PROJECT

ON
CONSTITUTIONAL
DEVELOPMENTS SINCE
1919
SUBMITTED BY :
NIHAR RANJAN DIXIT
REG:1741801022
COURSE:BBA LLB (H)
2017-2019
 INTRODUCTION
• The CONSTITUTION OF INDIA is the supreme law of India. The document lays down the
framework demarcating fundamental political code, structure, procedures, powers, and
duties of government institutions and sets out fundamental rights, directive principles, and
the duties of citizens. It is the longest written constitution of any country on earth. B. R.
Ambedkar, chairman of the drafting committee, is widely considered to be its chief architect.
• It imparts constitutional supremacy (not parliamentary supremacy, since it was created by a
constituent assembly rather than Parliament) and was adopted by its people with a
declaration in the Parliament cannot override the constitution.
• It was adopted by the Constituent Assembly of India on 26 November 1949 and became
effective on 26 January 1950. The constitution replaced the Government of India Act, 1935
as the country's fundamental governing document, and the Dominion of India became the
Republic of India. To ensure constitutional autochthony, its framers repealed prior acts of
the British parliament in Article 395. India celebrates its constitution on 26 January as
Republic Day.
• The constitution declares India a sovereign, socialist, secular, democratic republic, assuring
its citizens justice, equality and liberty, and endeavors to promote fraternity. The original
1950 constitution is preserved in a helium-filled case at the Parliament House in New Delhi.
The words "secular" and "socialist" were added to the preamble in 1976 during the
emergency
 CONSTITUTION AND GOVERNMENT
• The executive, legislative and judicial branches of government receive their power from
the constitution and are bound by it.[50] With the aid of its constitution, India is governed
by a parliamentary system of government with the executive directly accountable to the
legislature. The President of India is head of the executive branch, under Articles 52 and
53, with the duty of preserving, protecting and defending the constitution and the law
under Article 60. Article 74 provides for a Prime Minister as head of the Council of
Ministers, which aids and advises the president in the performance of their constitutional
duties. The council is answerable to the lower house under Article 75(3).The constitution
is considered federal in nature, and unitary in spirit. It has features of a federation (a
codified, supreme constitution, a three-tier governmental structure [central, state and
local], division of powers, bicameralism and an independent judiciary) and unitary
features such as a single constitution, single citizenship, an integrated judiciary, a flexible
constitution, a strong central government, appointment of state governors by the central
government, All India Services (the IAS, IFS and IPS) and emergency provisions. This
unique combination makes it quasi-federal in form. Each state and union territory has its
own government. Analogous to the president and prime minister, each has a governor or
(in union territories) a lieutenant governor and a chief minister. Article 356 permits the
president to dismiss a state government and assume direct authority if a situation arises
in which state government cannot be conducted in accordance with constitution.
 CONSTITUTION AND LEGISLATURE
• Amendments are additions, variations or repeal of any part of the constitution by
Parliament. The procedure is detailed in Article 368. An amendment bill must be passed
by each house of Parliament by a two-thirds majority of its total membership when at
least two-thirds are present and vote. Certain amendments pertaining to the
constitution's federal nature must also be ratified by a majority of state legislatures.
Unlike ordinary bills in accordance with Article 245 (except for money bills), there is no
provision for a joint session of the Lok Sabha and Rajya Sabha to pass a constitutional
amendment. During a parliamentary recess, the president cannot promulgate ordinances
under his legislative powers under Article 123, Chapter III. Deemed amendments to the
constitution which can be passed under the legislative powers of parliament were
invalidated by Article 368(1) in the Twenty-fourth Amendment.]By July 2018, 124
amendment bills had been presented in Parliament; of these, 103 became Amendment
Acts. Despite the supermajority requirement for amendments to pass, the Indian
constitution is the world's most frequently-amended national governing document. The
constitution is so specific in spelling out government powers that many amendments
address issues dealt with by statute in other democracies. In 2000, the Justice Manepalli
Narayana Rao Venkatachaliah Commission was formed to examine a constitutional
update. The government of India establishes term-based law commissions to recommend
legal reforms, facilitating the rule of law.
