Constitutional Law of India - Study Notes

Overview

Part III of the Constitution (Articles 12 to 35) enshrines Fundamental Rights, which are justiciable and enforceable through the courts. These rights are guaranteed against state action (as defined in Article 12) and, in certain cases, against private individuals. Article 13 declares that any law inconsistent with or in derogation of Fundamental Rights shall be void to the extent of such inconsistency. These rights are not absolute and are subject to reasonable restrictions imposed by the state in the interest of sovereignty, public order, morality, and other grounds specified in each Article.

Article 12 - Definition of "State"

The term "State" includes the Government and Parliament of India, the Government and Legislature of each State, and all local and other authorities within or under the control of the Government of India. The Supreme Court has interpreted this expansively. In Rajasthan State Electricity Board v. Mohan Lal (1967), the Court held that a body need not be created by statute to qualify as "State" under Article 12. In Ajay Hasia v. Khalid Mujib (1981), the Court laid down tests including financial assistance, functional control, and state-pervasive control to determine whether an entity is "State."

1. Right to Equality (Articles 14-18)

• Article 14 guarantees equality before law and equal protection of laws. It prohibits arbitrary and discriminatory state action but permits reasonable classification based on intelligible differentia with a rational nexus to the object sought. In E.P. Royappa v. State of Tamil Nadu (1974), the Court introduced the doctrine that arbitrariness is the antithesis of equality.

• Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. However, clauses (3), (4), and (5) allow the state to make special provisions for women, children, socially and educationally backward classes, Scheduled Castes, and Scheduled Tribes, including reservations in educational institutions.

• Article 16 provides equality of opportunity in public employment. The state may make reservations for backward classes not adequately represented in state services. The Supreme Court in Indra Sawhney v. Union of India (1992) upheld the Mandal Commission recommendations but capped reservations at 50% and excluded the "creamy layer."

• Article 17 abolishes untouchability in all its forms. Its practice is a criminal offence under the Protection of Civil Rights Act, 1955. This is one of the few Fundamental Rights enforceable against private individuals.

• Article 18 abolishes titles. The state shall not confer any title except military or academic distinctions. No citizen shall accept any title from a foreign state without Presidential consent. The Court in Balaji Raghavan v. Union of India (1996) clarified that Bharat Ratna and Padma awards are not "titles" within the meaning of Article 18.

2. Right to Freedom (Articles 19-22)

• Article 19 guarantees six freedoms to citizens: (a) speech and expression, (b) peaceful assembly without arms, (c) forming associations or unions, (d) moving freely throughout India, (e) residing and settling anywhere in India, and (g) practising any profession, occupation, trade, or business. Each freedom is subject to reasonable restrictions under clause (2) through (6). Freedom of press is included within Article 19(1)(a) as decided in Romesh Thappar v. State of Madras (1950). The right to information was recognised as part of Article 19(1)(a) in S.P. Gupta v. Union of India (1982).

• Article 20 provides protection against ex post facto laws, double jeopardy, and self-incrimination. This right cannot be suspended even during an Emergency.

• Article 21 guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. This Article has been expansively interpreted to include the right to livelihood (Olga Tellis v. BMC, 1985), right to privacy (K.S. Puttaswamy v. Union of India, 2017), right to clean environment, right to health, right to shelter, and right to live with dignity. Article 21A (added by the 86th Amendment, 2002) makes the right to education a fundamental right for children aged 6 to 14.

• Article 22 provides safeguards against arbitrary arrest and detention, including the right to be informed of grounds of arrest, the right to consult a legal practitioner, and the right to be produced before a magistrate within 24 hours.

3. Right Against Exploitation (Articles 23-24)

• Article 23 prohibits traffic in human beings, begar (forced labour), and similar forms of forced labour. This is enforceable against both state and private persons.
• Article 24 prohibits the employment of children below 14 years in factories, mines, or other hazardous employment.

4. Right to Freedom of Religion (Articles 25-28)

• Article 25 grants freedom of conscience and the right to freely profess, practise, and propagate religion, subject to public order, morality, health, and other provisions of Part III.
• Article 26 gives religious denominations the right to manage their own affairs in matters of religion and to own and administer property.
• Article 27 prohibits compulsion to pay taxes for the promotion of any particular religion.
• Article 28 prohibits religious instruction in wholly state-funded educational institutions.

5. Cultural and Educational Rights (Articles 29-30)

• Article 29 protects the interests of minorities by safeguarding their distinct language, script, or culture. It also prohibits denial of admission to state-aided institutions on grounds of religion, race, caste, or language.
• Article 30 gives all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. The state cannot discriminate against them in granting aid.

6. Right to Constitutional Remedies (Articles 32-35)

• Article 32 empowers any person to move the Supreme Court for the enforcement of Fundamental Rights. Dr. Ambedkar called it "the heart and soul of the Constitution." The Supreme Court can issue writs of habeas corpus, mandamus, prohibition, certiorari, and quo warranto. This right itself is a Fundamental Right and cannot be suspended except during a proclamation of Emergency under Article 359.
• Article 226 confers similar power on High Courts, though it extends beyond Fundamental Rights to include enforcement of legal rights as well.

