Law of Constitution

Imp –

Art 311.

Nature of Indian Constitution.

Power position of Presedent.

Art 368 and amendment procedure.

Trade comer and intercourse.

FR. Art 14,21

Q-1 Comment on Art 12 of Constitution of India.

The constitution of India has defined the word STATE for the purpose of Part –III
and Part IV.
In STATE OF WEST BANGAL V/S SUBODH GOPAL BOSE, the SC observed that
the object of Part III is to provide protection to the rights and freedoms
guaranteed under this part by the invasion of State.
Part III and Part IV carry a theme of Human Rights, Dignity of Individual and
also of the unity and dignity of the nation.

These parts respectively as a Negative Obligation of the State and not to

Interfere with the Liberty of the Individual, and Positive Obligation of the State
to take steps for the welfare of the Individual.

Sate under Art 12 of the constitution has Four Components:

1. The Government and Parliament of India

Government means any department or institution of department; Parliament
shall consist of the President, the House of People and Council of State.
2. The Government and Legislature of each State.
State Legislatures of each State consist of the Governor, Legislative Council,
and Legislative Assembly or any of them.
3. All Local Authorities and;
It means, Municipal boards Panchayats, Body of Port Commissioner, and
other legally entitled to or entrusted by the government.
4. Other Authorities within the territory of India or under the control of
Government of India.

1
 The first two categories included the legislative and executive wings of the
Union and State in all their possible varieties. They are quite specific and self
explanatory.

Judicial Scrutiny

The letter two categories, particularly the last are not so specific and require
some explanation. To give a wider dimension to FR the Judiciary has
interpreted “State” in different context at different time.

Principle of Ejusdem Generis:

In University of Madras v/s Santa Bai ,the Madras High Court evolved the principle
of ejusdem generis i.e. of the like nature. It means that those authorities are covered
under the expression ‘other authorities which perform governmental or sovereign
functions.

In Ujjam Bai v/s Union of India the Supreme Court rejected the principle of
ejusdem generis .It observed that there is no common genus between the authorities
mentioned in Article 12. And by giving the reference of Art 19 (1) (g), and Art 298
which contemplated engagement of state in the performance of commercial activity,
and Art 46 promotion of education or economic interest.

In Rajasthan State Electricity Board v/s Mohan Lals it was held that to be State, it is
not necessary that the authority must be performing governmental or sovereign
functions .It should-
( i ) Be created by the Constitution of India;
(ii ) Have power to make laws;

In R.D.Shetty v/s International Airport Authority, the Court laid down five tests to
be an other authority-
( i ) Entire share capital is owned or managed by State.
( ii ) Enjoys monopoly status.
( iii ) Department of Government is transferred to Corporation.
( iv ) Functional character governmental in essence.
( v ) Deep and pervasive State control.

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( f ) Object of Authority
In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a
juristic person is State is not how it has been brought but why it has been brought.

( g ) Clearance of five tests

In Union of India v/s R.C.Jain , to be a local authority, an authority must fulfill the
following tests-
( i ) Separate legal existence.
( ii ) Function in a defined area.
( iii ) Has power to raise funds.
( iv ) Enjoys autonomy.
( v ) Entrusted by a statute with functions which are usually entrusted to municipalities.

In Prem Garg v/s Excise Commissioner H.P. the Supreme Court held that when rule
making power of judiciary is concerned, it is State.
Other jurists say that since judiciary has not been specifically mentioned in Article 12, it
is not State, therefore if the Judge or magistrates are not note State while there are
functioning as a Judiciary. But if they are also functioning as Administrator then
they will be treated as State within the meaning of Art 12. The Chief Justice of High
court shall have functions in dual role :

1. Chief Justice of High Court

2. Chief Administrative of High Court.

If any citizen aggrieved by the act of the Chief Justice , while he was function as chief
administrator of the high court then that chief justice has no remedy and he shall be
treated as a State under the Art 12.

Conclusion
The word ‘State’ under Article 12 has been interpreted by the courts as per the
changing times .It has gained wider meaning which ensures that Part-III can be applied
to a larger extent. We hope that it would continue to extent its width in coming times.

3
Q-2 Doctrines’

1. Severability – (Post constitutional laws ) Art 13 (2)

Art 13 provides that Act is void which is inconsistent with the Part III of the

constitution. Art 13 is having a flexible nature; it does not make the whole Act

inoperative. It makes inoperative only such provisions of it as are inconsistent

with or violative of fundamental right. Sometimes valid and invalid portion of

the Act are so intertwined that they cannot be separated from one another. In

such cases, the invalidity of the portion must result in the invalidity of the Act in

its entirety, the reason is that the valid part cannot survive independently. In

determining whether the valid parts of a statue are severable from the invalid

parts. In intention of the Legislature is the determining factor. In other words it

should be asked whether the legislature would have enacted at all that which

survive without the part found ultra virus.

The rule of severability applies as much clause (2) as to Clause (1) of Art

13

Jia Lal v/s Delhi Administration AIR 1962

The appellant was prosecuted for an office u/s 19 (f) of the Arm Act 1878. In fact,

section 29 of this Act provides that in certain area in which the petitioner did not

obtain any license in which the petitioner was residing, it was not necessary to

obtain the said license for possession fire arm. Section 29 was challenged as

ultra virus and unconstitutional as offending Art 14 and also section 19(f) of the

Arms Act 1878 on the ground that two sections were not severable, on the
4
 question of severability the SC held that the section 29 of the Arms Act 1878 was

ultra virus.

2.

Doctrine of Eclipse (Pre Constitutional Laws) Art 13 (1)

Art 13 provides that any law which made before the commencement of
constitution must be consistent with the part III of the constitution . if any
statue is inconsistence with the provisions of part III of the constitution such
statue shall become void. At the same time such statue shall not be treat as Dead
unless it is abolish by Parliament. It will be treated as dormant or remains
eclipsed to the extent it comes under the shadow of the fundamental rights.

Regarding the doctrine of eclips few points need to be consider.

It is held to be applied only the Pre Constitutional Laws, and not to be post
constitutional laws.

Bhikaji v/s State of MP AIR 1955

The MP Government passed an Act in the year 1950 for nationalizing the motor
transport before commencement of the constitution. The statue was challenge
by the petitioner under Art 19(1)(g). The Center Govt. Amended Act 1955 on
27-4-1955 enabling the state to nationalize the motor transport. That SC held
that the statue of MP sate State nationalizing the motor transport 1950 was
cured by the 4th Amendment Act 1955 and therefore the Doctrine of Eclipse has
been applied and the such Act is valid.

doctrine of eclipse
this basically relates to the fact that some laws are held unconstitutional by the courts.
now in this scenario, the legal position that remains is that though the law exists in
statute
books, because of a court decision they are inoperable. therefore in law there is an
eclipse
cast upon their implementation.
however this does not imply that such laws cease to exist, for another decision may
hold
such law valid and in which case the eclipse cast upon the law would be removed and it
would be implementable again.
an example of this is Section 309 of the Indian Penal Code which the Supreme Court in
the case of P. Ratinam held as unconstitutional. however it remained in the IPC and

5
therefore it was under eclipse. However when a constitutional bench in Gian Kaur case
reversed this decision and held Section 309 as constitutional, the eclipse was removed
and it because operable again.
an example of a provision which remains in eclipse presently is of Section 301 which
has
been declared as unconstitutional by the Supreme Court. now till the time this decision
is
reversed or the provision is removed from IPC, it will remain under eclipse.

3. Doctrine of Waiver

The Fundamental rights (FR) under Part III Art 12 to 35 of the constitution are
conferred to every citizen of India by the constitution. These constitutional
rights are not absolute. There are reasonable restriction impose by the
constitution. The primary objective of these FR are based on public policy.
Therefore no individual can waive off such RF rights.

The doctrine of waiver of right is based on the premise that a person is his best
judge and that he has the liberty to waive the enjoyment of such right as are
conferred on him by the state. However the person must have the knowledge of
his rights and that the waiver should be voluntary.

Basheshr Nath v/s Income Tax commissioner AIR 1959 SC 149

In this case the petitioner whose matter had been referred to the Investigation
commissioner u/s 5(1) of the Taxation of Income Act 1947 was found to have
concealed a settlement u/s 8 A to pay Rs 3 Lakhs in monthly installments, by
way of arrears of tax and penalty. In the meanwhile the SC in another case held
that section 5(1) is ultra vires the constitution, as it was inconsistence with Art
14. So the appellant cannot his waive off his FR.

Conclusion- It means "a person from denying or asserting anything to the

contrary of that which has, in contemplation of law, been established as the
truth, either by the acts of judicial or legislative officers, or by his own deed, acts,
or representations, either express or implied.

Q 3. Comment on Basic Structure of Constitution of India.

