (l) War and
peace (m) Citizenship and naturalization (n) Extradition (o)
Railways
 Art. 246(2) & List III of 7th Schedule (Concurrent List):
Parliament and the Legislature of any State, both have
power to make laws on these matters. These include: (a)
Criminal law... and all matters in IPC, but excluding
offenses with matters in List I and List II, and excluding the
use of naval, military or air force or any other armed forces
of the Union in aid of civil power. (b) Criminal Procedure
and Code of Criminal Procedure (c) Preventive detention
for reasons connected with security of a state,
maintenance of public order, or the maintenance of
essential supplies and services; persons subjected to
detention (d) Removal from one State to another of
prisoners, accused persons, and persons subject to
preventive detentions for reason in (c) above (e)Marriage &
divorce; infants and minor’s adoption; wills’ intestacy and
succession; joint family and partition; etc. (f) Transfer of
property - other than agricultural land; registration of
deeds and documents (g) Contracts including partnership,
agency, contracts of marriage, and other special forms of
contracts, but, not including contracts related to
agricultural land (h) Actionable wrongs (i) Bankruptcy and
Insolvency (j) Trust & trustees; Administrator-General and
official trustees (k) Forests; protection of wild animals and
birds (l) Population Control and family planning (m)
electricity
 Art. 246 (3) & List II of the 7th Schedule (State List)
Exclusive power to make laws for such State with respect
to any of the matters enumerated in the State List. Some
of the items are: (a) Public order (not including defence)
(b) Police, including railway and village police (c) Officers
& servants of the HC; procedure in rent and revenue
Courts; fees taken in all Courts, except SC. (d) Prisons,
reformatories, Borstal institutions...etc. related to
detainees (e) Local government - municipal corporations,
improvement trusts, district boards, mining, etc. related to
local authorities, local self-government or village
administration (f) Public health and sanitation; hospitals
and dispensaries (g) Pilgrimages, other than pilgrimages to
places outside India (h) Intoxicating liquor (i) Relief of
disabled and unemployable (j) Burials, burial grounds,
cremations and crematoriums (k) Libraries, museums, etc.
(l) Communications - roads, bridges, ferries and other
means of communication not specified in List-I; municipal
tramways, ropeways; inland waterways etc. (m)
agriculture, including education, research, protection
against pests and prevention of plant diseases (n) Fisheries
(o) Markets and fairs.
 Art. 369 It also gives temporary power to Parliament to
make laws on matters in the State List as if they were
matters in the Concurrent List
 However, any law made by Parliament, which Parliament
would not have but for the provisions of this Article, would,
to the extent of the incompetency, cease to have effect on
the expiration of the said period...
 State Legislature... not a delegate of the Union
Parliament Both Legislatures derive power from the same
Constitution. Within its appointed sphere, the State
legislature has independent legislative power (State v.
Narayandas, 1958)... One legislature cannot by delegation
of subjects that are exclusively within its field, clothe the
other with legislative capacity to make laws on that
subject. (in re Delhi Laws Act, 1912)
 Though our Constitution...not adopted the Doctrine of
Separation of Powers, nor embodied any express
prohibition... against delegation of powers by the
Legislature to the Executive or any subordinate body... SC
held: Legislature cannot delegate essential functions
entrusted to it.
 Parliament, in addition to Lists I and III, has the following
legislative authority to legislate:
1. Art. 248: Any matter not enumerated in any List.
Enumeration of items in the 3 lists are perhaps most
elaborate and exhaustive in any federal constitution in
the world. So, occasions to resort to ‘residuary’ article
are rare.
2. Art. 249: Matters enumerated in State List, if
authorized by the Council of States by a resolution
passed by not less than 2/3rd of the members present
and voting... Typically used in cases of National
Interest (so, distinguished from provincial concern)
3. Art. 250: Matters enumerated in the State List when a
Proclamation of Emergency is in force... The Union
Parliament shall have powers of the Legislature of a
Unitary State
4. Art. 242: Subject enumerated in the State List, if
requested to do so, by a resolution passed by all the
Houses of the Legislature of a State (or States)... such
an Act passed by Parliament can be repealed or
amended only by another Act of Parliament and not by
an Act of the State Legislature concerned.
5. Art. 263: Whole of any part of the territory of India for
giving effect to an international agreement, treaty or
convention with any other country or any decision
made at any international conference, association or
other body.
 Arts. 251 & 254: When a State law conflicts (i.e., State law
is repugnant with any law or provision made by Parliament)
with the law made by Parliament, the latter shall prevail,
and the law made by the State Legislature, to the extent of
repugnance, will be void.
 Where a law made by the Legislature of a State with
respect with respect to one of the matters in the
Concurrent List contains provisions repugnant to the
provisions of an earlier law made Parliament, or an existing
law with respect to the matter, then, the law so made by
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... [Art. 254(2)] this provision
doesn’t 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 a State.
Art.255 - Requirements as to recommendation & 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 is to 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 ‒
1. Where the Governor’s recommendation was required ‒
either by the Governor or President
2. Where the Rajpramukh’s recommendation was
required ‒ by either the Rajpramukh or President
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 3. Where the recommendation or previous sanction
required was that of the President, ‒ by the President.
Art.247: Power of Parliament to provide for the
establishment of certain additional courts: Parliament may,
by law, provide for the establishment of any additional courts
for the better administration of laws, made by Parliament or of
any existing laws in Union-List matters.
Arts.256-263: Centre-State Administrative Relations:
 These fall under 3 topics:
1. Art. 256-257 & 261 Executive Power of State; How
Exercised: So as to:
o Art. 256: Ensure compliance with the laws made
by Parliament and any existing laws which apply in
that State. Further, the executive power of the Union
extends to the giving of such directions to a State as
may appear to the GoI to be necessary.
o Art. 257: Not to impede or prejudice the exercise 1. Recognition of the public acts, records and proceedings of
of the executive power of the Union... the exec-power
extends to the giving of all necessary directions to a
State, including directions as to the: (i) construction
and maintenance of means of communication of
national or military importance; and (ii) measures to
be taken for the protection of railways within the
State. All costs incurred in the carrying out of these
two directions are to be paid by the GoI to the State
o Art. 261: Somewhat in the nature of a Directive
Principle (concerning judicial decision) Provides that
full faith and credit is to be given throughout India to
public acts, records, judicial proceedings of the Union
and of every State and final judgments or orders
passed by civil courts
o Art. 258: Power of the Union to confer powers,
etc. on States in certain cases  President is
empowered to do this conditionally or
unconditionally... regarding executive power... a law
made by Parliament can impose duties on State
officers and authorities thereof. GoI will pay to the
State, such sum as may be agreed, or in default of
agreement, as may be determined by an arbitrator
appointed by CJI, in respect to extra cost of admin.
Incurred by State in connection with the exercise of
those powers and duties.
o Art. 258A: The Governor of a State may, with the
consent of GoI, entrust, either conditionally or
unconditionally, to the Government or to its officers,
functions in relation to any matter to which the
executive power of the State extends.
2. Art. 262: Disputes relating to Inter-State Waters
Empowers Parliament to enact laws in order to provide for
the adjudication of disputes relating to waters (distribution
or control) of inter-State rivers and valleys. It is designed
to empower Parliament to enact provisions barring the
jurisdiction of the SC or other Courts in respect of such
disputes.
3. Art. 263: Co-ordination between States: Provision with
respect to an Inter-State Council... President can establish
(& define the nature of duties; its organization and
procedure) a Council, charged with the duty of:
o Inquiring into and advising upon disputes which
may have arisen between any States, or
o Investing and discussion subjects in which some or
all of the States or the Union and one or more of the
States, have a common interest; or
o Making recommendations upon any such subject
and in particular, recommendations, for the better co-
ordination of policy and action with respect to that
subject.
Objects of Art.263: 3-fold  (a) to coordinate State activities
(b) to promote inter-State cooperation and (c) to resolve inter-
State disputes. The functions of an inter-State Council are
advisory only.
Inter-State Comity: Federal constitution... entails sovereignty
of States... within territorial limits...but, not possible to remain
in isolation of one another. Very exercise of internal
sovereignty...requires recognition by, and cooperation of the
other States and the federation...These rules and regulations
relate to such matters as:
each State in every other State:
 Since the jurisdiction of each State is confined to its
own territory [Art. 245(1)], acts & records of one State
might NOT have been recognized in another State,
without a provision to compel such recognition.
Constitution does this in Art. 261(1).
 Art. 261(1): Full faith & credit shall be given all over
the Indian territory to public acts, records & judicial
proceedings of the Union & every State.
 This means that duly authenticated copies of statutes
or statutory instruments, judgments or orders of one
State are to be given recognition in another State in
the same manner as the statutes, etc. of the latter
State itself. Parliament has the power to legislate as to
the mode of proof of such acts & records or the effects
thereof.
2. Extra-judicial settlement of disputes:
 Since States in every federation normally act as
independent units in the exercise of their internal
sovereignty, conflicts of interest between the units are
likely to arise. Hence, to maintain the strength of the
Union, there should be adequate provisions for judicial
determination of disputes between the units; & for
settlement of disputes by extra-judicial bodies, as well
as their prevention by consultation & joint action.
 Art.131: It provides for the judicial determination of
disputes between States, by vesting the SC with
exclusive jurisdiction in this matter.
 Art.262: It provides for the adjudication of 1 class of
such disputes (regarding the use, distribution or
control of water of, or in, inter-State rivers or valleys)
by an extra-judicial tribunal. Parliament enacted the
Inter-State Water Disputes Act, 1956, to provide for
the constitution of an ad hoc Tribunal for the
adjudication of any river water or river valley dispute
arising between 2 or more States
 Art.263: It provides for the prevention of inter-State
disputes by investigation & recommendation by an
administrative body. The President is empowered to
establish an Inter-State Council for enquiring into and
resolving inter-State disputes.
3. Coordination between States... set up of Zonal Councils:
 The President’s power for setting up Inter-State
Councils is not only for advising upon disputes, but also
for the purpose of investigating and discussing subjects
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 in which some or all States or the Union and 1or more
State(s) have a common interest.
 In the past, the President has constituted the Central
Council of Health, the Central Council of Local Self-
Government and other similar bodies, e.g.,
establishment of advisory bodies under statutory
authority to advise on Inter-State matters.
 Zonal Councils (ZC): ZC too have been established by
the States Re-organization Act 1956 to advise on
matters of common interest to each of the 5 zones into
which the territory of India has been divided. Zonal
Councils do not owe their origin to the Constitution,
but to an Act of Parliament.
 ZCs were introduced by the States Re-organization Act
as a part of the scheme of reorganization of States,
with a view to securing co-operation & co-ordination
between the States, Union Territories and the Union
particularly in respect of economic & social
development.
 5 zones (a) Central- UP, MP (b) Northern- Punjab,
Rajasthan, J&K + UTs of Delhi & HP (c) Eastern- Bihar,
WB, Orissa, Assam & UTs of Manipur & Tripura (d)
Western - Maharashtra, Gujarat, Karnataka (e)
Southern- AP, TN & Kerala
 Each ZC consists of the CM and 2 other Ministers of
each of the States in the zone and Administrator in
case of UT. There’s provision for holding joint 2.
meetings of 2 or more ZCs.
 Union Home Minister is nominated as the common A)
Chairman of all ZCs.
 ZCs discuss matters of common concern to the States &
Territories comprised in each Zone, matters arising out
of the reorganization of States & the like, and give
advice to the Government of the States concerned, as
well as the GoI.
4. Freedom of inter-State trade, commerce and intercourse...
discussed later
Arts.265-300A: FINANCE, PROPERTY, CONTRACTS & SUITS
Arts.265-291: Finance: 5 sub-topics fall under this heading:
1. Arts.265 &285-289: General Propositions as to Taxation:
4 basic propositions relating to taxation are-
 Art.265: No tax can be levied or collected except by
authority of law this seems to embody the English
principle of ‘no taxation without representation’. Not
only the levy, but also collection of a tax must be
under the authority of some law, the provisions for B)
making which are to be found in Arts.110, 117, 123,
203 & 213. So the levy or collection of tax cannot be
done by mere resolutions of the Houses of Legislature
or by any executive action.
