ASSIGNMENTS

OF
CONSTITUTIONAL LAW

SESSION : 2020-21

SUBMITTED ON : 04TH AUGUST, 2020

SUBMITTED BY : SUBMITTED TO:

VIKAS YADAV MS.DEEKSHA SHARMA
Roll No. 51
Class – Sem.4 B
1. Role of Governor in a federal structure

Governor is the constitutional head and the chief executive of any state of
the Indian Union.Governor of a State is the key functionary in the system
envisaged by the Constitution. He is appointed by the President on the
recommendation of the Central Government.

Vesting the Governor with discretionary powers was justified even in the
Constituent Assembly on the ground that the Provincial Governments are
required to work in subordination to Central Government. And in our
parliamentary form of government, the Constitution clothes the Governor
with those powers as the head of the State and he is to exercise them in
his own judgement and not under the directions or the guidance of the
Centre.
A Governor should exercise such powers, if absolutely based on his own
decision, with great caution. His decision must not be influenced by any
sense of being an agent of the Centre. The true constitutional position of
the Governor is that he is the head of the State. He has to act according to
the aid and advice of his Council of Ministers using his discretion
wherever the Constitution allows him. In case of clash between the advice
of the Centre and the State, he is bound by the oath of his office. The
experience in the past demonstrates that the Governor cannot play an
independent and impartial role so long as he holds Office of the Governor.
Governor holds his office entirely during the pleasure of the President. As
soon as the President withdraws his pleasure the tenure of the Office of
the Governor completes. Some security regarding the tenure of the Office
of the Governor is must. He should not be left purely on the mercy of the
President. If the tenure will safe then he may work independently without
the fear of removal or transfer. The advice conferred by the Prime
Minister and Council of Ministers is mostly biased and based on the
political thought of the ruling party that leads to dismissal of Governor
appointed by previous government or the opposition party. Some
safeguards are necessary to ensure his independence. The tenure of his
office of five years should not be disturbed except very rarely and that too
for some extremely compelling reasons. The guidelines provided by the
Sarkaria Commission relating to the security of tenure of the Office of the
Governor should be considered at the time of his transfer or removal.

Hence, for the proper functioning of a parliamentary form of government,

it is compulsory that there should be a Governor, as the head of the State
and he should act in the interest of the people. It is submitted that
Governor can act in the interest of the people and perform his functions
as a link between the Centre and the State, if his appointment is not
politically motivated.

The founding fathers of our Constitution had deliberately conferred

certain special and extra-ordinary powers on the Governor these are:
Legislative Powers
Governor summons the session of the state legislature. Governor address
the first sessions after the Legislative Assembly elections about general
guidelines about the framework and functioning of the government. The
bills passed by the State Legislature on the matter based on the State list
become an act only when it receives the assent of the President.
Judicial Powers
The Judges of the High Courts of the state are appointed by the President.
This is done in consultation with the Governor. The Governor appoints
the Judges of Subordinate Courts and can transfer them on the aid and
advice of the Chief Justice of High Court.
Administrative Powers
It is the Governor who appoints the Chief Minister and Council of
Ministers. Apart from this, some other officials appointed by the
Governor are the Advocate General of the State, members of the State
Public Service Commission, etc.
President’s rule
This is a special provision where the Governor can use his/her
discretionary powers. The President declares a State emergency when
government machinery in a particular state has failed. This is done only
when the Governor of the state sends a report to the President.
It is the Governor who carries the functions of the State on behalf of the
President in the case of State emergency being declared. This particular
provision has always remained in controversy for many reasons.

The governor has a very high constitutional position in the cooperative

federalism system of India.And according to He must be an absolutely
independent person. He should function impartially and independently

Important judgments of the Supreme Court on the role of the

Governor

SR Bommai vs Union of India case, 1994: This case was about the
powers of the Governor to dismiss state government under article 356.
The Supreme Court ruled that the floor test should be the only way to
determine the majority of the government and not the subjective opinion
of the Governor.
Rameshwar Prasad case, 2006: this case was on the validity of the
President's rule and the dissolution of the Bihar assembly in 2005. The
Supreme Court ruled that the Governor cannot take decisions on the basis
of his subjective assessments.