6
 Amendments in constitution at time become necessary to adapt to the
changing needs of national development and strength, to overcome the
difficulties which may encounter in future in working of the constitution and
to realize any popular demand for changing the political system e.g State
reorganization, provisions of ST SCs, lowering of age for voting etc.

However the amendment of constitution often been used to achieve political

purposes or to override judicial verdicts.

For providing the compatibility of Constitution with the changing society

needs , constitution maker provide the Art 368- Power of Parliament to
amend the Constitution and procedure therefor

for the purpose of amendment the provisions of constitution fall under 3

categories.

(a) Amendment by Simple Majority.

(b)Amendment by special Majority.

(c) Amendment by special majority and rectification by states.

Sankari parsad V/s Union of India AIR 1951 SC 455

This is the case which in route the theory of Basic Structure, in this case SC
held that

 The power to amend the Constitution including the fundamental

rights is contained in the Art 368,

 And that the world Law in Art 13 includes only an ordinary law
and does not include constitutional amendment which is made in
exercise of constituent power.

In Sajjan Singh v/s State of Punjab, SC held that the world amendment of
constitution means amendment of all the provisions of constitution.

Golak Nath V/s State of Punjab AIR 1971 SC 1643

 SC held that Parliament cannot amend the FR,

7
  Rejection of argument- Amendment of Constitution was a
Sovereign Power and that did not permit any implied limitation.

Keshavanand Bharti’s V/s State of kerela AIR 1973 SC 1461

This is the case which emerge the theory of Basic Structure first time.

 The Golak Nath Case was overruled in this case, and SC held that Art
368 ever before 24th Amendment contained the power as well as
procedure of amendment.

 The Parliament has a wide powers of amending the constitution

but these powers has not the unlimited nature, and does not
include the power to destroy or abrogate the “Basic feature of
constitution under article 368.

Basic Structure Theory-

Ac to Sikri , CJ, the basic structure was build on the basic foundation i.e.
the freedom and dignity of the individual, the feature of BS T are:

a. Supremacy of Constitution.

b. Republican and Democratic form of Government and

sovereign of the country.

c. Secular and federal character of Constitution and

d. Separation of power between Legislature, executive and

Judiciary.

Ac to Shelat and Grover, J.J also included :

a. Fundamental Right

b. Directive Principle.

Indira Gandhi V/s Raj Narain AIR 1975 SC 2299

In this case 39th Amendment 1975 was passed by parliament for validating
with retrospective effect the election of PM Indira Gandhi which was
declared invalid by Allahabad High Court on the ground of having committed
corrupt practice. Anew article 329 A has been added that provided that
the election of a person who hold the office of PM can be challenged
8
 only before such a body or forum as may be established by Parliament
by law and not in court.

The SC in this case enhance the list of Basic Structure which was emergence
in Keshavanand Bharti’s Case :

a. Sovereign democratic republic status

b. Equality of status and opportunity of an individual

c. Secularism and freedom of conscience and religion

d.   'government of laws and not of men' i.e. the rule of law

Minerva Mills V/s Union of India AIR 1980 SC 1789

Struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment,
on the ground that these clauses destroyed the essential feature of the basic
structure of the constitution. It was ruled by court that a limited amending
power itself is a basic feature of the Constitution

L. Chandra Kumar case

"That the power of judicial review over legislative action vested in the High Courts
under Article 226 and in the Supreme Court under Article 32 of the Constitution is an
integral and essential feature of the Constitution, constituting part of its basic
structure".

Conclusion
Now we can say, there is no hard and fast rule for basic feature of the Constitution.
Different judge keep different views regarding to theory of basis structure. No law can
be enacted or amended in a manner that violates the spirit of the preamble.

Q- 4 Equality before Law and equal protection of law explain both the term under
Art 14

Art 14 Declares “the State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.

9
Thus Art 14 used the two expression “equality before the Law” and “equal protection of
the law”

As such this right was considered generally a negative right of an individual not to be
discriminate in access to public offices or places or in public matter generally. It did not
take account of existing inequalities arising even from the public policies with that kind
of undertaking of the right to equality.

This first expression equality before the law, is a somewhat negative concept which
is said to be have taken from English common law, is a declaration of equality of all
person within the territory of India, implying there by the absence of any special
privilege in favor of any individual. Ever person whatever be his rank or position is
subject to the jurisdiction of the ordinary court. Prof. Dicey, explain the concept of
equality as it operated in England said “ with us every official from the PM down to a
constable or collector of taxes is under the same responsibility for every act done
without any legal justification as any other citizen.

The second expression the equal protection of the law which is rather a corollary of
the first and is to be taken from US, it is a more positive concept implying equality or
treatment in equal circumstances.

These two expression under this article to make the concept of equal treatment a
binding principle of State action . The word Law in the former expression is used in a
generic sense a philosophical sense, whereas the word Laws in the latter expression
denotes specific laws. It has not explained this statement any further, but it means that
equality for all is the law or standard norm of the land.

Equal protection of the laws is now being read as a positive obligation on the State to
ensure equal protection of the Laws by bringing in necessary social and economic
changes so that every one may enjoy equal protection of the laws and nobody is denied
such protections.

Underlying Principle

As no human being are equal in all respect the same treatment to them in every respect
would result in unequal treatment. For example the same treatment to a child as to an
adult or to a physically challenge or healthy person, will result in unequal treatment.

Therefore the underlying principle of equality is: not the uniformity of treatment to
all in all respect, but rather equal must be treated equally while unequal must be
treated differently.

But this does not mean the unequal treatment for all, while the later Article of this part (
Part III) especially Art 15 and 16, equality not only prohibited unequal treatment but it
also demands equal treatment. Therefore state must not only treat people unequally

10
but it must also take positive steps to remove existing inequalities, especially those
inequalities which treat human being less then human being.

Test of Valid Classification

This article forbids the legislature classification, but it does not forbid reasonable
classification of person, objects and transactions by the legislature for the
purpose of achieving specific ends. And differentia must have a rational relation
to the object sought to be achieved by the Act.

There must be an nexus between the basis of classification and the object of the
Act which makes the classification.

In Kedar Nath Bajoria V/s State of WB

It said

The equal protection of the Laws guaranteed by the Article 14 of the Constitution does
not mean that all the Laws must be general in character and universal in
application and that the State is no longer to have the power of distinguishing and
classifying persons or things for the purpose of legislation.

In E.P Yoyappa v/s State of TN

Propounded a new approach to Article 14 in the following words:

Equality is a dynamic concept with many aspects and dimensions and it is cannot be
cribbed, cabined and confined within traditional and doctrinaire limits. For a positive
point of view equality is antithetic to arbitrariness.

In Maneka Gandhi v/s Union of India

Article 14 strikes at arbitrariness in state action and ensure fairness and equality of
treatment, the principle of reasonableness, which logically as well as philosophically is
an essential element of equality or non arbitrariness pervades Article 14 like a brooding
omnipresence.

Amendment in Constitution- Art 368 and Art 13

Shankari Prasad V/s Union of India

Sajjan Singh V/s State of Rajashthan

Golaknath V/s State of Punjab

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24th Amendment

Theory of Basic Structure (Keshvanad Bharti V/s State of kerala)

42ed Amendment

Minarva Mills V/s Union of India

In Shankari Prasad V/s UOI- The court held that the word “LAW” in clause 2 of Art 13
did not include the law made by the Parliament of India under Art 368. The word “LAW”
in Art 13 must be taken to mean Rules or Regulations make in exercise of constitutional
power and therefore Art 13(2) did not affect amendment make under Art 368.

Means Art 368 superseded the Art 13.

Sajjan Singh v/s State of Rajashtan- in this case the SC also uphold the decision which
has been made in Shankari Prasad V/s UOI.

Golaknath v/s Sate of Punjab- Court held that Art 13(2), the definitions of Law which
has been interrelated by Art 13(2), it is justifiable and it should be law.

This is the first time when court check the power of Parliament to Amend the
constitution which has been given by Art 368 of Constitution of India, and applied the
Doctrine of prospective Over Ruling. SC over ruled its decision in the aforesaid cases
and held that the word “LAW” in Art 13(2), includes every branch of law, whether it is
statutory or constitutional amend mend.

And it is necessary Art 368 r/w Art 13(2).

24th Amendments- to intact his amending power and to show its supremacy made the
24th amendments in the constitution and add the word- Power- in art 386 – which is

Power & Procedure. And add a new clause 4 in Art 13 –which provide that- nothing
in this Art shall apply to any amendment to this art made under Art 368.

Keshvanad Bharti V/s State of Kerala- Sc propound the theory of basic structure.

42ed Amendment – Add the clause 4 and 5 in Art 368.

12
Minarva Mills V/s UOI- Doctrine of basic structure, that it is the illustrative list
and not the exhaustive list. And Clause 4 & 5 of Art 368 declared void.

