Constitution of India

What is Constitution?

Constitution is the supreme Law of the land of any country it is the holiest book

of any nation, ignorentia juris non excusit ‘ignorence of law is no excuse’ as

law is everywhere and in hierarchy of laws the constitution is at the top of the

pyramid and no law can be there which contravene the constitution. No

legislative assembly of state or either by union parliament can make a law

which contradicts the provision of the constitution and if in any case such law is

passed the courts shall declare the contravening law to be unconstitutional and

void by such infringement.

Constitution is a “social contract” social contract is a concept that human

beings have made an agreement with their government, whereby the

government and the people have distinct roles and responsibilities. Thus it

incorporates the people’s aspirations about their society, it tells people their

rights and duties. Rights and duties are corresponding in nature there cannot be

a right with duty (we gets these fundamental duties via 42nd amendment 1976

under Article 51A). It informs us about the various powers of the bodies of the

government.
 PREAMBLE

Preamble means the introduction it tells us the source of the authority of

constitution, it also indicates the ideas, goals and vision of framers and it tells us

about values constitution wishes to achieve, it tells us the kind of society

constitution envisages.

In Golaknath v. state of punbaj(1967) subba rao, CJI –

“The preamble contains in a nutshell its ideas and aspirations.”

Do all constitution have a preamble?

It is not mandatory to have a preamble but of the nations do have a constitution,

as many as “54 constitution in the world do not have a constitution” out of “134

constitution” which have a preamble, “87 call it preamble” but “47 do not call it

preamble.” The ‘shortest preamble is of preamble of Greece i.e. 11 words and

the lengthiest preamble is of Iran in 3073 words.

What are the common values in the preamble?

Reference to God in preamble as many as 60 preambles has a mention to God

preamble also talks of sovereignty, independence, territorial integrity of the

nation and right to self-determination, democracy, rule of law, justice, social

justice, freedom, equality, equality before lawn and human rights, peaceful and

cordial relations with other countries, prosperity, welfare.

Is preamble part of constitution?

Preamble like any ordinary Acts may not be enacted by the legislature,

preamble was originally presented as objective resolution but eventually it was

adopted at last on the suggestion of Hasrat Mohani and preamble of constitution

was adopted by the constituent assembly just like other provisions. The framers

of the constitution treated the preamble as important as any other provision.

In re Berubari (1960)-preamble is not a part of the constitution and it cannot be

amendment although it was overruled 13 years later in case of Keshavanand

Bharti judgment (1973) it was held that preamble is a part of constitution and

can be amended and in case of State of U.P. v. Dina Nath Shukla (1997) it was

held that preamble is the basic structure of the constitution.

Now if preamble can be amended how? Well since the preamble is the basic

structure but it can be amended only by way of addition accordingly in 1976

three words were added in the preamble through the 42nd amendment-

socialist, secular and integrity. Preamble is the ‘ought’ of the constitution and it

is the legitimate aid of constitution to find the intention of the constitution, it is

used to interpret the constitution but if the provision are clear then it does not

have any use. If provision is contrary or silent then preamble is to be used to

find the intention of the framers.

In re Berubari (1960)- “A key to open the mind of the makers” of the

constitution.
What is there in the constitution?

 “we the people of India” it tells us the source of authority of constitution

and each one of us is refer in the preamble and we borrowed it from the

preamble of the USA & United Nations Charter.

 “Adopt, enact and give to ourselves this constitution” we have given us

the constitution.

 Three vital things in the preamble that it talks of description of nation,

three entitlements of citizens and purpose of entitlements.

 A description of nation and the characteristics of India which are

Sovereign, Socialist, Democratic, Republic.

 Three entitlements of citizens which are Justice- Social, Economic &

political, Liberty of thoughts, belief, faith and worship and Equality of

status and opportunity.

 Three purposes of entitlements: to promote among the people of India

Fraternity (brotherhood and sisterhood) assuring the Dignity of the

individual and Unity and Integrity of the Nation.

How preamble is reflected in the constitution?

 Fundamental rights: these are about Liberty, Equality and dignity of

individual

 Directive principles: these are the positive obligations of the state and to

create social and economic justice

  Fundamentals duties: Fraternity.

 Affirmative Action: primacy of justice over equality. Commissions of

SC/ST/OBC to achieve justice for the minority.

 Constitutionalism: which is distribution of powers, separation of powers,

judicial review.

Description of our nation

 Sovereign: it means that India is eternally supreme and externally free,

we make our own laws.

 Secular: we are secular but not like France ‘where there is a complete

separation between state and religion’ and not like USA ‘where there is a

war between state and church’, state has is religion neutral.

 Socialist: because we are talking of social and economic justice also of

distribution of resources equally, democratic socialism & mixed

economy- distributive justice and elimination of inequalities in income.

 Democratic: we have a government by choice i.e. it’s the will of people,

India has the world’s largest democracy.

 Republic: because our president is the elected head of the state he is not a

like a monarchy it has a tenure of 5 years.

 CITIZENSHIP

Citizenship is legal membership of nation states for citizen the context is

always outsiders, ‘alien, enemy, migrant, illegal, migrant, refugee, etc.

citizenship is promise of equality and integration within a political community.

How political community comes in being?

When people agree to live together within a framework of mutually agreed

rules, consent to a sovereign political authority. The mutually agreed rules refer

to the constitution it is a sacred covenant and a social contract. And the political

authority means the power to enforce these laws.

Ideas of citizenship goes beyond mere formal/legal membership in terms of

‘Belonging’, the state cannot discriminate on certain prohibited grounds against

any citizen this is the formal idea of equality, but the substantive idea of

equality requires special treatment which constituted of the special treatment of

women and several other underprivileged sections.

Who is an Indian citizen as per constitution?

The term ‘citizen’ has not been defined anywhere in the constitution, the

question of “who should be given the Indian citizenship?” even Dr.B.R.

Ambedkar said:
 “No subject has given this much headache to the drafting committee as

citizenship”

Part 2 of the constitution deals with the citizenship articles 5 to 11 deal with the

citizenship. These articles come into force on November 26, 1949 itself these

articles came into force immediately, article 5 of the constitution tells us who

were considered to be Citizens during the commencement of the constitution.

And so it says every person who has his domicile (residence) in the territory of

India and who was ‘born in India’ or either of ‘whose parent was born in the

territory of India’ or ‘who has been ordinarily resident of India for not less than

five years’ immediately preceding such commencement, shall be a citizen of

India.

In Pradeep Jain v. UOI the SC held that in India article 5 recognizes only one

domicile viz, domicile of India and SC does not recognizes the domicile of the

state.

In Mohammad Raza v. State of Bombay the court held that though he was

original resident he did not acquire Indian citizenship because he did not have

domicile of India.

Article 6: citizenship of those who have migrated to India from Pakistan,

during partition (flawed two nation theory) article 6 says a person who migrated

to India from Pakistan shall be deemed to be a citizen of India if and

 A. He or either of his parents or any of grandparents was born in India as

defined by the Government of India Act, 1935.

B. If such a person has so migrated before the 19th July, 1948 and has the

ordinarily resident of India.

If for those who migrated on or after 19th July, 1948 he has been registered by as

a citizen of India by a special officer before 26th January, 1950. But no person to

be registered unless he has been resident in the territory of India for least six

months immediately preceding the date of application.

In State of Bihar v. Kumar Amar singh article 7 thus override article 5 and 6.

In Bhawan rao khan v. UOI it was held that those who had voluntarily

migrated to Pakistan and become citizens of Pakistan cannot clam the

citizenship of India on the grounds that they had been living in India from a

long time, and their name have been included in voters list.

In Atur rehman v. State of M.P. a temporary visit on business or otherwise

cannot amount to migration.

Article 7: citizenship of migrants to Pakistan

Notwithstanding anything in article 5 and 6, a person who after 1st March, 1947,

migrated from India to Pakistan shall not be deemed to be Indian citizen.

