Notes on Indian Constitution-

Unit-1
The Constituent assembly-
 In 1934, M N Roy first proposed the idea of a constituent assembly.

 The demand was taken up by the Congress Party in 1935 as an official demand

 The British accepted this in the August Offer of 1940

 Under the Cabinet Mission plan of 1946, elections were held for the formation of the constituent assembly

 The members of this assembly were elected indirectly, i.e., by the members of the provincial assemblies by the
method of a single transferable vote of proportional representation

 The constituent assembly was formed for the purpose of writing a constitution for independent India

Composition of Constituent Assembly-

1. Initially, the number of members was 389. After partition, some of the members went to
Pakistan and the number came down to 299. Out of this, 229 were from the British
provinces and 70 were nominated from the princely states.
2. Dr. Sachchidananda Sinha was the first temporary chairman of the Constituent Assembly.
Later, Dr. Rajendra Prasad was elected as the President and its Vice President was
Harendra Coomar Mookerjee. BN Rau was the constitutional advisor.
The time taken by the assembly to frame the constitution: 2 years, 11 months and 17 days.
Money spent in framing the constitution: Rs.64 lakhs. The final document had 22 parts, 395
articles and 8 schedules. The draft was published in January 1948 and the country’s people were
asked for their feedback and inputs within 8 months.
The constitution came into force on 26 January 1950 (which is celebrated as Republic Day).

Criticism of the Constituent Assembly-

1. It was not a representative body since the members were not directly elected by adult
franchise. 
2. It is said that the makers took a long time in framing the constitution.
3. The constituent assembly was not a sovereign body since it was created by the British.
4. The language of the constitution was criticised for being literary and complicated.
 5. The assembly was dominated by the Congress Party.

Preamble of Indian Constitution-

The preamble of the Indian Constitution serves as a brief introductory statement of the
Constitution that sets out the guiding purpose, principles and philosophy of the Indian
Constitution.By 42nd Constitutional Amendment, 1976, it was amended which determined to
constitute India into a Sovereign, Socialist, Secular and Democratic Republic. It secures justice,
liberty, equality to all citizens of India and promotes fraternity amongst the people.

The idea of the following things can be given by the Preamble which are:

1. Source of the Constitution

2. Nature of Indian State
3. A statement of its objectives
4. Date of its adoption

The Preamble of Indian Constitution-

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

In Our Constituent Assembly this twenty-sixth day of November, 1949, do Hereby Adopt, Enact
And Give To Ourselves This Constitution.

Components of Preamble.

1. It is indicated by the Preamble that the source of authority of the Constitution lies with
the people of India.
2. Preamble declares India to be a sovereign, socialist, secular and democratic republic.
3. The objectives stated by the Preamble are to secure justice, liberty, equality to all citizens
and promote fraternity to maintain unity and integrity of the nation.
4. The date is mentioned in the preamble when it was adopted i.e. November 26, 1949.
Key Words In The Preamble

1. Sovereign

The term ‘Sovereign’ which is proclaimed by the Preamble means that India has its own
independent authority and it is not a dominion of any other external power. In the country, the
legislature has the power to make laws which is subjected to certain limitations.

2. Socialist

The term ‘Socialist’ was added in the Preamble by 42nd Amendment, 1976 which means the
achievement of socialist ends through democratic means. It is basically a ‘Democratic Socialism’
that holds faith in a mixed economy where both private and public sectors co-exist side by side.

3. Secular

The term ‘Secular’ was incorporated in the Preamble by 42nd Constitutional Amendment, 1976
which means that all the religions in India get equal respect, protection and support from the
state.

4. Democratic

The term ‘Democratic’ implies that the Constitution of India has an established form of
Constitution which gets its authority from the will of the people expressed in an election.

5. Republic

The term ‘Republic’ indicates that the head of the state is elected by the people directly or
indirectly. In India, the President is the head of the state and he is elected indirectly by the
people.

Fundamental Right-
Fundamental rights are the basic human rights enshrined in the Constitution of India which are
guaranteed to all citizens. They are applied without discrimination on the basis of race, religion,
gender, etc. Significantly, fundamental rights are enforceable by the courts, subject to certain
conditions.

Why are they called Fundamental Rights?

These rights are called fundamental rights because of two reasons:

 1. They are enshrined in the Constitution which guarantees them.
2. They are justiciable (enforceable by courts). In case of a violation, a person can approach a court of
law.

There are six fundamental rights of Indian Constitution along with the constitutional articles
related to them are mentioned below:

1. Right to Equality (Article 14-18)

2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32)

Fundamental Rights Available Only to Citizens. Fundamental rights are very important
because they are like the backbone of the country. They are essential for safeguarding
the people’s interests.
1. Right to Equality (Articles 14 – 18)

Right to equality is one of the important fundamental rights of Indian constitution that guarantees
equal rights for everyone, irrespective of religion, gender, caste, race or place of birth. It ensures
equal employment opportunities in the government and insures against discrimination by the
State in matters of employment on the basis of caste, religion, etc. This right also includes the
abolition of titles as well as untouchability.

2. Right to Freedom (Articles 19 – 22)

Freedom is one of the most important ideals cherished by any democratic society. The Indian
Constitution guarantees freedom to citizens. The freedom right includes many rights such as:

 Freedom of speech
 Freedom of expression
 Freedom of assembly without arms
 Freedom of association
 Freedom to practise any profession 
 Freedom to reside in any part of the country
Some of these rights are subject to certain conditions of state security, public morality and
decency and friendly relations with foreign countries. This means that the State has the right to
impose reasonable restrictions on them.

3. Right against Exploitation (Articles 23 – 24)

This right implies the prohibition of traffic in human beings, begar, and other forms of forced
labour. It also implies the prohibition of children in factories, etc. This Constitution prohibits the
employment of children under 14 years in hazardous conditions.

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

This indicates the secular nature of Indian polity. There is equal respect given to all religions.
There is freedom of conscience, profession, practice and propagation of religion. The State has
no official religion. Every person has the right to freely practice his or her faith, establish and
maintain religious and charitable institutions.

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

These rights protect the rights of religious, cultural and linguistic minorities, by facilitating them
to preserve their heritage and culture. Educational rights are for ensuring education for everyone
without any discrimination.

6. Right to Constitutional Remedies (32 – 35)

The Constitution guarantees remedies if citizens’ fundamental rights are violated. The
government cannot infringe upon or curb anyone’s rights. When these rights are violated, the
aggrieved party can approach the courts. Citizens can even go directly to the Supreme
Court which can issue writs for enforcing fundamental rights.

How are fundamental rights and duties different?

Fundamental Rights are the rights available to the people of this country, while Fundamental
Duties are the obligations on part of the citizens.

While fundamental rights are the entitlements that individuals possess by virtue of being citizens
of a particular country, fundamental duties are the responsibilities that citizens have towards their
country and fellow citizens.
 Here are some key differences between the two:

1. Nature:

Fundamental rights are legal rights that are enshrined in the constitution of a country. These rights are
meant to protect the interests of individuals and provide them with a sense of security and equality. On
the other hand, fundamental duties are moral and ethical obligations expected of citizens towards their
country and fellow citizens.

