1. Discuss the doctrine of eclipse with help of decided cases.?

The Doctrine of Eclipse states that any law which is inconsistent with fundamental rights is not
invalid. It is not totally dead but overshadowed by the fundamental right. The inconsistency (conflict)
can be removed by constitutional amendment.
When the Constitution was adopted on January 26, 1950, with it came, the fundamental rights that are
guaranteed to the citizens. There were several existing laws at the time when the Constitution was
adopted, some of which were in direct conflict with fundamental rights, so in order to determine the
validity of these laws the Supreme Court came up with certain principles/doctrines, one of which was
the Doctrine of Eclipse.

 This doctrine emanates directly from Article 13(1) of the Constitution that is a part of the
fundamental rights, which states, “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,
i.e. Part III, shall, to the extent of such inconsistency, be void.”
 The doctrine of eclipse envisages fundamental rights as prospective in nature.
 It states that a pre-constitutional law inconsistent with the fundamental rights is not a nullity or
void ab initio but only remains unenforceable, i.e., remains in a dormant state.
 They exist for all past transactions, i.e., for rights and liabilities that were acquired before the
Constitution came into being.
 These laws also remain applicable to individuals who have not been given fundamental rights, for
example, non-citizens. It has been established that the doctrine of eclipse holds no strength for non-
citizens. The court had made a similar observation in case of State of Gujrat & Anr v. Ambica
Mills Ltd
 Therefore, the impugned law remains hidden behind the fundamental rights and can become
operative again if and when the fundamental right it is inconsistent with is amended.
he Doctrine of Eclipse has evolved through various Supreme Court rulings after the adoption of the
Constitution.

If the amendment is revoked or declared unconstitutional, the fundamental right regains its full force
and can be directly enforced again.

Partial Application: During the eclipse, the fundamental right may still indirectly influence matters
not directly affected by the amendment.

Constitutional Validity: The doctrine doesn't render the amendment entirely invalid, as it might still
apply to specific situations, not in direct conflict with the fundamental right.

Balancing Rights: The doctrine balances constitutional amendments and existing fundamental rights,
preventing absolute annihilation of rights while still permitting amendments.

Judicial Interpretation: Courts play a crucial role in determining whether the doctrine of eclipse
applies in specific cases, considering the compatibility between the amendment and the fundamental
rights.

 In the Keshav Madhav Menon v. State of Bombay case, the petitioner was prosecuted under the
provisions of the 1931 act, the Indian Press (Emergency Powers) Act, for publishing a pamphlet with
no permission. The case was still pending when the Constitution came into force and thus raised
 questions regarding the prospective and retrospective nature of Article 13(1) and the word “void”.
The question before the Court was whether the impugned Act was violative of Article 19(1) (a) and if
so whether it should be declared void. The Court answered the first part in affirmative adding that the
Act is void only to the extent of the violation and that the word “void” used in Article 13 does not
mean that statutes or provisions shall be repealed altogether.
 In the case of FN Balsara, the Court declared Section 13(b) of the Bombay Prohibition Act of 1949
as void because it violated Article 19(1) (f) of the Constitution. The Court again held that only the
part of the statute that is violative of Part III is inoperative and not the whole Statute.
 It is generally agreed, however, that the actual genesis of this doctrine occurred in Bhikaji Narain
Dhakras v. State of Madhya Pradesh. In this case, the C. P. and Berar Motor Vehicles Amendment
Act of 1947 was challenged for being violative of Article 19(1) (g). This amendment act was a pre-
constitutional law. Thus, the Doctrine of Eclipse was applied and the Act’s provisions were made
inoperative. However, in the year 1951, by virtue of the 1st Constitutional Amendment Act, Article
19(1) (g) was amended and the eclipse was removed, rendering this law enforceable against citizens
and non-citizens. According to the Court, “the effect of the amendment was to remove the shadow
and to make the impugned Act free from all blemish or infirmity”. In the Apex Court’s view the
effect of the amendment was to get rid of the shadow and to make the impugned Act devoid of the
blemish or infirmity. It became enforceable against citizens as well as non-citizens after the
constitutional impediment was removed. Therefore, it can be seen that the law was eclipsed until it
was removed by way of amendment. Once the eclipse is removed, the law begins to operate from the
date of such removal.