Q- The preamble of constitution sets out the main objectives, which the
constitution makers wanted to achieve. Discuss this statement. Can preamble be
amended under Art 368 of the constitution? (2009) (2008).

Preamble useful to interpretation the constitution.

The principle generally sets the ideas and goal of constitution maker which then
intended to achieve through that constitution. In Golaknath v.s State of Punjab court
held that- the Preamble contained in nutshell the idea and aspiration of the
constitution.

In Berubari Union and Exchange of Enclaves- it was held that - the constitution is
the key to open the mind of the constitution makers. And it is not the part of the
constitution.

Preamble also a legitimate aid in the interpretation of the constitution.

In Keshvanad Bharti v.s State of Kerala it was held that-

Constitution is extremely important and it should be read and interpretive in the

light of the grand and noble vision of preamble. And preamble is the part of the
constitution.

The purpose serve by 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:

13
JUSCTICE, social, economic, 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 individual and the unity of the nation.

It indicate the following purpose-

1. Source of constitution.- the source of the constitution is the people of India

which denote form the word in the preamble – We the People of India no
subordinate or external source of power other than people of India.

2. Enacting clause -which brings into force the constitution- having solemnly

resolved India Into- which shows the enactment clause of constitution.

3. Right and freedom of the people, type of Government and polity- to secure
every citizen justice, liberty, and equality and fraternity right. And there would
be sovereign, socialist and democratic ( head of the State is elected, direct and
indirect democracy.)nature of government.

Objective of Preamble-

JUSCTICE, social, economic, 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 individual and the unity of the nation

Amendment of Preamble- controversy in this point, some are agree and other are not
agree. But the evidence shows that it can be amended which has been shown in 42ed
Amendment of Constitution which add –Secularism, Socialism, and integrity.

14
Q. What is the nature of Indian Constitution? On what grounds is its spirit of
federalism challenged? Mention its important features.

Typically, democratic constitutions are classified into two categories - Unitary and
Federal. In a unitary constitution, all the powers are concentrated in a central authority.
The states or the constituents of the country are subordinate to such central authority.
In a federal constitution, powers are distributed among the center and the states. States
are not subordinates of the center. According to Prof. Wheare, the constitutions of USA,
Australia, and Switzerland are prime examples of a federal constitution. 
Dr. Ambedkar has categorically said in Constituent Assembly discussions that
notwithstanding certain provisions that centralize the powers, Indian Constitution is
essentially federal. Prof. Wheare and some other academicians, however, are hesitant in
calling it a federal constitution and prefer to term it as "quasi-federal" or "federal with
strong centralizing tendency".

Though, it should be noted that even prof. Wheare accepts the existence of certain
provisions in the American constitution, such as dependence of Senate on States, that
are contrary to federal character. However, he says that while the principles of
federalism should be rigid, the terminology of "federal constitution" should be wide. A
constitution should be called federal if it displays federal character predominantly.

The following are the defining features of federalism.

1. Distribution of Powers between center and states.

2. Supremacy of the Constitution.
3. Written Constitution.
4. Rigidity of the Constitution.
5. Independent Judiciary.

All the above characteristics are present in the Indian Constitution. However, there are
certain provisions that affect its federal character.

1. Appointment of the Governor of a State

Art 155 and 156 provide that the Governor, who is the constitutional head of a State, is
to be appointed by the President and stays only until the pleasure of the President.
Further, that the Governor can send the laws made by the state for assent from the
President, who can veto the law. 
It should be noted that Governor is only a ceremonial held and he works on the advice
of council of ministers. In past 50 yrs, there has been only one case (re Kerala
Education Bill), where amendments to a state law were asked by the center and that
too after the opinion of the Supreme Court. Thus, it does not tarnish the federal
character and states are quite free from outside control.

2. Power of the parliament to make laws on subjects in the State list.

Under art 249, center is empowered to make laws on subjects in the state list. On the
face of it, it looks a direct assault on the power of the states. However, this power is not
15
unlimited. It is exercised only on the matters of national importance and that too if the
Rajya Sabha agrees with 2/3 majority. It should be noted that Rajya Sabha is nothing
but the representative of the states. So an approval by Rajya Sabha means that States
themselves are giving the power to the center to make law on that subject.

3. Power to form new states and to change existing boundaries

Under Art 3, center can change the boundaries of existing states and can carve out new
states. This should be seen in the perspective of the historical situation at the time of
independence. At that time there were no independent states. There were only
provinces that were formed by the British based on administrative convenience. At that
time States were artificially created and a provision to alter the boundaries and to
create new states was kept so that appropriate changes could be made as per
requirement. It should be noted that British India did not have states similar to the
States in the USA.

4. Emergency Provisions
Center has the power to take complete control of the State in the following 3 situations :

1. An act of foreign aggression or internal armed rebellion (Art 352) 

2. Failure of constitutional machinery in a state (art 356)
3. Financial Emergency (art 360)

In all the above cases, an elected state government can lose control of the state and a
central rule can be established. In the first case, it is very clear that such a provision is
not only justified but necessary to protect the existence of a state. A state cannot be left
alone to defend itself from outside aggression. In the third case also, it is justified
because a financial emergency could cause severe stress among the population, plunge
the country into chaos and jeopardize the existence of the whole country. Such
provisions exist even in USA. The second provision is most controversial. It gives the
center the power to take over the control of a state. However, such an action can be
taken only upon the advice of the governor and such an advice is not beyond the
purview of the Supreme Court. In a recent case, Supreme court ruled that the
imposition of Presidential rule in the state of Bihar was unconstitutional.

Thus, it can be safely said that Indian Constitution is primarily federal in nature even
though it has unique features that enable it to assume unitary features upon the time of
need.  

Features of Indian Constitution

Constitution was written by a committee headed by Dr Ambedkar. Took 2 yrs, 11 mos,
18 days. Adopted on 26th Nov (celebrated as Law Day), enforced fully on 26th Jan.

1. Longest written constitution - 447 articles, 26 parts, 12 schedules. Original US

constitution had 7 articles and Australia had 128.
2. Establishment of sovereign, socialist, secular, democratic, republic.
3. Parliamentary form of govt.
16
 4. Unique blend of Federal and Unitary features
1. Independent and supreme Judiciary - Keshavand Bharati vs State of
Kerala & L Chandra Kumar vs Union of India
2. Advisory Jurisdiction of SC - Art 143 - Does not exist in US constitution.
3. Rigidity and flexibility 
4. Emergency Provisions
5. Single Citizenship
6. Single Electorate / Adult Suffrage
5. Positive Secularism - St. Xavier's College vs State of Gujarat , S R Bommai vs
Union of India, Aruna Rai vs Union of India
6. Indian Socialism - Combination of Marxist and Gandhian ideology. Right to work
is absent.
7. Economic Democracy
8. Other features
1. Fundamental rights - J Bhagvati in Menaka Gandhi vs Union of India 
2. Directive Principles - Unnikrishnan vs State of AP - Directive Principles
are as good as fundamental rights.
3. Fundamental Duties

Q. What do you understand by fundamental rights? Discuss with respect to Indian

Constitution.

The general concept of fundamental rights

The rights that are basic to the advancement of the human race are called Fundamental
Rights. All other rights are derived from these rights as direct implications
or application of their principles. It is an accepted belief among the philosophers that
these rights are nothing but "natural human rights", which distinguish between humans
and animals and which have been so instrumental in bringing humans from the stone
age to the present age. Among all, the right to life and liberty is considered to be the
most basic.

The history of  legally enforceable fundamental rights probably starts from Magna
Carta, which was a list of rights extracted from Kind John by the people of England in
1214 AD.  This was followed by the "Bill of Rights" in 1689 in which Englishmen were
given certain civil and political rights that could not be taken away.  Later on the French
compiled the  "Declaration of the rights of Man and of the Citizen" after the French
Revolution in 1789.

The most important advancement in history of fundamental rights occurred when the
USA incorporated certain fundamental rights in the form on "Bill of Rights" in their
constitution by the way of first 10 amendments. These rights were deemed to be
beyond the vagaries of politics. The protection by the constitution meant that these
rights could not be put to vote and were not dependent on the whims of politicians or of
the majority. 

After this, nearly all democracies of the world have given a constitutional sanctity to
17
certain inalienable rights available to their citizens.

Need for Fundamental Rights

1. Rule of Law 
These rights are a protection to the citizens against the govt and are necessary for
having the rule of law and not of a a govt or a person. Since explicitly given by the
constitution to the people, these rights dare not be transgressed by the authority. The
govt. is fully answerable to the courts and is fully required to uphold these rights.