 CONSTITUTION AND JUDICIARY
• The Judiciary is the final arbiter of the constitution. Its duty (mandated by the constitution) is to act as a
watchdog, preventing any legislative or executive act from overstepping constitutional bounds. The judiciary
protects the fundamental rights of the people (enshrined in the constitution) from infringement by any state
body, and balances the conflicting exercise of power between the central government and a state (or
states).The courts are expected to remain unaffected by pressure exerted by other branches of the state,
citizens or interest groups. An independent judiciary has been held as a basic feature of the constitution, which
cannot be changed by the legislature or the executive. Judicial was adopted by the constitution of India from
judicial review in the United States. In the Indian constitution, judicial review is dealt with in Article 13. The
constitution is the supreme power of the nation, and governs all laws. According to Article 13,
• 1.All pre-constitutional laws, if they conflict wholly or in part with the constitution, shall have all conflicting
provisions deemed ineffective until an amendment to the constitution ends the conflict; the law will again
come into force if it is compatible with the constitution as amended (the Doctrine of Eclipse).
• 2.Laws made after the adoption of the constitution must be compatible with it, or they will be deemed void ab
initio.
• 3.In such situations, the Supreme Court (or a high court) determines if a law is in conformity with the
constitution. If such an interpretation is not possible because of inconsistency (and where separation is
possible), the provision which is inconsistent with the constitution is considered void. In addition to Article 13,
Articles 32, 226 and 227 provide the constitutional basis for judicial review.Due to the adoption of the Thirty-
eighth Amendment, the Supreme Court was not allowed to preside over any laws adopted during a state of
emergency which infringe fundamental rights under article 32 (the right to constitutional remedies). The Forty-
second Amendment widened Article 31C and added Articles 368(4) and 368(5), stating that any law passed by
Parliament could not be challenged in court. The Supreme Court ruled in Minerva Mills v. Union of India that
judicial review is a basic characteristic of the constitution, overturning Articles 368(4), 368(5) and 31C
 CONCEPT AND MEANING
• Amending the Constitution of India is the process of making changes to the
nation's fundamental law or supreme law. The procedure of amendment in
the constitution is laid down in Part XX (Article 368) of the Constitution of
India. This procedure ensures the sanctity of the Constitution of India and
keeps a check on arbitrary power of the Parliament of India.However,
there is another limitation imposed on the amending power of the
constitution of India, which developed during conflicts between the
Supreme Court and Parliament, where Parliament wants to exercise
discretionary use of power to amend the constitution while the Supreme
Court wants to restrict that power. This has led to the laying down of
various doctrines or rules in regard to checking the validity/legality of an
amendment, the most famous among them is the Basic structure doctrine
as laid down by the Supreme Court in the case of Kesavananda Bharati v.
State of Kerala.
 CONSTITUTION ASSEMBLY DEBATES
• The framers of the Constitution were neither in favour of the traditional theory of federalism, which
entrusts the task of constitutional amendment to a body other than the Legislature, nor did they favour a
rigid special procedure for such amendments. They also never wanted to have a British-style system where
Parliament is supreme. The framers, instead, adopted a combination of the "theory of fundamental law",
which underlies the written Constitution of the United States with the "theory of parliamentary
sovereignty" as existing in the United Kingdom. The Constitution of India vests constituent power upon the
Parliament subject to the special procedure laid down therein.[1]During the discussion in the Constituent
Assembly on this aspect, some members were in favour of adopting an easier mode of amending procedure
for the initial five to ten years. Explaining why it was necessary to introduce an element of flexibility in the
Constitution, Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948, "While we want
this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no
permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and
permanent, you stop a nation’s growth, the growth of a living, vital, organic people. Therefore, it has to be
flexible ... while we, who are assembled in this House, undoubtedly represent the people of India,
nevertheless I think it can be said, and truthfully, that when a new House, by whatever name it goes, is
elected in terms of this Constitution, and every adult in India has the right to vote - man and woman - the
House that emerges then will certainly be fully representative of every section of the Indian people. It is
right that House elected so - under this Constitution of course it will have the right to do anything - should
have an easy opportunity to make such changes as it wants to. But in any event, we should not make a
Constitution, such as some other great countries have, which are so rigid that they do not and cannot be
adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing
through a very swift period of transition, what we may do today may not be wholly applicable tomorrow.