Provided this article shall not apply to a person who after so migrated to

Pakistan has returned to India under a permit of resettlement or permanent

return shall be deemed to have migrated after 19th July, 1948. Thus can get

citizenship only by registration even if returned before 19th July, 1948.

Article 8: any person who or either of whose parents or any of whose

grandparents was born in India as defined in Government of India Act, 1935

Act and who is ordinarily residing in any country outside India shall be deemed

to be a citizen of India if ‘he has registered by the diplomatic or consular

representative of India in the country of his residence’.

Article 9: if a person voluntarily acquired citizenship of foreign country.

In State of U.P v. Rehmat ulla the SC held that the central government is

authorized to take action against people who have acquired the foreign

citizenship and have lost the citizenship India but, they are still residing in the

country.

Article 10: every citizen who is deemed to be a citizen of India under any

foregoing provision of this part shall, subject to the provision of any law that

may be made by parliament. The right of citizenship thus cannot be taken

except by a law passed by a parliament.

Article 11: parliament given full authority to regulate citizenship with to

acquisition and termination of citizenship and all matter relating to citizenship.

Moreover entry No. 17 of Union list has citizenship stated as a subject matter of
centre and by exercising this power the Citizenship Act, 1955 was passed and

amendments in 1986, 1992, 2003, 2005, 2015 and 2019.

 STATE

According to article 12 in this part (i.e. Part- 3 Fundamentals rights), unless the

context otherwise required the term ”State” shall include Government and

Parliament of India and the Government and Legislature of each of the State

and all local and other authorities within territory of India or under the control

of Government of India. Thus for the purpose of part 3 the term “State” shall

include-:

1. Government (executive) and Parliament of India (i.e. union executive

and union legislature).

2. Government (executive) and Legislature of States (i.e. state executives

and state Legislature).

3. Local or other authorities within the territory of India or under the

control of the government of India:

(i) Territory of India: can be taken as territory defined in article 1 (3)

according to the said article the territory of India shall include territory

of states, union territories and such other territories as may be

acquired.

(ii) Local Authority: According to General Clauses Act, 1897 section 3

sub section (31) “local authority” means municipalities, district board,

Body of commissioner. According to schedule 7 ‘local government’

 includes municipal corporations, district board, improvement trust,

mining settlements and village panchayat.

(iii) Other authorities: in the case of University of Madras v. Shanta Bai

it was held that the term “other authorities” can only mean authorities

exercising governmental functions. Although this view has been

rejected by the Supreme Court and thus made it clear that the term

“other authorities” include all authorities created by constitution or

statute and on whom powers are conferred by the law, whether or not

they are engaged in performing governmental functions.

(iv) Judiciary- judiciary when it acts in judicial capacity it is not a state

but when it acts under ‘administrative capacity’ it comes within the

ambit of the term other authorities and thus a state.

Article 13: (1) All laws in force in the territory of India immediately before the

commencement of the constitution, in so far as they are inconsistence with the

provision of the part 3 of the constitution shall to the extent of such

inconsistency be void.

(2) The state shall not make any law which abridges the rights conferred by this

part and any law which made in contravention of this clause shall, to the extent

of such contravention be void.

(3) In this article unless the context otherwise provides-

 a) “Law” includes ordinances, orders, by-laws, rules, regulations,

notifications, custom or usage.

b) “Law in force” includes the laws passed and made by the Legislature or

other competent authority within the territory of India before

commencement of the constitution and not previously repealed.

(4) Nothing in this article shall apply to any amendment of the constitution

made under Article 368.

Doctrines-:

1. Prospective or retrospective: Article 13 has no retrospective effect. In

case of Keshavan Madhava Menon v. State of Bombay, the petitioner

was prosecuted in 1949 under press emergency act, 1931. During the

proceedings the constitution of India was came into force and the

petitioner challenged the act on ground of inconsistency and pleaded that

the proceedings committed against him cannot continue. The court held

that the article 13(1) has no retrospective effect and therefore the

proceedings will remain unaffected.

2. Doctrine of severability: If some provision of the constitution offend the

constitutional provision and if that provision is separated from the rest

then that provision shall be void and the rest of the provision shall

continue to stand. In A.K. Gopalan v. State of Madras only section 14 of

 the preventive detention act, 1949 was removed and the rest of the act

was allowed due to the inconsistency of the section 14.

3. Doctrine of eclipse: The law was valid but now has become inconsistent

after the commencement of the part-3 of the constitution is treated to be

dormant but no dead if in subsequent amendments the inconsistency be

removed the law will become enforceable.

4. Waiver of Fundamental Rights: Supreme court in favour of the view

that a person cannot waive any of the Fundamental Rights conferred upon

him in part 3 of the constitution of the India.

In Shankari Prasad v. UOI and Sajjan singh v. state of Rajasthan the court

held that the word “law” does not include constitutional amendments and the

parliament can amend the provisions dealing with the fundamental rights. In

Golak nath v. state of Punjab Supreme Court overrule its decision and held that

the word “law” under article 13(2) includes constitutional amendments and the

parliament cannot make amendments which takes away or abridges the

fundamental rights. In order to get over this decision the 24th amendment 1971

was passed added the ‘clause (4)’ in the article 13 which says nothing in article

shall apply to amendment of the constitution under article 368. Thus it made it

clear that “law” in 13(2) will not include constitutional amendment. In case of

Keshavanand bharti v. state of kerla the said constitutional amendment held

valid and held that parliament has power to amend the fundamental rights but

cannot change the basic structure of the constitution.

Fundamental rights

Why fundamental rights?

Fundamental rights, human rights, basic rights, natural rights, civil & political

rights are the names given to these important rights and “all fundamental rights

are human but not all human rights are human rights, others rights can be found

in DPSP. It also incorporates liberty, equality, fraternity, justice and dignity of

individual. And in terms of putting restriction on powers of the state.

Part 3 starts with the definition of the state in Article 12 as the state is the

primary addressee of the fundamental rights because the state enjoys the

enormous powers so to limit it and attain constitutionalism.

Fundamental rights of citizens and non-citizens

The rights given only to the citizens and not an alien are the Article 15, 16, 19,

29 and 30. Then there are rights given to all natural including foreigners i.e.

article 20, 21, 25. All the people including juristic powers and transgender (also

companies which comes under the artificial persons) are given rights such as

article 14.
 RIGHT TO EQUALITY

Article 14: The article is addressed to the state it says that “state shall not deny

to any person, equality before the law and equal protection of laws within

territory of India” equality before law is a ‘negative’ concept and is taken from

the British rule of law while equal protection of laws is a ‘positive’ concept and

has been taken from 14th amendment of United States Constitution. Both of

these expression are in the “Article 7 of USHR (Universal declaration of human

rights), 1948”.

Now in “equality before law” this is used in a “general and philosophical way”

while the concept of “equal protection of laws” is in context of “specific laws”

and now the courts have held that the article 14 is the part of basic structure of

the constitution. Here equality does not mean same and equal or uniform

treatment for all so, un-equals are not to be treated equally but the equals are to

be treated to be treated equally people who are circumstanced in a similar

manner are to be treated equally therefore, classification is permissible the law

within the class will be the same.

The classification is permissible so that there can be law for even one individual

or against one individual and even law against one company if that company or

an individual constitutes a class in itself.

How to test the validity of classification? It must be reasonable it must be based

on intelligible differentia (people who are left-out), then such classification

must have rational and lawful object to achieve foe instance under Indian

Contract Law , section 11 says that ‘a minor cannot enter into a contract’ this

classification is valid and reasonable and have an object to achieve.

Classification need not to be based on mathematically nicety and need not be

scientifically perfect or logically complete also, there is no need for identical

treatment, presumption in favour of constitutionality of law and burden of proof

on one who challenges such classification.

Valid Classification:

 Laws for taking over the management of the company.

 Laws which establishes special courts for certain crimes.

 Capitation fee for non-resident Indians candidate.

Bad Classification:

 District wise reservation of medical seats and so was struck down

 Christian will valid only if made one year before death was struck down.