2. First fruits of the freedom struggle

After living in subjugation for such a long time, people had forgotten what is meant by
freedom. These rights give people hope and belief that there is no stopping to their
growth. They are free from the whims of the rulers. In that sense, they are first fruits of
the lengthy freedom struggle and bring a sense of satisfaction and fulfillment.

3. Quantification of Freedom
Even citizens in gulf countries or communist countries are free. Then how is our
freedom different from theirs? The list of fundamental rights is a clear measurement for
how free we really are.  As an example, every Indian citizen in free to practice a religion
of his choice, but that is not so in the gulf countries. Our right to speech and expression
allows us to freely criticize the govt. but this is not so in China.

Fundamental Rights in India

Technically speaking, the rights specified in Part III (Art 12 to 35) of the constitution
are the fundamental rights available to the citizens of India. In the case of Menaka
Gandhi vs Union of India AIR 1978, J. Bhagvati has said that these rights represent the
values that are cherished by the people of this country since the vedic ages and are
calculated to protect the dignity of individual and to create conditions in which every
human being is able to develop his personality to the fullest. These rights are necessary
for a human being for attaining full social, intellectual, and spiritual status.

These rights can be grouped into 6 categories - 

1. Articles 14-18 Right to Equality

Art. 14 ensures that all citizens are treated equally. It enshrines the principle of
"Equality before law and Equal protection of law".  However, this brings us to
an important question. Should people living in unequal circumstance be treated
equally? In Indian Constitution, the answer is a resounding no. We have adopted the
mantra of "equal treatment under equal circumstances". This is reflected in Art 15,
which, while prohibits the state from discriminating between the citizens only on the
grounds of Caste, Race, Religion,  Sex, and Place of Birth or all of them[ Art 15(1) ], also
allows the state to make special provisions for Women and Children [Art 15(3)] and for
Backward classes [Art 15(4)].
Art. 16 takes the same principle further to employment in govt. jobs.
Art. 17 abolishes untouchability and Art. 18 abolishes various titles such as Rai Bahadur
that used to be given in the British rule.
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The cases of Lindsley v Natural Carbonic Gas Co, US SC 1910 and Chiranjit Lal v
Union of India SC AIR 1951 are important cases that illustrate the concept of equal
protection of the laws. In these cases, the SC of both the countries held that all persons
similarly circumstanced should be treated equally. Only like should be treated alike and
thus a reasonable classification can be done.
Several cases such as Randhir Singh vs Union of India 1982 (Equal pay for equal
work) illustrate the principle of equality. 
The SC judgment in Indra Sawhney vs Union of India AIR 1993 incorporates the
element of fairness in dealing with inequalities in the society, while balancing the
aspirations of the socially forward classes.

2. Artticles 19-22 Right to Freedom

A citizen of India is given freedom of Speech and Expression, freedom of Assembly,
freedom of Association, freedom of Movement, freedom of Residence, and Freedom of
Profession and Occupation through Art. 19.
Art. 20 gives protection with respect to conviction of offenses. This includes the
principles of 

 ex-post facto law : A person can only be with charged with an offence of an
action if the said action was illegal as per the law of the time when the action was
committed. 
 double jeopardy: A person cannot be charged with the same crime if he has
already been produced before the court and a verdict has been pronounced.
 self incrimination: A person will not be forced to testify against himself.

Art. 21, which is the most important and diverse of all the rights to freedom, is the
Protection of Life and Personal Liberty. SC in Menaka Gandhi v Union of India AIR
1978 was a landmark case that gave wide interpretation of this right. In this case the SC
held that his right  is not only about having any kind of life but a life of dignity. The
freedom is not just physical but mental as well as spiritual. This encompasses several
rights such as right to travel  abroad ( Satvant Singh v Ass. Passport Office AIR 1967)
and  right to pollution free water and air ( Subhash Kumar vs State of Bihar AIR
1991) . Further, Constitution Amendment Act 86, 2002 makes free and compulsory
education to children under 14 a fundamental right.
Art. 22  gives protection from illegal arrest or detention. It provides that a person must
be informed of the grounds of arrest as soon as possible,  be allowed to speak to a
lawyer of his choice, and be produced before a magistrate within 24 hrs of detention. 

3. Art 23-24 Right Against Exploitation

Under Art. 23, the govt. has banned trade in human beings. This includes flesh trade and
forced work or work  without pay (begar system). 
Art. 24 prohibits children from being employed in factories and hazardous conditions.

4. Art 25-28 Freedom of Religion

Unlike several countries of the world, we are free to practice, profess, and propagate
any religion under Art. 25. Art. 26 allows us to establish and maintain institutions for
19
religious and charitable purposes. It also gives the right to manage our own religious
matters. Art. 27 provides tax benefits for promotion of religion and art. 28 prohibits
religious teaching in govt and govt aided schools. 

5. Art 29-30 Cultural and Educational Rights

Art. 29 allows any section of citizens living anywhere in India who have a distinct
language, script, or culture, to preserve the same.  Art. 30 allows minorities to establish
and maintain educational institutions. To prevent discrimination, however, art 29(2)
prohibits them from discrimination in admissions only on the grounds of  religion, race,
caste, language, or any of them.

6. Art 32 Right  to Constitutional Remedies

Dr. Ambedkar, the chief architect of our constitution, has said that Article 32 is the soul
of our constitution. All the talk of rights is useless if there is no recourse against their
transgression. Under this article, a citizen is free to go to the Supreme Court  for
violation of his rights.

Scope of Fundamental Rights

Widest Possible Interpretation
SC in A K Gopalan vs State of Madras AIR 1950 had held that the various rights given
under part III talk about different things and are not be interlinked. This view, however,
has been rightly rejected by the SC in Menaka Gandhi vs. Union of India AIR
1978 case. In this case, J Bhagvati said that the role of SC should be to interpret these
rights in the widest possible manner and it should not attenuate these rights by being
confined to their narrow definition. All these rights are not mutually exclusive and form
an integrated theme of the constitution. J Beg said that  their waters must mix to form a
grand flow of unimpeded and impartial justice.  Thus, any law that takes away the life or
liberty of a person, must also satisfy the test of reasonableness under art. 14.

Natural Justice and Due Process

In Menaka Gandhi's case, SC has held that any law that takes away the life or liberty of a
person under art. 21, must be just, fair, and reasonable. It must satisfy the principle of
natural justice, which is a basic component  of fair procedure under Art. 21. While Art
21 does not contain the "due process" clause of the American Constitution, the effect is
the same because natural justice is a distillate of due process i.e. natural justices can
only be delivered through due process.

Expanding the role of writ of Habeas Corpus

The case of Sunil Batra vs Delhi Admin AIR 1980 has given tremendous power to the
writ of Habeas Corpus. It allows the judiciary to even enforce the fundamental rights in
a prison. Even prisoners are humans and must be treated with dignity. They cannot be
stripped off of their fundamental rights, thus menial or forced work without pay,
solitary confinement, degrading punishment, is not allowed. This case has also allowed
people who are not directly involved but have any kind of interest to approach the
court. The objective is to remove injustice wherever it is found in the society.

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Absoluteness of Fundamental Rights
"Your freedom ends where my freedom starts" is a well known saying. The constitution
gives you the right to propagate your religion. But does that mean you should force me
to hear religious activities over the loudspeaker? The constitution gives you the
freedom of speech and expression. But does that mean you can publish and sell
pornography freely in open market? 
These things clearly tell us that no right is absolute. Indian Constitution also takes the
same stand and specifies the limits of these rights. These rights extend only until they
do not affect security of the state, public order, and social decency. The constitution
allows reasonable restrictions to be placed on these rights. SC in A K Gopalan vs State
of Madras 1950has also held that Fundamental Rights are not absolute.

Suspension of Fundamental Rights

Under art 358, freedoms given under art 19 are suspended when the president
proclaims emergency. Further, under art 359, president may suspend the right to move
courts for violation of rights given in part III except art 20 and 21.

Critical Analysis
Indian Constitution was written after a through analysis of existing constitution of the
world. The framers of the constitution have incorporated the good things from all the
places. As such it is more fair and consistent than religious books. It is for the foresight
of the framers of the constitution that the country is integrated and has progressed.
While the framers had  thought about a lot of things, the one thing that they probably
missed was the safeguards against the degrading morality of politicians.

Q. What do you understand by freedom of speech and expression? What

restrictions can be applied on it?

Freedom of speech and expression is the most basic of all freedoms granted to the
citizens of India. J Patanjali Shastri has said in the case of Romesh Thaper vs State of
Madras AIR 1950 SC that freedom of speech and that of the press lay at the foundation
of a democratic society, for without free political discussions, no public education is
possible, which is so important for the proper functioning of the govt. 
It allows us to freely express our ideas and thoughts through any medium such as print,
visual, and voice. One can use any communication medium of visual representation
such as signs, pictures, or movies. Freedom of speech would amount to nothing if it
were not possible to propagate the ideas. Th us, the freedom of publication is also
covered under freedom of speech.  Freedom of speech serves 4 purposes -

 allows an individual to attain self fulfillment.

 assists in the discovery of truth.
 it strengthens the capacity of a person to make decisions.
 it facilitates a balance between stability and social change.