 PROCEDURES
• The Constitution of India provides for a distinctive amendment process when compared to the Constitutions of other nations. This can be
described as partly flexible and partly rigid. The Constitution provides for a variety in the amending process. This feature has been
commended by Australian academic Sir Kenneth Where who felt that uniformity in the amending process imposed "quite unnecessary
restrictions" upon the amendment of parts of a Constitution.[1] An amendment of the Constitution can be initiated only by the introduction
of a Bill in either House of Parliament. The Bill must then be passed in each House by a majority of the total membership of that House and by
a majority of not less than two-thirds of the members of that House present and voting.[3] This is known as special majority. There is no
provision for a joint sitting in case of disagreement between the two Houses. The Bill, passed by the required majority, is then presented to
the President who shall give his assent to the Bill. If the amendment seeks to make any change in any of the provisions mentioned in the
provision to article 368, it must be ratified by the Legislatures of not less than one-half of the States. Although there is no prescribed time
limit for ratification, it must be completed before the amending Bill is presented to the President for his assent. Every constitutional
amendment is formulated as a statute. The first amendment is called the "Constitution (First Amendment) Act", the second, the "Constitution
(Second Amendment) Act", parliament. A bill for the purpose of amendment of constitution can NOT be introduced in any state legislature.
• The Ordinance making power of the President can NOT be used to amend the Constitution.
• A constitution amendment bill can be introduced both as a government bill or a private member bill. However, if it’s a Private Member, then
it has to be examined in the first instance and recommended for introduction by the Committee on Private Members’ Bills and Resolutions
before it is included for introduction in the List of Business.
• Prior recommendation of President is NOT needed in introducing the constitution amendment bills.
• Constitution Amendment Bills are not treated as Money Bills or Financial Bills even if they have some provisions related to them.. A
constitution amendment bill must pass in both the houses separately by absolute + special majority {absolute → more than 50% of strength;
special → 2/3 of present and voting}.
• If there is a disagreement between the two houses on a constitution amendment bill, there is NO provision of joint sitting to resolve the
deadlock. The bills which result in some changes in the constitution but passed by simple majority are not deemed to be Constitution
Amendments.
• If a bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple
majority.
• Once the bill is passed in both houses, the bill is sent to president for approval. The 24th Amendment Act of 1971 had made it obligatory for
the President to give his assent to a constitutional Amendment Bill. Thus, for a Constitution amendment bill, a President can neither withhold
his assent not return the bill for reconsideration
 Government of India Act 1919
• Salient features of the Act were as follows:
• This Act had a separate Preamble which declared that the objective of the British Government was the gradual introduction of responsible
government in India.
• Diarchy was introduced at the Provincial Level. Diarchy means a dual set of governments; one is accountable, the other is not accountable.
Subjects of provincial government were divided into two groups. One group was reserved, and the other group was transferred. The reserved
subjects were controlled by the British Governor of the province; the transferred subjects were given to the Indian ministers of the province.[3]
• The Government of India Act of 1919, made a provision for classification of the central and provincial subjects. The Act kept the Income Tax as
source of revenue to the Central Government. However, for Bengal and Bombay, to meet their objections, a provision to assign them 25% of the
income tax was made.
• No bill of the legislature could be deemed to have been passed unless assented to by the Viceroy. The latter could however enact a bill without
the assent of the legislature.
• This Act made the central legislature bicameral. The lower house was the Legislative Assembly, with 145 members serving three year terms (the
model for today's Lok Sabha); the upper house was the Council of States with 60 members serving five year terms (the model for today's Rajya
Sabha)
• The Act provided for the establishment of a Public Service Commission in India for the first time.
• This act also made a provision that a statutory commission would be set up at the end of 10 years after the act was passed which shall inquire into
the working system of the government. The Simon commission of 1927 was an outcome of this provision.
• The communal representation was extended and Sikhs, Europeans and Anglo-Indians were included. The Franchise (Right of voting) was granted
to the limited number of only those who paid certain minimum "Tax" to the government.
• The seats were distributed among the provinces not upon the basis of the population but upon the basis of their importance in the eyes of the
government, on the basis of communities, and property was one of the main basis to determine a franchisee. Those people who had a property,
taxable income & paid land revenue of Rs. 3000 were entitled to vote.