Nabam rebia case, 2016: the Supreme Court ruled that the Governor is
just an executive and nominee and not an elected representative, and his
powers flow from the aid and advice of the cabinet ministers. Use of
discretionary powers for summoning or dissolving assembly sessions
without the advice of the cabinet is unconstitutional.
Karnataka assembly case, 2018: The Supreme Court ruled that the
discretionary powers of the Governor cannot be arbitrary or fanciful.
2. Emergency provisions and 44th amendment
The Emergency provisions are contained in Part XVIII of the
Constitution, fromArticles 352 to 360. These provisions enable the
Central government to meet any abnormal situation effectively. The
rationality behind the incorporation of these provisions in the
Constitution is to safeguard the sovereignty, unity, integrity and security
of the country, the democratic political system, and the Constitution.
During an Emergency, the Central government becomes all powerful and
the states go into the total control of the Centre. It converts the federal
structure into a unitary one without a formal amendment of the
Constitution. This kind of transformation of the political system from
federal during normal times to unitary during Emergency is a unique
feature of the Indian Constitution. In this context, Dr B R Ambedkar
observed in the Constituent Assembly that: ‘All federal systems including
American are placed in a tight mould of federalism. No matter what the
circumstances, it cannot change its form and shape. It can never be
unitary. On the other hand, the Constitution of India can be both unitary
as well as federal according to the requirements of time and . In normal
times, it is framed to work as a federal system. But in times of Emergency,
it is so designed as to make it work as though it was a unitary system.’
The Constitution stipulates three types of emergencies:
1. An emergency due to war, external aggression or armed
rebellion(Article 352). This is popularly known as ‘National Emergency’.
Under Article 352, the President can declare a national emergency when
the security of India or a part of it is threatened by war or external
aggression or armed rebellion. It may be noted that the president can
declare a national emer-gency even before the actual occurrence of war or
external aggression or armed rebellion, if he is satisfied that there is an
imminent danger.proclamation of national emergency may be applicable
to the entire country or only a part of it.If approved by both the Houses of
Parliament, the emergency continues for six months, and can be extended
to an indefinite period with an approval of the Parliament for every six
months.
2. An Emergency due to the failure of the constitutional machinery in the
states (Article 356). This is popularly known as ‘President’s Rule’.
Article 355 imposes a duty on the Centre to ensure that the government of
every state is carried on in accordance with the provisions of the
Constitution. It is this duty in the performance of which the Centre takes
over the government of a state under Article 356 in case of failure of
constitutional machinery in state.
The President acquires the following extraordinary powers when the
President’s Rule is imposed in a state:
1. He can take up the functions of the state government and powers
vested in the governor or any other executive authority in the state.
2. He can declare that the powers of the state legislature are to be
exercised by the Parliament.
3. He can take all other necessary steps including the suspension of the
constitutional provisions relating to any body or authority in the state.
3. Financial Emergency due to a threat to the financial stability or credit
of India (Article 360).Once approved by both the Houses of Parliament,
the Financial Emergency continues indefinitely till it is revoked.during
the operation of a financial emergency, the Centre acquires full control
over the states in financial matters
No Financial Emergency has been declared so far, though there was a
financial crisis in 1991
44th Constitutional Amendment: Procedure of declaration

The rules around the Proclamation of Emergency were strictly modified

and outlined after the Emergency in 1975 through 44th constitutional
Amendment. The Emergency was a cross road by which India graduated
to the formation of stronger democracy. Rule of Law was re-asserted and
the value of free speech and dissent reestablished.
Under the present form, under Article 352 of the Constitution, the
President can only proclaim an emergency when she/he has a
confirmation of the crisis situation by the Prime Minister and their
Cabinet, presented to the President in written form. Under Article 74, the
President can remit back the written dossier for Emergency proclamation
to the Prime Minister and the Cabinet. However, if the Cabinet resends it,
the President must oblige and proclaim an emergency. Unlike in 1975, it
is no longer possible for the Prime Minister to unilaterally take a decision
about the Proclamation of an emergency without any written explanation
and transparency.