2. Enforcement:

Fundamental rights are enforceable through the courts of law. If an individual’s fundamental rights are
violated, they can seek legal recourse and the courts can provide appropriate remedies. However,
fundamental duties are not enforceable in the same way. While citizens are expected to fulfil their
fundamental duties, there are no legal sanctions if they fail to do so.

3. Goal:

The focus of fundamental rights is on protecting the interests of individuals and ensuring their well-
being. Fundamental duties, on the other hand, are focused on promoting the collective good and
ensuring that citizens contribute to the welfare of their country.

Fundamental Duties-
This Constitution has given us the fundamental duty to decide the responsibility towards thesociety and
the country for Defending the country and Abide by the Indian Constitution, either no one wants to talk
about it, or we do not do it intentionally, it is clear that we want everything but in return or considering it
as our responsibility. don’t want to do.

The Fundamental Duties are dealt with Article 51A under Part-IV A of the Indian Constitution. 
The following is a list of 11 fundamental duties – 

1. Abide by the Constitution and respect national flag & National Anthem
2. Follow ideals of the freedom struggle
3. Protect sovereignty & integrity of India
4. Defend the country and render national services when called upon
5. Developing the spirit of common brotherhood
6. Preserve composite culture of the country
7. Preserve natural environment
8. Develop scientific temper and humanity
9. Safeguard public property and avoid violence
10. Strive for excellence in all spheres of life.
11. Duty of all parents/guardians to send their children in the age group of 6-14 years to school.
 Directive Principles of State Policy(DPSP)-

The concept behind the DPSP is to create a ‘Welfare State’. In other words, the motive behind the inclusion of
DPSP is not establishing political democracy rather, it’s about establishing social and economic democracy in
the state.

Part IV of the Constitution of India (Article 36–51) contains the Directive Principles of State Policy
(DPSP).Article 37 of the Indian Constitution States about the application of the Directive Principles.These
principles aim at ensuring socioeconomic justice to the people and establishing India as a Welfare State.

Article 36: Defines State as same as Article 12 unless the context otherwise defines.

Article 37: Application of the Principles contained in this part.

Article 38: It authorizes the state to secure a social order for the promotion of the welfare of people.

Article 39: Certain principles of policies to be followed by the state.

Article 39A: Equal justice and free legal aid.

Article 40: Organization of village panchayats.

Article 41: Right to work, to education and to public assistance in certain cases.

Article 42: Provision for just and humane conditions of work and maternity leaves.

Article 43: Living wage etc. for workers.

Article 43-A: Participation of workers in management of industries.

Article 43-B: Promotion of cooperative societies.

Article 44: Uniform civil code for the citizens.

Article 45: Provision for early childhood care and education to children below the age of six years.

Article 46: Promotion of education and economic interests of SC, ST, and other weaker sections.
Article 47: Duty of the state to raise the level of nutrition and the standard of living and to improve public
health.

Article 48: Organization of agriculture and animal husbandry.

Article 48-A: Protection and improvement of environment and safeguarding of forests and wildlife.

Article 49: Protection of monuments and places and objects of national importance.

Article 50: Separation of judiciary from the executive.

Article 51: Promotion of international peace and security.

Comparison between DPSP and Fundamental rights-

BASIS FOR
FUNDAMENTAL RIGHTS DIRECTIVE PRINCIPLES
COMPARISON

The essential or basic rights granted to The guidelines which are considered
Meaning
all the citizens of the country. while formulating policies and laws.

Defined  In Part III of the Constitution. In Part IV of the Constitution.

Nature Negative Positive

Enforceability Legally enforceable. Not enforceable.

Democracy Political democracy. Social and economic democracy.

Legislation Not required. Required.

Promotes Individual welfare Public welfare

Amendment and Review of the Constitution-

There is a reason why the fathers of our constitution made the constitution as flexible as it is
today. This is to ensure that the document evolves and grows along with the nation. Thus,
under Article 368, the powers of the Parliament to amend the constitution is unrestricted with
regards to sections of the constitution they wish to amend. Parliament has unrestricted powers to
amend various sections of the constitution, but they cannot touch amend, repeal or add sections
into the constitution which would affect its basic structure in the process.

The present position is that the Parliament under Article 368 can amend any part of the
Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the
Constitution. However, the Supreme Court is yet to define or clarify as to what constitutes the
‘basic structure’ of the Constitution.

Procedure to Amendment 

Article 368
Article 368 lays down the process by which the Parliament can amend the constitution. The process
is as followed.

Step 1
The Bill is introduced in either house of the parliament. 

Step 2 
The Bill must be passed by a total majority (irrespective of vacancies or absentees) and by a
majority, not less than 2/3rd of people present and voting by both the houses. There is no provision
of joint sitting if there is a disagreement between both the houses. 

Step 3
After acquiring the majority, the Bill is presented to the President who will then give his assent to the
Bill. 

In the case of amendment of provisions mentioned in Article 368, It needs to be ratified by not less
than half of the states. Ratification should be done by a resolution passed by the state legislature.
However, this must be passed before the amendment Bill is presented to the President for his assent. 
There are three ways in which the Constitution can be amended:

1. Amendment by simple majority of the Parliament

2. Amendment by special majority of the Parliament
3. Amendment by special majority of the Parliament and the ratification of at least half of
the state legislatures.

Review Power-
It is the ultimate power of the judiciary to review and determine the validity of a law or an order may be
described as the powers of “judicial review”. This system in India has been governed by the principal of
‘procedure established by law’ under which it has one test i.e. Whether the law has been made with procedures
of law or not, if not will be declared unconstitutional.

In India there is a rule of law and the constitution is the supreme law. The Indian constitution is the law of the
land and if any law passed violates the basic structure of the constitution the Indian judiciary is having the
power to nullify that law. The term judicial review is actually not there in Indian Constitution but many articles
are there which gives the clear idea of judicial review in it.

The Indian judiciary are having the powers to examine the actions of legislature, executive, administrative
arms of the government and to ensure that such actions should adhere to the provisions of our constitution. If
found unconstitutional, the following provision shall be made void.

Judicial review has two important functions look upon:

·    Legitimizing the actions of the government.

·    The protection of the constitution if the government tries to encroaches in it.

The supreme courts also have powers of reviewing the enactments of both the parliament and state legislatures.
This makes the courts more powerful and grants an instrument of the judicial review.

The various provisions of the system of judicial review has been granted by our Constitution in various
articles. These articles are Article 13, 32, 131-136, 143, 226, 145, 246, 254, 251 and 372. These articles would
be explained in brief below:

Article 13 declares that any law which contravenes any of the provisions of the part of the fundamental rights
shall be void.
Article 32 provides the right to constitutional remedies which means that a person has the right to move to the
supreme court for getting his fundamental rights protected.

Article 226 empowers the high court to issue directions, orders or writs in the nature of habeas corpus,
mandamus, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of
fundamental rights or any other purpose.

Article 143 confers the power upon the supreme court advisory jurisdiction. The president may seek the
opinion of the supreme court on any question of law or fact of public importance on which he thinks it
expedient to obtain such an opinion.