• The financial powers of the central legislature were also very much limited. The budget was to be divided into two categories, votable and non-
votable. The votable items covered only one third of the total expenditure. Even in this sphere the Governor-General was empowered to restore any
grant refused or reduced by the legislature, if in his opinion the demand was essential for the discharge of his responsibilities. Thus the Government
of India Act provided for partial transfer of power to the electorate through the system of diarchy. It also prepared the ground for Indian federalism,
as it identified the provinces as units of fiscal and general administration.
Government of India Act of 1935
• The British Indian Parliament passed the Government of India Act of 1935 which was so valuable and significant that most
provisions of this Act were taken by the framers of the Indian Constitution. The Act was a very lengthy written document. The Act
proposed to form an All India Federation. All the provinces were to be members of a federation.
•
• The Government of India Act of 1935 provided a bicameral legislature at the Centre consisting of Central assembly (Lower House)
and Committee of States (Upper House). The total number of members of the Central Assembly were 375 (250 were elected by
the people of British Provinces and 125 from Indian States). The Committee of States consisted of 260 members (150 elected from
the British Provinces, 104 nominated by the rulers of the States and 6 were nominated by the Governor- General).

• The Act introduced Diarchy system at the Centre. The Central Subjects were divided into the Reserved and the Transferred
subjects. The Act provided Division of powers by creating Central list; Regional List, Concurrent List and also a provision for
Residuary Subjects. 59 subjects were included in Central List consisting of Defense, Currency and Coinage, post and Telegraphs,
Foreign Affairs etc. Regional List included 54 subjects such as Police, Government of Justice, Education, Agriculture, Industry, Land
revenue etc. There were 36 subjects in Concurrent list. These were Newspaper and Printing Press, Marriage and Divorce,
registration, Criminal Procedure Code etc. The subjects which were not included in any of the above lists were residuary subjects.
They were looked after by the Governor General.

• The Act established a Central Court at Delhi. Central Court was to decide inter-state disputes and heard appeals against the
decisions of the High Courts.
 The Cabinet Mission Plan
• The appointment of Cabinet Mission Plan was another significant step approved by the British
Government in the process of Constitutional development. The chief proposals of Cabinet Mission
Plan were -
• i) To form a Union of India consisting of British Provinces and Indian States.
• ii) To establish a Constituent Assembly having 389 members.
• iii) An interim Government with fourteen representatives of the major Political Parties.

• Initially, the Congress accepted the proposals but the Muslim League under the leadership of Md. Ali
Zinnah rejected the proposals and left the Interim Government. The Muslim League observed
‗Direct Action Day‘ on August 16, 1946. On that Hindu Muslim clashes and riots took place in
various parts of the Country.

• Disagreement and conflict between the Congress and Muslim League continued. Now, Lord
Mountbatten proposed a plan to Divide India into two parts- India and Pakistan. The Congress and
Muslim League accepted the plan. Based on Mountbatten plan, the British Indian Parliament passed
the Indian Independence Act on July 18, 1947.and ultimately; in August 15, 1947 India became an
independent State. According to the proposals of cabinet Mission Plan, a Constituent Assembly was
framed as a representative body. It was accepted that the constituent Assembly would act as the
Dominion Legislature until the Constitution was framed and India was administered according to the
provisions of the Government of India Act, 1935 with some necessary modifications.
 Important features of Indian Constitutional Law
• Longest written constitution
• Partly inflexible and Partly Flexible
• A Democratic Republic
• Indian Parliamentary System of Government
• A Federation
• Fundamental Rights
• Directive Principles of State Policy
• Fundamental Duties
• Secular State
• An Independent Judiciary
• Single Citizenship
 JUDICIAL ANALYSIS
• The Constitution can be amended any number of times by the Parliament; but only in the manner provided. There is
no such limit provided in the constitution of India which allows it to enact only certain number of amendments in a
year. In other words, Parliament is free to enact any number of constitutional amendment in any given year. Although
Parliament must preserve the basic framework of the Constitution, there is no other limitation placed upon the
amending power, meaning that there is no provision of the Constitution that cannot be amended.