 Reservation for death of hills was struck down

New concept of Equality

Equality is a ‘dynamic concept’ and cannot be cribbed, cabined and confined

within traditional and doctrinaire limits and therefore, it is not enough to have
reasonable classification or rational object but also it shall not be arbitrary. The

case of triple talak was struck down as invalid as it was arbitrary.

Exceptions

There are a few exceptions to the rule of equality before law.

According to article 361(1) the president or the governor of the state shall not

be answerable to any court for exercise and performance of their powers and

duties of his office but this shall not restrict the right of any person to bring an

action against the government of a state, further the president may be brought

under the review and can be impeached under article 61.

According to article 361(2) provides, no criminal proceedings against the

president or the governor of the state in any court during the term of office.

The article 361(3) provides, no process of arrest or imprisonment of resident or

the governor of state during the term of office.

According to article 361(4) no civil proceedings in which relief is claimed

against the president or the governor of the state during the term of office.

Maneka Gandhi v. the Union of India (1978): The court held Section 10(3)(c)

of the Passports Act, 1967 as void since it violated Article 14 and 21 of the

Indian Constitution.

Article 15: prohibition of discrimination against any citizen on grounds only

of religion, race, caste, sex, place of birth.

 No citizen on these grounds be subject to any disability, liability or

restriction with regard to access to:

 Access to shops, public restaurants, hotels and places of public

entertainment.

 Use of wells, tanks, bathing ghats, roads and public resorts ‘maintained

wholly or partly out of state funds or dedicated to use of general public’.

Formal Equality substantive Equality

 Things alike should be treated  Equality in outcome.

alike.  To achieve substantive

 Favoured by liberalist. equality, it would be necessary

 The state must ensure that no to have special treatment/ right

formal discrimination for those who initial position

mechanism were in place. demands it.

 Women and men are equally  Favoured by ‘Egalitarian’.

able to take advantage of  People should be judged by

opportunities- gender or eye real situation which tend to

colour would carry no place them in a weaker

expectation with it. position.

 Becomes a basis for “positive

discrimination”.
That is why, under article 15(3) i.e. special provision for women and children.

And under article 15(4) & (5) i.e. special provision for the advancement of any

socially and educationally backward classes of citizens or scheduled castes and

scheduled tribes.

In 2019 by 103rd constitutional amendment another clause was added to provide

for advancement for the ‘economical weaker sections’ not covered in clause (4)

and (5).

Article 17: “Untouchability” is abolished and its practice in any form is

forbidden. The enforcement of any disability arising out of “untouchability”

shall be an offence punishable in accordance with law. Then in 1955 as per the

said article an Act was passed Untouchability (offences) Act, 1955 but it was

amended in 1976 and was renamed as ‘Protection of Civil Rights Act, 1955. But

the atrocities did not stop so the parliament passed another law “Scheduled

Castes & Scheduled Tribes (prevention of Atrocities) Act, 1989 although, in

2018 amendment to overrule Supreme Court’s dilution of Act of preliminary

enquiry before FIR and approval of arrest, Supreme Court itself recalled its

judgement.

Article 18: abolition of titles, not being a military or academic distinction shall

be conferred by the state. No citizen to accept any title from any foreign state
but unlike article 17 if you accept a title from foreign nation you won’t be

punished.

In 1954 four awards were introduced i.e. Padma Shri, Padma Bhushan, Padma

Visbhushan and Bharat Ratna. And Supreme Court upheld these titles: not titles

prohibited by Article 18 but could not be added as suffix or prefix to names.

 FREEDOM OF SPEECH AND EXPRESSION

Article 19: it called charter of right because as it guarantees number of

Fundamental rights. It gives the following six rights:

1. Freedom of speech and expression.

2. Right to assemble peaceably and without arms.

3. Right to form associations or unions. (after 97th amendment also includes

corporative society).

4. Rights to move freely throughout the territory of India.

5. Right to reside and settle in any part of the territory of India.

Only available to citizens and not to aliens. These rights are available to only to

a natural persons.

Freedom of speech means ‘the right to express ones conviction and opinions by

word of mouth, writing, printing, pictures or any other mode. It also contains

freedom of circulation. In a case of Ramesh thappar v. State of Madras (1950)

banning entry of newspaper crossroads in madras was held invalid. Indirect ban

of circulation such as number of pages and size was held invalid in case of

Sakal papers v. UOI (1962).

Article 19 does not mention the freedom of press and so editors and publishers

exercise their own free speech right. In case of Tata Press Ltd Mahanagar v.
Telephone Nigam (1955) it was held that yellow pages comprising paid

advertisement are protected by free speech.

It also includes “right to information” under the Right to Information Act, 2005.

The right to fly national flag is also covered under right to freedom of speech

and expression.

Is article 19 absolute?

No rights can be absolute and uncontrolled and all the rights can be curtailed

and restricted by the state. Therefore in article 19 clauses (2)-(6) tells us these

restrictions.

Only reasonable restriction cab be imposed, the word reasonable was added by

the first constitutional Amendment, 1951. The reasonableness requires

proportionality and it’s the burden of proof on state to prove the same and it the

court which determines the reasonableness of the restriction.

The right “to acquire, hold and dispose of property” by the 44th amendment in

1978 this fundamental right has been deleted. Although it is not a fundamental

right but still a legal right under and also mentioned under article 300.

What values does this serves?

1. As assuring individual self- fulfilment that he can express himself.

2. As a means of attaining the truth.

 3. As a method of securing participation by the numbers of society in social,

political and economic decision making. And so also include freedom of

speech and expression in form of cartoon, article, etc.

4. As maintaining the balance between stability and change in the society.

Reasonable restriction?

In article 19(2) reasonable restriction “in the interest of” or “in relation to”

following:

 Sovereignty and integrity of India.

 Security of state.

 Friendly relations with foreign states.

 Public order.

 Decency or morality (sections 292-296 IPC)

 Contempt of court (contempt of court Act, 1975)

These restriction are imposed by the laws enacted by the parliament.

Section 66A of Information Technology Act 2000, anyone who posted material

that was grossly offensive, inconvenient, injurious, menacing in character or

insulting, could be imprisoned for up to three years. Although this section has

been struck down in case of Shreya Singhal v. UOI held that this section is a

violation of free speech. Only government agencies or judiciary can get content

removed.
 RIGHT TO LIFE AND PERSONAL LIBERTY

Right to life and personal liberty is considered to be heart of Fundamental

rights, other right can be exercised only when life is protected, this right is a

primordial ritgh which every human being everywhere at all times ought have,

it is a natural as well as considered to be a basic right and thus this is an

inalienable right.

Significance

The state was into existence through social contract to protect life and property,

article 21 is important because it protects sanctity of human life, it embodies

constitutional value of supreme importance in a democratic society. Human life

is impossible without the protection of life and personal liberty.

Drafting of article 21

It was debated in the constitutional assembly on 6th and 13th December, 1948,

there was a difference of opinion on: due process of law as per united state

which is vague and gives too much power in the hands of the judiciary. Thus we

opted for procedure established by law was inspired by the Japanese

constitution.
 The original article 15 said-

“No person shall be deprive of his life or personal liberty except the procedure

established by law, nor shall any person be denied equality before the law or

the equal protection of the laws within the territory of India”.

The second part become article 14 in final constitution, while the first become

21 as it says –

No one shall be deprive of his life and personal liberty except according to

procedure established by law.

Meaning of life

It does not mean mere animal existence, it extends to sell those limbs and

faculties by which life is enjoyed.

In case of Maneka Ghandi v. UOI (1978) right to life is not confined to

physical existence but it includes right to life with human dignity and all that

goes along with it, namely the bare necessities of life such as adequate nutrition,

clothing and shelter, freely moving about, etc.

It also includes: in case of Olga Tellis v. Bombay Municipal Corporation

(1985) right to livelihood is also included. In Paschim Banga Khet MAzdorr

Samiti v. State of West Bengal (1996) right to health and emergency medical

aid even in private hospital. In M.C Mehta v. UOI (1987) right to unpolluted

environment. Also right to shelter also included in this article, in case of

Unikhrishanan v. State of A.P. (1993) free education for children till 14,

although in 2002 by the 86th amendment the article 21A was inserted and the

free education for children between the age of 6 to 14.