 Art.289: All property & income of a State is exempt
from Union taxation.
 Art.285: Property of the Union is exempt from all
taxes.
 Art. 286(1): No law of a State can impose or authorize
the imposition of a tax on the sale or purchase of
goods, where such sale or purchase takes place (a)
outside the State; or (b) in the course of the import of
goods, or export of goods out of the territory of India.
 Art.286(2): Parliament may, by law, formulate
principles to determine when a sale or purchase of
goods takes place in cases where such sale or purchase
takes place outside the State, or in case of import (or
export) into (or out of) India.
 Art.286(3): Any law of a State shall, insofar as it
imposes, or authorizes the imposition of, a tax on the
sale or purchase of goods declared by Parliament by
law to be of special importance in inter-State trade or
commerce, be subject to such restrictions & conditions
in regard to the system of levy, rates and other
incidents of the tax as Parliament may by law specify.
 The word ‘sale’ is used in Art.286 in the sense of
transaction of sale, & what is emphasized by the Art. is
NOT the aspect of passing of property, but the aspect
of sale which consists of various ingredients. It puts
restrictions on the competence of State Legislature to
impose tax on the sale or purchase of goods. The 1st
restriction is that it cannot tax a sale or purchase
which takes place outside the State, where goods are
delivered for consumption outside the State.
 Further, it cannot levy any tax even though the goods
are inside the State if the sale or purchase is in the
course of import or export out of India.
 It cannot tax sale or purchase is in the course of inter-
State trade or commerce.
 Art.287: Government is also exempt from paying all
taxes on electricity consumed by it.
Arts.266-267, 283-284 & 291: Law as regards
Consolidated & Contingency Funds:
Arts.266 & 291: Consolidated Fund of India: The Union as
well as each State has a Fund. All resources of the Union
[as in clause (1) of Art. 266] are to be placed into this
reservoir, viz., the Consolidated Fund of India, while
resources of a State are to be placed into a similar Fund,
known as the Consolidated Fund of that State.
 Art.283: No money can be used out of this fund, except
in accordance with a valid law made by the concerned
legislature. Subject to this, operation of the fund is to
be regulated by legislation.
 Art.266: All revenues received, all loans raised by the
issue of treasury bills, loans or ways & means advances
and all moneys received by the GoI or by the Govt. of
State in repayment of loans from one consolidated
fund called the ‘Consolidated Fund of India’ or
‘Consolidated Fund of the State,’ as the case may be.
Plus, no money out of such Funds can be appropriated
except as per law & for purposes & in the manner
provided in the Constitution.
Art.267: Contingency Fund of India or a State: The
necessity of a Contingency Fund arises on account of the
fact that, under the Constitution, every item of
expenditure requires the prior sanction of the Parliament
or the State Legislature, as the case may be. Sometimes,
an unexpected demand has to be met, and there may be no
time to get the sanction of the Parliament or the State
Legislature.
 Art.267 provides that Parliament may, by law,
establish a Contingency Fund in the nature of an
imprest to be entitled the Contingency Fund of India,
into which is paid, from time to time, such sums as
may be determined by law.
 This Fund is placed at the disposal of the President, to
enable advances to be made by him out of such Fund
for the purposes of meeting unforeseen expenditure,
pending authorization of such expenditures by
Parliament by law under Art.115 or 116. The same
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 Article provides for the creation of the Contingency
Fund of the State by a State Legislature. The Fund is to
be at the disposal of the Governor of the State.
 The Article authorizes the creation by Parliament of a
Contingency Fund for the Union (or Legislature of a
State for the State). The amount of the Fund will be
determined by law made by the Parliament (or, the
State Legislature, as the case may be) from time to
time. The Fund will be at the disposal of the
Executive, to enable advances to be made for the
purpose of meeting unforeseen expenditure, pending
authorization of such expenditure by the Legislature as
supplementary, additional, exceptional grants or the
like.
 Arts.283-284: Custody of Consolidated Funds, public
moneys, etc.: Art.283 The custody of Consolidated
Funds, Contingency Funds and money credited to the
public accounts shall be regulated by rules made by
the President or the Governor of a State, as the case
may be.
 Art.284: The custody of suitor’s deposits, and the
other money received by public servants and Courts,
shall be with the public account of India or a State, as
the case may be.
3. Arts. 269-281: Distribution of Revenues Between the
Union & the States:
A) Art. 268 - Duties levied by the Union, but
collected & appropriated by the States: Such stamp duties 4. Arts.280-281: The Finance Commission:
and such duties of excise on medicinal & toilet
preparations as are mentioned in the Union List can be
levied by the Govt. of India, but are to be collected:
a) In case where such duties are leviable within any
territory, by the Govt. of India; &
b) In other cases, by the State within which such
duties are respectively leviable. The proceeds of such 
duties do NOT form the part of the Consolidated Fund
of India, but are to be assigned to the State.
B) Art.269 - Duties & taxes levied by the Union, but
assigned to the States: It provides for taxes on the sales &
purchase of goods and taxes on the consignment of goods
are to be levied & collected by the GoI, but are to be
assigned to the States.
 The net proceeds in any financial year of any such duty
or tax, except insofar as those proceeds represent
proceed attributable to Union Territories, do NOT form
part of the Consolidated Fund of India, but are to be
assigned to the States within which that duty or tax is
leviable in that year, and are to be distributed among
those States in accordance with such principles of
distribution as may be formulated by Parliament by
law.
 Parliament may, by law, formulate principles to
determine when a sale or purchase of goods takes
place in the course of inter-State trade or commerce. 
C) Art.270 - Taxes levied by Union, but distributed
between Union & States: It provides that all taxes & duties
referred to in the Union List, except (i) the duties & taxes
referred to in S.268 & S.269; (ii) the surcharge on taxes &
duties referred to in S.271; and (iii) any cess levied for
specific purposes by any law of Parliament  are to be
levied & collected by the GoI, and distributed between the
Union & States in the prescribed manner.
 Such %age, as may be prescribed, of the net proceeds
in any financial year is NOT to form part of the
Consolidated Fund of India, but is to be assigned to the
States within which that tax is leviable in that year,
and is to be distributed among those States in such
manner or form, & at such times as may be prescribed.
 Art.274: Any Bill or amendment which (a) imposes or
varies any tax or duty in which States are interested;
or (b) affects the principles on which moneys are
distributable to States, or (c) imposes a surcharge for
the purpose of the Union,  can be introduced or
moved in either House of Parliament, only on the
recommendation of the President:
D) Art.275 - Grant from the Union to States It
empowers the Parliament to aid needy States by grants
known as grants-in-aid given to such States. It provides that
such sums, as Parliament (or the President) may by law
provide, are to be charged on the Consolidated Fund of
India in each year as grants-in-aid of the revenues of such
States, as Parliament may determine to be in need of
assistance, and different sums may be fixed for different
States. But, after a Finance Commission has been
constituted, no order can be made under this clause by the
President, except after considering the recommendations
of the Finance Commission.
 Art.282: The Union or a State may make any
grants for any public purpose, notwithstanding that the
purpose is NOT one with respect to which Parliament
or the Legislature of the State, as the case may be,
may make laws.
 Art. 280(1): By whom constituted, and its composition
Within 2 years from the commencement of this
Constitution, & thereafter at the expiration of every 5th
year, the President must constitute a Finance Commission,
consisting of a Chairman & 4 other members to be
appointed by the President.
Art. 280(3): Its duties: The duties of the Commission are
to make recommendations to the President on:
a) The distribution between the Union & the States
of the net proceeds of taxes to be divided between
them and the allocation between the States of the
respective shares of such proceeds;
b) The principles which should govern the grants-in-
aid of the revenue of the States out of the
Consolidated Fund of India;
c) The measures needed to augment the
Consolidated Fund of a State to supplement the
resources of the Panchayats & Municipalities in the
State based on the recommendations of the Finance
Commission, &
d) Any other matter referred to the Commission by
the President in the interests of sound finance.
 Art.281: The President must place the
recommendations of the Finance Commission before each
House of Parliament.
The 1st Finance Commission was constituted in 1951,
with Sri. Neogy as its Chairman. Subsequently, several such
commissions have been constituted, and they have made
useful recommendations, most of which have been
implemented.
 Parliament has also passed the Finance (Misc.
Provisions) Act, 1951, which provides that the Chairman of
the Finance Commission is to be a person who has
experience in public affairs. The 4 other persons are to be
selected from amongst persons who:
a) Are, or have been, or are qualified to be
appointed as Judges of a HC, or
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 b) Have special knowledge of the finance & accounts
of Government; or
c) Have had wide experience in financial matters &
in administration; or
d) Have special knowledge of economics.
 The above Act also empowers the Finance Commission
to require any person to furnish information on such
matters as, in the opinion of the Commission, may be
useful for, or relevant to, any matter under its
consideration.
 The above provisions regarding the constitution &
functions of the Finance Commission form a salutary
feature of the Indian Constitution. Proper working of such a
Commission can mitigate rigors of centralization in a quasi-
federal country like India. But, it may be noted that
recommendations of the Finance Commission are not
binding on the President, & one can only hope that such
recommendations would be seriously viewed & considered
by the executive, so that a healthy convention is
established in the country.
5. Arts. 282-290A: Miscellaneous Financial Provisions
 Art.282: Expenditure defrayable by the Union or a State
out of its revenues: The Union or a State may make any
grants for any public purpose, notwithstanding that the
purpose is not one with respect to which Parliament or the
Legislature of the State, as the case may be, may make
laws.
 Art.283: Custody etc., of Consolidated & Contingency
Funds & moneys credited into public accounts:
a) The custody of the Consolidated / Contingency
Funds of India, the payment of moneys into such
Funds, the withdrawal of moneys therefrom, the
custody of public moneys other than those credited to
such Funds received by or on behalf of the GoI, their
payment into the public account of India and the
withdrawal of moneys from such account, and all other
matters connected with or ancillary to matters
aforesaid, are to be regulated by law made by
Parliament, and until provisions in that behalf are so
made, by rules made by the President.
b) The custody of the Consolidated & Contingency
Funds of a State, the payment of moneys into such
Funds, the withdrawal of moneys other than those
credited to such Funds received by or on behalf of the
Govt. of the State, their payment into the public
account of the State & the withdrawal of moneys from
such account and all other matters connected with or
ancillary to matters aforesaid, & until provision in that
behalf is so made, by rules, made by the Governor of
the State.
 Art.284: Custody of Suitor’s deposits & other
money received by public servants & Courts: All money
received by or deposited with-
a) Any officer employed in connection with the
affairs of the Union or of a State in his capacity as
such, other than revenues or public moneys raised or
received by the GoI or the Govt. of the State, as the
case may be; or
b) Any Court within the territory of India to the
credit of any cause, matter, account or persons-
...are to be paid into the public account of India or the
public account of the State, as the case may be.
 Art.285- Exemption of property of the Union from State
taxation:
1. The property of the Union is save in so far as
Parliament may by law otherwise provide, exempt
from all taxes imposed by a State or by any authority
within a State
2. But, until Parliament by law otherwise provides, any
authority within a State may levy any tax on any
property of the Union to which such property was
immediately before the commencement of this
Constitution liable or treated as liable, so long as that
tax continues to be levied in that State.
 Art.287 - Exemption from taxes on electricity: Save
insofar Parliament may by law otherwise provide, no law of
a State can impose, or authorize the imposition of, a tax on
the connection or sale of electricity (whether produced by
a Government or other persons) which is-
1. Consumed by GoI, or sold to the GoI, for consumption
by that Government; or
2. Consumed in the construction, maintenance or
operation of any railway by the GoI or a railway
company operating that railway, or sold to that Govt.
or any such railway company for consumption in the
construction, maintenance or operation of any railway.
Also, any such law imposing or authorizing the imposition
of, a tax on the sale of electricity must secure that the
price of electricity sold to Govt. of India for consumption
by the Govt., or to any such railway company for
consumption in the construction, maintenance or operation
of any railway, is less by the amount of the tax than the
price charged to other consumers of a substantial quantity
of electricity.