Nature and Purpose

Part IV of the Constitution (Articles 36 to 51) contains the Directive Principles of State Policy (DPSP). These are guidelines and ideals that the State should keep in mind while framing laws and policies. Unlike Fundamental Rights, DPSPs are non-justiciable, meaning they cannot be enforced through courts. However, Article 37 states that they are "fundamental in the governance of the country" and it is the duty of the State to apply them in making laws.

The DPSPs represent the socio-economic objectives of the Constitution. They aim to establish a welfare state where social and economic justice prevails. They draw inspiration from the Irish Constitution, which in turn was influenced by the Spanish Constitution.

Classification of DPSPs

Directive Principles can be broadly classified into three categories:

1. Socialist Principles (Economic Justice)

• Article 38: The State shall strive to promote the welfare of the people by securing a social order in which justice - social, economic, and political - informs all institutions of national life. The State shall minimise inequalities in income, status, facilities, and opportunities.
• Article 39: The State shall direct its policy towards ensuring: (a) adequate means of livelihood for all citizens, (b) equitable distribution of material resources, (c) prevention of concentration of wealth, (d) equal pay for equal work for both men and women, (e) protection of worker health and strength, and (f) protection of children from exploitation.
• Article 39A (added by the 42nd Amendment): The State shall provide free legal aid to ensure that no citizen is denied justice by reason of economic or other disabilities. This led to the establishment of the Legal Services Authorities Act, 1987.
• Article 41: Right to work, education, and public assistance in cases of unemployment, old age, sickness, and disablement.
• Article 42: Just and humane conditions of work and maternity relief.
• Article 43: Living wage and decent standard of life for workers.
• Article 43A (42nd Amendment): Participation of workers in management of industries.

2. Gandhian Principles

• Article 40: Organisation of village panchayats as units of self-government. This was given effect by the 73rd Amendment (1992) which added Part IX to the Constitution.
• Article 43: Promotion of cottage industries in rural areas.
• Article 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and weaker sections, and their protection from social injustice and exploitation.
• Article 47: Duty of the State to raise the level of nutrition and standard of living, and to prohibit the consumption of intoxicating drinks and drugs injurious to health.
• Article 48: Organisation of agriculture and animal husbandry on modern lines, and prohibition of slaughter of cows, calves, and other milch and draught cattle.

3. Liberal-Intellectual Principles

• Article 44: The State shall endeavour to secure a Uniform Civil Code for citizens throughout the territory of India. This remains one of the most debated provisions. In Shah Bano (1985) and Sarla Mudgal (1995), the Supreme Court urged the government to work towards a UCC.
• Article 45: Early childhood care and education for all children until the age of six years.
• Article 48A (42nd Amendment): Protection and improvement of the environment, and safeguarding forests and wildlife.
• Article 49: Protection of monuments and places of national importance.
• Article 50: Separation of judiciary from the executive in the public services of the State.
• Article 51: Promotion of international peace and security, maintenance of just and honourable relations between nations, respect for international law and treaty obligations, and settlement of international disputes by arbitration.

Relationship Between Fundamental Rights and DPSPs

The tension between Fundamental Rights and DPSPs has been the subject of significant judicial pronouncements. In State of Madras v. Champakam Dorairajan (1951), the Court held that in case of conflict, Fundamental Rights would prevail over DPSPs. However, the position evolved through several amendments and decisions. In Kesavananda Bharati (1973), the Court held that there is no inherent conflict; both are supplementary to each other. In Minerva Mills v. Union of India (1980), the Court struck a balance, holding that the harmony between Fundamental Rights and DPSPs constitutes the basic structure of the Constitution, and neither can be given absolute primacy over the other.

Several DPSPs have been implemented through legislation: the Minimum Wages Act (Article 43), the Equal Remuneration Act (Article 39(d)), the Legal Services Authorities Act (Article 39A), the Panchayati Raj Acts (Article 40), and environmental protection laws (Article 48A).

Introduction and Background

Fundamental Duties were not part of the original Constitution. They were added by the 42nd Constitutional Amendment Act, 1976, on the recommendation of the Swaran Singh Committee. Part IVA, containing a single Article 51A, originally listed 10 duties. The 86th Amendment Act, 2002, added an eleventh duty relating to education of children.

The concept was inspired by the Constitution of the erstwhile Soviet Union (USSR). The idea was that rights and duties are correlative; citizens who enjoy Fundamental Rights must also bear certain obligations towards the nation.

Nature of Fundamental Duties

Like Directive Principles, Fundamental Duties are non-justiciable. There is no direct legal mechanism to compel citizens to perform these duties, nor can a citizen be punished solely for failing to perform them. However, they serve as a reminder of civic obligations and can be used by courts as an aid to interpretation. If a law is challenged as unreasonable restriction on a Fundamental Right, the court may uphold it if it gives effect to a Fundamental Duty.