 Right to reputation.

 Right to fair and speedy & fair trial.

 Right to legal aid.

 Right to sound sleep.

 Etc.

Is right to life includes right to die?

In case of P.rathinam v. UOI section 309 was struck down of IPC and right to

die was included but this judgement was overruled in case of Gyan kaur v.

State of Punjab (1996) so right to life does not include right to die.

Right to life does not include right to vote, right to property, right to revision of

pay, right to MSP.

Gian Kaur v. the State of Punjab (1996): This judgement affirmed that the

right to die does not come within the scope of Article 21 of the Indian

Constitution. The court affirmed that every person has the right to die with

dignity. The court also stated that the right to die in a dignified manner is not

the same as the right to die in an unnatural way.

Personal liberty
Expression ‘liberty’ in American constitution is given wider meaning and it

takes in all freedoms. Liberty is not confined to bodily restraints and extends to

full range of activities which an individual is free to pursue.

In case of Kharak singh v. State of U.P.( 1963) personal liberty not confined to

just personal right.

In Maneka Ghandi V. UOI personal liberty is of widest amplitude and covers

variety of rights.

In recent case of K.M. Puttuswami v. UOI (2017) right to privacy is included in

the right to life and personal liberty.

What is the meaning established by law ?

It means procedure established by statue or prescribed by law, it must be

procedure under a valid law.

Initially in A.K. Gopalan v. State of Madras (1950) procedure established by

law means nothing more than the procedure enacted by the state. It does not

include “due process of law”. And due process of law as in American

constitution suggests, it is wider sense and courts will examine justification and

fairness of law.

Although in case of Maneka Ghandi (1978) it was said the procedure must be

just, fair, reasonable, non-arbitrary, fanciful or oppressive.

So in a way the due process is virtually included.

 - During emergency article 21 and article 20 cannot be suspended it was

made such after the 44th amendment in 1978 which made these two

articles non-derogable fundamental rights.

Freedom of Religion ( articles 25-28 )

The Hindu concept of sarva dhrama sambhava, the idea of all religion are true,

justify tolerance and accommodation of distinctive religious identities and the

concept of quality of all religion was inspired by this doctrine. Accordingly no

religion is given preference in India over another. Our state does not interfere in

religious affairs of any religious community.

Is it beneficial?

 Religious practice promotes the well-being of individuals, families and

tge larger community.

 It turns out that the practice of religion has a significant effect on the

happiness and an overall sense of personal well-being.

 Happy people tend to be more productive and law abiding, they make

good citizens.

Relationship between religion & state

Unlike west, India was not aimed to create a wall between the church and state

as a wall of separation. Taking the European experience as the reference of

secularism, it can be argued that the secularism is an alien concept for India as
we did not have similar historical experience. Indian society has always been

secular, accordingly word secular was not there in the original constitution but

was added later on by 42nd amendment 1976. Under Indian constitution “secular

state”, i.e. a state which has an attitude of neutrality and impartiality towards

all religions. It is based on the idea that state is concerned with the relation

between the man and man rather than the relation between the man and god.

What is freedom of religion?

Article 25 which provides that freedom of religion is granted to everyone

including foreigners. It is freedom of conscience and grants three crucial rights:

1. Right to profess any religion.

2. Right to propagate one’s religion.

3. Right to practise one’s religion.

Restriction by state on freedom of religion: as the opening of the article 25

suggest the freedom of religion is subjected to ‘public order, health, morality

and other provisions of part three of constitution. And freedom of religion is

subordinate towards other fundamental rights.

Powers of state in respect to freedom of religion

 State can through law regulate any economic, financial, political or other

secular activity which may be associated with religious practise.

  State can make a law providing for social welfare and reform or to

opening of a religious institutions of a public character to all classes and

sections of Hindus.

 Women entry in Sabrimala temple was permitted as devottees of lord

were not recognised as a distinct sect of Hinduism and as article 25

permits entry of all sections of Hindus to Hindu temples.

Is conversion included within the meaning of word ‘propagate’

The simple is ‘NO’ the word propagate was inserted in article 25 on the demand

of Christian members of the constituent assembly, however under article 18 of

universal declaration of human rights: everyone has the right to freedom of

thought, conscience and religion; this right includes freedom to change his

religion or belief.

If any such right to convert be concluded then such right will belong to every

religion, so there would inevitably a breach of public peace if other faiths by use

of force, fraud, inducement, etc.

The freedom of conscience belonging to each man under article 25(1) means

that he has the freedom to choose and hold faith of his choice and not to be

converted into another by measn of force, fraud, inducement. He can of course

voluntarily adopt religion of his choice.

The use of loud speakers is not permissible under the freedom of religion as

prayer are not be performed by disturbing others. In case of Church of India v.

K.K.R.Majestic Colong Welfare Associaiton (2000) it was held that others have

right not to be disturbed.

While article 25 talks on individual level the article 26 gives rights for sects.

And it confers following rights:-

1. To establish and maintain institutions for religious and charitable

purposes;

2. To manage its own affairs in matters of religion;

3. To own and acquire movable and immovable property.

4. To administer such property in accordance with law.

The expression “manage its own affairs in matters of religion” ked to the

innovation of a doctrine of “essential religious practises” by the Supreme Court

under which each and every religious practise cannot be claimed under freedom

of religion, only such religious practises are allowed which the court finds

essential.

In case of Shayara Bano v. UOI & others also knows as “triple talak” case in

which was held that it is not an essential Islamic practise and find no mention in

Quran and thus not permitted.

Article 27 says no person can be compelled to pay taxes by the state, which

would promote a particular religion or religious denomination. For example is

the state imposes a tax for the promotion of Hindu religion, it would be entirely

lawful for a person to refuse to pay such tax.

In case of Praful Goradia v. UOI (2011) SC upheld the constitutionality of ‘Huj

Subsify’ given to Air India which has exclusive right to carry Haj pilgrims as it

was a small amount out of income tax was used for subsidy although another

bench held that though Haj subsidy is constitutional but it should be done away

with in ten years.

Article 28: it says that no religious instructions shall be provided in any

educational institution which is fully funded by the state. But if the institution

was established by a trust and funded by it and which requires religious

instruction however the institution was maintained by the state then the

instructions can be imparted.

 CULTURAL AND EDUCATIONAL RIGHTS

Articles 29 and 30 in the Fundamental Rights chapter appear under the heading

of Cultural and Educational Rights. Through the headnote of article 29 says

“protection of interest of minorities” but word minority is missing from the

actual text of article 29 in fact, article 29(1) says that any sections of Indian

citizens having a distinct language, script or culture of its own shall have the

right to conserve the same thus we can say that 29 is the right of each and every

citizen and is not confined to minorities.

Article 29(2) says that no citizen shall be denied admission in any educational

institution maintained by the state or receiving aid out of state funds on grounds

only on religion, race, caste, language or any of them. Under article 21A state

has provide free and compulsory education to all children of the age of six to

fourteen but in article 30 gives minorities Fundamental right to establish and

administer educational institutions of their choice.

In case of Kerala Education Bill (1957) SC held that the key to understand the

true meaning of the article and its implication are in the words “of their own

choice”. It says that that the dominant word is “choice”.

Minorities can establish educational institutions, term ‘establish’ means to

found, to bring into existence. In Azeez basha v. UOI (1968) SC held that the

term ‘Educational institutes’ includes University. Minority are free to set up

educational institutions of secular and modern education and can administer the

same.

Although as far as text of article 30 is concerned, unlike other fundamental

rights like 19 and 25 it did not mention restrictions, but the SC has held that no

right can be absolute and therefore municipal and health regulations would be

equally applicable on the minority institutions.

Can government regulate minority institutions and can there be an aided

minority?