Similarly, a simple majority of the Parliament is no longer sufficient for

the proclamation of Emergency. After the 44th Amendment, there is a
need for a special majority for this. Each house of the Parliament has to
approve the proclamation by a majority of its total membership and by a
majority of not less than two-thirds of the members present and
voting. Previously, the proclamation ceased to operate after two months
in the absence of the majority approval of both the houses. However, after
the 44th Amendment, this period has been reduced to just one month
Parliamentary Review of Emergency

In 1975, there was no provision for a periodic review of the proclamation

of emergency, after the decision was passed by the two houses of the
Parliament. However, the 44th Amendment Act made it mandatory that
the passage of the proclamation of emergency shall be reviewed after six
months and in the absence of a renewed parliamentary approval, the
emergency shall be suspended. The amendment further provided that 10
percent or more members of the Lok Sabha may requisition a meeting in
order to consider a bill for disapproving the proclamation. Such a
requisition shall be summoned within 14 days. If the specially summoned
meeting, passes the bill by a simple majority, the emergency shall be
revoked.

Other requirements

Ordinarily, the period of emergency shall be limited to one year. The

right to publication of proceedings in the Parliament shall not be canceled
during an emergency as per the 44th Amendment Act. Further, the 44th
Amendment altered Article 359 and one can now approach the Supreme
Court and the High Courts to issue writs in the nature of Habeas Corpus,
which was not possible in the time of 975 Emergency. The Proclamation
of emergency was made non-justiciable by the 38th Constitutional
Amendment through Article 352(5). However, after the deletion of
Clause 5, any citizen can now challenge any proclamation of Emergency
in the Court with the grounds of mala fide intentions of the government.
3.Failure of constitutional machinery in states
Article 355 imposes a duty on the Centre to ensure that the government of
every state is carriedon in accordance with the provisions of the
Constitution. It is this duty in the performance of which the Centre takes
over the government of a state under Article 356 in case of failure of
constitutional machinery in state.
The President’s Rule can be proclaimed under Article 356 on two
grounds—one mentioned in Article 356 itself and another in Article 365:
1. Article 356 empowers the President to issue a proclamation, if he is
satisfied that a situation has arisen in which the government of a state
cannot be carried on in accordance with the provisions of the Constitution.
Notably, the president can act either on a report of the governor of the
state or otherwise too (ie, even without the governor’s report).
2. Article 365 says that whenever a state fails to comply with or to give
effect to any direction from the Centre,it will be lawful for the president
to hold that a situation has arisen in which the government of the state
cannot be carried in accordance with the provisions of the Constitution.
Parliamentary Approval and Duration
A proclamation imposing President’s Rule must be approved by both the
Houses of Parliament within two months from the date of its issue.
However, if the proclamation of President’s Rule is issued at a time when
the Lok Sabha has been dissolved or the dissolution of the Lok Sabha
takes place during the period of two months without approving the
proclamation, then the proclamation survives until 30 days from the first
sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha
approves it in the mean time. It can be extended for a maximum period of
three years It can be extended for a maximum period of three years
The 44th Amendment Act of 1978 introduced a new provision to put
restraint on the power of Parliament to extend a proclamation of
President’s Rule beyond one year. Thus, it provided that, beyond one year,
the President’s Rule can be extended by six months at a time only when
the following two conditions are fulfilled:
1. a proclamation of National Emergency should be in operation in the
whole of India, or in the whole or any part of the state; and
2. the Election Commission must certify that the general elections to the
legislative assembly of the concerned state cannot be held on account of
difficulties.
Consequences of President’s Rule
The President acquires the following extraordinary powers when the
President’s Rule is imposed in a state:
1. He can take up the functions of the state government and powers
vested in the governor or any other executive authority in the state.
2. He can declare that the powers of the state legislature are to be
exercised by the Parliament.
3. He can take all other necessary steps including the suspension of the
constitutional provisions relating to any body or authority in the state.