In AIIMS Students' Union v. AIIMS (2001), the Supreme Court observed that Fundamental Duties, though not enforceable by writs, provide a valuable guide for interpretation and for resolving ambiguities in law.

The Eleven Fundamental Duties

Every citizen of India shall have the duty:

• (a) To abide by the Constitution and respect its ideals and institutions, the National Flag, and the National Anthem.
• (b) To cherish and follow the noble ideals that inspired the national struggle for freedom.
• (c) To uphold and protect the sovereignty, unity, and integrity of India.
• (d) To defend the country and render national service when called upon to do so.
• (e) To promote harmony and the spirit of common brotherhood amongst all the people of India, transcending religious, linguistic, regional, or sectional diversities, and to renounce practices derogatory to the dignity of women.
• (f) To value and preserve the rich heritage of India's composite culture.
• (g) To protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.
• (h) To develop the scientific temper, humanism, and the spirit of inquiry and reform.
• (i) To safeguard public property and to abjure violence.
• (j) To strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.
• (k) (Added by the 86th Amendment, 2002) To provide opportunities for education to children between the ages of 6 and 14 years. This duty is a parent or guardian's obligation and corresponds to Article 21A (Right to Education).

Judicial Treatment

The judiciary has invoked Fundamental Duties in several decisions:

• In M.C. Mehta v. Union of India (various cases on environmental protection), the Court relied on duty (g) to support environmental protection measures.
• In Bijoe Emmanuel v. State of Kerala (1986), while protecting the right of Jehovah's Witnesses not to sing the National Anthem, the Court noted that standing respectfully while the anthem is played satisfies the duty under clause (a).
• The Verma Committee (1999) recommended that Fundamental Duties be taught in schools and that legislative backing be given to these duties.

Significance

While Fundamental Duties lack direct enforceability, they serve important functions: they remind citizens that rights come with responsibilities, they can be used to uphold the constitutionality of laws that implement them, they provide moral guidance for civic conduct, and they assist courts in interpreting the scope of Fundamental Rights. Laws such as the Prevention of Insults to National Honour Act, 1971, the Wildlife Protection Act, 1972, and the Forest Conservation Act, 1980, give legislative effect to some of these duties.

The President of India (Articles 52-62)

The President is the head of state and the formal head of the Union Executive. All executive actions of the Government of India are taken in the name of the President. However, the President is a constitutional head and acts on the aid and advice of the Council of Ministers headed by the Prime Minister (Article 74).

Election: The President is elected by an electoral college consisting of elected members of both Houses of Parliament and elected members of the Legislative Assemblies of all States and the Union Territories of Delhi and Puducherry. The election is held through a system of proportional representation by means of the single transferable vote with secret ballot. The value of each vote is calculated by a specific formula to ensure parity between the States and between the States and the Union.

Qualifications: A candidate must be a citizen of India, must have completed 35 years of age, must be qualified for election as a member of the Lok Sabha, and must not hold any office of profit under the Government. The term of office is five years, and a person can be re-elected any number of times.

Powers of the President:

• Executive Powers: All executive action is taken in the President's name. The President appoints the Prime Minister, other Ministers, the Attorney General, Comptroller and Auditor General, Governors, Judges of the Supreme Court and High Courts, members of the Union Public Service Commission, and other key constitutional functionaries.
• Legislative Powers: The President summons, prorogues, and can dissolve the Lok Sabha. The President addresses both Houses at the commencement of the first session after each general election and at the beginning of the first session each year. No Bill can become law without the President's assent. The President can promulgate Ordinances under Article 123 when Parliament is not in session, with the same force as an Act of Parliament.
• Judicial Powers: Under Article 72, the President has the power to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute sentences in cases involving court martial, offences against Union laws, and death sentences. In Kehar Singh v. Union of India (1989), the Court held that the power under Article 72 is wide and the President can examine the merits of the case.
• Emergency Powers: The President can proclaim three types of emergencies (discussed separately).
• Diplomatic Powers: The President represents India in international affairs and all international treaties are concluded in the President's name.

Impeachment (Article 61): The President can be removed by impeachment for "violation of the Constitution." The process begins in either House with a resolution signed by not less than one-fourth of the total members of that House, with 14 days' prior notice. The resolution must be passed by a majority of not less than two-thirds of the total membership of that House. The other House then investigates the charge and, if the resolution is passed by two-thirds of its total membership, the President stands removed from the date of passing.

The Prime Minister and Council of Ministers (Articles 74-75)

The Prime Minister is the head of government and the real executive authority. The President appoints as Prime Minister the person who commands the confidence of the majority in the Lok Sabha. The other Ministers are appointed by the President on the advice of the Prime Minister. The Council of Ministers is collectively responsible to the Lok Sabha (Article 75(3)).

The Council of Ministers has three tiers: Cabinet Ministers (who attend Cabinet meetings and decide major policy), Ministers of State (who may be given independent charge of departments or attached to Cabinet Ministers), and Deputy Ministers (who assist Ministers of State or Cabinet Ministers).