In the judgement of St. Xaviers college regulation must be in the interest of the

general public, but every regulation must satisfy the dual test laid down by the

SC. And yes there are many aided institutions like St. stephens college.’

Article 30(2) provides that the state while granting aid to the educational

institutions shall not discriminate against any educational institution that the

institutions is of a minority or weather based on religion or language.

In St. Stephens College v. University of Delhi (1992) SC said that government

aid cannot come with conditions that will virtually deprive minorities of their

rights.

Can there be minority reservation in admission?

This reservation is different form reservation in article 15(5), in fact article

15(5) and 16(6) exempt the minority educational institutions from the state
policy of reservation. No minority institute is exclusively for the minorities as

they have to admit other groups as well, the percentage of reservation is

regulated by the state. Although minority institution can reserve seats for the

religious and linguistic minority that gas established such an institution.

 DIRECTIVE PRINCIPLES OF STATE POLICY

AND REALTION WITH FUNDAMENTAL

RIGHTS

The DPSP constitute set of important principles that the government is given in

order for it to function in line with them and refer to them while crafting laws

and policies, as well as to build a just society. These are mentioned in the part 4

of constitution from Article 36-51. These principles strive to create an

environment in which citizens can live happy lives in a peaceful and

harmonious settings. The definition of “State” is covered in Article 36, unless

the case requires otherwise the definition of state is the same as in part 3 of

constitution. The DPSP usually classified into three types- the socialist

principles, the Gandhian principles and the Liberal-Intellectual principles.

 Fundamental rights are civil and political rights and Directive principles

are social-economic and cultural rights.

 Fundamental rights are justiciable, Directive principles are non-

justiciable.

 Fundamental rights are negative restriction on powers of State while

Directive principles are the positive obligation of the state.

 Fundamental rights use definitive language while Directive principles

have been vaguely expressed.

In case of Dorairajan (1951) SC held that Directive principles which by article

37 are expressively made unenforceable in any court and cannot override the

provisions of the part 3 fundamental rights which by article 32 in appropriate

writ, order or direction made enforceable. The Directive principles has to run

subordinate to Fundamental rights.

The Directive principle cannot override the fundamental right however, the SC

has observed that the court may not entirely ignore the directive principles and

they try to give effect to both of them as much as possible. As in case of

Keshavanand Bharti the SC observed that there is no conflict between the

Directive principles and Fundamental rights and they are meant to supplement

each other.

Article 31C is also relevant in the context of the relation between the

Fundamental rights and directive principles it has been inserted by the

amendment in 1971 and was at follow ‘that no law giving effect to policy of

state and securing the principles under clause (b) and (c) of article 39 shall

deemed to be void on grounds that it violates the rights confer under article 14,

19 or 31.

Although the changes made in Keshvanand bhari case and thereafter the

amendment in the 1976 in the article 31C was struck down in case of Minerva

mills v. UOI 1980 on ground that it damages the basic structure of the

constitution as a result the first part of the article in new and expanded form
says that if a law is enacted to give effect to the directive principles specified

under clause (b) or (c) of 39 shall be valid even if they are inconsistent with the

article 14 or 19 but if they are enacted to give effect to the other provisions of

the directive principles in part 4 then they shall deemed to be void due to such

inconsistency.

Fundamental rights ae rightful means to the end viz., social and economic

justice provided in the directive and the preamble. The fundamental rights and

the directive principles establishing the trinity of the equality, liberty and

fraternity in social order and prevent exploitation.

 UNION EXECUTIVE

Due to our familiarity with the British parliament system we had adopted the

parliamentary Democracy. Now there are three organs of the union is executive,

parliament and union judiciary.

Part 5 of the Indian constitution deals with the union and its chapter 1 provides

for the executive. Chapter 2 deals with parliament, chapter 3 provides for the

legislative powers of the president and has only one article is article 123 which

confers on the president power to promulgate ordinances.

Union executive consists of: President, Vice-President, Prime Minister, Council

of Minister and Attorney General.

PRESIDENT

Through we have adopted for the British Parliamentary system but we do not

have any Queen/King as our head of the state. Our preamble claims India as

Republic which ‘means head of Indian state shall be an elected person’ and

accordingly Indian constitution makes a provision for an elected president who

is our head of state, although Prime minister on one hand is the head of the

government but the President is the head of the state.

Elections of president?

Article 52 says that there shall be a President of India.

Article 54 says the President shall be elected by the members of an electoral

college consisting of – (a) the elected members of both house of parliament; and

(b) Elected members of the legislative assemblies of the states. Thus nominated

members of the parliament cannot participate in the election of the president.

Article 71 says that all disputes about the President shall be enquired into and

decided by the Supreme Court and the decision shall be final.

Eligible?

Article 58 lays down the qualification which an individual must possess for

being elected to the office of the president of India.

 He must be a citizen of India,

 He must have completed the age of 35 years,

 He must be qualified for election as a member of the house of the people

which means he must be registered as a voter in any parliamentary

constituency,

 He must hold any office of profit under the government of India or the

government of any state or under any local or other authority subject to

the control of the government of the union of any state.

Explanation- for the purpose of this article, a person shall not be deemed

to hold any office of profit by reason that he is president or vice president

 of the union or the governor of the state or is a minister either for the

union or for any state.

How can president can be removed?

Article 61 (1) when a President is to be impeached for the violation of the

constitution, the charge shall be preferred by either house of parliament.

(2) No such charge shall be preferred unless- (a) the proposal to prefer such

charge is contained in a resolution which has been moved after at least fourteen

days notice in writing signed by not less than one-fourth of the total number of

members of the house has been given of their intention to move the resolution,

and (b) such resolution has been passed by a majority of not less than two-third

of the total members of the house.

(3) When a charge has been so preferred by either house of parliament, the other

house shall investigate charge or cause the charge to be investigated and the

president shall have the right to appear and to be represented at such

investigation.

(4) If as a result of the investigation a resolution is passed by a majority of not

less than two-thirds of the total members if the house by which the charge was

investigated or caused to be investigated, declaring that the charge preferred

against president gas been sustained, such resolution shall have the effect of
removing the president from his office as from the date on which the resolution

is so passed.

No provision in the constitution requires the two-third majority of total

members of the house. There are three kinds of majority- simple, absolute,

special and super-special majority Only by super special majority a president

can be removed even-though the no-confidence motion against the prime

minister or chief minister requires simple majority.

Is Indian president just a nominal head?

There are two schools of thought i.e. one which says the president is a merely a

nominal head or figure head just like British monarch who merely reigns but

does not rule.

Pt. Nehru and SC are of the opinion that since we are a parliamentary

democracy, therefore, president cannot have any real power. The second school

of thought believes Indian president is not a mere Nominal head but can still

hire and fire the cabinet. Dr Rajendra Prasad and K.M Munshi are the main

proponent of this school. This school relies on the following:-

 While the prime minster is leader of Lok sabha but president has a wider

electoral college which consists of not both the houses of parliament but

also state legislative assemblies.

  Article 53(1) says that the executive power of the union shall be vested in

the president and shall be exercise by him either directly or through

officers subordinate to him in accordance with this constitution.

 Article 60 president take an oath in which he promises to preserve to

preserve, protect and defend the constitution and the law and that he will

devote himself to the service and wellbeing of the people of India.

 Article 61 president can be impeached only for the violation of

constitution.

Although the controversies were rested after the SC judgement in case of

Shamsher singh v. State of Punjab (1974) in which it was observed- president

and governor and all other powers under various articles shall exercise their

formal constitutional powers only upon and in accordance with the advice of

their minister save in a few well-known exceptional situations. Thus, there is

simply no doubt now that Indian president to discharge his function on the

advice of his councils of minister.

What are Ordinance making powers of the president?

Article 123 says that if at any time, except when both house of parliament are in

session, the president is satisfied that circumstance exist which render it

necessary for him to take immediate action, he may promulgate such

ordinances as the circumstances appear to him to require.

This is executive law making and normally law is made by the parliament and if

during any circumstance or during the emergency the parliament is not in

session then the president, if the circumstances are as such which requires an

immediate effect, has this power to promulgate the Ordinances to meet the need

of the emergency.