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This right is not only about communicating your ideas to others but also about being
able to publish and propagate other people's views as well. Thus, freedom of speech and
expression is linked to the people's right to know. Freedom of speech and expression is
a broad term and encompasses several things. The following are important cases that
have determined the extent of this right from time to time.

Right to Know

Prabhu Datt vs Union of India SC AIR 1982 : SC held that right to know news and
information about the functioning of the govt. is included in the freedom of press.

Union of India vs Association for Democratic Reforms SC AIR 2002 : SC held that
people have right to know about the candidate before voting. Thus, the law preventing 
the Election Commission from asking for a candidates wealth, assets, liabilities,
education and other such information, is invalid.

Right to tell and propagate

LIC vs Manubhai D Shah SC AIR 1992 : In this case, Manubhai wrote an article in LIC's
magazie about the problems with LIC that affected policy holders. LIC published a
response to that but did not give a chance to public a rejoinder. SC held that LIC being a
State as per Art 12, must publish his response. It also held that it does not mean every
body has a right to publish in a magazine and this right should be determined on a case
by case basis.

Secretary, Ministary of I & B vs Cricket Association of Bengal SC AIR 1995 : In this
historic judgment, SC has held that one has the right to publicize his expression as well.
A game of cricket is an expression and the organizers have a right to propagate it every
where in the world. So Doordarshan must provide its uplinking facilities to CAB for
transmitting the signals out of country. Art 19 (2) does not allow restrictions on 19 (1)
(a) on the grounds of creating monopoly of the govt.

Tata Press Ltd. vs MTNL SCC 1995 SC: In this case, SC held that commercial
advertisement is protected under freedom of speech.

Restrictions on Freedom of Speech and Expression

Every human desires to do many things. However, in a civil society such desires must be
curbed to certain extent in respect of similar desires of other human beings. Thus, no
right is an absolute right.  Art 19 (2) says that nothing in Art 19 (1) (a) shall affect the
operation of any law or prevent the state from making any law, in so far as such law
imposes reasonable restrictions on exercise of the right conferred by the said clause in
the interest of  -

 sovereignty and integrity of the country.

 security of the state
22
  friendly relations with foreign states.
 public order
 decency and morality
 defamation
 contempt of court
 incitement of an offence.

In the original version of this article several grounds such as public order, friendly
relations with foreign states, incitement of an offences were not there. After the historic
judgement in the case of Romesh Thaper vs State of Madras SC AIR 1950, these
grounds were added. In that case, Madras Govt. prevented the entry an circulation of
the new paper 'Cross Roads' published by  Romesh Thaper, in the state of Madras. It
argued that the circulation of the paper affects public safety. However, SC held that
the public safety falls outside the scope of 19 (2) and thus the govt action was invalid.
This decision prompted the govt. to amend the constitution to include additional
grounds as mentioned above. 

It is important to note that the current clause mentions the words "reasonable 
restrictions". Thus, any law restricting the freedom of speech and expression must
satisfy the grounds mentioned in 19(2) and must also satisfy the criteria of
reasonableness. Reasonable restriction means intelligent care and discussion that the
restriction is not beyond what is required for public interest. It should not be arbitrary
and excessive. Further, the restriction can only be imposed by law and not by executive
or departmental decision.

Test of reasonable restrictions

Spanning several cases, SC has laid down the following guidelines :

1. It is the courts and not the legislature that will decide whether a law is
reasonable or not.
2. Reasonable means that the law is not arbitrary and the restriction is not beyond
what is required in public interest. The time and duration of the restriction
cannot be unlimited.
3. There is no fixed standard for reasonableness. Each case must be decided on its
own merits.
4. The restriction must be reasonable from substantiative as well as procedural
stand point.
5. Restrictions imposed due to implementation of Directive Principles may deemed
to be reasonable.
6. The test of reasonability must be objective in the sense that it does not matter
what a Judge or Court thinks what is reasonable but what a normal reasonable
person would think.
7. The restriction must have a relation to the object that is sought through the law
and must not be excessive.

23
 8. It is the reasonableness of the restriction that a count has to determine and not
the reasonableness of the law itself.
9. Restriction may amount to prohibition.

The following are important cases that have attenuated the scope of this right.

CPI (M) vs Bharat Kumar AIR 1998 SC : In this case SC has held that bundhs called by
various political parties are illegal because they prevent the citizens from exercising
their right to freedom. I

Ranjit Udeshi vs State of Mah. AIR  1965 SC : In this case, a bookseller was prohibited
from selling book containing obscene material.

Hamdard Dawakhana vs Union of India AIR 1960 SC : In this case, SC held that
obnoxious and fraudulent advertising is not protected under freedom of speech.

Critical Analysis
Freedom of speech and expression is indeed the most important of all freedoms.
However, today, this right is being routinely suppressed under the guise of morality and
decency or public order. Even a slight criticism of a public leader or past king causes the
political parties to involve in damage of public property. Any book that talks about
problems in a religion is banned in the name of public order. It is extremely unfortunate
that the executive, instead of the upholding peoples' right to speech and expression by
preventing unscrupulous element from hurting the author, is more interested in stifling
the voice by banning their works. By doing this they are not doing their job
responsibility.

Q. How is the independence of the judiciary ensured? Describe the various

jurisdictions of the Supreme Court of India. Explain the writ jurisdiction of a High
Court. What is meant by Judicial Review?

India has adopted a federal constitution with distribution of powers between center
and the states.  An independent judiciary is the essence of the federal character of the
constitution. It is imperative that the judiciary be impartial and independent of the
legislative and executive branches of the country to ensure the functioning of the
government in accordance with the constitution. The supreme court, being the guardian
of the constitution, ensures that the fundamental rights of the citizens are not violated.
To let the judiciary fulfill this big responsibility efficiently, the constitution has provided
several measures that ensure the independence of the judiciary. However, owing to the
nature of Indian politics, there have been several attempts by the govt. to extend its
supremacy over the judiciary and to reduce its independence.  To understand the
dynamics between the govt. and the judiciary, we need to look at the provisions present
in the constitution.

Composition of the Supreme Court

24
Art 124 specifies that the SC will be composed of a Chief Justice and at most 7 other
judges. The number of other judges has now been increased to 25. 

To be appointed as a judge of the supreme court, a person must be a citizen of India

and 
a) has been a Judge of a High Court for 5 yrs .
b) has been an advocate of a High Court for 10 yrs. 
c) in the opinion of the president, a distinguished Jurist.

Appointment of the Judges

The procedure of appointment of the Chief Justice and other judges has created a lot of
controversy because it is the key aspect of the independence of the judiciary. Art 124
specifies that the Chief Justice is appointed by the president after consulting with the
judges of the supreme court and the high courts. Further, that while appointing other
judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the
executive from having complete discretionary powers in the appointment of the judges. 

Until 1973, the senior most judge of the supreme court was appointed as the Chief
Justice. However, this convention was broken when Justice AN Ray was appointed as
the CJ by passing 3 more senior judges. This was seen as a blatant assault on the
independence of the judiciary. The govt. pleaded that the word "consult" does not mean
that the president is bound by the advise. He is free to make his own decision.

In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the
transfer of a Judge from one high court to another under art 222, SC held that the
President has the right to differ from the advice provided by the consultants. 

Judges Transfer Case 1

In the case of S P Gupta vs Union of India, 1982 SC unanimously agreed with the
meaning of the word 'consultation' as determined in the Sankalchand's case. It further
held that the only ground on which the decision of the govt. can be challenged is that it
is based on mala fide and irrelevant consideration.  In doing so, it substantially reduced
its own power in appointing the judges and gave control to the executive. 

Judges Transfer Case 2

This matter was raised again in the case of SC Advocates on Record Association vs
Union of India, AIR 1982. In this case, the SC overruled the decision of the S P Gupta
case and held that in the matter of appointment of judges of high courts and supreme
court, the CJ should have the primacy and the appointment of the CJ should be based on
seniority. It further held that the CJ must consult his two senior most judges and the
recommendation must be made only if there is a consensus among them.

Judges Transfer Case 3

A controversy arose again when the CJ recommended the names for appointment
without consulting with other judges in 1999. The president sought advice from the SC
(re Presidential Reference 1999) and a 9 member bench held that an advice given by
25
the CJ without proper consultation with other judges is not binding on the govt.