 Art.288- Exemption from taxation by States in respect of
water or electricity in certain cases:
1. Save in so far as the Parliament may by order
otherwise provide, no law of a State in force
immediately before the commencement of the
Constitution can impose, or authorize the imposition
of, a tax in respect of any water or electricity stored,
generated, consumed, distributed or sold by any
authority established, by any existing law or any law
made by Parliament for regulating or developing any
inter-State river or river-valley.
2. The Legislature of a State may by law impose, or
authorize the imposition of, any such tax as is
mentioned in clause (1) above, but no such law can
have any effect, unless it has, after having been
reserved for the consideration of the President,
received his assent. If any such law provides for the
fixation of the rates & other incidents of such tax by
means of rules or orders to be made under the law by
any authority, the law must provide for the previous
consent of the President being obtained to the making
of any such rule or order.
 Art.289- Exemption of property & income of a State from
Union taxation:
1. Property & income of a State are exempt from Union
taxation.
2. Nothing in clause (1) above prevents the Union from
imposing or authorizing the imposition of, any tax to
such extent, if any, as Parliament may, by law, provide
in respect of a trade or business of any kind carried on
by, or on behalf of, the Government of a State, or any
operations connected therewith, or any property used
or occupied for the purposes of such trade or business,
or any income accruing or arising in connection
therewith.
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 3. Nothing in clause (2) above applies to any trade or biz,
or to any class of trade or biz which Parliament may by
law declare to be incidental to the ordinary functions
of the Govt.
 Art.290A- Annual Payment to certain Devaswom Funds: A
sum of Rs. 46.5 lakhs are to be charged on, and paid out of,
the Consolidated Fund of the State of Kerala every year to 5.
the Travancore Devaswom Fund. So too, a sum of Rs.13.5
lakhs are to be charged on, and paid out of, the
Consolidated Fund of the State of TN every year to the
Devaswom Fund established in that State for the
maintenance of Hindu temples & shrines n the territories
transferred to that State on the 1-11-1965, from the
erstwhile State of Travancore-Cochin.
Arts.292-293: Borrowing
 Art.292- Power of Union to borrow: The executive power
of the Union extends to borrowing, upon the security of the
Consolidated Fund of India, & to the giving of guarantees
within such limits as may be fixed.
 Art.293(1)- Power of States to borrow: The executive
power of a State extends to borrowing within India, upon
the security of the Consolidated Fund of the State, within
limits fixed by the Legislature of such State, & to giving of
guarantees within such limits fixed.
 Art.293(2)- Power of Union to make loans: The GoI may
make loans to any State, or give guarantees for loans raised
by any State...Any sums required for making such loans is
to be charged on the CFI.
 Art.293(3)- Power of States to raise loans: A State
cannot, without the consent of the GoI, raise any loan, if
there is still outstanding, any part of a loan which has been
made to the State by the GoI or by its predecessor
Government or in respect of which a guarantee has been
given by the GoI.
Arts.294-300- Vesting of Property & Liability to sue or be
sued in contracts
Arts.294-297: Vesting of Property in Government:
1. Art.294: All property & assets which vested in His Majesty
for the purpose of the Govt. of the Dominion of India, and
all assets which were vested in His Majesty for the purposes 
of Govt. of each Governor’s province, vest respectively in
the Union & the corresponding State. All rights, liabilities &
obligations of the Govt. of the Dominion of India & of the
Govt. of each Governor’s province, whether arising out of
2. Art.295: All property & assets which were vested in any
Indian State vest in the Union
3. Art.296: Any property in India, which if this Constitution
had NOT come into operation, would have accrued to His
Majesty or to the Ruler of an Indian State by escheat or
lapse, or as bona vacantia, for want of a rightful owner,
vests, if it is property situate in a State, in such State, & in
any other case, in the Union.
 Escheat: It takes place when a man dies intestate
without heirs, leaving property
 Lapse: Certain funds lapse to the Govt. if the rightful 
owners do not claim them within a certain period,
e.g., Court deposits.
 Bona Vacantia: This expression means that there is no
apparent rightful claimant to the property, in which
case, the property accrues to the Govt.
4. Art.297: Likewise, all lands, minerals & other things of
value underlying the ocean within the territorial waters of
India, or the continental shelf of India or the exclusive
economic zone of India, vest in the Union and are to be
held for the purposes of the Union.
 Also, the executive power of the Union & of each State
extends to the carrying on of any trade or biz, & to the
acquisition, holding & disposal of property & making of
contracts for any purpose.
Art.298: The said executive power of the Union is, insofar
as such trade or biz or such purpose is NOT one with
respect to which Parliament may make laws, subject in
each State to legislation made by that State. Similarly, the
said executive power of each State is, in for as such trade
or biz or such purpose is NOT one with respect to which the
State Legislature may make laws, subject to legislation
made by Parliament.
 H. Anraj v. State of Maharashtra (1984) HCs of
Bombay & Madras had ruled that a State has the power
to ban sale of lottery tickets of other States within the
territory of that State. SC overruled the
judgments...held: Under the Constitution, a State
Govt. cannot impose a ban on the sale or distribution
of lottery tickets of other States.
Arts.299-300: Government’s Liability in Contracts:
 All contracts made in the exercise of the executive power
of the Union or of the State... are made by the President or
by the Governor, as the case may be...
 Art. 299(1) All such contracts... and all such assurances
of property made in the exercise of that power are to be
executed on behalf of the President, or the Governor...by
such persons...and in such manner ...as he may direct or
authorize.
 Art.299(2) Neither the President nor the Governor is
personally liable in respect to any contract or assurance
made or executed for the purpose of this constitution...nor
is any person making or executing any such contract or
assurance on behalf of any of them... personally liable in
respect thereof.
 Suits & Proceedings: Art.300 GoI may sue or be sued be
the name of the Union of India...so too State Govt.
...subject to provisions made by Act of Parliament or the
Legislature (enacted with powers conferred by the
Constitution)... sue or be sued...in their affairs...
Art.300 Suits by or against Government
(1) Procedure to be followed... (2) Nature of the scope of
such suits... subject to Acts of Parliament or Legislature of
the States... (3) Pending litigation at the commencement
of Constitution.
 Contracts: PC Biswas v. Union of India-1956 Held: The
contractual liability of the State under the Constitution is
the same as that of any individual under ordinary law of
contract.
 Liability of Govt. under a contract arises when the contract
is properly executed (in writing & complies with the
necessary formalities)... SC has allowed later ratification of
incomplete contracts by the Government.
 Service agreements with the Government don’t fall under
Art.299.
Torts: Liability of the State for actionable wrongs
committed by its servants has been the subject-matter of
several decisions. Held in many cases... Liability of State =
Liability of Government before the start of the Govt.
Ultimately, it was traced to nature of liability the East
India Co. had... based on a distinction between the
sovereign and non-sovereign functions of the Govt.
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 P&O Steam Navigation v. Secy. Of State (1961) Held ...
the Govt. could not be sued for torts committed by the
Govt. or its officers. This rule was followed in several
cases.
 State of Rajasthan v. Vidyavati (1962) Held... the
protection given to the Govt. was the result of old
feudalistic notions of justice which are inconsistent with
the republican form of Govt. of India, & so, the State is as
much liable for the tort in respect of an act committed by
its servant within the scope of employment & functioning
as any other employer.
 Kasturilal v. State of UP (1965) Later in an accident
caused by a Govt. employee who was driving a jeep, SC
seems to have reiterated... distinction between sovereign
& non-sovereign functions... distinguished the State of
Rajasthan v. Vidyavati verdict.
o When the Govt. employee was driving the jeep
from the workshop to the Collector’s home for use by
Collector, he was employed on a task or an
undertaking which cannot be said to be referable, to,
or ultimately based on, the delegation of sovereign or
Governmental powers of the State.
o SC observation is relevant If a tortious act is
committed by a public servant & it gives rise to a claim
for damages, the Q to ask is: Was the tortious act
committed by the public servant in discharge of
statutory functions, which are referable to, & based
ultimately on, the delegation of the sovereign powers
of the State to such a public servant?
 Privy Purses of Rulers Prior to the 26th Amendment of the
Constitution, Art.291 provided that where under any
covenant or agreement entered into by the Ruler of any
Indian State before the start of this Constitution, the
payment of any sums, free of taxes, has been guaranteed
or assured by the Govt. of the Dominion of India to any
Ruler of such State as privy purse-
1. Such sums shall be charged on, & paid out of, the
Consolidated Fund of India; and
2. The sums so paid to any Ruler shall be exempt from all
taxes on income
Art.291 repealed by the 26th Amendment, 1971.
Art.300A: Right to Property
 Art.300A: Introduced in the 44th Amendment, 1978...it
provides that no person shall be deprived of his property
save by authority of law.
 Formerly... a fundamental right enshrined in Art. 31(1) of
the Constitution. But, now Art. 31 is deleted, & the former
Art. 31(1) is in the new Art.300A (which is NOT in the
Chapter on Fundamental Rights). Also, all the other sub-
sections of Art.31 [viz., sub-sections (2) to (6) now do NOT
find place in the Constitution.
 Bishamber v. State of UP (1982) Right to property is no
longer a fundamental right... yet, it is a constitutional
right.
 MK Kachar v. State of Gujarat (1994) Right to property
only a constitutional right... it’s NOT a part of the basic 
structure of the Constitution.
Arts.301-307: TRADE, COMMERCE & INTERCOURSE WITHIN
THE TERRITORY OF INDIA
 Art.301: Subject to other provisions of this Part, trade,
commerce & intercourse throughout the territory of India
shall be free.
 It is based on S.92 of the Australian Constitution (which
refers to inter-State biz)... in fact, the framers of the
Constitution improved the Australian provision such
freedom is wider in India than in Australia... for it refers to
intra- & inter-State trade, commerce & intercourse.
 SC has cautioned against relying on decisions of HC of
Australia for interpreting Art.301... ‘trade’ has a narrower
meaning than ‘commerce’ it covers all forms of buying &
selling... commerce covers all forms of transportation - by
land, sea and air.
 The freedom of inter-State trade & commerce extends to
lawful activities only... so, prize competitions akin to
gambling are NOT protected under Art.301.
 SC observed... main object of Art.301 is... to allow free
flow of the stream of trade, commerce & intercourse.
Economic unity is the backbone of political freedom... &
that the free movement & exchange of goods all over India
is necessary for the country & for improving its standards of
living.
 So, the underlying idea...to break the border barriers... &
create 1 unit to encourage trade & commerce in India
 Exceptions: 3 exceptions to the principle in Art.301:
1. Art.302: Parliament may impose restrictions...on freedom
of trade...as required in public interest.
o Art.303: Neither Parliament nor Legislature of a State
has power to make any law in preference to one State
over another, or to make any discrimination between
one State & another.
2. Art. 304: Legislature of a State may impose reasonable
restrictions in public interest on the freedom of trade,
commerce or intercourse with or within that State.
o Proviso to Art.304: But, no Bill or amendment can be
introduced or moved in a State Legislature without the
previous sanction of the President.
3. Art.304: The Legislature of a State may, by law, impose on
goods imported from other States or UT any tax to which
similar goods manufactured or produced in that State are
subject, so as not to discriminate between goods imported
& goods manufactured or produced.
 The above Arts. aim to eliminate discriminatory taxation of
goods imported.
 Video Electronics v. State of Punjab (1990) Held... an
action which furthers the economic development of the
whole of India by removing economic barriers cannot be
said to be discriminatory.
 Art.307: Parliament may appoint an appropriate authority
for carrying out the purposes of Arts.301, 302, 303 & 304,
and confer on the authority so appointed such powers &
duties as it thinks necessary.
 SC has repeatedly held that regulatory or compensatory
measures are not to be regarded as violative of the
freedom of trade, commerce & intercourse within the
territory of India. Measures such as licensing of vehicles,
price-control, charging for maintenance of roads,
marketing & health regulations, far from hampering trade,
in fact, facilitate free trade & intercourse.
Atiabari Tea Co. v. State of Assam (1961) On Arts.301-307
SC held... act of the Assam Govt. in levying a tax on tea
carried by motor vehicles from outside Assam was
restrictive of the freedom of trade... & so void.