 The doctrine only applies to pre-constitutional laws that were valid at their inception.
 The doctrine is not applicable to post-constitutional laws since they are invalid from the very
inception because of being inconsistent with Part III; the same was held by the Supreme Court
in Deep Chand v. State of Uttar Pradesh. However, non-citizens can’t take any advantage of the
rule as the violation doesn’t impact them.
 The impugned law must be violative of the fundamental rights, and then only can it be hidden or
eclipsed.
 The law that turns out to be violative of Part III does not become a nullity but just remains
unenforceable & defective.
 If the fundamental right that is violated by the impugned law is amended in the future, the law
automatically becomes operative.
The judgments of Bhikaji and Deep Chand were upheld in the cases of Mahendra Lal Jain v. State of
Uttar Pradesh, State of Gujarat v. Ambica Mills, Sagir Ahmed v. State of Uttar Pradesh and P. L.
Mehra v. D. R. Khanna.

Applicability to Pre Constitutional Laws – The Doctrine applies to laws that have become operational
with the adoption of the Indian Constitution on 26th January 1950.

Non Applicability to Post Constitutional Laws – The Doctrine does not apply to post-constitutional.
This is because they are invalid at their inception and, thus, cannot be validated by any subsequent
amendment.

The Punjab Security and Land Tenures Act of 1953 was challenged in I. C. Golaknath v.
State of Punjab on the grounds of violating the fundamental right to hold and acquire
property and practice any profession. The Golaknath case debated the validity and
absoluteness of Article 368. The Parliament Legislature was given restrictive amending
powers under Article 368 with no authority to amend the fundamental rights. Thus, Article
368 was eclipsed. The judgment was overruled in the legendary case of Kesavananda Bharati
v. Union of India. It provided the Parliament powers to amend the fundamental rights of the
Indian Constitution, which removed the Eclipse from Article 368.

2. Analyze the concept of independence of Judiciary in India and US.?

The system of separation of powers has been adopted by the USA to ensure an independent
judiciary. But in cases of constitutional systems based on Parliamentary sovereignty such as
in the UK or India, the independence of the judiciary is mostly ensured by means of judicial
supremacy.
In India, to ensure the independence of the judiciary, judges in the High Courts, as well as the
Supreme Court, are appointed with very little interference from other branches of the
government. Once appointed, it is also very difficult to remove a judge.
An independent judiciary is the sine qua non to ensure the vibrant democratic spirit of any
nation.
The Constitution of India guarantees independence to the judiciary. However, protecting
judicial autonomy begins with the Constitution governing the court. In the end, the
independence of the judiciary rests on the creation and support of an overall favourable
environment by all state institutions, including the judiciary and the general public. The
judiciary’s independence must also be continuously protected against unforeseen
circumstances and shifting social, political, and economic circumstances; it is too sensitive to
be left unprotected.

Due to the prolonged British Raj and then a newly formed democracy, there was always a
concern on how the judiciary in India should function. Hence, an independent judiciary was
the answer to this question. For the prosperity and stability of the country, the rule of law is
very important. An independent and impartial judiciary can establish a stable rule of law.
Independence of judiciary means, the power of upholding the rule of law, without any fear or
external influence, and maintaining effective control over the actions of the government. The
independence of the judiciary is part of the basic structure of the Constitution. The
independence of the judiciary ensures that the powers of the Parliament, the State legislature,
and the Executive, are properly distributed and there is a balance between the demands of the
individuals and norms of the society. The legal system does not have any ideology and
political interests and is often rendered neutral.

In India and US, the Constitution acts as the ‘Supreme Law of the Land’ while the judiciary
acts as the guardian and interpreter of the Constitution.

India follows Procedure Established by Law. Whereas USA follows Due Process of Law.

Original Jurisdiction is confined to federal matters in Indian Supreme Court. Whereas, its
American counterpart enjoys wider authority. While, Supreme Court of India, in exercise of
its Appellate Jurisdiction, covers constitutional, civil and criminal matters. The Supreme
Court of America is confined to constitutional cases only.