As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges
in SC and High Courts are fairly free from executive control. This is an important factor
that ensure the independence of the judiciary.
The following are other provisions that work towards the same goal:

1. Fixed Tenure
A SC Judge has a fixed tenure until retirement age. He cannot be removed except by a
presidential order passed with a simple majority as well as  by 2/3 majority of each
house of the parliament present and voting.
No judge has ever been removed by a presidential order in India. The proceedings to
remove were started to Justice V Ramaswamy, but  the motion was not approved
because lack of required majority.
In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995, pressure was put the
the local bar association on the judge to resign. In this case, the SC held that only the
Chief Justice of the SC can be the prime mover of the action against erring judges.  Thus,
after this case, action against judges was allowed only  through in-house procedures of
the judiciary.

2. Salary
The salary of the judges cannot be changed after the appointment for their
disadvantage. 

3. Jurisdiction of the courts

The jurisdiction of the SC can be increased but not decreased i.e. their power cannot be
curtailed.

4. Art 121
No discussion about the judges in the parliament is permitted as per art 121 except for
the discussion about his removal.

5. Art 129 and 215

Power to punish for its contempt.
The SC and the High Courts have the power to punish anybody for civil and criminal
contempt of itself under art 129 and 215.

6. Art 50 Separation of judiciary from executive

Art 50 urges the state to take steps to separate the judiciary from the executive in the
public service of the state.

7. Appointment of the judges only after consultation with legal experts.

As discussed above, the executive does not have unlimited power over appointment of
judges.

8. Art 124(7) Prohibition on practicing before any court

26
Art 124 prohibits a retired judge from appearing and pleading before any court or
tribunal. 

Jurisdictions of Supreme Court

Art 129 Court of Record

SC is a court of record and has all the powers including power to punish for civil or
criminal contempt of court. In the case of Delhi Judicial Service Asso. vs State of
Gujarat 1991, SC held that It can even punish for contempt of any subordinate court in
India as well.
In the aftermath of babri masjid demolition, UP CM Kalyan Singh was punished for
contempt of court for failing to deliver on his promise not to allow any construction in
disputed area.

Art 131 Original Jurisdiction

The SC has original jurisdiction in any dispute arising between:
a) Center and one or more states.
b) Center and one or more states on one side and one or more states on another.
c.) two or more states.

Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit
must involves a question of law or fact on which a legal right depends. Further, the suit
cannot be because of any commercial relation or political relation between the two
parties. 
In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by
State of Karnataka against the Govt. regarding its objection to the appointment of an
inquiry commission is maintainable.
In the case of Union of India vs State of Rajasthan 1984, it was held that a suit to
recover damages under Railway Act is not maintainable. SC's original jurisdiction is not
attracted for ordinary commercial disputes.

The following are some exceptions under which SC does not have jurisdiction:
1. Any treaty, covenant, sanad, agreement, or any such instrument that  was executed
before the commencement of the constitution, and which is still in operation or
provides that the jurisdiction of SC does not extend to such a dispute.
2. The parliament by law may restriction the jurisdiction of SC in disputes related to
use, distribution, or control of the water or an interstate river or river valley.
3. Any matter referred to the Financial Commission.
4. Matters related to the adjustment of the expenses between the center and the state.

Enforcement of Fundamental Rights Art 32

SC is the guardian of the constitution. It is the supreme defender of the people's
fundamental rights. This position has been enforced by Art 32 that given any citizen to
petition the SC if his fundamental rights are violated. The SC is empowered to give
directions, orders, or writs including the writs of habeas corpus, mandamus,
27
prohibition, and certiorari for the enforcement of the rights given in part III.
L Chandra Kumar vs Union of India AIR 1997 -  Power of judicial review vested in HC
by art 226 and in SC by art 32 is a basic feature on the constitution and cannot be
amended.

Art 132 Appellate Jurisdiction  - Constitutional

The SC is the highest court of appeal in the country. The writs and the decrees of the SC
run throughout the country. A person can appeal to the SC under its appellate
jurisdiction if he is not satisfied with the decision of the lower courts.  Art 132(1) allows
an appeal to be filed in the SC if  three conditions are satisfied:
1. The order appealed must be against the judgement of a high court in civil, criminal, or
other proceedings.
2. The case involves a question of law as to the interpretation of the constitution.
3. The High Court, under 134A certifies that the case be heard by the SC.

Krishnaswamy vs Governer General in Council 1947 -  If there is a difference of

opinion among High Courts and if there is no direct decision by SC on that point, it is a
substantial question of law that can permit appeal in SC.

Art 133 Appellate Jurisdiction  - Civil

An appeal shall lie to SC from any judgement, decree, or a final order in civil
proceedings of a High Court only if the High Court certifies under 134A that
1. the case involves an substantial question of law of general importance.
2. in the opinion of the High Court, the said question needs to be decided by the SC.

Madan Gopal vs State of Orrisa 1956 -  The pecuniary value of a dispute is immaterial.
There may be matters which cannot be measured in money but the decision could have
a far reaching effect and such cases can be permitted to be appealed in SC.

Art 134 Appellate Jurisdiction  - Criminal

An appeal shall lie to SC from any judgement, decree, or a final order in criminal
proceedings of a High Court in two ways - with or without a certificate from High Court.
1. Without Certificate
    a) If the High Court, on appeal, has reversed an order of acquittal of an accused and
sentenced him to death 
    b) if the High Court has withdrawn a case before itself from any subordinate court
and in such a case has convicted the accused and sentenced him to death.

2. With Certificate
If the High Court certifies that this is a fit case for appeal to SC.

Siddheshwar Ganguly vs State of WB 1958 - In this case SC issued guidelines for

issuing certificated under 134A. A mere question of fact is not enough but it must also
involve a substantial question of law.

Art 135 Federal Court's (the one that existed before the commencement of the
28
constitution) jurisdiction to be exercised by the SC.

Art 136 Special Leave to appeal by SC

Under this article, the SC is authorized to grant, on its discretion, special leave to appeal
from any judgement, decree, determination, sentence, or order, in any case or matter,
passed or made by any court or tribunal in the territory of India.
Ramakant Rai vs Madan Rai AIR 2004 - Private party can appeal against the acquittal
even if the state govt. hasn't. SC cannot refrain from doing its duty just because a private
party and not the state has appealed against the order.
Pritam Singh vs State AIR 1950 -SC explained how this discretionary power is to be
used - Since the power is exceptional is very wide, it must be used sparingly and in
exceptional circumstances. Beyond this point it is not possible to fetter the exercise of
this power by any set formula.

Art 137 Power to review its judgement.

Under exceptional circumstance, the SC may review its judgement.

Art 139 A
Under this article the SC has the power to withdraw before itself any case or cases from
High Courts if it feels that these cases involves the same or similar question of law that
is of general importance.
Union of India vs SGPC 1986 -  SC may transfer a case from one High Court to another
under art 136 if it feels that the case cannot be dealt with fairly in one High Court due to
exceptional circumstances.

Art 143 Advisory Jurisdiction

Art 143 provides that if at any time it appears to the president that a question of law or
fact has arisen or is likely to arise and that the question is of such public importance
that expedient opinion of the SC is required, then he may refer it to the SC. The SC, after
such hearing as it may deem fit, will report back to the president. Under 143(2), the SC
is can be asked to give opinion even on matters not permitted under art 131.
There is no similar provision in the American constitution. In US, the court can give
ruling only on concrete cases.

In re Kerala Education Bill 1953, SC has interpreted the word "may" in clause 1 as it is
not bound to give its opinion. If it has a good reason, it may refuse to express its
opinion.
In re Special Courts Bill 1979 case, SC has held that opinions given by it under this
jurisdiction are binding on all courts in the country.
In re Cauvery Disputes Tribunal 1992, SC declared that the ordinance passed by the
State of Karnataka to not follow the order of the tribunal to release water to TN, is
unconstitutional.

In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused
to express its opinion on whether a temple existed on the disputed location because it
was superfluous, unnecessary, and favors a particular religion.
29
Art 141
Judgement of the SC is binding on all courts, except itself. In the case of Bengal
Immunity Co vs State of Bihar. 1955, SC held that the principle of Stare decisis is not
an inflexible rule of law and cannot be used to perpetuate errors. 

Writ Jurisdiction of High Courts

The constitution gives wide powers to all High Courts to ensure that injustice is not
tolerated in any sphere. Art 226 provides that notwithstanding anything in article 32
every High Court shall have power, throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
It is important to note that the power is not only to enforce fundamental rights but for
any other purpose, which makes its powers even wider than Supreme Court. Here, any
other purpose means any legal right of legal duty. 
In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC has held that
the power of judiciary over legislative action vested in a High Court is a basic feature of
the constitution and cannot be removed through constitutional amendment.