An Ordinance promulgated under this article shall have the same force and

effect as an Act of parliament, but every such Ordinance shall be laid before

both houses of parliament and shall cease to operate at the expiration of six

weeks from the reassembly of parliament, or, if before the expiration of that

period resolutions disapproving it are passed by both the houses, upon the

passing of the second of those resolutions.

Explanation- president may promulgated an Ordinance that will remain in

operation for six weeks, within that period the parliament must approve the

Ordinance and if parliament does not approve the Ordinance then the Ordinance

will lapse.

PRIME MINISTER

Prime minister is the most powerful constitutional authority in our democracy,

he leads not only the government but also the entire nation as he represent the

aspiration of the people.

Article 74 says that there shall be councils of minister with the prime minister

at the head to aid and advice the president who shall, in the exercise of his

function, act in accordance with such advice.

How prime minister appointed?

Through the Indian constitution id the lengthiest constitution of the world and

prime minister is all powerful yet the constitution does not give details of prime

minister’s appointment. It is the classical silence of the constitution. Article 75

merely says that prime minister shall be appointed by the president and other

ministers shall be appointed by the president on the advice of the prime

minister.

Article 75(2) says that the prime minister shall hold office during the pleasure

of the president.

Article 75(3) provides that the council of minister shall be collectively

responsible to the house of people.

President can appoint anyone as the prime minster. It is not necessary for the

prime minister be the member of the parliament. After Lok sabha elections, as

per constitutional conventions, president has to satisfy himself that the person

he is inviting to form the government enjoys the confidence of Lok sabha.

If no party gets a clear majority, president becomes all powerful due to the

presidential discretion in the appointment of prime minister. He may call the

leader of single largest party or leader of pre-poll alliance or leader of post-pull

alliance.

The president is bound by the councils of minister’s advice, prior to 42nd

constitution amendment, 1976, article 74 had provided that there shall be

councils of minsters with the prime minster of the head to aid and advise the

president in the exercise of his functions. But after 42nd amendment laid down

the president has to exercise his function on the aid and advice of councils of

minister headed by the prime minister.

However, after the 44th amendment, president may require the councils of

minsters to reconsider such advice, either generally or otherwise, and he

president shall act in accordance with the advice tendered after such

reconsideration.
 JUDICIARY

Indian constitution is a federal constitution and federalism is the distribution of

powers between centre and states. The disputes between the centre and states or

among the states are bound to arise and therefore an independent organ was

required to resolve these disputes.

Also supremacy of constitution too requires independent and impartial judiciary

which has been given the important function of interpreting constitution.

Moreover constitution guarantees certain fundamental rights, only independent

organ can protect these rights and therefore judiciary was given the role of

protecting people’s rights.

As a matter of fact, a true federalism as per the constitution was provided only

in the judicial system as our high courts are in no way subordinate to the CJI.

Supreme Court has no administrative control over the high courts.

Judicial review

Judicial review is the power of constitutional courts to examine the

constitutionality of laws and the executive’s actions. Expression judicial review

has not been used in the Indian constitution unlike American constitution, our

constitution does not even expressly vest judicial power in the courts but the

separation of power principle has been incorporated.

The courts have power to review the state action. Article 13 read with Article

32 and 226 of the Indian constitution give the power of judicial review to the

Supreme Court and High Court to declare, any legislative, executive or

administrative action, void if it is in contravention with the constitution.

The power of judges to quash laws passed by the parliament may look like anti-

democratic. But this power has been given so that parliament does not become

‘majoritarian’.

Independent judiciary is required to maintain balance between the interest of

individuals and society. Even Monstesquieu is of the view that if the power of

judging be not separated from the legislative and the executive powers then

there is no liberty. Only independent judiciary can stand for the protection of the

rights of the individuals and meet justice without favour and fear.

In S.P. Gupta v. UOI (1982) SC held that judges should be of stern stuff and

tough fiber, unbending before power, economic or political, and they must

uphold the core principle of the rule of law which says be you ever so high, the

law is above you.

 JURISDICTION OF SUPREME COURT

Historical overview

The history of the Supreme Court can be traced back to the Government of

India Act, 1935. The Act established the Federal Court, which was responsible

for adjudicating on the disputes between the federal states and provinces.

Furthermore, the Federal Court was also empowered to hear appeals from the

high courts.

The jurisdiction and powers of the Supreme Court are similar to those of the

Federal Court. Article 124 of the Indian Constitution provides for the

establishment of the Supreme Court. The Supreme Court became operational on

28th January, 1950, and the first judge to preside over the Supreme Court of

India was Hon’ble Mr. Justice Harilal Jekisundas Kania.

1. Original jurisdiction of Supreme Court-:

Original jurisdiction is the power of the court to hear and adjudicate upon the

matter as the court of first instance.

Article 131 elucidates the original jurisdiction of the Apex Court. It provides

that the Court will be competent to exercise original jurisdiction:

 In disputes between the Union Government and one or more States

  In such disputes, where the Union Government and one or more states

constitute one party and one or more states constitute the other party

 In disputes between two or more states

The disputes under this Article must raise a pertinent question of legal right. No

other court has the power to try the disputes envisaged under this Article. The

intent of the Constitution makers behind conferring such wide jurisdiction on

the Apex Court was to ensure that the disputes of such nature are decided once

and for all at the highest federal court.

However, the proviso to Article 131 states that the jurisdiction of the Supreme

Court can be excluded by virtue of any treaty, agreement, or similar instrument.

This Article is ostensibly based on Section 204 of the Government of India Act,

1935.

Moreover, the wording of Article 131 implies that it has to be read in

accordance with and “subject” to other Constitutional provisions. Thus, the

original jurisdiction under Article 131 can be restricted by other Constitutional

provisions, such as in the case of disputes relating to the operation and

distribution of inter-State river waters (Article 260) or Presidential

recommendations to the Finance Commission under Article 280.

In the landmark case of State of Bihar v. Union of India (1969), the plaintiff

was the State of Bihar and the defendants were the Union Government (1st
defendant) along with Hindustan Steel Limited, Indian Iron and Steel Company

Ltd. The plaintiff brought an action before the Court under Article 131 and the

primary issue that came before the Court was whether the cause of action could

be brought under the aforementioned Article.

The Court held that Article 131 requires the Court to adjudicate only on the

legal right concerned and the Court is not required to adjudicate on the complete

dispute. The Court further held that the petition under Article 131 was not

maintainable as the dispute would fall within the ambit of Article 131 only if no

private party was involved in the dispute. Even if the private party was

impleaded jointly with the government, the petition would be beyond the scope

of Article 131.

2. Writ Jurisdiction

Furthermore, the Court enjoys original jurisdiction in matters relating to the

enforcement of fundamental rights of individuals. Any individual can approach

the Apex Court in case of violation of fundamental rights, and the Court can

issue writs for granting the appropriate remedy. India adopted the concept of

Writs from the British legal system, which empowers the courts to issue

Prerogative Writs. Article 32 provides that the Court can issue the following for

enforcement of fundamental rights:

1. Habeas Corpus: Writ ordering the production of the detainee before the

Court in order to ascertain whether the detention is legal or unlawful. By

 virtue of the effect of the 44th Constitutional Amendment, which

provides that Article 21 cannot be suspended even at the time of a

declaration of emergency, the writ of Habeas Corpus can be effectively

issued at the time of emergency as well.

2. Quo warranto: This writ is issued by a court to a public officer requiring

him to explain the authority behind his actions. The public officer is

required to prove the authority by which he is holding the office and

exercising the powers of the public office. This writ is ordinarily issued

against executive officers holding public offices.

3. Mandamus: The Court issues a writ of Mandamus to direct a public

official to resume the discharge of his public duty. It is pertinent to note

that this writ cannot be issued against a private person, a high court chief

justice, President of India or the Governor of any state.