The Prime Minister acts as the link between the President and the Council of Ministers, communicates all decisions to the President, chairs Cabinet meetings, allocates portfolios, and can recommend dissolution of the Lok Sabha. If the Prime Minister resigns or dies, the entire Council of Ministers is deemed to have resigned.

A Minister who is not a member of either House of Parliament must obtain membership within six months, failing which they cease to be a Minister (Article 75(5)).

Structure of Parliament (Articles 79-122)

Parliament of India consists of the President and two Houses: the Rajya Sabha (Council of States) and the Lok Sabha (House of the People). The President, though not a member of either House, is an integral part of Parliament. No Bill can become an Act of Parliament without the President's assent.

Rajya Sabha (Council of States)

The Rajya Sabha represents the States and Union Territories. Its maximum strength is 250, of which 238 are elected by the elected members of the State Legislative Assemblies and the legislative assemblies of Union Territories through proportional representation by single transferable vote. The remaining 12 members are nominated by the President from persons having special knowledge or practical experience in literature, science, art, and social service.

The Rajya Sabha is a permanent body and is not subject to dissolution. One-third of its members retire every two years. Each member serves a six-year term. The Vice President of India is the ex-officio Chairman of the Rajya Sabha. The House also elects a Deputy Chairman from among its members.

Lok Sabha (House of the People)

The Lok Sabha is the directly elected lower house. Its maximum strength is 552: up to 530 members from the States, up to 20 from Union Territories, and 2 members nominated by the President from the Anglo-Indian community (this provision was discontinued by the 104th Amendment, 2020). Members are elected by direct election based on universal adult suffrage from territorial constituencies.

The normal term of the Lok Sabha is five years from the date of its first meeting. However, it can be dissolved earlier by the President. During a National Emergency, its term can be extended by Parliament for one year at a time but not beyond six months after the Emergency ceases. The Speaker presides over the Lok Sabha, with a Deputy Speaker to assist. The Speaker has a casting vote in case of a tie.

Sessions of Parliament

The President summons Parliament to meet at least twice a year, and the interval between two sessions must not exceed six months. There are typically three sessions: the Budget Session (February-May), the Monsoon Session (July-August), and the Winter Session (November-December). A session begins with the President's Address when it is the first session after a general election or the first session of each year.

Legislative Process

A Bill may be introduced in either House (except Money Bills, which can only be introduced in the Lok Sabha). The stages of a Bill are:

• First Reading: Introduction of the Bill. The minister or member seeks leave to introduce the Bill, gives a brief explanation, and the Bill is published in the Gazette.
• Second Reading: This has two stages. In the first, general discussion on the principles of the Bill takes place. The House may refer the Bill to a Select Committee, a Joint Committee of both Houses, or circulate it for public opinion. In the second stage, clause-by-clause consideration occurs, and amendments may be moved.
• Third Reading: The Bill is debated in its final form, and the House votes on whether to pass it. Only verbal or formal amendments are allowed at this stage.

After the Bill is passed by one House, it is transmitted to the other House, where it goes through the same stages. If the second House passes it without amendments, it goes to the President for assent. If amendments are made, it returns to the originating House. In case of a deadlock (the second House rejects the Bill or does not act for six months or disagrees on amendments), the President may summon a joint sitting of both Houses under Article 108, where the matter is decided by majority of total members present and voting.

Money Bills (Articles 109-110)

A Money Bill can only be introduced in the Lok Sabha. After the Lok Sabha passes it, it is sent to the Rajya Sabha, which has 14 days to make recommendations. The Lok Sabha may accept or reject these recommendations. The Speaker's certification that a Bill is a Money Bill is final and cannot be questioned.

President's Assent

When a Bill is presented, the President may: (a) give assent, (b) withhold assent (absolute veto), or (c) return it for reconsideration (suspensive veto, not available for Money Bills). If Parliament passes the Bill again with or without amendments, the President must give assent. The President can also exercise a "pocket veto" by indefinitely withholding action on a Bill, as occurred with the Indian Post Office (Amendment) Bill, 1986.

Parliamentary Privileges

Members enjoy freedom of speech within Parliament (Article 105). No member can be liable in court for anything said or any vote given in Parliament. Members are also exempt from arrest in civil cases during the session and 40 days before and after.

The Supreme Court of India (Articles 124-147)

The Supreme Court stands at the apex of the Indian judicial system. It is established under Article 124 and functions as the guardian of the Constitution and the final court of appeal. The Constitution envisions an independent judiciary, and several provisions safeguard this independence, including security of tenure, fixed service conditions, prohibition on discussion of judicial conduct in Parliament (except during impeachment), and the power of the Court to punish for contempt.

Composition: The Supreme Court consists of the Chief Justice of India and such number of other judges as Parliament may prescribe. Currently, the sanctioned strength is 34 (including the Chief Justice). Judges are appointed by the President after consultation with judges of the Supreme Court and High Courts as the President deems necessary. In practice, the "collegium system" evolved through judicial decisions governs appointments.