Since 1950, the President’s Rule has been imposed on more than 100
occasions, that is, on an average twice a year. Further, on a number of
occasions, the President’s Rule has been imposed in an arbitrary manner
for political or personal reasons. Hence, Article 356 has become one of
the most controversial and most criticised provision of the
Constitution.and because of this In Bommai case (1994),

the following propositions have been laid down by the Supreme Court
on imposition of President’s Rule in a state under Article 356:
1. The presidential proclamation imposing President’s Rule is subject to
judicial review.
2. The satisfaction of the President must be based on relevant material.
The action of the president can be struck down by the court if it is based
on irrelevant or extraneous grounds or if it was found to be malafide or
perverse.
3. Burden lies on the Centre to prove that relevant material exist to justify
the imposition of thePresident’s Rule.
4. The court cannot go into the correctness of the material or its adequacy
but it can see whether it is relevant to the action.
5. If the court holds the presidential proclamation to be unconstitutional
and invalid, it has power to restore the dismissed state government and
revive the state legislative assembly if it was suspended or dissolved.
6. The state legislative assembly should be dissolved only after the
Parliament has approved the presidential proclamation. Until such
approval is given, the president can only suspend the assembly. In case
the Parliament fails to approve the proclamation, the assembly would get
reactivated.
7. Secularism is one of the ‘basic features’ of the Constitution. Hence, a
state government pursuing anti-secular politics is liable to action under
Article 356.
8. The question of the state government losing the confidence of the
legislative assembly should be decided on the floor of the House and until
that is done the ministry should not be unseated.
9. Where a new political party assumes power at the Centre, it will not
have the authority to dismiss ministries formed by other parties in the
states.
10. The power under Article 356 is an exceptional power and should be
used only occassionally to meet the requirements of special situations.
8. Anti defection law
The 52nd Amendment Act of 1985 provided for the disqualification of
the members of Parliament and the state legislatures on the ground of
defection from one political party to another. For this purpose, it made
changes in four Articles 1 of the Constitution and added a new Schedule
(the Tenth Schedule) to the Constitution. This act is often referred to as
the ‘anti- defection law’.
Later, the 91st Amendment Act of 2003 made one change in the
provisions of the Tenth Schedule. It omitted an exception provision i.e.,
disqualification on ground of defection not to apply in case of split.
Provisions of the Act
The Tenth Schedule contains the following provisions with respect to the
disqualification of members of Parliament and the state legislatures on the
ground of defection:
1. Disqualification
Members of Political Parties: A member of a House belonging to any
political party becomes disqualified for being a member of the House, (a)
if he voluntarily gives up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any
direction issued by his political party without obtaining prior permission
of such party and such act has not been condoned by the party within 15
days. From the above provision it is clear that a member elected on a
party ticket should continue in the party and obey the party directions.

Independent Members: An independent member of a House (elected

without being set up as a candidate by any political party) becomes
disqualified to remain a member of the House if he joins any political
party after such election.
Nominated Members: A nominated member of a House becomes
disqualified for being a member ofthe House if he joins any political
party after the expiry of six months from the date on which he takes
his seat in the House. This means that he may join any political party
within six months of taking his seat in the House without inviting this
disqualification.