Indian Judicial System has a wide discretion to grant Special Leave to Appeal. However,
American Judicial System has no plenary powers to grant such an appeal.

Indian Judicial System has a provision for Advisory Jurisdiction. Whereas, no such
provision is provided in the American Judicial System.

In India, the scope of Judicial Review is limited whereas it has a wider scope in USA.

In both India and USA, judiciary has acquired the power of Judicial Review.

3. Define Public Law. How it is different from Private Law?

8. What is the difference between public law and private law?

Private law is that part of a civil law legal system which is part of the jus commune that
involves relationships between individuals, such as the law of contracts or torts (as it is called
in the common law), and the law of obligations (as it is called in civil legal systems). It is to
be distinguished from public law, which deals with relationships between both natural and
artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law
and other law that affects the public order. In general terms, private law involves interactions
between private citizens, whereas public law involves interrelations between the state and the
general population. Public law is a theory of law governing the relationship between
individuals (citizens, companies) and the state. Under this theory, constitutional law,
administrative law and criminal law are sub-divisions of public law. This theory is at odds
with the concept of constitutional law, which requires all laws to be specifically enabled, and
thereby sub-divisions, of a constitution. Generally speaking, private law is the area of law in a
society that affects the relationships between individuals or groups without the intervention of
the state or government. In many cases the public/private law distinction is confounded by
laws that regulate private relations while having been passed by legislative enactment. In
some cases these public statutes are known as laws of public order, as private individuals do
not have the right to break them and any attempt to circumvent such laws is void as against
public policy
Public law is a theory of law that governs the relationship between the state and the
individual, who is considered to be either a company or a citizen. Public law covers three
sub-divisions: Constitutional, administrative and criminal law. Constitutional law covers the
different branches of the state: Executive, legislative and judiciary. Administrative law
regulates international trade, manufacturing, pollution, taxation, and the like. Criminal law
involves state imposed sanctions for individuals or companies in order to achieve justice and
social order. Private law is also known as civil law. It involves relationships between
individuals, or private relationships between citizens and companies. It covers the law of
obligations and the law of torts, which is defined as follows: Firstly, the Law of Obligation
organizes and regulates legal relations between individuals under contract. Secondly, the Law
of Torts addresses and remedies issues for civil wrongs, not arising from any contractual
obligation.
Private law exists to support persons in conflicts involving private concerns and affects the
rights and obligations of individuals, families, businesses, and small groups. Its coverage is
narrower than that of public law and includes: The rights and obligations of persons who
enter into contracts are governed by contract law.
Public law is concerned with the legal relationship between individuals and the state, as well
as the structure, powers, and functions of government institutions. It governs the conduct of
the government, its agencies, and officials, and regulates the interaction between the state and
its citizens. Public law is primarily focused on the public interest and the exercise of
governmental authority. Some key features of public law include:
Constitutional Law: It deals with the principles, structure, and operation of the constitution,
and the relationship between different branches of government.
Administrative Law: It governs the actions and decisions of administrative bodies, such as
government agencies, tribunals, and commissions. It ensures that administrative actions are
lawful, fair, and in accordance with procedural and substantive rules.
Criminal Law: It defines offences, prescribes penalties, and regulates the prosecution and
punishment of individuals who commit crimes against society. Criminal law is concerned
with maintaining public order, protecting public safety, and punishing wrongdoers.
Constitutional Rights: Public law protects and enforces the fundamental rights and freedoms
of individuals as guaranteed by the constitution. It includes areas such as human rights law,
freedom of speech, right to a fair trial, and protection against unlawful governmental actions.
Private law, also known as civil law, governs the relationships and interactions between
individuals, entities, and organisations. It is concerned with the rights, obligations, and legal
remedies available to individuals in their private affairs. Private law regulates various aspects
of personal and commercial relationships, including contracts, property, torts, family law, and
business transactions. Some key features of private law include:
Contract Law: It governs the formation, interpretation, and enforcement of agreements
between individuals or entities. It defines the rights and obligations of parties involved in a
contractual relationship.
Tort Law: It deals with civil wrongs and provides remedies for harm caused by the actions or
omissions of individuals or entities. Tort law includes areas such as negligence, defamation,
and personal injury.
Property Law: It governs the rights, ownership, and use of property, including real estate,
personal belongings, and intellectual property.
Family Law: It regulates matters related to marriage, divorce, child custody, adoption, and
other familial relationships.
Commercial Law: It governs business transactions, contracts, and commercial relationships
between individuals and entities. It includes areas such as company law, banking law, and
contract law in the context of commercial transactions.