Qualifications: A person must be a citizen of India and must have been a judge of a High Court for at least five years, or an advocate of a High Court for at least ten years, or be a distinguished jurist in the opinion of the President.

Tenure and Removal: A judge holds office until the age of 65 years. A judge can only be removed by the President upon an address by each House of Parliament, supported by a special majority (a majority of total membership and two-thirds of members present and voting), on grounds of proved misbehaviour or incapacity. No Supreme Court judge has ever been removed through this process, though an attempt was made in the case of Justice V. Ramaswami in 1993.

Jurisdiction of the Supreme Court:

• Original Jurisdiction (Article 131): The Court has exclusive original jurisdiction in disputes between the Government of India and one or more States, between the Government of India and a State or States on one side and one or more States on the other, and between two or more States, provided the dispute involves a question of law or fact on which the existence or extent of a legal right depends.

• Writ Jurisdiction (Article 32): The Supreme Court can issue writs for the enforcement of Fundamental Rights. The five writs are: Habeas Corpus (to produce a detained person before the court), Mandamus (to direct a public authority to perform its duty), Prohibition (to prevent a lower court from exceeding its jurisdiction), Certiorari (to quash an order of a lower court acting beyond jurisdiction), and Quo Warranto (to challenge a person's authority to hold a public office).

• Appellate Jurisdiction (Articles 132-136): The Court hears appeals in constitutional matters, civil matters, and criminal matters. Under Article 136 (Special Leave Petition), the Court has discretionary power to grant leave to appeal from any judgment, decree, or order of any court or tribunal in India, except military tribunals. This is the most frequently invoked provision.

• Advisory Jurisdiction (Article 143): The President may seek the opinion of the Supreme Court on any question of law or fact of public importance. The Court's opinion is advisory and not binding, but it carries great persuasive value.

• Review Jurisdiction (Article 137): The Court may review any judgment or order made by it, subject to rules made under Article 145.

Judicial Review and Basic Structure Doctrine

The power of judicial review allows the Court to examine the constitutionality of legislative and executive actions. In Kesavananda Bharati v. State of Kerala (1973), the Court propounded the "basic structure" doctrine, holding that Parliament's amending power under Article 368 does not extend to altering the basic structure of the Constitution. The basic structure includes supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers, federal character, and judicial review.

High Courts (Articles 214-231)

Each State has a High Court, and a High Court may exercise jurisdiction over more than one State or Union Territory. The High Courts have original, appellate, and supervisory jurisdiction. Under Article 226, High Courts can issue writs not only for enforcement of Fundamental Rights but also for "any other purpose," giving them wider writ jurisdiction than the Supreme Court.

Subordinate Courts (Articles 233-237)

District Courts and courts below them form the subordinate judiciary. District Judges are appointed by the Governor in consultation with the High Court. The High Court exercises control over subordinate courts, including transfers, postings, and disciplinary matters.

Constitutional Framework

The Constitution of India establishes a federal structure with a distribution of powers between the Union and the States. However, unlike classical federations, the Indian Constitution gives considerable powers to the Centre, leading scholars to describe it as "quasi-federal." The distribution of legislative, administrative, and financial powers between the Centre and States is detailed in Parts XI and XII and the Seventh Schedule.

Legislative Relations (Articles 245-255)

The Seventh Schedule contains three lists that distribute legislative competence:

• Union List (List I): Contains 97 subjects (originally 97, now 100 entries after amendments) on which only Parliament can legislate. These include defence, atomic energy, foreign affairs, railways, banking, currency, customs duties, and interstate trade and commerce.

• State List (List II): Contains 66 subjects (originally 66, now 61 entries) on which only State Legislatures can legislate. These include public order, police, local government, public health, agriculture, land, fisheries, and state taxes.

• Concurrent List (List III): Contains 47 subjects (originally 47, now 52 entries) on which both Parliament and State Legislatures can legislate. In case of conflict between a Union law and a State law on a Concurrent List subject, the Union law prevails (Article 254). These include criminal law and procedure, civil procedure, marriage and divorce, bankruptcy and insolvency, forests, education, trade unions, and electricity.

Residuary Powers (Article 248): The power to legislate on matters not enumerated in any of the three lists rests with Parliament. This is in contrast to the United States, where residuary powers vest in the States.

Parliament's Power to Legislate on State Subjects:

Parliament can legislate on State List subjects in the following circumstances:

• During a National Emergency under Article 352
• When Rajya Sabha passes a resolution by two-thirds majority that it is necessary in the national interest (Article 249, valid for one year at a time)
• When two or more States request Parliament to legislate on a State subject (Article 252)
• For implementing international treaties and agreements (Article 253)
• During President's Rule in a State (Article 356)

Administrative Relations (Articles 256-263)

The executive power of the Union extends to matters on the Union List and the exercise of authority under Union laws. The executive power of the States extends to State List matters. For Concurrent List matters, the Union's executive power prevails.

Article 256 requires States to comply with Union laws and exercise executive power so as not to impede Union functions. The Union can give directions to States regarding construction and maintenance of national highways, protection of railways, and implementation of Union laws.