 Automobile Transport Ltd., v. State of Rajasthan (1962) 
The Atiabari case was reconsidered... a larger Bench of 7
judges (none a party to Atiabari judgment) affirmed by 4-3
majority... the correctness of Atiabari judgment. 1
clarification held regulatory measures, or measures
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 imposing compensatory taxes for the use of trading
facilities, DON’T come within the purview of restrictions
contemplated by Art.301... such measures need not comply
with requirements of Proviso to Art.304.
 A careful reading...of Automobile case judgment suggests
that... SC has virtually over-ruled its Atiabari decision
(although it’s termed ‘clarification’)... at least as regards
taxes for the maintenance of roads.
 Difference between Art.19(1)(g) and Art.301: Both aim at
freedom of trade, & if either is infringed, the individual
can seek redress in an appropriate Court... 2 differ as
follows...
1. Art. 19(1) (g) looks at freedom of trade from the
viewpoint of an individual, whereas Art.301 looks at
the same freedom from the viewpoint of movement of
commodities in the country.
2. Art. 19(1) (g) confers a fundamental right... Art.301 is
NOT a fundamental right... it’s a justifiable right.
3. Art. 19(1) (g) pertains to only citizens... Art.301 is
available to citizens as well as non-citizens.
4. A contravention of Art.301 involves an infringement of
Art. 19(1) (g) only in cases when there is a direct
impact on the fundamental right... e.g., the law is
regulatory of the freedom of trade. But, even a non-
regulatory law can violate Art. 301.
 Art.305: Saving of existing laws & laws providing for
state monopolies Nothing in Arts.301 & 303 shall affect
the provisions of any existing laws, except insofar as the
President may by order otherwise direct; & that nothing in
Art.301 shall affect the operation of any law made before
the commencement of the Constitution (4th Amendment)
Act, 1955, insofar as it relates to, or prevents Parliament
or the Legislature of a State from making any law relating
to any such matter as is referred to in sub-clause (ii) of
clause (6) of Art.19.
 Saghir Ahmad v. State of UP (1954) This Art.305 was
substituted by the Constitution (4th Amendment) Act,
1955...a direct result of SC verdict in above case... held:
UP State Road Transport Act, 1951 to be ultra vires... the
UP Legislature at the time when enacted, Art.19 (6) was
amended later. The amendment is intended to save
enactments of such a nature which create State
monopolies.
Arts.308-323 & 335-336: SERVICES UNDER THE UNION & THE
STATES
A. Arts. 308-311; 335-336: Service under Union & States:
 Art.308: The expression ‘State’ (unless the context
otherwise requires) does NOT include J&K.
 Art.309: The appropriate Legislature of a State may
regulate the requirements, & conditions of services of
persons appointed to public services & posts in connection
with the affairs of the Union or of any State. The President
(for posts & services at the Center) and the Governor of the
State (for those at the State) may make necessary rules for
such services & posts.
 Art.310 (1): Every member of the defence service or civil
service of the Union or an all-India service & every such
member of a State, holds office during the pleasure of the
President or the Governor of the State, as the case may be.
 Art.310(2): Notwithstanding that a person holding a civil
post under the Union or a State holds office during the
pleasure of the President or, as the case may be, of the
Governor of the State, any contract under which a person
(not being a member of a defence service or of an AI
service or a civil service of the Union or a State) is
appointed under the Constitution to hold such a post, may,
if the President / Governor, as the case may be, deems it
necessary in order to secure the services of a person having
special qualifications, provide for the payment to him of
compensation, if before the expiration of an agreed period,
that post is abolished, or he is, for reasons not connected
with any misconduct on his part, required to vacate the
post.
Doctrine of Pleasure:
 The doctrine of pleasure codified in Art. 310 is a legacy of
the British Empire...where a servant of the crown holds
office during the pleasure of sovereign. This is contained in
Art. 310 of the constitution.
 Members of defense services & civil services of the Union or
an all-India service & every such member of a State, holds
office during the pleasure of the President or the Governor
of the State, as the case may be.
 Mohammad Abdul Waheed v. Province of Bengal (1941)
Employment being during the pleasure for the President, or
the Governor, no sit will be valid against the Union or the
State for wrongful dismissal.
 In India, however, to protect civil servants from political
interference, certain safeguards have been introduced in
the form of Art. 311.
 Though all government servants hold office during the
pleasure of the President or the Governor (as the case may
be), the following 2 procedural safeguards are provided for
the security of tenure of ‘civil servants’.
 Art. 311(1): A civil servant cannot be dismissed or removed
by any authority subordinate to that which appointed him.
The object of this provision is to save a public servant from
caprices of officers of inferior rank
 Art. 311(2) No dismissal or reduction in rank can be
ordered against a civil servant unless he has been given a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to him.
 Opportunity to be heard: Before the 42nd Amendment, it
was well-settled that the person charged had ordinarily the
right to a reasonable opportunity of showing cause twice,
before the dismissal order was passed. 2 stages in a
proceeding under Art.311... (1) When the charges were
inquired into at this stage, the person required to meet
the charges was to be given a reasonable opportunity to
enter his defence. (2) When, after the inquiring authority
had come to a conclusion on the charges, the question of
proper punishment to be awarded came up.
 After the 42nd Amendment drastically different... the
right to make a further representation against the proposed
penalty has been taken away.
 So an order of removal, dismissal or reduction would now
contravene Art.311, only if, at the stage of the inquiry, the
person concerned is NOT given a reasonable opportunity to
defend himself.
 Reasonable opportunity requires... the authority to (a)
frame specific charges with full particulars; (b) intimate
those charges to the Govt. servant concerned; (c) give him
an opportunity to answer those charges; and (d) after
considering his answers, take its decision.
 The rules of natural justice should be observed in coming
to the findings against the accused.
 Managing Director, ECIL v. B. Karunakar (1994) SC held...
a delinquent is entitled to a copy of the Inquiry Report
before the disciplinary authority takes a decision regarding
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 his guilt or innocence. A refusal to furnish the Report
amounts to denial of reasonable opportunity.
 In which cases opportunity must be given: If 2 conditions
are satisfied... (a) The employee is a member of a civil
service of the Union, or an all-India service, or a civil
service of a State, or holds a civil post under the Union or a
State; (b) Such employee is sought to be dismissed,
removed or reduced in rank.
 A person ‘dismissed’ is ineligible for re-employment... not
so, if the person is ‘removed.’
 2 elements common to dismissal & removal... (a) Both are
penalties awarded on the ground that the conduct of the
Govt. servant is blameworthy or deficient in some
respect... (b) Both entail penal consequences, such as the
forfeiture of the right to salary, allowances or pension
already acquired for past services.
 Exceptions to the requirement of giving opportunity: Where
a person is holding a civil post is dismissed, removed or
reduced in rank, no such opportunity need be given in the
following 3 classes of cases:
1. Where the action is initiated on the ground of
conduct which has led to his conviction on a criminal
charge;
2. Where an authority empowered to dismiss or
remove or reduce rank... is satisfied that, for some
reason, to be recorded by that authority in writing, it
is NOT reasonably practicable to give to that person an
opportunity of showing cause; or,
3. Proviso to Art. 311(2): Where the President or
Governor, as the case may be, is satisfied that, in the
interest of the security of the State, it is NOT
expedient to give that person such an opportunity.
 Union of India v. Tulsiram Patel (1985) Arts. 310 & 311 of
the Constitution were critically analyzed by the SC
observed: the doctrine of pleasure is embodied in the
Indian Constitution, not because it is a special prerogative
of the British Crown, but since public policy requires it to
be so. A majority of 4 Judges (1 dissenting) laid down the
following vital propositions:
1. The exercise of doctrine of pleasure need not be
by the President or the Governor personally.
2. Satisfaction on the need to dispense with the
inquiry, as contemplated in Art. 311(2), need not be
the personal satisfaction of President or Governor
3. Disciplinary inquiry can be dispensed with (under
the said provision) even during the course of such
inquiry, i.e., after the inquiry has been started.
4. If Article 311(2) is applied, then the opportunity of
being heard is ruled out; & it can’t be reintroduced by
taking recourse to Art. 14(Right to Equality).
5. If an order is passed removing or dismissing a
Govt. servant without an inquiry, a mere omission to
mention the relevant clause of Art.311 or Service Rules
does NOT invalidate the order.
6. The power to dispense with the inquiry should NOT
be exercised lightly or arbitrarily or out of ulterior
motives
7. When a disciplinary inquiry is dispensed with,
there is no obligation to communicate the reasons
therefor, to the Govt. servant. But, it would be better
if such reasons are communicated.
 The above Arts. are to be read along with Arts.335 & 336.
They provide for the claims to services by SC &T and the
Anglo-Indian community as under:
o Art. 335: The claims of the members of SC and
STs are taken into consideration, consistently with the
maintenance of efficiency of administration, in the
making of appointment to services & posts in
connection with affairs of the Union or of a State.
o During the first 2 years after the commencement
of the Constitution, appointments of the members of
the Anglo-Indian community to posts in the railway,
customs, postal & telegraph services of the Union are
to be made on the same basis as immediately before
15th Aug.1947
o Art.336: During every succeeding period of 2
years, the # of posts reserved for the members of the
said community in the said services is to be less by 10%
that the numbers so reserved during the immediately
preceding period of 2 years, & at the end of 10 years
from the start of the Constitution, all such reservations
are to cease.
 Art.312: All-India Services: If RS has declared by a
resolution, supported by NOT less than 2/3rd of the
members present & voting, that it is necessary or
expedient in the national interest so to do, Parliament may
by law provide for the creation of one or more all-India
services common to the Union & the States, & regulate the
recruitment & the conditions of service of persons
appointed to any such service.
 The services known at the commencement of this
Constitution as the IAS & the IPS are to be deemed to be
services created by Parliament under this Article.
B. Arts.315-323 & 378: Public Service Commissions (PSC)
 Art. 315(1): There shall be a PSC for the Union and a PSC
for each State.
 Art. 315(2)- Joint Commission, when & how appointed?:
2 or more States may agree to a Joint State PSC (known as
Joint Commission) to serve the needs of those States, if
Parliament by law so provides, after a resolution to that
effect is passed by the House.
 Art. 316(1)- Members, by whom appointed?: The
Chairman & other members of a PSC are appointed... (a)
for Union PSC or Joint Commission... by the President; (b)
for State PSC...by the Governor of the State
 Art. 316(2)- His term of office: A member of a PSC holds
office for 6 years from the date on which he enters upon
his office or until he attains, in the case of the Union
Commission, the age of 65 years, and in the case of a State
Commission or a Joint Commission, the age of 62 years
whichever is earlier.
 Art. 316(1)- His qualification: ½ of the members of every
PSC should be persons who have held office for at least 10
years in Govt., before being so appointed.
 Art. 316(2)(a)- His mode of resignation: A member of a
PSC may, by writing under his hand & addressed, in the
case of the Union Commission or a Joint Commission, to the
President, and in the case of a State Commission, to the
Governor of the State, resign his office.
 Art. 317- When & How removed?: The Chairman or any
other member of a PSC can be removed from his office by
an order of the President only on the ground of
misbehavior, after the SC (on reference being made to it by
the President) has, on inquiry, reported that he should be
removed. The President may, in the meanwhile, suspend
the member.
 Misbehavior includes:
1. Being concerned or interested in any contract or
agreement made by or on behalf of the GoI or the
Govt. of a State; or
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 2. Art. 317(4): Participating in the profit thereof or in
any benefit or employment arising therefrom,
otherwise than as a member & in common with the
other members of an incorporated company.
 Reference under Art.317 (1992): Held... if a Chairman of
a State PSC is slapped on his face by another Member, it
would be a case of misbehavior under Art.317...&, the
latter Member is liable to be removed from his office.
 The President may, of his own motion, remove such
Chairman or Member, if he - (a) is adjudged an insolvent;
or (b) engages during the term of office in any paid
employment outside the duties of his office; or (c) is, in
the opinion of the President, unfit to continue in office by
reason of infirmity of mind or body.
 Art.319- Prohibition as to holding of office by ex-
members of the Commission: On ceasing to hold office:
1. The Chairman of the UPSC is ineligible for further
employment with either GoI or Govt. of a State.
2. The Chairman of a SPC is eligible for appointment as the
Chairman or any other member of the UPSC or as the
Chairman of any other State PSC - but NOT for any other
employment either under the GoI or under the GoS.