Article 372(1) says that all the law in force in the territory of India immediately before the commencement of
the constitution shall be in force therein until altered, repealed or amended by a competent legislature or an
authority.

Article 131-136 entrusts the courts with the power of adjudicate disputes between individuals, and the state,
between the states and the union; but the court may be required to interpret the provisions of the constitution
and the interpretation given by supreme court becomes the law honored by all courts of the land.

Article 245 states that the powers of both parliament and states legislature are subject to the provisions of the
constitutions. Any legitimacy of any legislation can be challenged before the court of law on that particular
subject matter or if the law infringes any o f the fundamental right.

Article 246(3) states that the powers of both parliament and state legislatures are subject to provisions of the
Constitution of India.

Article 251 and 254 states that in case of inconsistency between union and state laws, the state laws shall be
void.
Unit-2

Union Parliament-

India follows the parliamentary system of government. In this article, we'll learn about
the Union Parliament of India and the various functions of the Union Parliament.

Article 74 and Article 75 deals with the Union Parliament at the center level. It is the
highest law-making body in the country. It is said to be a place where elected
representatives from different regions sit together and make laws for the country with
proper debates and discussions.

Union Parliament is made up of:

 Council of States which is also known as Rajya Sabha. 
 House of the People which is also called Lok Sabha.
 The President of the country.
There are various other functions of the Union Parliament besides the above-mentioned
functions. These are written below:
 The Parliament has amendment powers. They can change the Constitution of India
by following the established procedure.
 The Parliament and its legislatures participate in the elections of the President and
the Vice President.
 They also have the power to remove the President and the Vice President
bypassing the resolution.
 Not only this, at the center level the Parliament is the only authority with respect
to the finances of the country. Not even a single rupee can be spent by the
executive without the approval of the Parliament. 
  The Union Parliament also presents the budget of the country before the end of the
financial year.
 The emergency is also implemented in the country with the approval of the
Parliament.

State Legislature-

What is a Bicameral State?

It is a legislative body with two houses. India is one such example where there are two houses
both at union and also at 6 of its 28 states. In a bicameral legislature, the function to administer
and implement the laws are shared between the two houses.

the Legislature of every State shall consist of the Governor and the State Legislature, in some of
the States, the Legislature shall consist of two Houses, namely, the Legislative Assembly and the
Legislative Council, while in the rest, there shall be only one House, namely the legislative
assembly.

State Legislature – Legislative Assembly

The Legislative Assembly is the popularly elected chamber and is the real Centre of power in a
State. The maximum strength of an assembly must not exceed 500 or its minimum strength fall
below 60. But some of the States have been allowed to have smaller Legislative Assemblies, e.g.
Sikkim, Arunachal Pradesh, Goa, etc.

The territorial constituencies demarcation should be done as far as possible, such that the ratio
between the population of each constituency and the number of seats allotted to it is the same all
over the State.

Apart from these general provisions, there are also special provisions with respect to the
representation of SC and ST. In case the Governor feels that the Anglo-Indian community is not
adequately represented, he can nominate one member of that community to the assembly.

State Legislature – Legislative Council

 The Legislative Council of a State Comprises not more than one-third of the total number of
members in the Legislative Assembly of the State and in no case less than 40 members.
However, in Jammu and Kashmir, the strength is only 36. The system of the composition of the
Council as provided for in the Constitution is not final. The final power is given to the
Parliament of the Union. But until the Parliament legislates on the subject, it shall be as provided
for in the Constitution, which is described below:

Duration of Legislative Assembly & Legislative Council

It will be a partly nominated and partly elected body, the election being an indirect one and in
accordance with the principle of proportional representation by the single transferable vote. The
members being drawn from various sources, the Council shall have a variegated composition.
Broadly speaking 5/6 of the total number of members of the Council shall be indirectly elected
and 1/6 will be nominated.

The duration of the Legislative Assembly is five years. The Governor has the power to dissolve
the Assembly even before the expiry of its term. 

Qualifications of Members of Legislative Assembly

A person shall not be qualified to be selected to occupy a seat in the Legislature of a State unless
he/she

(a) is an Indian citizen;

(b) is 25 years or above for Legislative Assembly, and is 30 or above for Legislative Council,
and
(c) possess such other qualifications as may be prescribed by the Parliament.

Law Making Process-

Following is the Law making process in India,
1. Every Bill has to undergo three readings in each House of Parliament. 
2. The first Reading consists of the introduction of the Bill; in the House of Parliament.
3. The Second Reading is the next stage of a Bill; this starts only after the Committee submits its report on the
Bill to the Houses. The Second Reading consists of two stages,
4. The ‘second stage’ signifies the clause-by-clause consideration of the Bill as introduced or reported by the
Select/Joint Committee. Amendments given by members to various clauses are moved at this stage. 
5. The ‘first stage’ consists of discussion on the principles of the Bill and its provisions generally.
6. The discussion on the motion of that Bill or the Bill as amended is held in the Third Reading; it is discussed
whether the Bill should be passed or returned to the Lok Sabha.

After a Bill has been passed by one house, it is sent to the other house, where it goes through the
same Lawmaking procedure.
1. Once the Bill is passed in both the Houses, it is presented to the President for his assent. 
2. A Bill became an Act of Parliament after being passed by both the Houses of Parliament and assented to by the
President.

Committee System-

The Parliamentary committees are established to study and deal with various matters that
cannot be directly handled by the legislature due to their volume. They also monitor the
functioning of the executive branch.

The Parliamentary committees are of two kinds – standing or permanent committees

and ad hoc committees. The former are elected or appointed periodically and they work
on a continuous basis. The latter are created on an ad hoc basis as the need arises and
they are dissolved after they complete the task assigned to them.

Standing committees-

A standing committee is a committee consisting of Members of Parliament. It is a

permanent and regular committee which is constituted from time to time according to the
provisions of an Act of Parliament or Rules of Procedure and Conduct of Business. The
work done by the Indian Parliament is not only voluminous but also of a complex nature,
hence a good deal of its work is carried out in these Parliamentary committees.

Standing committees are of the following kinds :

1. Financial standing committees (FSC)

2. Department related standing committees (DRSC)
3. Other standing committees (OSC)

Ad hoc committees –

They are established for a limited time and to address a specific issue. The Council also often
creates committees to monitor sanctions and other mandatory measures.
Unit-3

The President of India

The Indian President is the head of the state and he is also called the first
citizen of India. He is a part of Union Executive, provisions of which are
dealt with Article 52-78 including articles related to President (Article 52-
62). Under these articles, information on how a President is elected, his
powers and functions, and also his impeachment process is given.

President:

Under Article 52 of the Indian Constitution the Indian President is the head of
the state. He is the first citizen of India and is a symbol of solidarity, unity,
and integrity of the nation. He is a part of Union Executive along with the
Vice-President, Prime Minister, Council of Ministers, and Attorney-General
of India.

How is President elected?