Interstate Council (Article 263): The President may establish an Interstate Council to investigate and discuss subjects of common interest between the Centre and States. The Interstate Council was constituted in 1990 on the recommendation of the Sarkaria Commission.

Financial Relations (Articles 264-293)

Financial autonomy is essential for true federalism. The Constitution divides taxation powers between the Centre and the States:

• Taxes levied by the Union but collected and appropriated by the States (e.g., stamp duties on bills of exchange)
• Taxes levied and collected by the Union but assigned to the States (e.g., duties on medicinal and toilet preparations)
• Taxes levied and collected by the Union but shared with the States (e.g., Union excise duties, income tax)

The Finance Commission (Article 280) is constituted every five years by the President to recommend the distribution of net proceeds of taxes between the Union and the States, principles governing grants-in-aid to States, and measures to augment the Consolidated Fund of a State.

Goods and Services Tax (GST): The 101st Amendment (2016) introduced Articles 246A and 279A, creating a concurrent taxing power for both Centre and States on goods and services. The GST Council, chaired by the Union Finance Minister, makes recommendations on rates, exemptions, and model laws.

Key Commissions on Centre-State Relations:

The Sarkaria Commission (1983-88) recommended greater consultation and cooperation between the Centre and the States. The Punchhi Commission (2007-10) recommended that Article 356 (President's Rule) be used only as a last resort and suggested institutional mechanisms for resolving Centre-State disputes.

Overview

Part XVIII of the Constitution (Articles 352 to 360) contains emergency provisions that allow the Union Government to deal with abnormal situations. The framers of the Constitution were conscious that a federal structure might face challenges during crises, and therefore provided mechanisms for the Centre to assume greater powers during emergencies. There are three types of emergencies:

1. National Emergency (Article 352)

The President can proclaim a National Emergency when the security of India or any part thereof is threatened by war, external aggression, or armed rebellion. The 44th Amendment Act, 1978, replaced the term "internal disturbance" with "armed rebellion" to prevent misuse.

Procedure: The President can issue a proclamation only on the written advice of the Cabinet (not merely the Prime Minister). The proclamation must be approved by both Houses of Parliament within one month by a special majority (a majority of total membership and two-thirds of members present and voting). If approved, the Emergency continues for six months and can be extended indefinitely by further parliamentary resolutions, each for six months.

The Lok Sabha can pass a resolution disapproving the continuance of the Emergency. If one-tenth of the Lok Sabha members give written notice, a special sitting must be held within 14 days to consider such a resolution.

Effects of National Emergency:

• The federal structure becomes effectively unitary. Parliament can legislate on State List subjects (Article 250).
• The Union can give directions to States on the exercise of executive power.
• The President can modify the distribution of revenues between the Centre and States (Article 354).
• Fundamental Rights under Article 19 are automatically suspended during a war or external aggression (not during armed rebellion, after the 44th Amendment).
• Under Article 359, the President may suspend the enforcement of other Fundamental Rights (except Articles 20 and 21, which can never be suspended, as per the 44th Amendment).

Historical Use: A National Emergency was proclaimed three times: in 1962 (Chinese aggression), in 1971 (war with Pakistan), and in 1975 (on grounds of "internal disturbance," which was widely criticised and led to the 44th Amendment's safeguards).

2. President's Rule / State Emergency (Article 356)

If the President, on receipt of a report from the Governor or otherwise, is satisfied that the government of a State cannot be carried on in accordance with the provisions of the Constitution, the President may assume all functions of the State Government. This is commonly referred to as "President's Rule."

Effects:

• The President assumes all executive powers of the State.
• The State Legislature is either dissolved or kept in suspended animation.
• Parliament exercises the legislative powers of the State Legislature.

Duration: The proclamation must be approved by both Houses of Parliament within two months. It can initially last for six months and can be extended up to a maximum of three years, with extensions beyond one year requiring that a National Emergency is in force and the Election Commission certifies that elections cannot be held.

Judicial Scrutiny: In S.R. Bommai v. Union of India (1994), a landmark nine-judge bench decision, the Supreme Court held that: (a) the President's satisfaction under Article 356 is subject to judicial review, (b) the Court can examine whether the material on which the satisfaction was based was relevant, (c) the Court can restore the dismissed government if the proclamation is found to be unconstitutional, (d) secularism is a basic feature, and the floor of the Assembly (not the Governor's subjective assessment) is the proper test of majority.

3. Financial Emergency (Article 360)

If the President is satisfied that the financial stability or credit of India or any part thereof is threatened, a Financial Emergency may be proclaimed. It must be approved by both Houses within two months.

Effects:

• The Union may direct States to observe financial propriety.
• The President may direct reduction of salaries of all persons serving the Union and States, including judges of the Supreme Court and High Courts.
• All Money Bills passed by State Legislatures may be reserved for Presidential consideration.

A Financial Emergency has never been proclaimed in India.