• In Abdul Rahiman Jamaluddin v. Vithal Arjun the Bombay High Court held that any attempt to amend the Constitution
by a Legislature other than Parliament, and in a manner different from that provided for, will be void and
inoperative.The Supreme Court first struck down a constitutional amendment in 1967, ruling in the case of I.C. Golak
Nath and Ors. vs. State of Punjab and Anr. An amendment was struck down on the basis that it violated Article 13:
"The State shall not make any law which takes away or abridges the rights conferred by [the charter of Fundamental
Rights]". The term "law" in this article was interpreted as including a constitutional amendment. Parliament responded
by enacting the twenty-fourth Amendment of the Constitution of India which declared that "nothing in Article 13 shall
apply to any amendment of this Constitution".The current limitation on amendments comes from
• Kesavananda Bharati v. The State of Kerala , where the Supreme Court ruled that amendments of the constitution
must respect the "basic structure" of the constitution, and certain fundamental features of the constitution cannot be
altered by amendment. Parliament attempted to remove this limitation by enacting the Forty-second Amendment,
which declared, among other provisions, that "there shall be no limitation whatever on the constituent power of
Parliament to amend ...this Constitution". However, this change was itself later declared invalid by the Supreme Court
in
• Minerva Mills v. Union of India .The issue of whether an entire constitutional amendment is void for want of
ratification or only an amended provision required to be ratified under proviso to clause (2) of article 368 was debated
before the Supreme Court in Kihota Hollohon v. Zachilhu , in which the constitutional validity of the Tenth Schedule of
the Constitution inserted by the 52nd Amendment in 1985 was challenged. The decisions of the Speakers/Chairmen
on disqualification, which had been challenged in different High Courts through different petitions, were heard by a
five-member Constitution Bench of the Supreme Court. The case, now popularly known as Anti-Defection case, was
decided in 1992.
 Protector of Civil and Personal Liberty
• The menace of lynching, with disproportionate targeting of Muslims and Dalits, is a grim reminder of the fair
distance that Indian democracy still has to traverse to realize the promise of ‘constitutional citizenship’ – in
which one's identity is irrelevant to the realization of rights and equal protection of the law. Apart from the
majoritarian backlash, another index for testing the equal citizenship claim is the state of civil and personal
liberties in the nation, in particular the freedom to dissent.
• This claim was tested when the State arrested five human rights activists and critics of the State – calling them
‘Urban Naxals'. These human rights activists had substantial experience working with marginalized and
disadvantaged communities. Further, they had often been critical of the government in the past.
• This sudden arrest by the Pune Police was seen as an attempt to freeze dissent by the heavy hand of state
machinery. In response, five eminent citizens filed a Public Interest Litigation (PIL) case in the Supreme Court,
challenging the arrests and seeking a court-monitored probe into the investigation.
• The Court in a 2:1 judgment in Romila Thapar v. UOI rejected the plea for a Special Investigation Team (SIT) to
probe into the investigation, on the ground that the State had adduced sufficient evidence for the possibility
that they are members of a banned terrorist organization, CPI (M). Note that the petitioners were not allowed
to scrutinize this evidence, as it was submitted in sealed covers – only the judges viewed it. The lone dissenting
judge, DY Chandrachud, called for a court-monitored probe as he recounted various procedural lapses in the
arrest process, signalling States’ selective targeting of critics.
• This case forces one to re-examine the fragile nature of speech protection when it collides with state power.
The standards of proof, required for successful conviction, need not be met to justify a call for a probe at initial
stages. A prima facie case is sufficient to merit investigation. Further, should the power asymmetry between
citizens and the State not be factored in, when such brazenness is shown in arresting dissenters and critics?
Rather than legitimizing sealed cover jurisprudence, shouldn’t the Court critically assess the government's
account of the facts?
 In defence of Federalism
• With the incumbent Union Government having heavy numbers in the Parliament, there seems to be a shift
in the delicate federal balance between the Centre and the States. There’s a growing concern that the
Centre is pushing hard to control the opposition-ruled States through the institution of the ‘Lieutenant
Governor’. The Centre appoints a Lieutenant Governor, or LG, as the constitutional head of a State (or Union
Territory), that wields discretionary powers. The exercise of discretionary power, exercised at the behest of
the Union Government, has the potential to disrupt the federal balance.