3. A member, other than the Chairman, of the UPSC is eligible
for appointment as the Chairman of the UPSC, or as the
Chairman of a State PSC - but NOT for any other
employment under the GoI or under the GoS.
4. A member, other than the Chairman of a State PSC is
eligible for appointment as the Chairman or any other
member of the UPSC or as the Chairman of that or any
other SPSC - but NOT for employment either with the GoI
or under the Govt. of a State.
 Art.320: Functions of PSC The PSC have 3 advisory
functions:
1. PSC conduct examinations for appointment to the services
of the Union & the State respectively
2. Assist other States in framing & operating schemes of joint
recruitment for any services, which require candidates
possessing special qualifications.
3. PSC advise on any of the following matter referred:
 All matters relating to methods of recruitment to civil
services & for civil posts;
 The principles to be followed in making appointments
to civil services & posts; and, in making promotions &
transfers from one service to another & on the
suitability of candidates for such appointments,
promotions or transfers;
 All disciplinary matters affecting Govt. servants,
including memorials or petitions on such matters;
 Any claim by or in respect of a Govt. servant, that any
cost incurred by him in defending legal proceedings
instituted against him in respect of acts done or
purporting to be done in the execution of his duty
should be paid out of the CFI, or as the case may be,
out of the Consolidated Fund of State;
 Any claim for the award of a person in respect of
injuries sustained by a Govt. servant and any questions
as to the amount of any such award; and
 Any other matter which the President, or the Governor
of the State, may refer to them.
 Art.321: The Legislature may provide for the exercise
of additional functions by the Union or the State PSC
 Art.322: The expenses of the Union or the State PSC
are to be charged on the CFI, or as the case may be, the
Consolidated Fund of the State.
 Art.323- Report of PSC: The Union or State PSC is
required to present to the President or the Governor of the
State, a report as to the work done by the PSC, and the
President or Governor must cause a copy thereof,
explaining as regards the cases where the advice of the
Commission was NOT accepted, the reasons for such non-
acceptance, to be laid before each House of Parliament or
before the Legislature of the State, as the case may be.
Arts.323A & 323B- TRIBUNALS
A) Art.323A-Administrative Tribunals: It authorizes
Parliament to make laws to provide for the adjudication or
trial, by administrative tribunals, of disputes & complaints
with respect to recruitment & conditions of service of
persons appointed to public services & posts in connection
with the affairs of the Union or of any State or of any local
or other authority in India or under the control of Govt. of
India or of any Govt. corporation.
 It is further provided that such a law may:
a. Provide for the establishment of
administrative tribunals for the Union & for the States;
b. Specify the jurisdiction, powers & authority
which may be exercised by each of the said tribunals;
c. Provide for the procedure to be followed by
the said tribunals;
d. Exclude the jurisdiction of all Courts, except
the SC under Art.136, with respect to the disputes or
complaints referred to in clause (1) above;
e. Provide for the transfer, to each such
administrative tribunal, of any cases pending before
any Court or other authority immediately before the
establishment of such tribunal, as would have been
within the jurisdiction of such tribunal if the causes of
action on which such suits or proceedings are based
had arisen after such establishment;
f. Repeal or amend any order made by the
President under clause (3) of Art.371-D;
g. Contain such supplemental, incidental &
consequential provisions as Parliament may deem
necessary for the effective functioning of, and for the
speedy disposal of cases by, & the enforcement of the
orders of, such tribunals.
 Art.323A is to take effect in spite of any other provision in
the Constitution or in any other law in force.
B) Art.323B- Tribunals for other matters: It authorizes
Parliament or a State Legislature (competent to do so) to
make laws to provide for the adjudication or trial by
tribunal of disputes, complaints or offences with respect to
any of the following 9 matters with respect to which such
Legislature has power to make laws, viz.:
a. Levy, assessment, collection & enforcement
of any tax;
b. Foreign exchange, import & export across
customs frontiers;
c. Industrial & labor disputes;
d. Land reforms, by way of acquisition by the
State of any estate as defined in Art.31A, or of any
rights therein, or the extinguishment or modification
of any such rights or by way of ceiling on agricultural
land or in any other way;
e. Ceiling on urban property;
f. Elections to either House of Parliament or the
House(s) of Legislature of a State, but excluding the
matters referred to in Art.329 & Art.329A;
g. Production, procurement, supply &
distribution of food-stuffs & such other goods as the
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 President by public notification, declare to be
essential goods for the purpose of this article & control
of prices of such goods;
h. Offences against law related to any matter
(i.e., a-h) specified above, and fees in those matters;
i. Any matter incidental to any of the matters
specified above.
 Art.323B further provides that such laws made by the State
Legislatures may:
a. Provide to establish a hierarchy of tribunals;
b. Specify the jurisdiction, powers & authority
which may be exercised by each of the said tribunals;
c. Provide for the procedure to be followed by
the said tribunal;
d. Exclude the jurisdiction of all courts, except
the jurisdiction of the SC under Art.136, with respect
to all or any of the matters falling within the
jurisdiction of the said tribunals;
e. Provide for the transfer to each such tribunal
of any cases pending before any court or any other
authority immediately before the establishment of
such tribunal as would have been within the
jurisdiction of such tribunal, if the causes of action on
which such suits or proceedings are based had arisen
after such establishment;
f. Contain such supplemental, incidental &
consequential provisions as the appropriate Legislature
may deem necessary for the effective functioning of &
speedy disposal of cases by, and the enforcement of
the orders of, such tribunals.
 Also clarified... Art.323B is to take effect in spite of any
other provision in the Constitution itself or in any other law
in force.
 Arts.323A & 323B (introduced in the 42nd Amendment,
1976) have opened a new chapter in Indian Constitutional &
Administrative Law, by substantially excluding judicial
review of administrative decisions.
 Difference between Arts.323A & 323B: 3 main points:
a. Art.323A is confined to matters relating to
public services; Art.323B relates to all matters
mentioned therein, as for instance, taxation, foreign
exchange, labor disputes, etc.
b. Under Art.323A, there cannot be a hierarchy
of Tribunals. There is only one Tribunal for the Union &
one for each State (or 2 or more States together). But,
under Art.323B, the legislature is empowered to
establish a hierarchy of Tribunals.
c. Art.323A confers power solely on the
President, whereas under Art.323B, the legislative
power is divided between the Union & State
Legislatures.
Arts.324-329, 103, 124 & 192: ELECTIONS
 Art. 324(2)- Election Commission, how constituted: The
EC consists of the CEC & other Election Commissioners, all
of whom the President appoints. The CEC acts as the
Chairman of the Election Commission.
 Art. 324(1)- Its Function: The superintendence, direction
& control of the preparation of the electoral rolls for, and
the conduct of all elections to Parliament & to the
Legislature of every State & of elections to the offices of
President & VP (including the appointment of election
tribunals for the decision of doubts & disputes arising out
of or in connection with elections to Parliament & to the
Legislature of States) are vested in the Election
Commission.
 Art. 324 provides for the creation of an independent body,
with exclusive powers to decide certain matters. When
read with Arts.103 & 192, it is clear that, in case of doubts
& disputes as to qualification of members of the
Legislatures, the President or the Governor takes a decision
in consultation with the EC; but, in cases of doubt relating
to elections, the same is to be decided by the Election
Tribunals appointed by the EC.
 There is specific provision in the Constitution for appeals
from the decisions of Election Tribunal; yet, it is possible
to seek judicial review of decisions of all Tribunals, incl. an
Election Tribunal, by means of extraordinary remedies of
appeal to the SC by special leave under Art.136 or by a
petition to the HC for a suitable order under Art.226. These
powers of the SC & the HC cannot be fettered in any way
by any legislation.
 Jurisdiction of the SC over Election Tribunals: The
grounds on which the SC can interfere with Election
Tribunals where the Tribunal-
i. Does NOT perform its duty under the law
ii. Misdirects itself upon the question;
iii. Sets aside an election upon a wrong view of
the law
iv. Sets aside the entire election;
v. Wrongly holds a candidate to be guilty of
corrupt practice; or
vi. Decides without jurisdiction
 Jurisdiction of HC over Election Tribunals: HC may
interfere on the ground that the Tribunal:
i. Has acted without jurisdiction; or
ii. Has NOT performed its duty under the law; or
iii. Has acted against the principles of natural
justice;
iv. Is in error on the face of the record.
 Art. 324- Regional Commissioners: Before each general
election to the LS & to the Legislative Assembly of each
State, the President may appoint (after consultation with
the EC) Regional Commissioners to assist the EC in the
performance of its functions.
 The President has the power to determine conditions of
service & tenure of office of Election & Regional
Commissioners. Service conditions of the CEC cannot be
varied to his disadvantage after his appointment.
Arts.124; 324-How, when Election Commissioner removed
 Art. 124(4): The CEC cannot be removed from his office
except in the manner & on the like grounds as a Judge of
the SC, viz. - by order of the President passed after an
address by each House of Parliament supported by a
majority of the total membership of that House and by a
majority of NOT less than 2/3rd of the members of that
House present & voting, has been presented to the
President in the same session for such removal on grounds
of proved misbehavior or incapacity.
 Art. 124(5): Parliament may regulate the procedure for the
presentation of an address & for the investigation & proof
of his misbehavior or incapacity.
 Art. 324(5): Any other EC or a RC cannot be removed from
office, except on the recommendation of the CEC.
Arts.103 & 192(2)- Advisory Functions of Election
Commissioner
 Art.103: If any Q arises on whether a member of either
House of Parliament has become subject to any of the
disqualifications mentioned in Art.102, the question is to
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 be referred for the decision of the President & his decision
is declared to be final. But, before giving such decision, the
President has to consult the E-Commission.
 Art.192: If any Q arises as to whether a member of a House
of the Legislature of a State has become subject to any of
the disqualifications, the question is to be referred for the
decision of the Governor, whose decision (after consulting
the EC) is to be final.
 Election Commission: Art. 324 allows the creation of an
independent body named the EC with following powers:
i. Superintendence, direction and control of the
preparation of the electoral rolls for all elections to
Parliament & the Legislature of every State, & of
elections to the offices of President and VP.
ii. Conduct of all the above elections; and
iii. Appointment of election tribunals for the decision of
doubts & disputes arising out of or in connection with
the election to Parliament & to Legislature.
So the entire election machinery of the Union & States is placed
in the hands of a centralized body - the EC, which alone is
entitled to issue directives to returning officers & other
engaged in the preparation & revision of electoral rolls...
so, no injustice may be done to any citizen by any local
Govt.
The EC is assisted by Regional Commissioners, but they are NOT
under the control of the State Govt., but under the control
of the EC; they are NOT liable to be removed except on the
recommendation of the CEC.
EC is independent of any executive control, in as much as
members of the EC (& Regional Commissioners) cannot be
removed by the President, & the CEC cannot be removed,
except in the manner provided in Art.124(4) relating to the
removal of a Judge of the SC.
Arts.325-329: General provisions as to elections
 Art.325: There is 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, & no person shall be ineligible for
inclusion in any such roll for any constituency only on
grounds of religion, race, caste, sex or any of them.
 Art.326: The elections to the House of the People & to the
Legislative Assembly of every State are on the basis of
adult suffrage, that is to say, every person who is (a) a
citizen of India; (b) who is NOT < 18 years of age; (c) is not
otherwise disqualified on the grounds of non-residence,
unsoundness of mind, crime or corrupt or illegal practice, is
entitled to be registered as a voter at any such election.
 Note...adoption of universal adult suffrage without any
qualification either of literacy, property, taxation or the
like, is a bold experiment in India, having regard to the
vast extent of the country & its population.
 Art.327: Parliament may make provision with respect to all
matters relating to, or in connection with, elections to
either House of the Legislature of a State, including the
preparation of electoral rolls, the delimitation of
constituencies & all other matters necessary for securing
the due constitution of such House(s).
 Art. 329(a): The validity of any law relating to the
delimitation of constituencies or the allotment of seats to
such constituencies made under Art.327 cannot be called in
question in any Court.