Locus Standi : Who can apply

In general, the person whose constitutional right or legal right has been infringed has
the right to apply. However, due to judicial activism, the "doctrine of sufficient interest"
has originated. According to this, any person who is even remotely affected can petition
the High Court. It also allows public spirited persons to file a writ petition for any
person or class if that person or class is not able to do so himself due to poverty or any
other reason.
In ABSK Sangh vs Union of India AIR 1991, SC held that even an unregistered trade
union has right to file a petition for redressal of a common grievance.
In the case of Chairman, Railway Board vs. Chandrima Das AIR 2000, SC held that an
advocate of Cal. High Court has sufficient interest in making a public place like a railway
station a safe place and so she has right to demand compensation for the bangladeshi
woman gang raped by railway employees.

Scope of Art 226

In the case of Basappa vs Naggapa, AIR 1954, SC has held that the art 226 confers
wide powers to remedy injustice where ever it is found. Art 226 says, "...or writs or the
kind of...", which means that it is not limited only the mentioned types of writs. It can
issue orders orders of any kind that the situation may require. Thus, it makes the scope
of Art 226 a lot wider than art 32.

Court Martial and art 226

In a significant case (which case?), Delhi High Court held that section 18 of India Army
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Act is not beyond the scope of High Court. While High Court may not interfere in the
sentence awarded in a court martial, such an order cannot be arbitrary and mala fide.
Thus, it is open to judicial review.
In the case of Union of India vs R K Sharma, AIR 2001 SC has held that court should
not interfere only on compassionate grounds. Only when there is a perverseness or
gross injustice on the face of it, there can be judicial review.

Dispute between private parties - No Jurisdiction

In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC held that the extraordinary
jurisdiction of High Court cannot be exercised in the private party disputes relating to
property rights unless there is a violation of statutory rights by statutory authorities.

Natural Justice
Natural Justice is not exclusively the principle of administrative law. The courts are also
bound by the same principle. Every administrative action must be supported by
reasons. The reasons must be recorded to ensure that there is no arbitrariness.

Territorial extent of writ jurisdictions

Art 226 imposes two limits on HC's writ. First, it can run only in the territorial
jurisdiction of the High Court and secondly the person or authority must lie in that
jurisdiction. 
In the case of Election Commision of India vs Venkata Rao, AIR 1975 SC held that
Madras High Court cannot issue a writ to ECI because it is based in New Delhi and so is
out of its jurisdiction. The law commission recommended that these are serious
limitations and they defeat the very purpose of this article. So it was amended by 15th
amendment in 1963. High Court can now issue a writ even to a central authority if the
cause of action in whole or part arises in its jurisdiction.
In the case of ONGC vs Utpal Kumar Basu SCC 1994, it was held that the averment in
the petition did not disclose that a part of the cause of action arose in the jurisdiction of
Calcutta and so High Court does not have any jurisdiction to entertain the writ petition.

Discretionary Remedy - Not to be exercised if alternate remedy is available

The remedy available in 226 is a discretionary remedy and the High Court has the
discretion to accept or refuse a petition. In general, if a remedy is available elsewhere,
writs under 226 are discourages. However, this does not mean that any remedy
available can be a ground for not entertaining the petition under 226. The remedy must
be effective and sufficient. In the case of Vellaswamy v IG Police, Madras 1982, SC
held that the remedy under Police Rules of TN was not sufficient and so High Court was
wrong in dismissing the petition.

Effect of Laches or delay

Remedy under 226 should be sought with in a reasonable time. However, High Court
may accept a petition is there is a reasonable cause for delay in seeking justice. Poverty
has been held to be reasonable ground.

Judicial Review
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The concept of Judicial Review started from the case of Marbury vs Madison in
1800 in the USA. In this case, justice John Marshall held that judiciary has inherent
power to review actions by legislature even if no explicit provision is given in the
constitution.

Indian Situation
By adopting a written constitution and an independent judiciary, India has provided the
rule of law instead of rule on men to the citizens. However, the rule of law will be
rendered useless if the legislature is able to make laws that violate the fundamental
rights of the citizen. Thus, the constitution in Art 13 has provided the judiciary with the
power to review laws made by the legislature. This is called Judicial Review.

Art 13 says:

1. All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this
Part, shall, to the extent of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to
the extent of the contravention, be void.
3. In this article, unless the context otherwise requires,—
o (a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force of
law;
o “laws in force” includes laws passed or made by a Legislature or other
competent authority in the territory of India before the commencement
of this Constitution and not previously repealed, notwithstanding that
any such law or any part thereof may not be then in operation either at all
or in particular areas.
4. Nothing in this article shall apply to any amendment of this Constitution made
under article 368.

In the case of L Chandra Kumar vs Union of India SC AIR 1997 held that the power
vested in SC by art 32 and High Court by art 226 over legislative action is a basic
feature.

Doctrine of Severability
AK Gopalan vs State of Madras SC AIR 1950 : Only section 14 of Preventive detention
act is void and not the whole act. 

Doctrine of Eclipse
Bhikaji vs State of MP SC AIR 1955: Applies to pre-constitutional law
Deep Chand vs State of UP SC AIR 1959: Does not apply to post - constitutional law.
State of Gujrat vs Ambika Mills SC AIR 1974 : Applies to post constitutional law for
non-citizens.
Dulare Lodh vs 3rd additional district judge SC AIR 1984: Applies to post
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constitutional law as well.

Doctrine of Waiver
Basheshar Nath vs Income tax commissioner SC AIR 1959 : Citizen cannot waive
right.

Meaning of Law 
Keshavanand Bharati vs State of Kerala SC AIR 1973: Rules and regulations made
under legislative power and not amendments.

Q. What is the procedure for amending the constitution? On what grounds an

amendment may be held ultra vires by the Supreme Court?

A rigid constitution is a must in a federal system of governance. In case of Indian

constitution, it has been argued that it is not rigid enough. That there have been 93
amendments in last 50 years proves this fact. As a comparison, there have been only 27
amendments in the constitution of USA in the past 200 years. This has been done
deliberately to ensure that the constitution can be changed as per the needs of the
times. However, to prevent excessive changes on the whims of the ruling party,
sufficient safeguards have been put. 

The procedure of amending the constitution is given in Article 368. It says that the
parliament can amend the constitution under its constituent power. A bill must be
presented in either house of the parliament and must be approved by a majority of each
houses and not less than 2/3 majority of each house present and voting. After such
approval the bill is presented to the president for his assent, upon whose assent the
constitution shall stand amended as per the provisions of this article. However, if the
amendment seeks to make a change in 

 Articles 54, 55, 73, 162, or 241

 Chapter 4 of part 5, chapter 5 of chapter 6, or chapter 1 of part 11
 any of the lists in the 7th schedule
 representation of the states in the parliament
 in this article itself

the bill must also be ratified by not less than half of the states before it is presented to
the president for his assent.

For amending articles 5, 169, or 239-A, only a simple majority of both the houses of the
parliament is required.

Power of the parliament to amend the constitution

There has been a lot of controversy on the power of the parliament to amend the
constitution.  Article 13 of the original constitution said that the state shall not make

33
any law that takes away or abridges the rights given to the citizens in Part III and any
such law made in contravention of this article shall be deemed void to the extent of
contravention. Thus, it seemed that parliament cannot amend the constitution in a way
that takes away the fundamental rights of the citizens.

This logic was first tested by the Supreme Court in the case of Shankari Prasad vs
Union of India AIR 1951. In this case, an amendment to add art 31 A and 31 B to the
constitution was challenged on the ground that they take away fundamental right of the
citizens and therefore not allowed by article 13. It was argued that "State" includes
parliament and "Law" includes Constitutional Amendments. However, SC rejected the
arguments and held that power to amend the constitution including fundamental rights
is given to the parliament by art 368 and that "Law" is art 13 refers only to ordinary law
made under the legislative powers.

In the case of Sajjan Singh vs State of Raj. AIR 1965, SC followed the judgement given
in the case of Shankari Prasad and held that the words "amendment of the constitution"
means amendment of all provisions of the constitution.

However, in the case of Golak Nath vs State of Punjab, AIR 1971, SC reversed its
previous judgement and held that parliament has no power from the date of this
judgement to amend part III of the constitution so as to take away any fundamental
right. It held that "amendment" is a law as meant under art 13 and so is limited by art
13(2).

To overcome the judgement in the case of Golak Nath, the parliament added another
clause in art 13by the 24th amendment in 1971 It says that this article does not apply to
the amendment of the constitution done under art 368. A similar clause was added in
art 368 for clarity in the same amendment, which says that amendment done under art
368 shall not come under the purview of art 13.

This amendment itself was challenged in the case of Keshavanand Bharati vs State of
Kerala AIR 1973. In this case, SC reversed its judgement again and held that "Law" in
art 13 only means ordinary law made under legislative power, The 24th amendment is
only clarifying that position and so it is valid. However, it further held that
"amendment" means that the original spirit of the constitution must remain intact after
the amendment. Thus, the basic structure or features of the constitution cannot be
changed. According to C J Sikri, the basic structure of the constitution includes -
Supremacy of the Judiciary, democratic republic, secularism, separation of powers
among judiciary, legislative, and the executive, and the federal character of the
constitution. 