4. Prohibition: The Court issues this writ to prevent a subordinate court

from exceeding or usurping its jurisdiction or from acting in

contravention of the law. This writ is issued at the time when a

subordinate court decides to try a matter in excess of its jurisdiction.

5. Certiorari: Where the Subordinate Court decides a matter which is

beyond its jurisdiction or where the matter is decided in contravention of

the natural justice principles, the Court is empowered to issue the writ of

certiorari, thereby setting aside or quashing the erroneous decision.

Where a common matter is pending before two or more high courts or before

the Apex Court and one or more high courts, the Supreme Court, upon being

satisfied that the concerned matter is of public importance, can withdraw the

matter from the High Court and proceed to dispose of the matter itself.

Article 139A provides that when a matter involving a substantial question of

law is pending before the Apex Court and also before any High Court or where

such a matter is pending before two or more High Courts, the Court can

withdraw the matter from the High Court and decide the matter by itself.

It is pertinent to note that the original jurisdiction of the Court, in respect to the

enforcement of fundamental rights, is appellate and concurrent in nature and not

exhaustive. This is essential as otherwise the citizens would have no remedy but

to approach the Supreme Court in the event of violation of any fundamental

rights.

Under Article 138, Parliament can confer original jurisdiction on the Supreme

Court through the medium of legislation. For example, the Apex Court is

empowered to commence International Commercial Arbitration by virtue of the

Arbitration and Conciliation Act, 1996.

3. Advisory Jurisdiction of Supreme Court

Article 143 confers the advisory jurisdiction upon the Apex Court. The advisory

opinion of the Supreme Court can be requested by the President on any question
of law or fact which is of public importance and where the President considers

obtaining such opinion to be expedient.

Similar to the original jurisdiction, the advisory jurisdiction also stems from the

Government of India Act, 1935. Section 213(1) of the Government of India Act,

1935, provided for the advisory jurisdiction of the Federal Court. The essence of

this Section was incorporated in Article 143 of the Constitution.

It is pertinent to note that the jurisdiction of the Court under Article 143 is

merely advisory in nature and is not binding on the President or the

Government. The Court does not pass any orders or decrees but merely gives its

opinion, on the matter concerned, to the President.

Landmark case laws

 In the landmark case of Re: Keshav Singh, Legislative Assembly, Keshav

Singh, along with his colleagues, had printed a pamphlet alleging that one

of the MLAs was involved in corruption. Resultantly, he was summoned

by the Legislative Assembly. While his colleagues appeared before the

Assembly, Keshav did not follow the summons on grounds of financial

constraints. The Assembly ordered his arrest. A petition was filed before

the Allahabad High Court pleading that Keshav’s arrest was

unconstitutional.
Subsequently, two judges of the High Court passed an order in favour of

Keshav. The State Assembly passed a resolution ordering that the two judges be

taken into the custody of the Assembly. The matter went before the Allahabad

High Court and the 28 Judge Bench of the High Court passed an interim order

staying the resolution of the Assembly.

Since the matter involved a dispute between the High Court and the State

Assembly, the President sought the advisory opinion of the Supreme Court

under Article 143. The Apex Court held that the Allahabad High Court was

competent to hear the Habeas Corpus petition filed on behalf of Keshav as well

as to pass the interim order against the Assembly resolution, and that the

Assembly had no authority to order the detention of the judges.

It is pertinent to note that the Apex Court observed that the advisory opinion of

the Court is not binding and it is at the discretion of the President whether to

abide by the opinion or not. However, the opinion carries immense judicial

weight.

 In the case of M. Ismail Faruqui v. Union of India, the President sought

the advisory opinion of the Court on the issue of whether there was a

temple at the sight of Babri Masjid. However, the Court held that the

President must provide appropriate reasons for seeking the Court’s

opinion. The Court further held that it was not bound to provide the

advisory opinion where it considered the reasons to be improper. The

 Court thus refused to give its advisory opinion on the ground that the

reference was superfluous.

 In Re: Kerala Education Bill v. Unknown (1958), the Kerala Education

Bill, 1957 was passed by the Kerala State Legislature and the President

had sought the opinion of the Apex Court on the constitutionality of some

of its provisions. The Governor had not given his assent to the Bill and

had sought the President’s consideration. The issue that came before the

Court was whether advisory opinion could be sought in relation to the

provisions of the Bill, which has not yet been incorporated as a statute.

The Court made several observations regarding the scope and objectives

of Article 143:

 The Court observed that Article 143(1) provides that the Court “may”

give its opinion to the President on the matter referred to and hence the

advisory opinion is a discretionary jurisdiction of the Court and the Court

is not bound to give the opinion to the President.

 However, merely because a Bill has not become applicable as a law could

be no grounds for the Court to decline to exercise its jurisdiction.

 The Court further noted that the purpose of Article 143 is to enable the

President to clear his doubts regarding a question of law by referring the

matter to the Supreme Court.

  The Court held that it would consider only the question that was referred

to by the President and that it could not go beyond the scope of the

question.

 The Court further drew a distinction between the reference made under

Article 143(1) and Article 143(2). Article 143(2) provides that where

such a matter as provided in the proviso to Article 131 is referred to the

Court by the President, the Court “shall” provide its opinion to the

President. The proviso to Article 131 excludes the original jurisdiction of

the Court in relation to disputes arising out of agreements, treaties, or

other such instruments which were entered into before the Constitution

came into effect. The Court held that while Article 143(1) makes it

discretionary for the Court to give its opinion, Article 143(2) makes it

mandatory for the Court to give its opinion in matters referred to by the

President.

4. Appellate Jurisdiction of Supreme Court

Articles 132 and 133 provide for the appellate jurisdiction of the Supreme

Court. The Supreme Court can entertain an appeal against a High Court’s

“judgment, decree or final order” provided that the High Court certifies that the

matter involves a “substantial question of law“.

The expression “final order” means an order which would not give rise to any

further action. In the case of Ramachand Manjimal v. Goverdhandas

Vishindas Ratanchand, a stay order was granted by the judicial commissioner

and it was further certified by him that the order was a final order. However, the

Privy Council held that the order did not determine the rights of the parties

finally and was yet to be determined. Hence, the order could not be said to be a

final order.

In criminal matters, an appeal can be preferred before the Supreme Court where

the High Court endorses, through a certificate, that the matter be appealed

before the Supreme Court. It is pertinent to note that where a review is preferred

on the basis of the High Court’s certificate, it is at the discretion of the Supreme

Court whether to allow the review petition or not.

In the case of Mohinder Singh v. the State (1950), an appeal was preferred

before the Apex Court from the judgment of the High Court of Punjab and

Haryana. The High Court upheld the death sentence of the appellant. The Court

held that the High Court is to give its certificate only in exceptional cases. The

Court permitted the appeal on the ground that it was one of the special cases in

which criminal appeal can be preferred as the accused had been convicted even

though the evidence was insufficient. The Court set aside the conviction of the

appellant.

An appeal can be made before the Apex Court without the endorsement of the

High Court if either or both the following conditions are satisfied

  Where a person is sentenced to death by a High Court while reversing

the order of acquittal.

 Where the High Court withdraws the matter from a subordinate court and

conducts the trial and subsequently sentences the accused to death.

In Pritam Singh v. State (1950), it was held that where an appeal is preferred

upon the fulfillment of any or both the aforementioned conditions, then review

is claimed as a right.

5. Review Jurisdiction of Supreme Court

The Supreme Court enjoys review jurisdiction under Article 137 of the

Constitution. This Article provides that the Supreme Court has the power to

review its own judgments and orders. The review jurisdiction is also envisaged

under Part VIII Order XL of the Supreme Court Rules, 1966.

A review application can be made before the Supreme Court within 30 days of

the concerned judgment. Furthermore, the application must have the

certification of an Advocate on Record.

It is pertinent to note that the review jurisdiction is based on the discretion of

the court, and the court may refuse to review its earlier judgment. The Court

usually exercises this jurisdiction when an error is discovered subsequent to the

judgment and such error is believed to have caused a miscarriage of justice.