 Art. 328(b): No election to House(s) of Parliament or to
the House(s) of a State Legislature can be questioned,
except by an election petition presented to such authority
& in such manner as may be provided for by or under any
law made by the appropriate Legislature.
 Art. 329(A) - Special provision as to election of PM 7
Speaker: Introduced by the 39th Amendment, 1975 &
deleted by the 44th Amendment, 1978.
 It provided that elections to Parliament in the case of the
PM or the Speaker could NOT be questioned except before
such authority or body, & in such manner as may be
provided for by any law made by Parliament.
Arts.330-342; 366: Special Provisions For Certain Classes
 A great achievement of the framers of our Constitution
 abolition of communal representation & separate
electorates, which ultimately led to the lamentable
partition of India. A great merit... It has ended the
pernicious system of communal electorates, which the
British introduced as part of their ‘divide & rule’ policy.
 Art.325 Under Constitution, there is no separate
electorate. All voters vote under one general electoral
roll...& there is no reservation of seats on the ground of
religion or community. Some exceptions, though:
 Art.331- Representation of Anglo-Indian Community
in LS: Notwithstanding anything in Art.81, the President
may, if he is of the opinion that the Anglo-Indian
community is inadequately represented in LS, nominate not
more than 2 members of the community to the LS.
 Art.332- Reservation of seats for SC & ST in
Legislative Assemblies of the States:
1. Seats are reserved for SC and STs, with the exception
of the STs in the autonomous districts of Assam, in the
Legislative Assembly of every State.
2. Seats are reserved too for autonomous districts in the
Legislative Assembly of the State of Assam.
3. # of seats reserved for SCs or STs in the Legislative
Assembly of any State under clause (1) above, must
bear, as nearly as may be, the same proportion to the
total # of seats in the Assembly as the population of
the SCs in the State, or of the Sts in the State or the
part of the State, as the case may be, in respect of
which seats are reserved, bears to the total population
of the State.
4. # of seats reserved for an autonomous district in the
Legislative Assembly of Assam must bear to the total #
of seats in the Assembly a proportion not less than the
population of the district bears to the total population
of the State.
5. The constituencies for the seats reserved for any
autonomous district of Assam cannot comprise any
area outside that district, except in the case of the
constituency comprising the cantonment &
municipality of Shillong.
6. No person who is NOT a member of ST of any
autonomous district in State of Assam can be eligible
for election to the Legislative Assembly of the State
from any constituency of that district.
 Art.333- Representative of Anglo-Indian Community in
the Legislative Assemblies of the States: In spite of
anything in Art.170, the Governor of a state may, if he is of
the opinion that the Anglo-Indian Community needs
representation in the Legislative Assembly of the State & is
not adequately represented therein, nominate 1 member of
that community to the Assembly.
 Art.334- Reservation of seats & special representation to
cease after 60 years: Notwithstanding anything in the
foregoing provisions, the provisions of the Constitution
relating to-
The reservation of seats for SC & the STs in the LS & in the
Legislative Assemblies of the States; and
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 The representation of the Anglo-Indian community in the LS
& the Legislative Assemblies of States by nomination, 
...are to cease to have effect on the expiration of a period
of 60 years from the start of the Constitution.
 This period was increased to 70 years by the Constitution
(95th Amendment) Act, 2009, which came into force on 25th
Jan., 2010.
 But, nothing in Art.334 is to affect the representation in
the LS or in the Legislative Assembly of a State until the
dissolution of the then existing House or Assembly, as the
case may be.
Claims of SCs & STs to services & posts:
 Art.335: Claims of members of the SCs & STs are to be
taken into consideration, consistently with the
maintenance of efficiency of administration, in the making
of appointments of services & posts in connection with the
affairs of the Union or of a State.
 82nd Amendment, 2000, now allows the making of special
provisions in favor of members of the SCs & STs, for
relation in their qualifying marks or lowering the standards
of evaluation, or for reservation in matters of promotion to
any class or classes of services or posts in connection with
the affairs of the Union or a State.
 Art.336: During the 1st two years after start of this
Constitution, appointments of members of Anglo-Indian
community to posts in the railway, customs, postal &
telegraph services of the Union is to be made on the same
basis as immediately before the 15th August, 1947.
o During every succeeding 2-year period, the # of
posts reserved for members of the said community in
the said services is to be less by 10% than the # so
reserved during the immediately preceding 2-yr
period, & at the end of 10 years from the start of the
Constitution, all such reservation is to cease.
 Art.338-Special Commissions: It provides for a National
Commission for SCs (NCSC), consisting of a chairperson, a
Vice Chairperson & 3 other members. The main duty of this
Commission is to investigate & monitor all matters relating
to the constitutional & legal safeguards provided for SCs.
The Commission inquires into specific complaints with
respect of deprivation of the rights & safeguards of persons
belonging to the SCs.
 Art.338-A: 89th Amendment, 2003...introduced this new
Article to provide for a similar Commission for the
protection of STs. The Commission is known as the National
Commission of STs, and is also to consist of a Chairperson,
a Vice Chairperson & 3 other members. Their powers &
duties are similar to those of the NCSC.
 Art.340: It empowers President to appoint a Commission
consisting of such persons as he thinks fit, to investigate
the conditions of socially & educationally backward classes.
Arts.341, 342 & 366: Definitions
 Art.366(2): It defines an Anglo-Indian as a person whose
father or any of whose male progenitors in the male line is
or was of European descent, but who is domiciled in India,
and is or was born within such territory of parents
habitually resident therein & not established there for
temporary purposes only.
 Arts.341 & 342: They define SCs & STs. They provide that
the President may, after consultation with the Governor of
a State, by public notification, specify the castes, races or
tribes which shall be deemed to be SCs or STs in relation to
that State.
Arts.343-351 & Sch.8: OFFICIAL LANGUAGE
Arts.343-344 & Sch.8 - Language of the Union: In a nation
with more than 1600 spoken languages, provision in the
Constitution about languages is tough. So, the founding
fathers had to recognize some of these languages for
official communication, to save the nation from utter
confusion due to a multiplicity of languages.
 Art. 343: It is provided that the official language of the
Union is Hindi in Devanagari script...numerals to be used
for official purpose of the Union are the international form
of Indian numerals; but the English language is to continue
to be used for all the official purposes of the Union for 15
years from the commencement of this Constitution. The
President may, however, during the said period, authorize
the use of the Hindi language in addition to the English
language and of the Devanagari form of numerals. Also laid
down... after the said period of 15 years, Parliament may
provide for the use of English language, or the Devanagari
form of numerals.
 Pursuant to this power, the Official Languages Act, 1963
has been enacted, under which English and Hindi are used
for official purposes of the Union.
 Arts. 344(1) & Sch.8- Parliamentary Commission on
Official Language: At the expiration of 5 years from the
start of the Constitution, & thereafter at the expiration of
10 years from such start, the President must form a
Commission, consisting of a Chairman & such other
members representing the different languages specified in
the 8th Schedule, as the President may appoint.
 Languages mentioned in the 8th Sch.: Assamese; Bengali;
Bodo; Dogri; Gujarati; Hindi; Kannada; Kashmiri; Konkani;
Mathilli; Malayalam; Manipuri; Marathi; Nepali; Oriya;
Punjabi; Sanskrit Santhali; Sindhi; Tamil; Telugu; Urdu (22
languages)
 Art. 344(2) (3): The said Commission recommends to the
President on the progressive use of Hindi for official
purposes of the Union, restrictions on use of English, & the
form of numerals to be used.
o In making such recommendations, the Commission
must have due regard to the industrial, cultural &
scientific advancement of India, & the just claim and
the interest of persons belonging to the non-Hindi
speaking areas in regard to public services.
 Arts. 344(5) (6)- Parliamentary Committee on Official
Language: Art. 344 provides for the constitution of a
Committee consisting of 30 members (of whom 20 are to be
members of the LS, & 10 of the RS), whose duty it is to
examine the recommendations of the Commission, & to
report to the President, their opinion thereon. The
President may, on reviewing the report, give directions in
accordance with the whole or any part of that report.
 Arts. 345-347: Regional Language- The Legislature of a
State may adopt any language in use in the State or Hindi
as the language to be used for all official purposes of that
State or for official communication between States. But, if
a substantial proportion of a State desires the use of any
language spoken by them to be recognized by that State,
the President may direct that such language shall be
recognized.
Arts.348-349: Language of the SC, HC, etc.
 Art.348: All proceedings in the SC & in every HC, as well as
the authoritative texts of Bills, Acts passed by Parliament
or the Legislature of a State & of all Ordinances
promulgated by the President or the Governor of a State, &
all orders, rules, and regulations, are to be in English, but
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 the Governor of a State may, with the previous consent of 
the President, authorize the use of Hindi or any other
language in its HC.
 Art.349- Special procedure for enacting laws relating to
language: It lays down a special procedure when any law
relating to a language is to be enacted. During the period
of 15 years from the start of the Constitution, no Bill or
amendment making provision for the language to be used
can be introduced or moved in either House of Parliament 
without the previous sanction of the President, & the
President cannot give his sanction to the introduction of
any such Bill, or the moving of any such amendment,
except after he has taken into consideration the
recommendation & the report of the Commission appointed
under Art.344 above.
Arts.350-351- Special Directives
 Art.350: The language to be used in representations of
grievances to any officer of the Union or a State may be
the one ordinarily used therein.
 Art.350A: It provides that it shall be the endeavor of every
State, and of every local authority within the State, to
provide adequate facilities for instructions in the mother
tongue at the primary stage of education, to children
belonging to linguistic minority groups, & the President
may issue such directions to any State as he considers
necessary or proper for securing the provisions of such
facilities.
 Art.350B: Provides for a Special Officer for linguistic
minorities to be appointed by the President. It’s his duty to
investigate all matters related to the safeguards for
linguistic minorities under the Constitutions, & report to
the President upon those matters at such intervals as the
President may direct. The President must cause all such
reports to be laid before each House of Parliament & sent
to the Governments of the States concerned.
 Art.351- Directive for development of Hindi Language: It
is the duty of the Union to promote the spread of Hindi, to
develop it, so that it may serve as a medium of expression
for all the elements of the composite culture of India. & to
secure its enrichment by assimilating, without interfering
with its genius, the forms, style & expression used in
Hindustani & in other languages of India specified in Sch. 8,
and by drawing wherever necessary or desirable, for its
vocabulary, primarily on Sanskrit, & secondarily on other
languages.
Arts.352-360 & 365: EMERGENCY PROVISIONS
 The President has powers to act in an emergency, whereby
the security of India (or of any part thereof) is threatened.
He may then issue a Proclamation by which he assumes
certain overall powers, which are detailed in Art.352 &
succeeding Articles.
 The definition of ‘emergency’ is left to the President, be it
from external aggression & internal commotion, or
economic depression & financial crisis.
Arts.352, 356 & 360- Kinds of Emergency: 3 kinds-
 Art.352: If President is satisfied a grave emergency exists
whereby the security of India or any part thereof is
threatened - whether by war or external aggression or
armed rebellion - he may declare a Proclamation of
Emergency in respect of the whole of India or such part of
India as may be specified in the Proclamation.
 Art. 360(1): Financial emergency... if financial stability or
credit of India (or any part thereof) is threatened.
Art.356: President has powers to make a Proclamation of
failure of constitutional machinery in a State... when
satisfied that the Govt. of a State cannot be carried on as
per the provisions of the Constitution, either on the report
of the Governor of the State or otherwise.