4. Whether the Constitution of India is flexible or rigid? Give your answer with
reference to US Constitution.?
The Constitution of India is the supreme law of the land and provides the framework for the
governance of the country. One of the most debated aspects of the Constitution is whether it
is rigid or flexible. A rigid constitution is one that is difficult to amend or cannot be amended,
while a flexible constitution is one that can be amended with relative ease.
The process of amending the Constitution is laid out in Article 368. According to this article,
an amendment can be proposed in either house of parliament, and it needs to be passed by a
two-thirds majority in both houses. Once it is passed, it needs to be ratified by at least half of
the state legislatures. This process ensures that amendments are not made easily, and there are
enough checks and balances in place. The Constitution of India nowhere claims to be
completely flexible but claims to be “A unique blend of Rigidity and Flexibility”. The
Constitution of India is considered to be a mixture of both rigid and flexible provisions. There
are certain provisions in the Constitution that are rigid and cannot be amended easily. For
example, the Preamble of the Constitution, which outlines the objectives and ideals of the
Constitution, cannot be amended. Similarly, the federal structure of the Constitution, which
gives power to both the central and state governments, is also rigid and cannot be amended
easily.
On the other hand, there are certain provisions in the Constitution that are flexible and can be
amended with ease. For example, the Seventh Schedule of the Constitution, which divides
powers between the central and state governments, can be amended by a simple majority in
Parliament. Similarly, some of the fundamental rights provided in the Constitution can also
be amended with a two-thirds majority in both houses of parliament.
The Indian Constitution is considered rigid because it has a complex and lengthy process for
amending it. There are three ways in which the Constitution of India can be amended:
Amendment by simple majority: Some provisions of the Constitution can be amended by a
simple majority of the members of both Houses of Parliament. Amendment by special
majority: Most provisions of the Constitution can be amended by a special majority, which
requires a two-thirds majority of the members present and voting in both Houses of
Parliament. Amendment by special majority and ratification by states: Some provisions of the
Constitution can be amended by a special majority and also require ratification by at least
half of the states of India. This complex and lengthy process of amending the Constitution
makes it difficult to change the fundamental principles and values of the Constitution. This
rigidity helps to ensure that the Constitution is not easily changed or undermined by short-
term political considerations or the whims of the ruling party. At the same time, it also
provides for a stable and consistent legal framework for governance and protects the rights
and interests of the citizens.
Arguments for the Indian Constitution being rigid: Procedure for Amendment, Basic
Structure, Fundamental Rights, Protection of Fundamental Principles, Safeguard against
Unconstitutional Actions, Maintaining Stability and continuity.
Arguments for the Indian Constitution being flexible: Amending Process, Provision for
Temporary and Special Provisions, Interpretation by the Judiciary, Adaptability to changing
times, Progressive Interpretation, Evolution of Federal Structure.
US
Amendment:
Proposed by state and ratified by congress or proposed by congress and ratified by states; I-
states can't propose
Rigid amendment, I- mix The U.S. Constitution is rigid, as an amendment requires
supermajorities at both the proposal and ratification stages (the most common method of
amendment is proposal by a two-thirds vote in both houses of Congress followed by
ratification by three-fourths of the states).
10. Write essay on Public Interest litigation?

Public Interest Litigation (PIL) means a case or petition filed before a court to protect,
safeguard or enforce public interest. Public interest means the interest or right belonging to
the society, a particular class of the community or a group of people. PILs are filed to resolve
a problem affecting the legal rights of a community or the public at large.

PILs are filed in the courts to safeguard group interests, not individual interests. It can
be filed only in the Supreme Court of India or the State High Courts. PILs have become
a powerful tool to enforce the legal obligation of the legislature and executive. The primary
objective behind PILs is to provide justice to all and promote the welfare of the people.