There is no direct election for the Indian President. An electoral college elects him. The electoral
college responsible for President’s elections comprises elected members of:

1. Lok Sabha and Rajya Sabha

2. Legislative Assemblies of the states (Legislative Councils have no role)
3. Legislative Assemblies of the Union Territories of Delhi and Puducherry

The term of the President’s office-

Once President is elected, he holds office for five years. He sits in the office even after the
completion of five years given no new election has taken place or no new President has been
elected till then. He can also be re-elected and there is no cap on his re-election.

The qualifications of the President-

A candidate has to meet some qualifications to be elected as the president. Those qualifications
of the President are:

1. He should be an Indian Citizen

2. His age should be a minimum of 35 years
3. He should qualify the conditions to be elected as a member of the Lok Sabha
4. He should not hold any office of profit under the central government, state government, or any public
authority.

The procedure for impeachment (removal)of a President-

The only condition for the initiation of impeachment of the Indian president is the ‘violation of
the constitution.’ and incapacity.

Powers and Functions of president

Executive Powers of president:

 For every executive action that the Indian government takes, is to be taken in his name
 He seeks administrative information from the Union government
 He requires PM to submit, for consideration of the council of ministers, any matter on
which a decision has been taken by a minister but, which has not been considered by the
council
 He can declare any area as a scheduled area and has powers with respect to the
administration of scheduled areas and tribal areas

Legislative powers of president:

 Summons or prorogues Parliament and dissolve the Lok Sabha

 Summons a joint sitting of Lok Sabha and Rajya Sabha in case of deadlock
 Addresses the Indian Parliament at the commencement of the first session after every
general election
 Nominates 12 members of the Rajya Sabha
  Can nominate two members to the Lok Sabha from the Anglo-Indian Community
 Consults the Election Commission of India on questions of disqualifications of MPs.
 Recommends/ permits the introduction of certain types of bills
 Promulgates ordinances
 He lays the following reports before the Parliament:

o Comptroller and Auditor General

o Union Public Service Commission
o Finance Commission, etc.

Financial powers of the president:

 To introduce the money bill, his prior recommendation is a must

 He causes Union Budget to be laid before the Parliament
 To make a demand for grants, his recommendation is a pre-requisite
 Contingency Fund of India is under his control
 He constitutes the Finance Commission every five years

Judicial powers of president:

 Appointment of Chief Justice and Supreme Court/High Court Judges are on him
 He takes advice from the Supreme Court, however, the advice is not binding on him
 He has pardoning power: Under article 72, he has been conferred with power to grant
pardon against punishment for an offence against union law, punishment by a martial
court, or death sentence.

Pardoning powers:

 Pardon with the grant of pardon convicts both conviction and sentence completely
absolved
 Commutation with this nature of the punishment of the convict can be changed
 Remission reduces the term of the imprisonment
 Respite awards lesser punishment than original punishment by looking at the special
condition of a convict
 Reprieve stays the execution of the awarded sentence for a temporary period

Diplomatic Powers of President:

  International Treaties and agreements that are approved by the Parliament are negotiated
and concluded in his name
 He is the representative of India in international forums and affairs

Military powers of President:

He is the commander of the defense forces of India. He appoints:

1. Chief of the Army

2. Chief of the Navy
3. Chief of the Air Force

Emergency powers of the President

He deals with three types of emergencies given in the Indian Constitution:

1. National Emergency (Article 352)

2. President's Rule (Article 356 & 365)
3. Financial Emergency (Article 360)

Ordinance making power of the president:

Article 123 deals with the ordinance making power of the President. The President has many
legislative powers and this power is one of them. He promulgates an ordinance on the
recommendation of the union cabinet. To read more on Ordinance Making Power of the
President,

veto power of the president

The Veto Power of the President of India is guided by Article 111 of the Indian Constitution.
When a bill is introduced in the Parliament, Parliament can pass the bill and before the bill
becomes an act, it has to be presented to the Indian President for his approval. It is on the
President of India to either reject the bill, return the bill or withhold his assent to the bill. The
choice of the President over the bill is called his veto power.

The Prime Minister and Council of Ministers-

 Prime minister
The prime minister is the head of the government and also the real executive of the Indian system. Although
the prime minister is appointed by the president, no system of appointment is given in the constitution.
However, as a convention, the leader of the largest party in the parliament becomes the prime minister. 

The Appointment of the Prime Minister and the Council of Ministers

 No direct election to the post of PM:  The President designates the head of the greater party or the alliance of
gatherings that orders a greater part in the majority in Lok Sabha as Prime Minister
 If a single party or alliance does not achieve a majority, the person with the best chance of gaining majority
support is picked by the President
 The Prime Minister’s term is not fixed. As long as he is the head of the majority party or coalition, he remains
in power
 Following the Prime Minister’s appointment, the President appoints other Ministers on the Prime Minister’s
advice
 Ministers can be chosen by the Prime Minister as long as they are members of Parliament. A person who is not
a member of Parliament can sometimes be appointed as a Minister. However, within six months of being
appointed as Minister, such a person must be elected to one of the Houses of Parliament

Powers of the Prime Minister

The Prime Minister’s and ministers’ powers, as well as their relationships, are not well-defined in the
Constitution. However, as the government’s leader, the Prime Minister has broad powers, including the ability
to:

 He is in charge of chairing Cabinet sessions and coordinating the work of various Departments
 In the event of a conflict between Departments, his decisions are final
 He exercises general supervision of different ministries
 All ministers work under his leadership
 The Prime Minister assigns work to the ministers and redistributes it
 He also has the authority to remove ministers from office
 When the Prime Minister resigns, the entire cabinet resigns as well
 The de facto commander-in-chief of the armed forces, the prime minister is the most powerful person in India

Council of Ministers
 The authority name for the body that exercises executive authority in India. The council of ministers consists
of Cabinet ministers, the ministers of state, and other ministers of lower ranks. The Prime Minister leads the
council of ministers.  

 The council of ministers normally consists of 60 to 80 Ministers of various grades. Given below are different
grades of ministers included in the council of ministers

 Cabinet Ministers are usually top-ranking members of the ruling party or parties in control of key ministries.
Cabinet Ministers typically gather to make decisions on behalf of the Council of Ministers. The inner ring of
the Council of Ministers is hence the cabinet
 Smaller Ministries are generally in control of Ministers of State with independent charge. They only attend
Cabinet sessions if they are specifically invited
 Pastors of State are entrusted with helping Cabinet Ministers and are expected to do so

 As it is impractical for all ministers to meet regularly and debate everything, parliamentary democracy is also
known as the Cabinet form of government. Decisions are made in cabinet sessions
 The Cabinet is always supposed to work like a team: Even if the ministers may have different opinions,
everyone has to own up to every decision of the Cabinet. No minister is allowed to openly criticize any
decision taken by the government even if it concerns another Ministry or Department

Removal of the Council of Ministers

There are many reasons which can lead to the removal of the Council of Ministers. Here are the reasons that
can lead to  their removal

 Death
 Self resignation
 Dismissal by the president for a minister’s unconstitutional acts
 After being directed by the judiciary for violation of any law
 If ineligible to be a member of the parliament
 If a vote of a no-confidence motion is passed in the Lok Sabha or the lower house of the parliament

Cabinet Secretariat

 Secretaries, who are civil servants, work in every ministry. The secretaries give the ministers the required
background knowledge to make judgments
 The Cabinet Secretariat assists the Cabinet as a whole. Many senior public workers are involved in this as they
endeavour to coordinate the operations of various ministries
 Governor,
Chief
 Minister and
Council of
Ministers
 Governor,
Chief
 Minister and
Council of
Ministers
 Governor,
Chief
 Minister and
Council of
Ministers
  Governor,
Chief
 Minister and
Council of
Ministers
The State Governor, Chief Minister and Council of Ministers-

The state executive consists of

the Governor, Chief Minister,
Council of Ministers, and
Advocate-General of State.
Governor, as President, heads
the state government. The
provisions related to the state
governments of the country are
dealt with by the articles
153-167 of the Indian
Constitution.
The state executive consists of the Governor, Chief Minister, Council of Ministers, and
Advocate-General of State. Governor, as President, heads the state government. The provisions
related to the state governments of the country are dealt with by the articles 153-167 of the
Indian Constitution.