1. Proclamation of Emergency when security of India is
threatened:
Art.352- When made? President to be satisfied... external
aggression or internal armed rebellion - the Proclamation
can be made before the actual occurrence of war or
aggression or rebellion, if the President is satisfied that
there is imminent danger thereof.
o The President can issue different proclamations on
different grounds, being war or external aggression or
armed rebellion or imminent danger thereof.
o The 1st Proclamation of Emergency under Art.352
was issued by the President of India in Oct. 1962, at
the time of the Chinese invasion. This emergency
continued for more than 5 years - the longest
emergency period in any federal democracy.
o Formerly, the satisfaction of the President was to
be final & conclusive & couldn’t be called in question
in any Court on any ground whatsoever. The 44th
Amendment, 1978 deleted this provision.
o Minerva Mills Ltd. v. Union of India (1980) The
minority judgment... subjective satisfaction of the
President regarding the necessity of declaring
emergency is not open to scrutiny. But, if the
satisfaction is mala fide or is based on wholly
extraneous & irrelevant grounds, Court will have
jurisdiction to look into the matter.
o Post 44th Amendment, 1978 a proclamation can’t
be issued unless the Union Cabinet - i.e., the COM (PM
+ Ministers of Cabinet rank appointed under Art.75)
communicates its consent to such a Proclamation in
writing.
o How revoked or varied? Done by a subsequent
Proclamation and is to be laid before both LS & RS.
o When a Proclamation ceases to operate? 2 cases:
i. After 1 month, unless it’s approved in RS+LS by
resolutions before expiry of said period.
ii. If issued at a time when the LS has been dissolved,
or the dissolution of the LS takes place during the
period of 1 month (as above), and if resolution
approving the Proclamation has been passed by
the RS but not by LS before the expiry of the 1-
month period, then the Proclamation ceases to
operate at the expiry of 30 days from the date on
which the LS first sits after reconstitution. But, it
doesn’t cease to operate if, before the expiry of
the said 30 days, a resolution approving the
Proclamation has been also passed by the LS.
o In other words, a Proclamation will cease to
operate at the expiry of 1 month, unless before the
expiration of that period, it has been approved by
resolutions of both Houses of Parliament.
o A Proclamation so approved will, unless revoked,
cease to operate on the expiry of 6 months from the
date of passing of the 2nd resolution of either House
approving the Proclamation.
o The resolution should be passed by both Houses by
a majority of the total membership of that House & by
a majority of at least 2/3rd of the members of that
House present & voting.
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 o The President MUST revoke a Proclamation of
Emergency if the House of People passes a resolution
disapproving such a Proclamation.
o If a notice in writing signed by at least 1/3rd of the
total # of members of the LS has been given, of their
intention to move a resolution for disapproval of a
Proclamation of Emergency (or its continuance) to the
Speaker, if the House is in session (or to the President,
if the House is NOT in session), a special sitting of the
LS is convened within a period of 14 days from the
date of receipt of such notice.
 Art. 353-354, 358-359- Effects of Proclamation of
National Emergency: 4 important effects...
A) Art.353 While the Emergency is operative...
executive power of the Union extends to the giving of
directions to any State, as to the manner in which its
executive power is to be exercised... and the power of
Parliament to make laws on any matter (including
power to make laws...conferring powers and imposing
duties upon the Union... not in the Union List)... The
power of the Union extends to any State if the security
of India is threatened.
B) Art. 354 President may...by order... direct
provisions of Arts. 268 to 279 (related to distribution of
revenues) ... are to have effect subject to exceptions 
as he thinks fit. Every such order is laid before each
House of Parliament... as soon as possible.
C) Art. 358 While the Emergency is in operation...
provisions of Art. 19 (conferring important rights of
freedom on all citizens) may be suspended... this
provision applies only if security of India (or part
thereof) is threatened by war or external aggression
(and not by armed rebellion).
o Provisions of Art.358 are not to apply (a) to any
law, which does not contain a recital that such a
law is in relation to the Proclamation of
Emergency, in operation when it is made; (b) to
any executive action taken otherwise than under a
law containing such a recital.
D) Art. 359: While it’s under operation, the President
may declare that the right to move any Court for the
enforcement of Fundamental Rights in Part III of
Const...(except Arts. 20 & 21)... & all proceedings for
such enforcement, may be suspended.
2. Art.360: Proclamation of Emergency owing to financial
stringency:
 Art. 360(1): 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
declare a Financial Emergency.
 It was formerly provided that the satisfaction of the
President on this point was to be final & conclusive, &
could NOT be questioned in any Court on any ground.
Also... that neither the SC nor any other Court had the
jurisdiction to go into the validity... (a) of such a
Presidential Proclamation; or (b) the continued operation
of such a Proclamation.
 This provision was, however, deleted by the 44th
Amendment, 1978.
 Provisions for revoking / varying of such a Proclamation are
similar to that of a security-related emergency.
 Art. 360 mentions the effects of a proclamation of
Emergency in case of financial stringency
 Executive authority of the Union extends to giving
directions to State, to observe canons of financial
propriety... These may include:
a) A provision requiring reduction of salaries and
allowances of persons serving a State
b) A provision requiring all money bills...to be reserved
for consideration of President...after passing through
State Legislatures.
3. Arts.356-357 & 365- Provisions in case of failure of
constitutional machinery in States:
 Arts.356 - When made: If the President, on receipt of a
report from the Governor of a State, is satisfied 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 President may make a Declaration to
that effect. Any such Proclamation may be revoked or
varied by a subsequent Proclamation.
 Art.365 - When made: If any State fails to comply with, or
to give effect to any directions given in the exercise of the
executive power of the Union under any of the provisions of
this Constitution, it becomes lawful for the President to
hold that a situation has arisen in which the Government of
the State cannot be carried on in accordance with the
provisions of this Constitution.
Arts.356-357 - Its effects: Three effects:
a) The President may assume to himself all the functions
& powers of Government of the State.
b) The President may declare that the powers of the
Legislature of the State shall be exercisable by the
Parliament, in which case Parliament may confer on
the President the power of the Legislature of the State
to make laws as well as to authorize (when the LS is
NOT in session) expenditure for the Consolidated Fund
of the State, pending the sanction of such expenditure
by Parliament.
c) The President may make such incidental &
consequential provisions, as appear to the President to
be necessary or desirable for giving effect to the
objects of the Proclamation.
 But, the President cannot assume to himself the power of a
HC; nor can he suspend any provision relating to a HC.
Every Proclamation under this Art. is to be laid before each
House of Parliament.
 Art.356(3)(4) - When it ceases to operate:
a) Such a Proclamation ceases to operate after 2 months,
but NOT if it has been approved by resolutions of both
Houses of Parliament.
b) If the Proclamation is issued at a time when the LS is
dissolved or the dissolution of the LS takes place during
the period of 2 months referred to above, & if a
resolution approving the Proclamation has been passed
by the RS, but no resolution with respect to such
Proclamation has been passed by the House of the
People before the expiration of that period, the
Proclamation ceases to operate at the expiration of 30
days from the date on which the LS first sits after its
reconstitution; but not so, if before the expiration of
the said period of 30 days, a resolution approving the
proclamation has been also passed by the LS.
 Unless revoked, a Proclamation so approved ceases to
operate on the expiry of 6 months from the date of issue of
the proclamation.
 A resolution to continue a Proclamation in force for any
period beyond a year from the date of issue of such a
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 Proclamation cannot be passed by either House of
Parliament, unless:
a) Proclamation of Emergency is in operation in the whole
of India (or in the whole or any part of the State, as
the case may be) at the time of the passing of such a
resolution; and
b) Election Commission certifies that the continuance of
the Proclamation is necessary on account of difficulties
in holding general elections to the Legislative Assembly
of the State concerned.
 Judicial review of the President’s power: SR Bommai v. UoI
(1994) SC held... exercise of Presidential power to issue
a Proclamation under Art.356 is subject to judicial review
to the limited extent of examining whether the conditions
precedent to the issuance of the Proclamation have been
satisfied or not... so, court can scrutinize whether there
existed material for the satisfaction of the President that a
situation had arisen in which the Govt. of the State could
NOT be carried on in accordance with the provisions of the
Constitution which would induce a reasonable man to come
to the conclusion in question.
 Art.359-A: Application of emergency provisions to the
State of Punjab: Repealed by the 63rd Amendment, 1989
 Difference between proclamation of ‘emergency’ and
‘failure of constitutional machinery in state’: They differ
not only on the ground leading to the proclamation, but
also as to the effects:
a) Art.359: The right to move the Courts for the
enforcement of Fundamental Rights would not be
affected in case of Proclamation of failure of
constitutional machinery, but is liable to be suspended
in case of a Proclamation of Emergency.
b) Art. 356(1): While the objet of a Proclamation of
Emergency is to confer greater powers of control upon
the Union authorities, the State authorities would NOT
cease to function. But, in the case of a Proclamation of
failure of constitutional machinery the Govt. of the
State concerned, or some part of it, would be
suspended by the Union.
Arts.361-367: MISCELLANEOUS PROVISIONS
A) Art. 361- Protection of President & Governors (Doctrine of
Constitutional Immunity?)
1. The President, or the Governor of a State, is NOT
answerable to any Court for the exercise & performance of
the powers & duties of his office, or for any act done or
purporting to be done by him in the exercise &
performance of those powers & duties.
a. But, the conduct of the President may be brought
under review by any Court, Tribunal or body appointed
/ designed by either House of Parliament for the
investigation of a charge under Art.61.
b. Also, the above provision doesn’t restrict the right
of any person to bring appropriate proceedings against
the GoI or the Govt. of a State.
2. No criminal proceedings whatsoever can be instituted or
continued against the President or the Governor of a State,
in any Court, during his term of office.
3. No process for the arrest or imprisonment of the President
or the Governor of a State can issue from any Court during
his term of office.
4. No civil proceedings in which relief is claimed against the
President or Governor of a State can be instituted during
his term of office in any Court, in respect of any act done,
or purporting to be done, by him in his personal capacity,
whether before or after he entered upon his office, as
President or as Governor of such State, until the expiration
of 2 months next after notice in writing has been delivered
to the President or the Governor, as the case may be, or
left at his office, stating the nature of the proceedings, the
cause of action therefor, the name, description & place of
residence of the party by whom such proceedings are to be
instituted & the relief which he claims.
B) Art.361A- Protection of publication of proceedings of
Parliament & State Legislature:
 No person shall become liable in any proceedings (civil or
criminal) in any Court in respect of the publication in a
newspaper of a substantially true report of any proceedings
of either House of Parliament or either House of a State
Legislature, unless the publication is proved to have been
made with malice.
 But, the above protection is NOT available in the case of a
publication of any report of the proceedings of a secret
sitting of Parliament or a State Legislature.
 The provisions apply to reports which are broadcast by
means of wireless telegraphy as part of any programme or
service provided by means of a broadcasting station.
C) Art. 363- Courts not to interfere in disputes arising out of
certain treaties, agreements, etc.:
 Notwithstanding the other provisions of the Constitution,
but subject to the provisions of Art.143, neither the SC nor
any other Court has jurisdiction in any dispute arising out
of provision of a treaty, agreement, covenant,
engagement, sanad or other similar instruments (a) which
was entered into or executed before the start of the
Constitution by any Ruler of an Indian State & to which the
Government of the Dominion of India or any of its
predecessor Governments was a party, & (b) which has or
has been continued in operation after such
commencement, or in any dispute in respect of any right
accruing under or any liability or obligation arising out of
any of the provisions of this Constitution relating to any
such treaty, sanad, covenant, agreement, engagement or
other such instrument.
D) Art.364: Special provisions as to major ports &
aerodromes:
 Notwithstanding anything in the Constitution, the President
may, by public notification, direct that as from such date
as may be specified in the notification:
i. Any law made by Parliament or by the Legislature
of a State shall NOT apply to any major port or
aerodrome or shall apply thereto subject to such
exceptions or modifications as may be specified in the
notification, or
ii. Any existing law shall cease to have effect in any
major port or aerodrome, except as respect to things
done or omitted to be done before the said date, or
shall in its application to such port or aerodrome have
effect subject to such exceptions or modifications as
may be specified in the notification.
E) Art.365- Effect of failure to comply with, or to give effect
to, directions given by the Union:
 Where any State has failed to comply with, or to give
effect to, any directions given in the exercise of the
executive power of the Union under any of the provisions of
this Constitution, it is lawful for President to hold that a
situation has arisen in which the Govt. of the State cannot
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 be carried on in accordance with the provisions of this
Constitution.
F) Art.367- Interpretation:
1. Unless the context otherwise requires, the General Clauses
Act, 1897, is, subject to any adaptations & modifications
that may be made therein under Art.372, to apply for the
interpretation of the Constitution, as it applies for the
interpretation of an Act of the Legislature of the Dominion
of India
2. Any reference to the Constitution to Acts or laws of, or
made by Parliament, or to Acts or laws of, or made by the
Legislature of a State, is to be construed as including a
reference to an Ordinance made by the President or
Governor, as the case may be.