A Public Interest Litigation (PIL) is not defined in any law, statute or act. It is filed before the
courts under the Constitution of India to protect public rights and promote general
welfare. The concept of PIL originated in India from the power of judicial review. A PIL
is filed in a court not by the aggrieved person but by a private person interested in public
welfare and betterment of society.

Anyone can file a PIL for any matter affecting the interest of the public, such as road safety,
pollution, construction hazards, terrorism, neglected children, atrocities on women,
exploitation of casual workers, bonded labour, non-payment of minimum wages to workers,
food adulteration, disturbance of ecological balance, maintenance of heritage and culture, etc.

PIL is a vital tool to enforce the human rights of those people who do not have access to
them due to poverty or such other reasons. It also helps judicially monitor state
institutions like protective homes, prisons, asylums, etc. PIL aims to facilitate common
people to access the courts to seek redress in legal matters. It is a crucial tool for social
change, accelerating the attainment of justice and law and upholding the rule of law.

PIL has been critical in bringing about political and social change in India and has been
instrumental in exposing and addressing various issues affecting the public. PIL has been
used to protect the rights of the marginalised, such as bonded labourers, slum dwellers and
prisoners and helped to improve their living conditions. It is used for safeguarding group
interests for which fundamental rights have been provided.

The original goal of PILs was to make justice available to the marginalised and
underprivileged. It aimed to make justice accessible to everyone. Later on, the scope of PIL
was expanded to implement the legal obligation of the executive and legislature through
judicial review.

PILs guarantee judicial review of administrative actions through increased public

participation. PILs have commonly been used to challenge the decisions of public authorities
by the parameters of judicial review, the lawfulness of a decision or action, or to review a
failure to act.

All Indian citizens or organisations can file a public interest litigation petition before the
Supreme Court under Article 32 of the Constitution of India or the High Courts under Article
226 of the Constitution of India. However, the person or organisation filing the PIL petition
must prove to the court that the PIL is being filed for an issue concerning public
interest and that it will benefit the public at large.
A PIL can only be filed against the Central Government, municipal governments or State
Government and not against individuals. The Parliament of India, each State's Legislature,
and all local or other authorities under the control of the government are included in the
definition of a government

 Hussainara Khatoon vs. State of Bihar case: This case was the first reported
instance of PIL in India, which brought attention to the issue of inhuman conditions of
prisoners and undertrial prisoners.

 Vishaka vs. State of Rajasthan: This case is related to the issue of sexual
harassment in the workplace. As a result, the Vishaka Guidelines came into effect,
published in 1997, which provided employers with the definition of sexual
harassment, a list of preventative strategies, and information on filing complaints of
workplace sexual harassment.

 M.C. Mehta vs. Union of India: This case is related to pollution in the Ganges basin.
The judgment criticised the local government for giving permission for untreated
sewage from Kanpur’s tanneries to enter the Ganges. Directions were given to prevent
the consequences of water and air pollution on millions of people in the Ganga basin
and emphasised the need for sustainable development.

Below are the advantages of PIL:

 It ensures that public bodies are accountable by acting reasonably within the limits of
their powers and ensures they make precise choices.

 It expands the scope of law by helping the judges to understand legislation and
develop laws.

 It gives weak people a voice by emphasising a significant issue and gives them a
platform to advocate their rights.

 It helps raise awareness of critical public problems through media coverage and
debates.

 Since the court fees are nominal, citizens can file a PIL to seek a reasonable solution
for a public issue.

 It helps to focus attention on broader public issues in the areas of consumer welfare,
environment and human rights.

Below are the disadvantages of PIL:

 Petitions without a significant public issue can waste the courts’ time.

 The Indian Judiciary is already burdened with a heavy caseload due to pending cases,
and PIL petitions may add to that burden.

 Sometimes, PIL may be abused by individuals pushing for personal grievances

instead of championing public causes, and thus, public interest litigation may become
private interest litigation.
  The lack of effective implementation of court judgments is a significant issue
hindering successful PIL implementation.