2. Exceptions
The above disqualification on the ground of defection does not apply in
the following two cases:
(a) If a member goes out of his party as a result of a merger of the party
with another party. A merger takes place when two-thirds of the members
of the party have agreed to such merger.
(b) If a member, after being elected as the presiding officer of the House,
voluntarily gives up the membership of his party or rejoins it after he
ceases to hold that office. This exemption has been provided in view of
the dignity and impartiality of this office. It must be noted here that the
provision of the Tenth Schedule pertaining to exemption from
disqualification in case of split by one-third members of legislature party
has been deleted by the 91st Amendment Act of 2003. It means that the
defectors have no more protection on grounds of splits.
3. Deciding Authority
Any question regarding disqualification arising out of defection is to be
decided by the presiding officer of the House. Originally, the act provided
that the decision of the presiding officer is final and cannot be questioned
in any court. However, in Kihoto Hollohan case (1993), the Supreme
Court declared this provision as unconstitutional on the ground that it
seeks to take away the jurisdiction of the Supreme Court and the high
courts. It held that the presiding officer, while deciding a question under
the Tenth Schedule, function as a tribunal. Hence, his decision like that of
any other tribunal, is subject to judicial review on the grounds of mala
fides, perversity, etc. But, the court rejected the contention that the
vesting of adjudicatory powers in the presiding officer is by itself invalid
on the ground of political bias.

4. Rule-Making Power
The presiding officer of a House is empowered to make rules to give
effect to the provisions of the Tenth Schedule. All such rules must be
placed before the House for 30 days. The House may approve or modify
or disapprove them. Further, he may direct that any willful contravention
by any member of such rules may be dealt with in the same manner as a
breach of privilege of the House. According to the rules made so, the
presiding officer can take up a defection case only when he receives a
complaint from a member of the House. Before taking the final decision,
he must give the member (against whom the complaint has been made) a
chance to submit his explanation. He may also refer the matter to the
committee of privileges for inquiry. Hence, defection has no immediate
and automatic effect.
The following can be cited as the advantages of the anti-defection law:
(a) It provides for greater stability in the body politic by checking the
propensity of legislators to change parties.
(b) It facilitates democratic realignment of parties in the legislature by
way of merger of parties.
(c) It reduces corruption at the political level and non-developmental
expenditure incurred on irregular elections.
(d) It gives, for the first time, a clear-cut constitutional recognition to the
existence of political parties.
9. Parliamentary privileges

Parliamentary privileges are special rights, immunities and exemptions

enjoyed by the two Houses of Parliament, their committees and their
members. They are necessary in order to secure the independence and
effectiveness of their actions. Without these privileges, the Houses can
neither maintain their authority, dignity and honour nor can protect their
members from any obstruction in the discharge of their parliamentary
responsibilities.
The Constitution has also extended the parliamentary privileges to those
persons who are entitled to speak and take part in the proceedings of a
House of Parliament or any of its committees. These include the attorney
general of India and Union ministers. It must be clarified here that the
parliamentary privileges do not extend to the president who is also an
integral part of the Parliament.
Classification
Parliamentary privileges can be classified into two broad categories:
1. those that are enjoyed by each House of Parliament collectively, and
2. those that are enjoyed by the members individually.
Collective Privileges The privileges belonging to each House of
Parliament collectively are:
1. In has the right to publish its reports, debates and proceedings and also
the right to prohibit others from publishing the same. The 44th
Amendment Act of 1978 restored the freedom of the press to publish true
reports of parliamentary proceedings without prior permission of the
House. But this is not applicable in the case of a secret sitting of the
House.
2. It can exclude strangers from its proceedings and hold secret sittings to
discuss some important matters.
3. It can make rules to regulate its own procedure and the conduct of its
business and to adjudicate upon such matters.
4. It can punish members as well as outsiders for breach of its privileges
or its contempt by reprimand, admonition or imprisonment (also
suspension or expulsion, in case of members).
5. It has the right to receive immediate information of the arrest, detention,
conviction, imprisonment and release of a member.
6. It can institute inquiries and order the attendance of witnesses and send
for relevant papers and records.
7. The courts are prohibited to inquire into the proceedings of a House or
its committees.
8. No person (either a member or outsider) can be arrested, and no legal
process (civil or criminal) can be served within the precints of the House
without the permission of the presiding officer.