Safeguards Introduced by the 44th Amendment (1978):

The 44th Amendment, enacted to undo the excesses of the 1975 Emergency, introduced several safeguards:

• The term "internal disturbance" was replaced with "armed rebellion" in Article 352.
• Written advice of the Cabinet is mandatory for proclaiming a National Emergency.
• Fundamental Rights under Articles 20 and 21 cannot be suspended under any circumstances.
• Article 19 freedoms are automatically suspended only during war or external aggression, not during armed rebellion.
• The Lok Sabha has the power to revoke a National Emergency by a simple majority resolution.

The Power to Amend

Article 368 of the Constitution grants Parliament the power to amend the Constitution. The amendment procedure reflects the blend of rigidity and flexibility that characterises the Indian Constitution. Unlike the extremely rigid process in the United States (requiring ratification by three-fourths of State Legislatures) or the flexible process in the United Kingdom (where Parliament can change any law by ordinary legislation), the Indian Constitution provides a middle path.

Types of Amendments

The Constitution can be amended in three ways, depending on the nature of the provision being amended:

1. By Simple Majority of Parliament:

Certain provisions can be amended by a simple majority of members present and voting in each House, similar to the process for passing ordinary legislation. These include:

• Admission or establishment of new States (Article 2)
• Creation of new States and alteration of areas, boundaries, or names of existing States (Article 3)
• Citizenship provisions (Articles 5-11)
• Provisions relating to elections (Articles 327-329)
• Provisions relating to salaries and allowances of Members of Parliament
• Use of official language
• Fifth and Sixth Schedule provisions relating to administration of Scheduled Areas and Tribal Areas
• Quorum in Parliament

These amendments are not considered amendments under Article 368 and do not require the special procedure laid down therein.

2. By Special Majority of Parliament (Article 368):

Most provisions of the Constitution require a "special majority" for amendment. A Bill for amendment must be passed in each House of Parliament by:

• A majority of the total membership of that House, AND
• A majority of not less than two-thirds of the members of that House present and voting.

This category covers amendments to Fundamental Rights, Directive Principles, and most other provisions not falling in the other two categories.

3. By Special Majority Plus Ratification by States:

Certain provisions, which affect the federal structure, require, in addition to the special majority, ratification by the Legislatures of not less than one-half of the States. These include:

• The manner of election of the President (Articles 54, 55)
• Extent of executive power of the Union and States
• The Supreme Court and High Courts
• Distribution of legislative powers between the Centre and States (Seventh Schedule)
• Representation of States in Parliament
• Article 368 itself (the amendment procedure)

Procedure Under Article 368

An amendment Bill may be introduced in either House of Parliament (not in a State Legislature). It can be introduced by a Minister or a private member and does not require prior Presidential permission. After the Bill is passed by both Houses with the requisite majority (and ratified by States where required), it is presented to the President, who shall give assent. There is no provision for the President to withhold assent to a Constitution Amendment Bill.

The Basic Structure Doctrine

The most significant limitation on the amending power is the judicially evolved "basic structure" doctrine. The evolution of this doctrine traces through several landmark cases:

• Shankari Prasad v. Union of India (1951): The Court held that Parliament's amending power under Article 368 includes the power to amend Fundamental Rights.
• Sajjan Singh v. State of Rajasthan (1965): Reaffirmed the above position.
• Golak Nath v. State of Punjab (1967): The 11-judge bench reversed the earlier position, holding that Parliament cannot amend Fundamental Rights.
• The 24th Amendment (1971) was enacted to overrule Golak Nath and explicitly stated that Parliament has the power to amend any provision of the Constitution, including Part III.
• Kesavananda Bharati v. State of Kerala (1973): The historic 13-judge bench (the largest ever in Supreme Court history) upheld the validity of the 24th Amendment but imposed a crucial limitation: Parliament cannot alter the "basic structure" of the Constitution. Though the majority did not enumerate an exhaustive list of basic structure features, they identified several, including supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers, and federal character.
• Indira Nehru Gandhi v. Raj Narain (1975): Applied the basic structure doctrine to strike down the 39th Amendment.
• Minerva Mills v. Union of India (1980): Reaffirmed and strengthened the basic structure doctrine, striking down Section 4 of the 42nd Amendment which sought to remove all limitations on amending power.
• Waman Rao v. Union of India (1981): Held that the basic structure doctrine applies to amendments made after 24 April 1973.

Significant Amendments:

• 1st Amendment (1951): Added Article 15(4), inserted Ninth Schedule
• 7th Amendment (1956): Reorganization of States
• 24th Amendment (1971): Affirmed Parliament's power to amend any part
• 42nd Amendment (1976): Comprehensive changes, often called "mini-Constitution"
• 44th Amendment (1978): Restored safeguards after Emergency
• 73rd and 74th Amendments (1992): Panchayati Raj and Municipalities
• 86th Amendment (2002): Right to Education
• 101st Amendment (2016): GST
• 103rd Amendment (2019): EWS Reservation

Key Constitutional Law Decisions

Note: These are brief summaries of ratio decidendi for revision purposes. Students should read the full judgments for comprehensive understanding.