Powers of a
Chief Minister
Being the leader of the ruling
party of the state, the chief
minister has been granted
some powers by the Indian
Constitution. Some of the
powers of the Chief Ministers
are
as below –
Appointment of the Governor

Article 153 of the Indian Constitution says that each state of the nation should have a governor.
The governor is appointed by the President. Under the 7th Constitutional Amendment, it was
stated that there can be the same governor for two different states.

The Qualification that one needs to be eligible for a governor of a State/States are the

following-

1. They must be a citizen of the country.

2. They should be 35 years and above.

Once the Governor is selected,

1. He shall be appointed to a state to where he belongs

2. Consult the Chief Minister of the state about where to be appointed.

Special Powers of the Governor

The powers of the Governor that are granted to him by the Indian Constitution can be

broadly classified into four categories, that is Executive, Legislative, Financial, and

Judicial.

1. Executive Powers

Some of the executive Powers of the Governor are –

He is responsible for the appointment of the advocate general of states and also

determines their remuneration.

Chief Ministers and other ministers of the states are appointed by the Governor

He acts as the President’s agent during the President’s rule in the state.

Every executive action taken by the state government is to be taken in his name.

2. Legislative Powers

Some of the Legislative Powers of the Governor are –

Governor may/may not send a bill to the state legislature concerning any bill that

is pending in the state legislature.

The state legislature is addressed by him in the first session of every year.

Then the Governor appoints a person to preside over the session the speaker and

the deputy speaker of the legislative assembly are absent.

He has the authority to consult the Election Commission for the disqualification
of members.

3. Financial Powers

Some of the Financial Powers of the Governor are –

The Governor looks over the state budget being laid in the state legislature.

He makes advances to meet unforeseen expenditures as the contingency fund of

the state is under him.

Every five years, the state finance commission is constituted by him.

4. Judicial Powers

Some of the Judicial Powers of the Governor are –

His recommendation is sought by the President before the appointment of the

high court judges.

In consultation with the state High Court, the Governor makes appointments,

postings, and promotions of the district judges.

He also appoints persons to the judicial services with the consultation of the state

high court and the state public service commission.

Chief Minister and the Council of Ministers-

Once the Legislative Assembly elections of a particular state get over, the party that gets the
largest mandate by the people of the state gets elected to rule the state. The leader of that party is
appointed as the Chief Minister of the state by the Governor.

Article 74 and 75 of the Indian Constitution deal with the Council of Ministers. The council of
ministers is headed by the prime minister of the country. The salaries and allowances of the
council of ministers are decided by the Parliament.
Appointment of Chief Minister

The particulars of the chief minister’s appointment are not mentioned in the Indian

Constitution. However, one thing that is absolute is that the Chief Minister of a state is

appointed by the Governor of that state.

The leader of the political party that gets the majority of the votes, gets to be appointed

as the Chief Minister of the state. In case, no party gets a majority, then the governor

gets to use his discretion and appoint a Chief Minister.

Powers of a Chief Minister

Being the leader of the ruling party of the state, the chief minister has been granted

some powers by the Indian Constitution. Some of the powers of the Chief Ministers are

as below –

1. Head of the Council of Ministers

The chief minister is the head of the council of Ministers. The ministers are appointed

by the Governor on the advice of the Chief Minister and he also has a free hand in

making a list of his colleagues. The Chief Minister can reconstruct his Ministry as and

when the need arises.

He further has the right to demand the resignation of any of the ministers under him.

The chief minister also controls the agenda for the Cabinet meetings. Furthermore, he

supervises and coordinates policies of several Ministers and Departments.

2. Aids and Advises the Governor

He is the link between the Cabinet and the Governor. The decisions of the council of

ministers are communicated to the governor by the Chief Minister. He also needs to

furnish any information relating to the administration of the State as the Governor may

call for.

3. Leader of the House

Being the leader of the house, he gets to make all the announcements concerning the

new or amended policies. Maintaining discipline of the Members of his party also comes

under his hat. Adding to this, the chief minister can appoint a whip whose directive

must be obeyed by all the legislators.

Coalition Government-
The term ‘coalition’ is derived from the Latin world ‘coalitio’ which means ‘to grow together’.
Thus, technically, coalition means the act of uniting parts into one body or whole. Politically,
coalition means an alliance of distinct political parties

Coalition usually occurs in modern parliaments when no single political party can muster a
majority of votes. Two or more parties, who have enough elected members between them to
form a majority, may then be able to agree on a common programme that does not require too
many drastic compromises with their individual policies and can proceed to form a government.

Features of Coalition Government

The features of a Coalition Government are highlighted below:

1. Coalition is formed for the sake of reward, material or psychic

2. A coalition implies the existence of a least two partners
3. The underlying principle of a coalition system stands on the simple fact of temporary conjunction of
specific interest.
4. Coalition politics is not a static but a dynamic affair as coalition players and groups can dissolve and
form new ones
5. The keynote of coalition politics is compromise and rigid dogma has no place in it.
 6. A coalition works on the basis of a minimum programme, which may not be ideal for each partner of
the coalition.
7. Pragmatism and not ideology is the hall-mark of coalition politics. In making political adjustments,
principles may have to be set aside.
8. The purpose of a coalition adjustment is to seize power.

In India, coalitions have come up before or after elections. The pre-poll coalition is considered
advantageous as it provides a common platform for all parties to woo the electorate on the basis
of a joint manifesto. A post-election union is intended to enable constituents to share political
power and run the government.

Unit-4

The Supreme Court of India-

Supreme Court at the apex of the Indian Judiciary is the highest authority to uphold the
Constitution of India, to protect the rights and liberties of the citizens, and to uphold the values
of rule of law. Hence, it is known as the Guardian of our Constitution.  
The Indian Constitution provides for a provision of the Supreme Court under Part V (The Union)
and Chapter 6 titled 'The Union Judiciary'.  The Constitution of India has provided an
independent judiciary with a hierarchical setup containing High Courts and Subordinate Courts
under it.

The Indian Constitution under Article 124(1) states that there shall be a Supreme Court of India
consisting of a Chief justice of India (CJI) and 34 judges, including the CJI. The Jurisdiction of
 the Supreme Court of India can broadly be categorised into original jurisdiction, appellate
jurisdiction and advisory jurisdiction.