Individual Privileges The privileges belonging to the members

individually are:
1. They cannot be arrested during the session of Parliament and 40 days
before the beginning and 40 days after the end of a session. This privilege
is available only in civil cases and not in
criminal cases or preventive detention cases.
2. They have freedom of speech in Parliament. No member is liable to
any proceedings in any court for anything said or any vote given by him
in Parliament or its committees. This freedom is subject to the provisions
of the Constitution and to the rules and standing orders regulating
the procedure of Parliament.
3. They are exempted from jury service. They can refuse to give evidence
and appear as a witness in a case pending in a court when Parliament is in
session.
Breach of Privilege and Contempt of the House
“When any individual or authority disregards or attacks any of the
privileges, rights and immunities, either of the member individually or of
the House in its collective capacity, the offence is termed as breach of
privilege and is punishable by the House.” Any act or omission which
obstructs a House of Parliament, its member or its officer in the
performance of their functions or which has a tendency, directly or
indirectly to produce results against the dignity, authority and honour of
the House is treated as a contempt of the House. Though the two phrases,
‘breach of privilege’and‘contempt of the House’ are used interchangeably,
they have different implications. ‘Normally, a breach of privilege may
amount to contempt of the House. Likewise, contempt of the House may
include a breach of privilege also. Contempt of the House, however, has
wider implications. There may be a contempt of the House without
specifically committing a breach of privilege’. Similarly, ‘actions which
are not breaches of any specific privilege but are offences against the
dignity and authority of the House amount to contempt of the House’. For
example, disobedience to a legitimate order of the House is not a breach
of privilege, but can be punished as contempt of the House.

It should be noted here that the Parliament, till now, has not made any
special law to exhaustively codify all the privileges. They are based on
five sources, namely,
1. Constitutional provisions,
2. Various laws made by Parliament,and Rules of both the Houses,
3. Parliamentary conventions, and Judicial interpretations.
10. Freedom of property

the right to property is a natural and inherent right of an individual. Most

of the modern constitutions, except those of communist countries have
recognised the right of private property. Therefore, citizens have right to
own and possess the property. This right of individual conflicts with the
right of state to acquire property. A person has a right not to be deprived
of his property except through due process of law.
Right to Property has induced the most number of amendments to our
Constitution and also has formed the core from which some
commendable and historic decisions emerged out of our judiciary.

Post Constitutional Developments

The Constitution of India, as originally adopted safeguarded the Right to
Property in a number of ways.
Firstly, it guaranteed that “All citizens shall have the right to acquire,
hold and dispose of the property.” The State, however, could impose
reasonable restrictions (i) to serve the exigencies of public welfare and (ii)
to protect the interest of any Scheduled Tribe [vide Art. 19 Clauses (1) (f)
& (5)].
Secondly, in the phraseology of Art. 300A, the Constitution makers in
Art. 31(1) guaranteed that “No person shall be deprived of his property
save by the authority of law”. The provision indicated that a person can
be deprived of his property only through an Act passed by the
Parliament/State Legislature and not by executive order or fiat. The word
„Law‟ in Art. 300A means an Act of Parliament or a State Legislature, a
rule or a statutory order, having the force of law, that is positive or
State-made law.
Thirdly, as provided in Art. 31(2) (now deleted), the property of a person
could be acquired or requisitioned only under two contingencies viz. (i)
the acquisition or requisition could be for public purpose and (ii) the law
must provide for payment of compensation to the owner of the property
either by fixing the amount of the compensation or by specifying the
principles upon which it could be determined or fixed.
and with such absolute rights state is unable to carry forward land reforms
and The conflict between the citizen’s right and the state’s power to
implement the said principles of DPSPs started which given birth to
various amendments and judicial decisions

Pre 1978 The Fundamental Right To Property

The Ninth Schedule was inserted in the constitution by the Constitution
(First Amendment) Act, 1951 along with two new Articles 31 A & 31 B
so as to make laws acquiring zamindaris unchallengeable in the courts.
Thirteen State Acts named in this schedule were put beyond any
challenge in courts for contravention of fundamental rights.