Furthermore, if any material evidence is discovered subsequent to the judgment

and such evidence could not be found earlier despite the best efforts of the

party, then the Court may review its judgment. However, the Court will not

exercise its review jurisdiction merely for trivial errors.

In the case of Union of India v. Sandur Manganese & Iron Ore Ltd., the

review application was filed before the Court on the ground that the Court had

incorrectly quoted the Expert Committee Report on which it had relied in the

judgment. The Court, however, held that even if the wrongly quoted portion

was deleted, the judgment would be the same and, hence, the clerical error

could not be a ground for review. Further, the Court held that merely because an

alternate view is possible to the dispute could not be a sufficient ground for

invoking the review jurisdiction. Only when there is a grave error or omission in

the judgment, the Court will permit a review.

Article 137 also provides that the review jurisdiction of the Court is subject to

the laws enacted by Parliament under Article 145. Thus, the review jurisdiction

of the Court is subject to Order XLVII Rule 1 of the Code of Civil Procedure,

1908. It provides for three grounds on which the review can be conducted. The

grounds are

 Discovery of new evidence: The aggrieved party may appeal for review

upon the discovery of new important evidence. However, it is pertinent to

note that the party applying for review has to show that such new

evidence could not be discovered earlier despite the exercise of due

 diligence by the party. If it is shown that the evidence was undiscovered

at an earlier stage due to the negligence of the party, then the application

would fail.

 Apparent error: Where there is an “error apparent on the face of the

record,” then review can be permitted by the Court. The error must be a

material one and should have adversely affected the appealing party. The

error should be patently apparent without the need for any arguments.

In G.L.Gupta v. D.N. Mehta (1971), the Supreme Court permitted a review

petition because Section 23C(2) of the Foreign Exchange Regulation Act, 1947

was not brought to the notice of the Court at the time of the proceedings. The

Court consequently set aside the imprisonment sentence of the petitioners.

 Any sufficient reason: Where the Court feels that there is sufficient

reason for permitting the review, it may allow the review application of

the aggrieved party.

6. Inherent jurisdiction of Supreme Court

The Supreme Court of India also enjoys inherent jurisdiction. Under Article

136, the Court has the power to hear an appeal against the judgment, decree, or

order of any court or tribunal situated within the territorial limits of India.

Furthermore, the Court has the power to punish for contempt under Article 229.

The Court can take up a contest matter either by itself, i.e., suo moto, or on the
recommendation of the Attorney or Solicitor General. Furthermore, any person

can file a contempt petition before the Court.

In the case of Delhi Judicial Service Association v. State Of Gujarat (1991),

the Apex Court held that it has the power to punish for not only its own

contempt but also for the contempt of the courts subordinate to it. The Court

further held that the power of granting appeals from the order of any court or

tribunal within the country confers the Court with “supervisory jurisdiction

over all courts in India.”

Extraordinary jurisdiction of Supreme Court

The extraordinary jurisdiction of the Supreme Court refers to the power of the

Court to entertain public interest litigation (PIL). India adopted the concept of

PIL from American jurisprudence. A PIL can be filed by any socially aware

person to secure the public interest.

The first case of PIL was the case of Hussainara Khatoon v. State of Bihar

(1979). In this case, an advocate filed a plea in the Apex Court, drawing the

Court’s attention to the inhuman condition in which the undertrial prisoners

were kept in Bihar prisons. The Court entertained the PIL and ordered the

release of 40,000 undertrial prisoners.

 THE CONCEPT OF PIL WAS LAID DOWN IN

WHICH CASE?

The first Public Litigation Interest (PIL) petition was Hussainara

Khatoon vs. the State of Bihar (1979)

 The inmates of the Bihar jail received justice through the first PIL case

reported in India.

 When Hussainara Khatoon brought the first PIL against the Bihar

state in 1979, the Supreme Court of India ruled that prisoners must be

provided with free legal representation in order to advance their cases

and protect their interests.

 Around 40,000 inmates were released from the Bihar jail as a result of

this PIL.

PIL or Public Litigation Interest is a concept that comes under Article 39A of

the constitution of India. This Article provides that prompt social justice

should be provided to every citizen of India with the help of Indian law.

In the landmark case of Mumbai Kamgar Sabha v. M/s Abdulbhai

Faizullabhai and others (1976). In this case, an appeal was preferred by the

Labour Union in relation to a dispute between the workmen and their

employers. The respondents contended that since the union was not a party to
the dispute, it did not have any locus standi in the matter. The Court, however,

extended the locus standi of the Union on the grounds of public interest. This

case is considered to have initiated the evolution of public interest litigation in

India.
 CONSTITUTIONAL AMENDMENTS & BASIC

STRUCTURE THEORY

No constitution can anticipate the future problems and provide for the solution

for them change is the only permanent thing and socio-economic & political

conditions do change over time and foe these reasons we need to amend the

constitution from time to time fto meet the needs of the present. There are two

methods to change the constitution: a) formal b) informal

a. Formal: through constitutional amendments though a rigid constitution

cannot be easily amended. It is amending process would be extremely

difficult and cumbersome. Like United States constitution is the example

of rigid constitution and has so far been amended just 27 times while on

the other hand a flexible constitution can be amended so easily just like

any other law New Zealand’s constitution is the most flexible constitution

of the wold and is one of the example of such.

b. Informal: through constitutional convention and judicial interpretations.

SC’s decision to restrict parliament’s power to amend the constitution

through basic structure was nothing but an Informal Amendment to the

constitution.

The original Article 368 says “procedure for amendment of the constitution”.

But by the 24th amendment of 1971 changed the marginal note of Article 368 to
power of parliament to amend the constitution and procedure thereof. It also

provides that parliament may in exercise of its constituent power amend by way

of addition, variation or repeal any provision of this constitution in the

accordance with the procedure laid down in this article.

Article 368(5) further says that it is hereby declared that there shall be no

limitation whatever on the constituent power of parliament to amend by way of

addition, variation or repeal the provisions of this constitution under this article.

The fundamental rights are the negative restriction on the powers of the state

and so parliament’s power to amend the fundamental rights has seen the most

fascinating struggle between the Supreme Court and Parliament. In case of

Shankari Prasad v. UOI (1951) in which it was argued that since Article 13(2)

prohibits the enactment of any law which contravene the fundamental rights,

even constitutional amendments cannot go violate fundamental rights. The SC

rejected this argument and held that an amendment is not ‘law’. Constitutional

amendment that added the 9th schedule was challenged in Sajjan Singh (1965)

and it was upheld by the SC.

The conflict reached its climax in case of Golaknath v. State of Punjab(1967)

in which SC tried to apply break on the parliament’s powers to amend the

constitution and overruled its previous decisions of Shankari Prasad and

Sajjan Singh and held that term “law” in article 13 includes an amendment and

therefore Fundamental rights cannot be amended. It was further held that Article
368 does not confer on parliament to amend the constitution but merely

provides the procedure for the amendment.

To nullify this judgement, parliament passed the 24th amendment in 1971 which

made some vital changes in article 368. It added clause 4 to article which now

provide that nothing in article 13 shall apply to a constitutional amendment.

Now since the 24th, 25th, 29th amendments too abridged fundamental right, SC

was again moved in Keshvanand Bharti v. State of Krela (1973) where a 13

judge bench upheld the validity of the 24th amendment and accepted the position

that parliament can amend any provision of the constitution including

fundamental rights. But his power to amend the fundamental rights is not

absolute and parliament does not have power to alter the basic structure of the

constitution it was further held that fundamental rights as a part of basic

structure and therefore cannot be amended.

Things included in the basic structure are: republican and democratic form of

government, secular character of the constitution, separation of powers and

Federal character of the constitution. Then in Indira Nehru Ghandi v. Raj

Narain (1975), judicial review was held as part of “Basic Structure”. In case of

S.R. Bommai (1994), doctrine of basic structure was extended to executive acts

and the dismissal of few state government was upheld. In M.Nagraj v. UOI

(2006) SC mentioned two tests for determining the basic structure i.e. the width

test & identity test.