• The case that brought the institution of the LG into controversy was the Government of NCT of Delhi v UOI
case. Holding representative democracy to be an essential feature of the office of the executive, the Court
held that the LG is not the executive head of Delhi. Rather, it held that the Chief Minister and the Council of
Ministers lead the executive. It clarified that the LG, who is an administrator appointed by the Union, is
bound by the advice of the Chief Minister, and secondly, that the LG has no independent power under the
Constitution. The Court further observed that where two interpretations are possible on textual provision,
primacy should be given to an interpretation, which furthers representative democracy, a basic feature of
the Constitution.
• Even though the principled issue of who the executive head of the Delhi Government is, is now settled, the
further questions of who heads the Services and the Anti-Corruption Bureau, and who has the power to set
up enquiries over public functionaries are yet to be comprehensively settled. This is because the 5-judge
bench in this case dealt with the constitutional question of who heads the Delhi Government and specific
disputes were referred to the smaller benches. Nevertheless, the Court in 2018 played an active role in
strengthening the principle of co-operative federalism by limiting the scope of the Centre's interference and
by checking the discretionary powers of the LG.
 Aadhaar Challenge
• In 2018, the Court faced a significant test in its assessment regarding whether the
Government's expansive and controversial identity program, called Aadhaar, ran afoul of
privacy. Note that in 2017, a nine-judge bench of the Supreme Court had recognized the
right to privacy as a fundamental right guaranteed by the Constitution.
• In a 4:1 split verdict in K.S. Puttaswamy v. UOI , the Court upheld the constitutionality of the
Aadhaar Act, but curtailed its wide ambit by striking down provisions which had allowed
non-state parties to make Aadhaar mandatory. However, the Court did not strike down
Section 7, which makes Aadhaar mandatory for qualification for State subsidies and
benefits.
• Justice AK Sikri writing the majority opinion, spoke of balancing two notions of the right to
dignity – individual dignity, predicated on freedom of choice, and a communitarian
approach to dignity, which accounts for the "community good." By upholding Section 7,
Justice Sikri signalled that the citizens dependent upon State subsidies and benefits may
have to place limits on their right to self-identify, a part of the right to individual dignity.
• Besides bringing civil society together to challenge the world's largest biometric
identification project, with the enrolment of 1.2 billion citizens, the case is significant also
for seeing the most extended oral arguments in the 21st century. Oral arguments lasted for
38 days. The longest hearing ever, occurred in 1973 in Kesavanand Bharti v. State of Kerala ,
where arguments lasted for 68 days.
 Reconciling Religion with Gender Equality
• In testing a religious custom, spanning centuries, against the tenets of gender
equality, the Supreme Court in Indian Young Lawyers Association v. State of
Kerala by a 4:1 decision, held that the Sabarimala religious custom, which
prohibits women in their 'menstruating years' from entering the Temple,
violates fundamental rights guaranteed to women under the Constitution.
Justice Indu Malhotra's dissent has raised questions about the extent to
which established religious practices can be challenged on notions of
equality.
• The dispute is still unfolding as over 50 review petitions are yet to be
decided. Even four months after the judgment, there is almost nil
enforceability of the judgment with only two women managing to get entry
into a temple. This chips away from the authority of the highest Court, if it is
helpless in the face of political protests in getting its judgment enforced.
Clearly, it’s the troika of reasoning, outcome, and enforceability together that
give legitimacy to the Supreme Court as the final arbiter of law.
 CONCLUSION
• The Constitution of India has several distinctive features. It is the lengthiest
Constitution in the world and it is a combination of rigidity and flexibility.
The Constitution provides for a quasi federal It means a federal set up where
despite having two clear sets of government-central and the states more
powers are given to the Central Government) set up with a strong centre.
There is a clear division of powers between the Centre and the States. The
Supreme Court of India, is the apex court of India which will resolve the
disputes between the centre and state or between the states. India has a
parliamentary democracy. The Council of Ministers headed by the Prime
Minister enjoys the real powers and is responsible to the Parliament. The
Indian Constitution provides for Fundamental Rights which are justifiable.
Ten Fundamental Duties have also been added to the Constitution. The
Directive Principles of State Policy give a concrete shape to the welfare
concept.