By the Fourth Amendment Act, 1955, Art 31 relating to right to property

was amended in several respects. The purpose of these amendments
related to the power of the state o compulsory acquisition and
requisitioning of private property. The amount of compensation
payable for this purpose was made unjustifiable

During this period the Supreme Court was generally of the view that land
reforms need to be upheld even if they did strictly clash against the right
to property
The Forty-fourth Amendment:
The Constitution 44th Amendment Act, 1978, robbed the „right to
property of its fundamental right-character, and adorned it with status of
Constitutional/legal right. Arts. 19(1)(f) and 31 were deleted from the
Part III- “Fundamental Rights” and only a fraction in the form of Art. 300
A which corresponds to Art. 31(1) only, has been inserted in Part XII
under a separate Chapter V “Right to Property”. What is important to
note is that Art. 19(1) (f) which had guaranteed freedom to all citizens to
acquire, hold and dispose of property and remaining clauses (2) to (6) of
Art. 31, which hedged the right of the Legislature, to acquired property
with limitations for public purposes and only on payment of adequate
compensation, not illusionary one, as interpreted by the Apex Court, have
been omitted altogether by the Legislature. The effect of this amendment
of vast magnitude is that the right to property is no more a fundamental
right but is only a constitutional/legal right and in the event of breach
thereof, the remedy available to an aggrieved person is to approach the
High Court under Art. 226 of the Constitutional India and not the
Supreme Court under Art. 32 of the Constitution, a speedy remedy
available earlier
However, two exceptions have been created by the 44th Amendment to
the aforesaid general rule. First, where the property acquired belongs to
an educational institution established and administered by a minority, the
State shall ensure that the amount fixed by or determined under such law
for the acquisition of such property is such as would not restrict or
abrogate the right of minorities “to establish and administer educational
institutions of their choice” guaranteed by Art. 30(1)
Secondly, where the State seeks to acquire any estate and where any
land comprised therein is held by a person under this personal cultivation
and such land is within the ceiling limit applicable to him under any law
for the time being in force, or any building or structure therein or
appurtenant thereto, the State must pay compensation at the market value
for such land, building or structure acquired

Case laws
1.Kesavanada Bharathi vs State of Kerala
Fundamental rights Case: The Decision that saved the Constitution but
yet Killed the Right to Property as fundamental rights’
In this case the petitioners had challenged the validity of the Kerala Land
Reforms Act 1963. But during the pendency of the petition the impugned
Act was amended in 1971 and was placed under the Ninth Schedule by
the 29th Amendment Act5. The petitioners were permitted to challenge
the 24th, 25th and the 29th amendments also. The question was as to
what was the extent of the amending power conferred by Article 368 of
the Constitution
And the court held as follows:
(1) Parliament’s amending power is limited. While Parliament is entitled
to abridge any fundamental right or amend any provision of the
Constitution, the amending power does not extend to damaging or
destroying any of the essential features of the Constitution.
(2) Article 31C is void since it takes away invaluable fundamental rights,
even those unconnected with property.and
(a) the power of amendment is limited; it does not enable Parliament to
alter the basic structure of framework of the Constitution;
(b) the substantive provision of Article 31C, which abrogates the
fundamental rights, is valid on the ground that it does not alter the basic
structure or framework of the Constitution; and
(c) the latter part of Article 31C, which ousts the jurisdiction of the Court,
is void.
12. Uniqueness of Indian federalism

The Constitution of India is the supreme law of the land. It possesses all
the characteristic of federalism. A Constitution which possesses the
following characteristics may be called Federal Constitution:

i) The distribution of powers between the Centre and the States. Matters
of national importance are given to the Centre and matters of local
importance are given to the States.