3. For the purposes of the Constitution of India, ‘foreign
State’ means any State other than India.
 But, subject to the provisions of any law made by
Parliament, the President may by order declare any State
not to be a foreign State for such purposes as may be
specified in the order.
Art.368: Amendment of the Constitution
 Legalism & rigidity... 2 inevitable consequences of
federalism success of a federal constitution depends on
the extent to which these 2 evils are minimized. Essentially Art.368- Power & Procedure for Amendment
a new Constitution reflects the problems of the day & the 
solutions ultimately accepted.
 Constitution too has to keep pace with changing times. If
no provisions are made for the amendment of the
Constitution, there would be no legal way of meeting the
changing needs of society, & a forcible extra-legal
subversion would perhaps be the only way out.
 Burke observed... ‘a Constitution without some means of
change is without the means for its conversation.’
 The process of amendment... not possible to lay down if it
is easy or difficult. Also, when a Constitution is to be
amended, not only the amendment provisions, but also the
temperament of the people, is to be kept in mind.
 Swiss Constitution is rigid... but, people are flexible so,
their constitution has been amended several times.
Amending the US Constitution is tough, but when the US
Congress proposes an amendment, it usually succeeds.
 As far as the Indian Constitution is concerned, the fact that
it has been amended more than 90 times reflects the
rigidity (or otherwise) of our Constitution.
 The provisions regarding amendments have assumed great
importance since the historic judgment of the SC in Golak
th
Nath’s case & the 24 Amendment, which empowered
Parliament to amend any provision of the Constitution,
even the Chapter on Fundamental Rights.
 The validity of the 24th Amendment was in question before
the SC in Swami Kesavananda Bharati’s case... held that
the said Amendment was valid.
Methods of Constitutional Amendment:
 Art. 368 Procedure for amendment of Constitution...is
partly flexible and partly rigid...
 42nd Amendment, 1976, had provided that no amendment
 General provisions laid down... the process can be initiated
only by the introduction of a bill in either House of
Parliament. If such a Bill is passed by each House by a
majority of the total membership of each House...and with
rd
a majority of 2/3 of its members present and
voting...and, assented to by President... the Constitution
stands amended.
 Constitution provides for 3 classes of amendments...
1. Those that can be effected with a bare majority (the
criterion for passing of any ordinary law)... ones that
fall into this category are (a) Art. 4... amendment to
certain Schedules of the Constitution; (b) Art. 169...
empowering the President to create or abolish
Legislative Councils in State; (c) Art. 240...
empowering the President to make regulations for the
peace, progress and good government of certain Union
Territories.
2. Those that can be effected by a special majority as
laid down in Art.368. other than those in (1) above.
3. However, if the amendment seeks to change eleven
Articles related to election of President, executive
power of the Union and State, High Courts of States
and Union Territories, Union Judiciary, Legislative
Relations, Lists in the 7th Schedule, representation of
States in Parliament, Provision of Art. 368 itself...
then, the Amendment must be ratified by the
Legislatures of not less than ½ of the States, through
resolutions to that effect passed by those
Legislatures... before the bill making provisions for
such amendment is presented to the President... for
assent.
Amendment of the Constitution may be initiated only:
1. By the introduction of a bill for the purpose in either
House of Parliament... the process for amending the
Constitution is a legislative process & an amendment
Bill is ordinarily to be passed as a legislative measure.
2. When the Bill is passed in each House by a majority of
the total membership of that House & by a majority of
not less than 2/3rd of the members of that House
present & voting - it is presented to the President for
his assent.
3. Upon such assent being given to the Bill, the
Constitution sands amended in accordance with the
terms of the Bill
4. But, if the amendment seeks to make a change in the
following 11 matters:
i. Art.54 (Election of President)
ii. Art.55 (Manner of election of President)
iii. Art.73 (Extent of executive power of the
Union)
iv. Art.162 (Extent of executive power of State)
v. Art.241 (HC’s for Union Territories)
vi. Chap. IV of Part V: (The Union Judiciary)
vii. Chap. V of Part VI: (The HC’s in the States)
viii. Chap. I of Part XI: (Legislative Relations)
ix. Any of the Lists in the 7th Schedule
x. The representation of States in Parliament
xi. The provisions of Art. 368 itself-
...then amendment must also be ratified by the
Legislatures of NOT less than ½ of the States, by
resolutions to that effect passed by those Legislatures,
before the Bill making provisions for such amendment
is presented to the President for his assent.
of the Constitution, incl. the provisions on Fundamental
Rights made or purporting to be made under Art. 368 could
be called into question in any Court of law on any ground.
The amended Art.368 also declared tha there would be no
limitation whatsoever in the power of Parliament to
amend, by way of addition, variation or repeal, any of the
provisions of the Constitution, under Art.368.
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 Minerva Mills Ltd. v. UoI (1980) The above 2 provisions
(introduced by the 42nd Amendment) were challenged in
the SC. A 5-member Bench of the SC was unanimous in its
opinion... that both the provisions were void, as they were
beyond the amending powers of the Parliament.
o The 1st Clause (seeking to deprive the Courts of
the power to declare any amendment invalid) was
struck down as unconstitutional... observed: the Indian
Constitution is founded on a judicious balance of
power among the 3 wings of the State, viz., Executive,
Legislative & Judiciary.
o So, it is not only the function, but also the duty of
Judges to pronounce on the validity of the laws passed
by the Parliament.
o If the Courts are to be deprived of this power,
Fundamental Rights would become a mere adornment,
& Art. 13 of the Constitution would be turned into a
dead letter.
o Court held...2nd Clause (giving vast, undefined &
unfettered power to Parliament to amend the
Constitution, even to the extent of distorting it out of
recognition) was unconstitutional. Indeed, limited
amending power is one of the basic features of our
Constitution, & so, the limitations on that power
cannot be destroyed.
 Thus... the amending process prescribed by the
Constitution has certain distinctive features compared with
the corresponding provisions in the leading Constitutions of
the world. The procedure for amendment must be
considered as ‘rigid’ insofar as it requires a special
majority &, in some cases, a special procedure for
amendment, as compared with the procedure prescribed
for ordinary legislation.
 But, the procedure is NOT as complicated or difficult as in
the USA or in any other rigid Constitution... the following 6
points may be noted:
1. Subject to the special procedure laid down in Art.368,
the Constitution of India vests constituent power upon
the ordinary legislature of the Union, i.e., the
Parliament, and there is no separate body for
amending the Constitution, as exists in other
Constitutions (e.g., a Constitutional Convention).
2. State Legislatures can’t initiate any Bill or proposal for
amending the Constitution. The only mode of initiating
a proposal for amendment is to introduce a Bill in
either House of the Union Parliament.
3. Subject to the provisions of Art.368, Constitution
Amendment Bills are to be passed by Parliament in the
same way as ordinary Bills. They may be initiated in
either House & may be amended like other Bills,
subject to the majority required by Art.368. But, for
the special majority prescribed, they must be passed
by both the Houses & receive the President’s assent, as
any other Bill. There is no requirement of a
referendum or plebiscite or a reference to a
constitutional convention.
4. The previous sanction of the President is NOT required
for introducing in Parliament any Bill for amending the
Constitution.
5. The requirement relating to ratification by the State
Legislatures is more liberal than the corresponding
provisions in the American Constitution. While the
latter requires ratification by not less than 3/4 th of the
States, under the Indian Constitution ratification by
NOT less than ½ of them would be enough.
6. No provision of the Constitution is immune from
Constitutional Amendment &, provided the procedure
as laid down in Art.368 is complied with Parliament
may, by a Constitution Amendment Act, amend even
Art.368 itself.
Can the Chapter on Fundamental Rights be amended? And,
how the basic structure of the Constitution has evolved
through judicial decisions
 Immensely important Q...in view of SC judgments in Golak
Nath’s case, the subsequent 24th Amendment and the
challenge to that amendment in Kesavananda Bharati’s
case.
 SP Singh v. UoI (1952) Power of Parliament to amend the
Chapter on Fundamental Rights came up in SC... It
upheld... the 1st Amendment to the Constitution, which
introduced certain changes in Part III relating to
Fundamental Rights. Many more followed.
 Unanimous verdict of SC in SP Singh v. UoI (1952), where it
was held that no restrictions on power of Parliament to
amend the Constitution... & so... it could also amend Part
III, dealing with Fundamental Rights.
 Sajjan Singh v. State of Rajasthan (1965) The 17th
Amendment to the Constitution...it limited or restricted
certain fundamental rights... challenged on the ground that
the Parliament had no power to amend the
Constitution...to curtail, restrict, limit or deprive
fundamental rights... the judgment of SC wasn’t unanimous
- majority opined that the SP Singh’s case was rightly
decided, minority expressed doubts.
 In Gokalnath’s case, a Full Bench of the SC of 11 judges
was constituted... Majority of 6 judges held that
Parliament had no power to amend Part III of the
Constitution so as to restrict or limit the rights guaranteed
therein. ... Conclusion: 17th Amendment was void (as it
abridged fundamental rights).
 Realized...that the consequences of the judgment would
make all similar previous amendments void ab initio. To
avoid such a drastic result, the majority judgment took
cover under the American Doctrine of Prospective
Invalidity... & said that the previous Amendments would
continue to be valid, even though they curtain fundamental
rights.
 However, thereafter, Parliament would’ve no power to
restrict, abridge or limit fundamental rights. ...the
majority judgment traces the Parliament’s power to amend
any part of the Constitution...
 Art.368: it doesn’t expressly bar Parliament’s power to
amend any part of the Constitution. On the contrary, it
speaks of the amendments of “this constitution.”
 The majority judgment...while not discussing whether Part
III of the Constitution (Fundamental Rights) could be
amended suggested that the residuary power to legislate
may be availed to convene a fresh Constituent Assembly,
which in turn could abridge the fundamental rights. This
reasoning again, is not sound, because if Parliament
cannot, in law, amend Part III, surely it can’t authorize
another body to do that very thing
 To counter the widely-criticized decision of the SC
Parliament passed the 24th Amendment to the
Constitution... providing therein that Parliament had the
power to amend any part of the Constitution including the
Chapter dealing with fundamental rights. This Amendment
was challenged in Swami Kesavananda Bharati’s case
(1973)... before a special Bench of 13 judges of SC. Here
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 reference was made to debates & speeches in the
Constituent Assembly, to the Drafting Committee of the
Assembly & to speeches of Mr. Nehru & Dr. Ambedkar... a
strong case was sought to established that constitutional
amendments are NOT excluded from the bar under
Art.13(2)... & that, hence, all amendments violative of
fundamental rights are unconstitutional & void. Argued...
Constitution was no ordinary law... so, if amended at the
will of the party in power... it would harm the economic &
moral life.
 HH Swami Kesavananda Bharti & Others vs. State of Kerala
(1973)... 24th, 25th and 29th Amendments to the Constitution
came up for the scrutiny of the SC... 69 days... in all, 11
judgments delivered... 13-member bench. ... Overall gist
(majority 7 to 6) IC Golaknath vs. State of Punjab ruling
on Fundamental Rights, was over-ruled. .. Art. 368 does
empower Parliament to alter the basic structure or
framework of the Constitution.... gave that Property Rights
could be amended.
 Upheld validity of 24th Amendment (authority to amend),
25th Amendment (right to property), 29th Amendment -
Kerala Land Reforms (Amendment) Act, 1969, and KLR(A)A-
1971... not struck down.
 In effect, it overruled the earlier decision of the SC in the
Golak Nath’s case. But, the Court cautioned that
Parliament had no power to abrogate or take away
fundamental rights or to completely change the
fundamental features or the basic structure of the
Constitution...
 Justice Shelat & Justice Grover laid down...the basic
features of the Constitution are:
1. The supremacy of the constitution
2. Republican & democratic forms of government &
sovereignty of the country
3. Secular & federal structure of the constitution
4. Demarcation of powers between the executive,
legislature & judiciary
5. The dignity of the individual secured by the various
freedoms & basic rights in Part III & the mandate to
build a welfare State contained in Part IV.
6. The unity & integrity of the nation.

Double Jeopardy:

Compulsory Retirement

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ii