Jurisdiction (Articles 141, 137)

Articles 137 to 141 of the Constitution of India lay down the composition and jurisdiction of the
Supreme Court of India. Article 141 states that Law declared by Supreme Court is binding on all
the courts in India and Article 137 empowers Supreme Court to review its own judgment. The
Jurisdiction of the Supreme Court of India can broadly be categorised into three parts:

Original Jurisdiction- (Art 131)

This jurisdiction extends to cases originating in the Supreme Court only and states that the
Supreme Court of India has original and exclusive jurisdiction in cases between:

 The government on one hand and one or more states on the other
 Government and one or more states on one side and other states on the other
 Two or more states
Appellate Jurisdiction- (Art 132,133,134)
The appeal lies with the Supreme Court against the High court in the following 4 categories:

1. Constitutional matters- If the High court certifies that the case involves a substantial question
of law that needs interpretation of the constitution.

2. Civil matters- If the case involves a substantial question of law of general importance.

3. The criminal matters- If the High court has on appeal reversed the order of acquittal of an
accused and sentenced him to death or has withdrawn for trial before itself any case from
subordinate court.

4. Special leave to appeal is granted by SC if it is satisfied that the case does not involve any
question of law. However, it cannot be passed in case of the judgment passed by a court or
tribunal of armed forces.

However, under this jurisdiction, the Supreme Court can transfer to itself cases from one or more
high courts if it involves the question of law in the interest of justice.

Advisory Jurisdiction (Art 143)

Article 143 authorises the President of India to seek an advisory opinion from the Supreme Court
in the two categories of matters:

(a) matters of public importance

(b) of any question arising out of pre-constitution, treaty, agreement, engagement, Sanad or other
similar instruments.
Also, Article 144 states that all authorities civil and judicial in the territory of India shall act in
aid of the Supreme Court.

Powers of the Supreme Court

1. Power to punish for contempt (civil or criminal) of court with simple imprisonment for 6
months or fine up to Rs. 2000. Civil contempt means wilful disobedience to any judgment.
Criminal contempt means doing any act which lowers the authority of the court or causing
interference in judicial proceedings.
2. Judicial review to examine the constitutionality of legislative enactments and executive
orders. The grounds of review is limited by Parliamentary legislation or rules made by the
Supreme Court.
3. Deciding authority regarding the election of President and Vice President.
4. Enquiring authority in the conduct and behaviour of UPSC members.
5. Withdraw cases pending before High Courts and dispose of them themselves.
6. Appointment of ad hoc judges- Article 127 states that if at any time there is a lack of quorum
of Judges of Supreme Court, the CJI may with the previous consent of the President and Chief
Justice of High Court, concerning request in writing the attendance of Judge of High Court duly
qualified to be appointed as Judge of the Supreme Court.
7. Appointment of retired judges of the Supreme Court or High Court - Article 128 states
that the CJI at any time with the previous consent of the President and the person to be so
appointed can appoint any person who had previously held the office of a Judge of SC.
8. Appointment of acting Chief Justice- Article 126 states that when the office of CJI is vacant
or when the Chief Justice is by reason of absence or otherwise unable to perform duties of the
office, the President in such case can appoint Judge of the court to discharge the duties of the
office.
9. Revisory Jurisdiction- The Supreme Court under Article 137 is empowered to review any
judgment or order made by it with a view to removing any mistake or error that might have crept
in the judgement or order.
10. Supreme Court as a Court of Record- The Supreme Court is a court of record as its
decisions are of evidentiary value and cannot be questioned in any court.
Removal of Supreme Court Judge:
A judge of the Supreme Court can be removed only from the office by the President of India on
the basis of a resolution passed by both the Houses of Parliament (Lok Sabha and Rajya Sabha)
with a majority of the total membership and a majority of not less than two-thirds of the
members present and voting in each House, on the grounds of proved misbehaviour or incapacity
of the judge in question.

Hence, a democratic country like India needs a judiciary because democratic values tend to lose
their prominence without proper checks and balances.

Judicial Review-

Judicial review is recognized as a necessary and a basic requirement for construction up of a

novel civilization in order to safeguard the liberty and rights of the individuals. The power of
judicial review is significantly vested upon the High Courts and the Supreme Court of India.
Under Article 13 of the Indian Constitution, the compulsion of judicial review was described in
fundamental rights in Part III. It is stated that the State or the Union shall not make such rules
that takes away or abridges the essential rights of the people. If any law made by the Parliament
or the State Legislature contravenes the provisions of this Article, shall be void.

Judicial Review can be understood as a form of court proceeding, usually in the Administrative
Court where the lawfulness of a decision or action is reviewed by the judge. Where there is no
effective means of challenge, judicial review is available. The concern behind Judicial Review is
that whether the law has been correctly applied with and right procedures have been followed.

Judicial Review And Constitution of India

In order to scrutinize the legitimacy of administrative action and the statutes, the Constitution of
India has given influences to the Higher courts and the Supreme Court of India. To guard the
rights of public and implement the fundamental rights are the main objects of judicial review. If
any difficulty arises between State and Center relation, then Article 246 and the Schedule 7 of
the Constitution has marked the working zone for the regulation construction between both State
and Center.

Judicial review has evolved in three dimensions:

# To protect the legality of essential rights under Part III of the Indian Constitution.

# To authorize the disinterest of organizational achievement.

# Interrogation of public interest.

Judicial Review In India

Judicial review plays an important role as a protector when the executive, judiciary and
legislature harm the Constitutional values and deny the rights. The judicial assessment is
considered as an indispensable feature in the country. In India, there is parliamentary form of
democracy where every section of people is involved in decision making and policy making
process. It is true that the primary duty of the court to apply rule of law and is the groundwork of
social equality. By exercising new powers of Parliament, rule of law which is to be applied by
the court cannot be modified. All those here, who are doing public duty, are accountable. They
have to work within the democratic provisions of the Constitution of India. The concept of
separation of power and rule of law is judicial review. The influence of judicial assessment has
been so long under Articles 226 and 227 in case of High Court and Articles 32 and 136 of the
Constitution of India for the review.

Mechanisms of Judicial Review

In India, three aspects are covered by judicial review that are as follows:

# Judicial review of legislative action

# Judicial review for judicial decision

# Judicial review of administrative action.

Writs-
Both the Supreme Court and High Courts have a lot of powers to provide justice and all those powers are
provided by The Indian Constitution. And to issue the writs, is one of the most important powers. A writ
is a command given by the court to a person or a authority or both to act or not to act in a particular way.
And as the writs are the commands given by the courts, they are essential parts of the judicial power of
the courts.
What Are Writs?
What do the writs mean? Writs are nothing but the written orders that are given by either the Supreme
Court or the High Court. These written orders commands constitutional remedies for the Indian citizens
against the violation of their rights or fundamental rights.

According to Article 32 of the Indian Constitution, Supreme Court of India can issue writs whereas
according to Article 226 of the Indian Constitution, High Courts can issue writs.