ii) Every power whether legislative, executive or judicial belonging to

the Centre or the States, is derived from the Constitution.

iii) It must be in writing and the procedure of its amendment should be

rigid to maintain its supremacy. iv) The judiciary remains independent to
maintain the division of powers between the two levels of government as
stipulated in the Constitution

For strengthening the unity and integrity of the Country, Indian

Constitution provides a special kind of federation. Some jurists call it
quasifederalism and some call it co-operative federalism. Indian
Constitution is unique in its nature having the features of both federal and
unitary. The founding fathers of the Constitution were aware of the fact
that in the past the absence of strong Central Government has always led
to aggression and conquest from outside and this was equally responsible
for revolts in the Country. The members were convinced of the fact that if
the newly won political freedom and unity were to be preserved, the
Centre should be strong enough, to defend the Country, both against
external and internal disruptions. Hence, the Centre was endowed with
monopoly of control over defence, external affairs, adequate control over
finance and extensive powers to be exercised, when the emergency is in
force
Hence, Indian Constitution is federal with strong and indestructible
Centre. Dr. B.R. Ambedkar viewed about the nature of the Constitution
that “Indian Constitution could be both federal and unitary. In normal
times, it could work as a Federal Constitution and at the time of war or
economic and political crisis, it will work as a unitary one.It does not
follow strictly the conventional or orthodox federal pattern

India takes great pride in describing itself as the world's largest

democracy. However, this democracy is meaningful significantly because
it is encapsulated in a federal structure. While democracy represents the
majority opinion, federalism accommodates and links it to the voice of
the minority, lending a flavour of social justice. This ensures harmonious
functioning of the entire system.

Federalism and cultural and ethnic pluralism have given the country's
political system great flexibility, and therefore the capacity to withstand
stress through accommodation. However, continuation of the same
requires not simply federalism, but cooperative and constructive
federalism.
The Judiciary has used numerous phrases to describe this concept of
cooperative federalism, though all of them, in essence, have the same
meaning.
In State of Rajasthan v UOI, 1977 , it was quoted that according to
Granville Austin, the Constitution of India was perhaps the first
constituent body to embrace from the start what A.H. Birch and others
have called cooperative federalism. Chief Justice Beg called the
Constitution 'amphibian',....If then our Constitution creates a Central
Government which is 'amphibian', in the sense that it can move either on
the federal or on the unitary plane, according to the needs of the situation
and circumstances of a case....

In S.R. Bommai v Union of India , the phrase pragmatic federalism was

used. In the words of Justice Ahmadi, ....It would thus seem that the
Indian Constitution has, in it, not only features of a pragmatic federalism
which, while distributing legislative powers and indicating the spheres of
governmental powers of State and Central Governments, is overlaid by
strong unitary features...

In State of Haryana v State of Punjab, semi federal was used. And in

Shamsher Singh v State of Punjab , the Constitution was called 'more
unitary than federal'

Jawaharlal Nehru, while moving his Objectives Resolution on 13

December, 1946, reiterated that the need for a measure of uniformity in
regard to apparatus and machinery of government at the Central level was
to be considered in cooperation and consultation with the states, and that
all power and authority of the Sovereign Independent India, its
constituent parts and organs of government, are derived from the
people.The Constituent Assembly members did a commendable job by
envisaging a cooperative federalism set up because in the turbulent and
bloody circumstances prevailing at that time

The changing dynamics and the varied experiences that the Indian State
has had - one party rule, coalition and the not so united forms, have led to
the shift from Centralist to Federalist to Centre- Federalist forms of
federal governance. The rise of regional parties, the formation of coalition
Governments, active role of the Judiciary, the shift from the Right to the
Left to the current trough of the Left, have shaped the trajectory of
federalism by swinging the pendulum from cooperative to
confrontationist and vice versa