In 1979, Kapila Hingorani filed a petition and secured the release of almost 40000 undertrials
from Patna’s jails in the famous ‘Hussainara Khatoon’ case. Hingorani was a lawyer. This
case was filed in the SC before a Bench led by Justice P N Bhagwati. Hingorani is called the
‘Mother of PILs’ as a result of this successful case. The court permitted Hingorani to pursue a
case in which she had no personal locus standi making PILs a permanent fixture in Indian
jurisprudence.

Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He did
not insist on the observance of procedural technicalities and even treated ordinary letters from
public-minded individuals as writ petitions. Justice Bhagwati and Justice V R Krishna Iyer
were among the first judges in the country to admit PILs.

[Link] the concept of Federalism. Analyze the transformation of federalism into co-
operative federalism in India.?

[Link] is the concept of federalism?

The term federalism originated from the Latin word “foedus”, which means treaty or
agreement. Therefore, a federation is a new state policy combining the principle of
centralisation and power of non-centralised units.

India comprises different states with diverse cultures where adaptation of federalism is
pivotal. The idea of Cooperative Federalism in India enhances the centre-state relationship as
well as relationships between states and local governments.

Federalism is a system of government in which powers have been divided between the centre
and its constituent parts such as states or provinces.

In a federal system, there are two centers of power, each with its own autonomy in their
respective spheres. This system contrasts with a unitary system where sovereignty is
constitutionally divided between two territorial levels, allowing each to act independently in
certain areas.

The federal system can be broadly classified into two categories:

1. Consolidating Federation – In this type of federation, powers are divided among

various constituent parts to accommodate the diversity within the whole entity. Here,
the central authority generally holds more power. Examples include India, Spain, and
Belgium.

2. Confederating Federation – In this type, independent states come together to form a

larger entity. In this case, states enjoy more autonomy compared to the consolidating
type of federation. Examples include the USA, Australia, and Switzerland.

Characteristics of the Indian Federal System

1. Dual government structure

 2. Distribution of powers among different levels

3. Rigidity of the constitution

4. An independent judiciary

5. Single citizenship

6. Bicameral legislature

Not all federations may exhibit all of the above features. Some may adopt them based on the
type of federation in place.

India adheres to a federal system, although it leans more towards a unitary system of
government. It is often referred to as a quasi-federal system as it embodies features of both
federal and unitary systems. Article 1 of the Indian Constitution states, 'India, that is Bharat,
shall be a union of states'. Interestingly, the term 'federation' is not explicitly mentioned in
the constitution.

The concept of federalism was introduced to modern India through the Government of India
Act of 1919, which delineated powers between the central and provincial legislatures.

Key Federal Features of the Indian Union

o Two-tier government structure – at the centre and states

o Division of powers between the centre and states. The Seventh Schedule of the
Constitution lists the subjects under the jurisdiction of each level:

Union List State List Concurrent List

o Supremacy of the constitution – the judiciary has established that the basic structure of
the constitution is unalterable. The constitution is the supreme law in India.

o Independent judiciary – the constitution provides for an independent and integrated

judiciary system, with the Supreme Court of India at the apex, followed by state-level
high courts and lower courts at the district level. All courts are subordinate to the
Supreme Court.

Cooperative Federalism in India reflects an ideology of a stable relationship between the

centre and other units. It guides all the governing bodies to come forward and cooperate to
resolve common social, political, economic and civic problems.

Background of Cooperative Federalism in India

 This idea of federalism may be something new to the world, but it existed in India
since ancient times. The central power used to adapt a non-intervention policy in local
matters due to the diversity of this subcontinent.

 However, tendencies to centralise power was partly evident during some Mughal
monarch rule. But after the Revolt of 1857, the British Government terminated its
intervention policy.
  The origin of cooperative federalism in modern India was rooted in the Regulating
Act of 1773. Herein, the Crown rule of England supervised the East India Company
and left the governing power to the local government.

 The Government of India Act of 1919 anticipated a dual government system called
‘dyarchy’. According to this, the power will be divided between the hands of a British
governor and local government. The Government of India Act of 1935 was made to
attain this dual government system.