Types of Writs:
1. Habeas Corpus:
Literal meaning of Habeas Corpus is 'to have the body of'. This type of writ is used when unlawful
detention has occurred to enforce the fundamental right of individual liberty. When this writ is issued, a
person or a authority who has arrested a another person has to bring that another person before the court.

Rules for Habeas Corpus:

The applicant should be in a custody of other,
Family members can file an application or stranger can also file application in public interest,
Formal or Informal application can be filed,
Same application cannot be made successively to different judges of same court,
All or part of formalities and procedures should not be followed by police while making the arrest, etc.
Example: Himesh was making threats to Hina, so father of Hina, who is a police officer arrested Himesh
and imprisoned him. Hina's father didn't filed FIR and did not follow the procedure to arrest Himesh. So
Himesh is wrongfully detained. Hrithik who is a brother of Himesh filed an application in the respective
court and by issuing the writ of Habeas Corpus, court set Himesh free.
 

2. Mandamus:
Literal meaning of Mandamus is 'we command.' This type of writ is used when a public official or public
body or corporation or lower court or tribunal or even the government has not done the needed duty or
refused to do. After this writ is issued, the duty needs to be resumed.
Grounds for Mandamus:
Petitioner must have a right recognized by law
Infringement of the right must be done,
Petitioner must demand the authority to perform the duty and non-performance of the duty must be
present,
Other remedy must be absent,
Petitioner must prove that a duty is owed to him and authority has not performed the duty,
The non-performed duty must be mandatory duty, etc.
Example: Apeksha has a right to live life with dignity. And Electricity board has a duty to provide her
electricity but the board intentionally didn't provide her with the electricity and refused to do the duty.
Apeksha filed a suit and by issuing the writ of Mandamus, court ordered the board to supply the
electricity to Apeksha.
 

3. Prohibition:
Literal meaning of Prohibition is 'to forbid.' This type of writ is used when a court which is in lower
position i.e., the lower court exceeds its jurisdiction or un pursue a jurisdiction which is not possessed by
it.

Rules of Prohibition:
Lower court or tribunal should overstep its jurisdiction,
Lower court or tribunal goes against law,
If lower court or tribunal partly acting in jurisdiction and partly outside the jurisdiction, Prohibition will
be issued against the act which is partly outside the jurisdiction,
Proceeding must be pending in the lower court or tribunal,
Application should be made against judicial or quasi-judicial body only, etc.
Example: Sameer and Shahid made a contract in which Shahid decided to sell his land to Sameer for 2 cr.
Rupees. And Sameer failed to pay the amount on time, so Shahid brought a suit in the Pune District
Court. But the contract was made in Thane, both lived in Mumbai and Land was in Aurangabad. So, the
Pune district court has no jurisdiction over the case. And High court, by issuing the writ of Prohibition,
can order the Pune District Court to forbid the pending suit. 

4. Certiorari:
Literal meaning of Certiorari is 'to be certified' or 'to be informed.' This type of writ is used when a
transfer of case which is pending in the lower courts or the order given by lower courts in a case needs to
be quashed. This writ is issued on the basis of an excess of jurisdiction or lack of jurisdiction or error of
law. After this writ is issued, mistakes in the judiciary are cured.

Grounds of Certiorari:
Overstepping or abuse or absence of jurisdiction should be present by lower courts,
Violation of principles of natural justice can be present,
Some error of law can be present, etc.

Conditions of Certiorari:
The body or person should have legal authority.
Authority should be related questions affecting the rights of people,
Body or person has a duty to act judicial while functioning,
Person or body has acted in excess of their jurisdiction or legal authority, etc.
Example: There is a case in District Court, and the court lacks jurisdiction to hear such matters. But the
District Court Judge hears the case and renders his ruling, and Jennie who was affected by the order
passed, makes a petition in the High Court. As a result of the power to issue Writs, the High Court will
issue a writ of Certiorari on the District Court's order, and the District Court's order will be quashed.

5. Quo-Warranto:
Literal meaning of Quo-Warranto is 'by what authority or warrant.' This type of writ is used when an
illegal usurpation of a public office by a person is done. After this writ is issued, the legality of a claim of
a person to office is enquired.

Conditions of Quo-Warranto:
Office which is wrongfully assumed by private person should be a public office,
Office should be created by constitution or other statute,
Duties of office should be public duties,
Office should be permanent,
Application should be made against a person who is in possession of office and uses the office,
Office should not be of private nature, etc.
Example: Sanjana is a private citizen. She has no qualifications that are required for the post of RTO
officer. Although, assumes such office. Here a Writ of Quo Warranto can be issued against Sanjana to
call into question her authority on which she has taken the control of the office RTO officer.

Judicial activism and Public Interest Litigation-

The judiciary plays a vital role in promoting and upholding the rights of citizens in a country.
Judicial activism in simple terms is the responsibility of the judiciary to guard the rights of the
citizens and to uphold the constitutional and legal system of the country. The Judicial Activism
in India can be seen with the reference under Article 32 of the Indian Constitution and also
Article 226 of the Indian Constitution provides the power to judicially review the higher
judiciary and to declare any executive, legislative or administrative action void if it is in
contravention with the Indian Constitution .
Basically Public interest Litigation (PIL) means litigation filed in a court, for the protection of
Public Interest, for example, Pollution, Terrorism, Road security, Constructional perils and so on
Any matter where the interest of public overall is impacted can be reviewed by recording a
Public Interest Litigation in a courtroom. In simple words, public interest litigation means. Any
public spirited citizen or public welfare interested citizens can approach the court for the public
cause or for the welfare of the public by filing a petition in the Supreme Court under the Article
32 of the Indian Constitution or in the High Court under Article 226 of the Constitution or before
the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973.

Relation Between Public Interest Litigation And Judicial Activism And The Emergence Of
PIL In India-

Public interest or social interest litigation has become increasingly important in recent years,
attracting the attention of all parties involved. The Supreme Court recently relaxed the traditional
rule of "Locus Standi," which allows a person whose right has been infringed alone to file a
petition. The court now allows public interest litigation to be brought at the request of the so-
called Public-Spirited Citizens" (Public-Spirited Citizens) (Public-Spirited) to protect and
enforce constitutional and legal rights.

Now, any public-spirited citizen can petition the court for a public cause (in the public's
best interests) (public or public welfare) by submitting a petition to the following
authorities:

1. In Supreme Court, under Article 32 of the Indian Constitution;

2. In Supreme Court, under Article 226 of the Indian Constitution
3. In the Fertilizer Corporation Kamgar Union case, Justice Krishna Iyer enumerated the
following reasons for the liberalisation of the rule of locus standi in a court of magistrate
under Section 133 of the Code of Criminal Procedure:

i. When the government uses its power to fight corruption, it may interfere with
other things.
ii. Liberal judicial review administrative action is incompatible with social justice.
iii. Strict standing rules are the polar opposite of an efficient administrative system.
iv. For participatory public justice, activism is necessary.