This judgement was delivered by 7:6 majority and is one of the most important
judgements in the history of independent India. The effect of this judgement can be seen
in the case ofIndra Sawhney vs Union of India 1993, where SC prevented the
politicians from running amok in the matter of reservation. It this case it held that
inclusion of creamy layer violates the fundamental right of equality, which is a basic
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feature of the constitution and so its inclusion cannot be permitted even by
constitutional amendment.

Conclusion
During Constituent Assembly Discussions, it was noted that rigid constitutions such as
that of USA cause a lot of problems and is undesirable. Dr. Ambedkar said that flexible
federation is a distinguished feature of the constitution. In the hindsight, it can be said
that the safeguards to prevent the spirit of the constitution were not enough. Politicians
have time and again shown that they can modify it easily to serve their vote based
politics.

Q. Explain the emergency provisions of the constitution. What do you understand

by proclamation of Emergency? Describe various types. What are the effects of
emergency on fundamental rights? What are the effects of emergency arisen out
of the failure of the constitutional machinery in a state? What changes have been
made by the 44th amendment regarding emergency provisions?

Emergency is a unique feature of Indian Constitution that allows the center to assume
wide powers so as to handle special situations. In emergency, the center can take full
legislative and executive control of any state. It also allows the center to curtail or
suspend freedom of the citizens. Existence of emergency is a big reason why
academicians are hesitant to call Indian constitution as fully federal. Emergency can be
of three types - Due to war, external aggression or armed rebellion, failure of
constitutional machinery in a state, or financial emergency. However, technically,
Proclamation of Emergency is only done upon external aggression or armed rebellion.
In the second case, it is called Presidential Rule, and in the third case it is called
"Proclamation of Financial Emergency:

Proclamation of Emergency
Art 352 says that if the President is satisfied that a grave emergency exists whereby the
security of India or any part of India is threatened due to outside aggression or armed
rebellion, he may make a proclamation to that effect regarding whole of India or a part
thereof.
However, sub clause 3 says that President can make such a proclamation only upon the
written advise of the Union Cabinet.  Such a proclamation must be placed before each
house of the parliament and must be approved by each house with in one month
otherwise the proclamation will expire.

An explanation to art 352 says that it is not necessary that external aggression or armed
rebellion has actually happened to proclaim emergency. It can be proclaimed even if
there is a possibility of such thing happening. 

 In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is
no bar to judicial review of the validity of the proclamation of emergency issued
by the president under 352(1). However, court's power is limited only to
35
 examining whether the limitations conferred by the constitution have been
observed or not. It can check if the satisfaction of the president is valid or not. If
the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no
satisfaction at all.
 Prior to 44th amendment, duration of emergency was two months initially and
then after approval by the houses, it would continue indefinitely until ended by
another proclamation. However after 44th amendment, the period is reduced to
1 month and then 6 months after approval.

Effects of Proclamation of emergency 

The following are the effects arising out of proclamation of emergency in art 352.
Art 353

1. executive power of the Union shall extend to giving directions to any state.
2. parliament will get power to make laws on subjects that are not in Union list.
3. if the emergency is declared only a part of the count, the powers in 1 and 2 shall
extend to any other part if that is also threatened.

Art 354
Provisions of art 268 to 279, which are related to taxation, can be subjected to
exceptions as deem fit by the president. Every law such made shall be laid before each
house of the parliament.

Art 355 says that it is the duty of the Union to protect States against external
aggression.

Art 358
While proclamation of emergency declaring that security of India or any part of the
territory of India is threatened due to war or external aggression, is in operation, the
state shall not be limited by art 19. In other words, govt may make laws that transgress
upon the freedoms given under art 19 during such emergency. However, such a law will
cease to have effect as soon as emergency ends. Further, every such law or very
executive action that transgresses upon freedoms granted by art 19 must recite that it
is in relation to the emergency otherwise, it cannot be immune from art 19.
It also says that any acts done or omitted to be done under this provision cannot be
challenged in the courts after the end of emergency. 

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights
granted by 14 to 19 are not suspended during emergency but only their operation is
suspended. This means that as soon as emergency is over, rights transgressed by a law
will revive and can be enforced. In this case, a settlement that was reached before
emergency between LIC and its employees was rendered ineffective by a law during
emergency. After emergency was over, SC held that the previous settlement will revive.
This is because the emergency law only suspended the operation of the existing laws. It
cannot completely wash away the liabilities that preexisted the emergency.
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Art 359
This article provides additional power to the president while proclamation of
emergency is in operation, using which the president can, by an order, declare that the
right to move any court for the enforcement of rights conferred by part III except art 20
and 21, shall be suspended for the period the proclamation is in operation of a shorter
period as mentioned in the order. Further, every such law or every executive action
recite that it is in relation to the emergency.

In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between
art 358 and 359 as shown below:

Art 358 Art 359

Fundamental rights are not suspended. Only
Freedoms given by art 19 are suspended. 
fundamental rights.
Any actions done or omitted to be done cannot be Any action done by the legislature or execut
challenged even after emergency.  suspension is over.
Right to move courts is suspended for the p
Art 19 is suspended for the period of emergency. 
proclamation of the president to remove su
Effective all over the country. May be confined to an area.

Art 83(2) While the proclamation is in operation, the president may extend the normal
life of the Lok Sabha by one year each time up to a period not exceeding beyond 6
months after proclamation ceases to expire.

Provisions in case of failure of constitutional machinery is States

Art 356 says that if, upon the report of the Governor of a state, the president is satisfied
that the govt. of the state is cannot function according to the provisions of the
constitution, he may, by proclamation, assume to himself all or any of the functions of
the govt, or all or any of the powers vested in the governor, or anybody or any authority
in the state except the legislature of the state. The power of the legislature of the state
shall be exercised by the authority of the parliament.
Under this article, president can also make such incidental and consequential
provisions which are necessary to give effect to the objectives of the proclamation. This
includes suspension of any provision of this constitution relating to any body or
authority in the state.

However, this article does not authorize the president to assume the powers vested in
the High Courts.

Art 357 provides that in the case of proclamation under art 356 

37
  parliament can confer upon the president the power of legislature of the state to
make laws or the power to delegate the power to make laws to anybody else.
 the parliament or the president can confer power or impose duties on the Union
or Union officers or Union authorities.
 president can authorize the expenditure from the consolidated fund of the stat
pending sanction of such expenditure by the parliament.

Important instances of invocation of Art 356

This article has been invoked over a hundred times. 

1. Dissolution of 9 state assemblies in 1977 by Janata Party govt..

This was challenged in the case of State of Rajasthan vs Union of India AIR 1977. In
this case, SC held that the the decision of the president is not only dependent on the
report of the governor but also on other information. The decision is entirely political
and rests with the executive. So it is not unconstitutional per se. However, courts can
validate the satisfaction of the president that it is no mala fide.

2. Dissolution of 9 state assemblies in 1980 by Congress party govt.

3. Dissolution of BJP govt in MP, HP, and Raj. in 1992.

This was challenged in the case of SR Bommai vs Union of India AIR 1994. In this case
SC held that secularism is a basic feature of the constitution and a state govt. can be
dismissed on this ground. It further observed that no party can simultaneously be a
religious party as well as a political party.

Financial Emergency
Art 360 provides that if the president is satisfied that a situation has arisen whereby the
financial security of India or the credit of India or of any part of India is threatened, he
may make a declaration to that effect. Under such situation, the executive and
legislative powers will go to the center.  
This article has never been invoked.
Changes made by 44th Amendment
44th amendment substantially altered the emergency provisions of the constitution to
ensure that it is not abused by the executive as done by Indira Gandhi in 1975. It also
restored certain changes that were done by 42nd amendment. The following are
important points of this amendments-

 "Internal disturbance" was replaced by "armed rebellion" under art 352.

 The decision of proclamation of emergency must be communicated by the
Cabinet in writing.
 Proclamation of emergency must be by the houses within one month.
 To continue emergency, it must be re approved by the houses every six month.

38
 Emergency can be revoked by passing resolution to that effect by a simple
majority of the houses present and voting. 1/10 of the members of a house can
move such a resolution.
 Art 358 - Under this article art 19 will be suspended only upon war or external
aggression and not upon armed rebellion. Further, every such law that
transgresses art 19 must recite that it is connected to art 358. All other laws can
still be challenged if they violate art 19.
 Art 359, under this article, suspension of the right to move courts for violation of
part III will not include art 20 and 21. 
 Reversed back the term of Lok Sabha from 6 to 5 years.

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