 The responsibility of the constitutional framework from 1946 to 1950 lied upon the
eminent leaders of Indian Independence. They formed a Constituent Assembly to
frame the draft of India’s constitution. They aimed to build a political idea to unite a
disintegrated and subdivided society. The Assembly’s members, therefore, opted for
an intense centre with residual power.

 The principle of centralising power became prominent during the 1980s. However,
the distribution of power from union to state and state to panchayat was later
escalated. This is how India’s cooperative federalism met the constitution’s objectives
like unity, social justice, and democracy.

Cooperative Federalism in India: Articles of the Constitution

The Constitution makers endeavoured to create synergistic governance by distributing

essential powers and responsibilities to the Centre and states. Nevertheless, they vested power
on the decision of Parliament and judgement of the Supreme Court. Thus, the Centre is
provided with more specific powers keeping the essence of Cooperative Federalism.

7th Schedule The 7th Schedule of Indian Constitution divided all the power between central,
state and concurrent lists giving some residual powers to the Centre. Article 249(5) authorises
the Indian parliament to amend those subjects of the state list. However, the resolution must
pass an in-state council with a 2/3 majority to make a change.

All India Services All India Services caters for a unified judicial system to establish the
Centre and state laws. Article 312 of the Indian constitution manifests this provision that
works on integration under cooperative federalism in India. Article 263 talks about an inter-
state council to consider common interest factors between the states and the Centre.

Full Faith and Credit Clause Article 261 emphasises full faith and credit to all records,
public acts and judicial proceedings of the Union and states throughout the Indian territory.
This step encourages faith and cooperation between the Centre and states.

Zonal Council There are 5 zonal councils for each zone like central, north, south, east and
west to promote coordination. These are designed under the State Reorganization Act of
1956 while the northeast zonal council is made under a distinct act.

NITI Aayog The Planning Commission was replaced with NITI Aayog to attain more
cooperative federalism. This organisation advises the Centre and states to look after the
discussion and coordination between these 2 powers.

GST 101st Amendment Act of Indian Constitution passed unified taxation called GST. It is a
unique tax that manufacturers impose directly on the consumer which obtains a “one nation,
one tax” goal.
Several organisations have tried and failed to settle centre-state feuds making cooperative
federalism in India difficult. Some ways to strengthen Cooperative Federalism can be states’
independence on making laws, fiscal support from the centre and decentralisation of power.

7. Explain the basic structure concept with the help of decided cases.?

The Indian constitution is a vital record that can be altered according to society’s needs.
Article 368 gives the power to the parliament to alter the constitution according to the
necessity; it has also laid down the procedure to amend the constitution in detail. The basic
structure doctrine is a judicial innovation that ensures that the parliament is not misusing its
power to amend the constitution. The basic idea of judicial innovation is the essence of the
constitution should not be altered; it can evolve according to society’s need, but it should not
completely change. If the basic structure is completely changed, the constitution will lose its
identity. Any amendments by the parliament cannot change the governing principles of the
parliament; this is the given legal law of the doctrine of the basic structure.

Kesavananda Bharati case in 1973 and the Golaknath case in 1967, were the start point where
evolution began.

Shankari Prasad Case (1951)

In this case, the SC contended that the Parliament’s power of amending the Constitution
under Article 368 included the power to amend the Fundamental Rights guaranteed in Part III
as well.

Sajjan Singh case (1965)

In this case also, the SC held that the Parliament can amend any part of the Constitution
including the Fundamental Rights. It is noteworthy to point out that two dissenting judges, in
this case, remarked whether the fundamental rights of citizens could become a plaything of
the majority party in Parliament.

Golaknath case (1967)

In this case, the court reversed its earlier stance that the Fundamental Rights can be
amended. It said that Fundamental Rights are not amenable to the Parliamentary restriction
as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly
would be required. Also stated that Article 368 gives the procedure to amend the Constitution
but does not confer on Parliament the power to amend the Constitution. This case conferred
upon Fundamental Rights a ‘transcendental position’. The majority judgement called upon
the concept of implied limitations on the power of the Parliament to amend the Constitution.
As per this view, the Constitution gives a place of permanence to the fundamental freedoms
of the citizens. In giving to themselves the Constitution, the people had reserved these rights
for themselves.