1. A.K. Gopalan v. State of Madras (1950)

The Court adopted a narrow interpretation of Article 21, holding that "procedure established by law" means any law duly enacted by the legislature, even if it is unjust or unfair. Each Fundamental Right was treated as operating in its own silo. This restrictive approach was later overruled by Maneka Gandhi.

2. Champakam Dorairajan v. State of Madras (1951)

The Court struck down communal reservations in educational institutions as violative of Article 29(2). It held that Fundamental Rights prevail over Directive Principles in case of conflict. This led to the First Amendment inserting Article 15(4).

3. Berubari Union Case (1960)

An advisory opinion where the Court held that the Preamble is not a part of the Constitution and cannot be used as a source of power. This narrow view was later overruled in Kesavananda Bharati.

4. Golak Nath v. State of Punjab (1967)

An 11-judge bench held that Parliament cannot amend Fundamental Rights as they are "transcendental and immutable." The decision was prospective in nature. This was effectively overruled by the 24th Amendment and Kesavananda Bharati.

5. Kesavananda Bharati v. State of Kerala (1973)

The most significant constitutional case. A 13-judge bench held by a 7-6 majority that while Parliament has the power to amend any provision of the Constitution (including Fundamental Rights), it cannot alter the "basic structure." This doctrine has become the cornerstone of Indian constitutional jurisprudence and has been applied in numerous subsequent cases.

6. Indira Nehru Gandhi v. Raj Narain (1975)

The Court struck down clause (4) of Article 329A (inserted by the 39th Amendment) which had placed the election of the Prime Minister beyond judicial review. The Court held that free and fair elections, rule of law, and judicial review are part of the basic structure.

7. Maneka Gandhi v. Union of India (1978)

Overruling the narrow approach in A.K. Gopalan, the Court held that the procedure under Article 21 must be "right, just, and fair" and not arbitrary, fanciful, or oppressive. The Court also held that Articles 14, 19, and 21 are not mutually exclusive but form an interconnected trinity. Any law depriving personal liberty must satisfy all three Articles.

8. Minerva Mills v. Union of India (1980)

The Court struck down Section 4 of the 42nd Amendment (which gave Parliament unlimited amending power) and Section 55 (which gave primacy to DPSPs over Fundamental Rights). The Court held that the balance between Fundamental Rights and DPSPs is itself a basic feature.

9. S.P. Gupta v. Union of India (1981) - First Judges Case

The Court held that the executive (President) has primacy in the appointment of judges and "consultation" with the Chief Justice of India does not mean "concurrence." This was later overruled by the Second Judges Case.

10. Supreme Court Advocates-on-Record Association v. Union of India (1993) - Second Judges Case

The Court reversed its position in the First Judges Case and held that "consultation" with the Chief Justice means "concurrence." It established the collegium system where the Chief Justice of India, along with two senior-most judges, makes recommendations for appointments.

11. Indra Sawhney v. Union of India (1992)

The nine-judge bench upheld the Mandal Commission recommendations for 27% reservation for OBCs in government jobs. Key holdings: (a) total reservations cannot exceed 50% (except in extraordinary circumstances), (b) "creamy layer" must be excluded from OBC reservations, (c) Article 16(4) is not an exception to Article 16(1) but a facet of equality, (d) reservations in promotions are not mandated by the Constitution.

12. S.R. Bommai v. Union of India (1994)

The nine-judge bench established guidelines for exercise of Article 356 (President's Rule). Key holdings: (a) the power is subject to judicial review, (b) the floor of the House is the proper test of majority, (c) secularism is a basic feature, (d) a State government pursuing anti-secular policies may face action under Article 356.

13. Vishaka v. State of Rajasthan (1997)

In the absence of legislation, the Court laid down binding guidelines to prevent sexual harassment at the workplace, derived from Article 14, 19(1)(g), and 21, read with CEDAW. These guidelines remained in force until the Sexual Harassment of Women at Workplace Act, 2013.

14. K.S. Puttaswamy v. Union of India (2017)

A nine-judge unanimous bench declared that the Right to Privacy is a fundamental right protected under Articles 14, 19, and 21 of the Constitution. The Court overruled M.P. Sharma (1954) and Kharak Singh (1962) to the extent they held that there is no fundamental right to privacy.

15. Navtej Singh Johar v. Union of India (2018)

The Court struck down Section 377 of IPC insofar as it criminalised consensual sexual acts between adults. The Court held that sexual orientation is a facet of the right to privacy, dignity, and equality.

16. Joseph Shine v. Union of India (2018)

The Court struck down Section 497 of IPC (adultery) as unconstitutional, holding that it treated women as the property of their husbands and violated Articles 14, 15, and 21.

17. Indian Young Lawyers Association v. State of Kerala (Sabarimala Case, 2018)

A 4-1 majority held that the exclusion of women of menstruating age from the Sabarimala temple violated their fundamental rights under Articles 14, 15, 25, and 26. The matter was later referred to a larger bench on the broader issue of balancing religious rights with equality.