Kesavananda Bharati case (1973)

This was a landmark case in defining the concept of the basic structure doctrine. The SC held
that although no part of the Constitution, including Fundamental Rights, was beyond the
Parliament’s amending power, the “basic structure of the Constitution could not be abrogated
even by a constitutional amendment.” The judgement implied that the parliament can only
amend the constitution and not rewrite it. The power to amend is not a power to destroy. This
is the basis in Indian law in which the judiciary can strike down any amendment passed by
Parliament that is in conflict with the basic structure of the Constitution.

Indira Nehru Gandhi v. Raj Narain case (1975)

Here, the SC applied the theory of basic structure and struck down Clause(4) of Article 329-
A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the
Parliament’s amending power as it destroyed the Constitution’s basic features. The 39th
Amendment Act was passed by the Parliament during the Emergency Period. This Act placed
the election of the President, the Vice President, the Prime Minister and the Speaker of the
Lok Sabha beyond the scrutiny of the judiciary. This was done by the government in order to
suppress Indira Gandhi’s prosecution by the Allahabad High Court for corrupt electoral
practices.

Minerva Mills case (1980)

This case again strengthens the Basic Structure doctrine. The judgement struck down 2
changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to be
violative of the basic structure. The judgement makes it clear that the Constitution, and not
the Parliament is supreme. In this case, the Court added two features to the list of basic
structure features. They were: judicial review and balance between Fundamental Rights and
DPSP. The judges ruled that a limited amending power itself is a basic feature of the
Constitution.

Waman Rao Case (1981)

The SC again reiterated the Basic Structure doctrine. It also drew a line of demarcation as
April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it should
not be applied retrospectively to reopen the validity of any amendment to the Constitution
which took place prior to that date. The Waman Rao case held that amendments made to the
9th Schedule until the Kesavananda judgement are valid, and those passed after that date can
be subject to scrutiny.

Indra Sawhney and Union of India (1992)

SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs
in favour of backward classes. It upheld the constitutional validity of 27% reservation for the
OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total
reserved quota should not exceed 50%, etc.) Here, ‘Rule of Law’ was added to the list of
basic features of the constitution.

S.R. Bommai case (1994)

In this judgement, the SC tried to curb the blatant misuse of Article 356 (regarding the
imposition of President’s Rule on states). In this case, there was no question of constitutional
amendment but even so, the concept of basic doctrine was applied. The Supreme Court held
that policies of a state government directed against an element of the basic structure of the
Constitution would be a valid ground for the exercise of the central power under Article 356.
5. Discuss the recent Constitutional developments in India.?

Recognising sex work as a profession. Case Name- Budhadev Karmaskar v. State of West
Bengal. "Notwithstanding the profession, every individual in this country has a right to a
dignified life under Article 21" In this case, the Supreme Court recognized sex work as a
“profession” and held that consenting practitioners of sex work were entitled to dignity and
equal protection under the law. The Court also directed UIDAI to issue Aadhar Cards to the
Sex Workers based on a proforma certificate and, using its inherent powers under Article
142.
Upholding validity of the 103rd Constitutional Amendment Case Name- Janhit Abhiyan v.
Union of India. “Reservation is not an end but a means – a means to secure social and
economic justice” In this case, the 103rd Constitutional Amendment Act, which provided
10% reservation to the Economic Weaker Section of the General Category, was challenged in
the Supreme Court on the basis that it violates the basic features of the Constitution and the
Fundamental right to equality under Article 14 of the Constitution.
Prohibiting the "Two-Finger Test" in rape cases; Granting the right to abortion to Unmarried
women; The top Court laid down guidelines for granting bail Case Name- Satendra Kumar v.
CBI. Daughter’s right to inherit self-acquired property.
Supriyo v. UOI Case: Same Sex Marriage
Hijab Ban Case
Direction to Governor and Speaker
In Re Article 370
Right to Die: Supreme Court Makes It Easier For Persons To Opt For Passive Euthanasia;
Simplifies 2018 Guidelines On Living Will/Advance Directives.