Conclusion:

6. The judicial activism manifested in the strategy of PIL paves the way for the participation
of public spirited and enlightened people in India's development process and displays the
potentiality of the legal system to offer justice to the poor and the oppressed. The strategy
has brought to light many a medieval practices still prevalent in India such as relief to
prisoners, plight of women in protective homes, victims of the flesh trade and children of
 juvenile institutions and exploitation of the bonded and migrant labourers, untouchables,
tribal etc.
7. The attempt has been made to show how in taking up such cases, the Supreme Court is
emerging as the guardian of the rights and liberties of the victims of repression, cruelty
and torture. Hence the Supreme Court of India in its activist role vis-a-vis PIL has taken a
goal-oriented approach in the interest of justice by simplifying highest technical and
anachronistic procedures. By enlarging the scope of Article 32 and by accelerating the
process of socio-economic revolution, it has brought justice to the doorstep of the weak,
the unprivileged and exploitative section of society and therefore, has revolutionized
constitutional jurisprudence in the 1980's.
8. PIL has an important role to play in the civil justice system in that it affords a ladder to
justice to disadvantaged sections of society, some of which might not even be well-
informed about their rights. Furthermore, it provides an avenue to enforce diffused rights
for which either it is difficult to identify an aggrieved person or where aggrieved persons
have no incentives to knock at the doors of the courts. PIL could also contribute to good
governance by keeping the government accountable.
9. Last but not least, PIL enables civil society to play an active role in spreading social
awareness about human rights, in providing voice to the marginalized sections of society,
and in allowing their participation in government decision making. As I have tried to
show, with reference to the Indian experience, that PIL could achieve all or many of these
important policy objectives. However, the Indian PIL experience also shows us that it is
critical to ensure that PIL does not become a back-door to enter the temple of justice to
fulfil private interests, settle political scores or simply to gain easy publicity.
10. Courts should also not use PIL as a device to run the country on a day-to-day basis or
enter the legitimate domain of the executive and legislature. The way forward, therefore,
for India as well as for other jurisdictions is to strike a balance in allowing legitimate PIL
cases and discouraging frivolous ones. One way to achieve this objective could be to
confine PIL primarily to those cases where access to justice is undermined by some kind
of disability. The other useful device could be to offer economic disincentives to those
who are found to employ PIL for ulterior purposes.
11. At the same time, it is worth considering if some kind of economic incentives e.g.
protected cost order, legal aid, pro bono litigation, funding for PIL civil society, and
amicus curie briefs should be offered for not discouraging legitimate PIL cases. This is
important because given the original underlying rationale for PIL, it is likely that
potential plaintiffs would not always be resourceful.
Unit-5

Indian Federalism-
In a federation system, there are two seats of power that are autonomous in their own spheres. A
federal system is different from a unitary system in that sovereignty is constitutionally split
between two territorial levels so that each level can act independently of each other in some
areas.

There are two kinds of federations:

1. Holding Together Federation – In this type, powers are shared between various constituent parts to
accommodate the diversity in the whole entity. Here, powers are generally tilted towards the central
authority. Example: India, Spain, Belgium.
2. Coming Together Federation – In this type, independent states come together to form a larger unit.
Here, states enjoy more autonomy as compared to the holding together kind of federation. Example:
USA, Australia, Switzerland.

Features of the Federal System of India

1. Dual government polity

2. Division of powers between various levels
3. Rigidity of constitution
4. Independence judiciary
5. Dual citizenship
6. Bicameralism

All federations might not have all the above features. Some of them may be incorporated
depending on what type of federation it is.
Federalism in India
India is a federal system but with more tilt towards a unitary system of government. It is
sometimes considered a quasi-federal system as it has features of both a federal and a unitary
system. Article 1 of the Indian Constitution states, ‘India, that is Bharat, shall be a union of
states’. The word federation is not mentioned in the constitution.

Federal Features of the Indian Union

 Governments at two levels – centre and states

 Division of powers between the centre and states – there are three lists given in
the Seventh Schedule of the Constitution which gives the subjects each level has
jurisdiction in:

 Union List
 State List
 Concurrent List
 Supremacy of the constitution – the basic structure of the constitution is indestructible as
laid out by the judiciary. The constitution is the supreme law in India.
 Independent judiciary – the constitution provides for an independent and integrated
judiciary. The lower and district courts are at the bottom levels, the high courts are at the
state levels and at the topmost position is the Supreme Court of India. All courts are
subordinate to the Supreme Court.

Human Right and environmental Protection-

Melting ice, rising sea levels, and changing weather patterns attributable to climate change
increasingly affect daily life for millions, and perhaps billions, of people. When the environment
suffers, people suffer. Climate change increasingly interferes with the realization of fundamental,
internationally recognized human rights- including the right to life, to health, to culture, to food,
to self-determination, to property, and to development. The poorest and most vulnerable will
suffer first, and perhaps most, but ultimately the crisis will reach all of us.

As it is said that,  Where there is right there is duty . So if humans have right to use
environment for their purpose it’s there duty to work for environment. Man has the fundamental
right to freedom, equality and adequate conditions of life, in an environment of a quality that
permits a life of dignity and well-being, and he bears a solemn responsibility to protect and
improve the environment for present and future generations.

A human rights perspective directly addresses environmental impacts on the life, health, private
life, and property of individual humans rather than on other states or the environment in general.
A human rights focus may serve to secure higher standards of environmental quality, based on
the obligation of States to take measures to control pollution affecting health and private life.

The relationship between human rights and the environment was first recognized by the UN
General Assembly in the late 1960s. In 1972, the direct relationship between the environment
and the right to life was recognized by the United Nations Conference on the Human
Environment. The Preamble stated that  Man is both creature and moulder of his environment.

A Brief Overview – Human Rights And The Environment

Work towards sustainable development is increasingly recognising the importance of a human

rights approach. This should not be surprising: the protection of human life in relation to life,
health, culture and living standards is central to any social, environmental or economic
programmes. The right to life cannot be realised without the basic right to clean, water, air and
land. A human rights approach allows the quality of life of people, in particular the most
vulnerable, to be integrated into environmental decision making.

There are two main approaches to human rights and the environment:

# The use of existing human rights, and

# The need for new human rights for a safe and clean environment.

The rights we have already are:

1. Civil and political and

2. Economic, social and cultural. Civil and political rights provide for moral and political order.

Such rights include the right to life, equality, political participation and association. They are
couched most clearly in the Universal Declaration of Human Rights (1948) and International
Covenant on Civil and Political Rights (1966). When realised civil and political rights are
fundamental to guaranteeing a political order supportive of sustainable development. They can
protect civil mobilisation around environmental protection and equity. Economic, social and
cultural rights are often referred to as ‘second generation’ rights. These provide substantive
standards for an individual’s well-being.

Defining environmental rights

We suggest that any discussion of environmental human rights must encompass three areas of
work:

# The right to a clean and safe environment

# The right to act to protect the environment

# The right to information participate in decision-making Different organisations across the

world are approaching these issues in their own ways, but there are some commonalities:

# The right to a clean and safe environment these are ‘substantive’ rights. They are the most
basic rights, and the hardest to define. Many organisations would support the idea that clean
water and food security are basic human rights (quotes from UNEP Geo 2000 report). The UN
Draft Principles from 1994 (see Appendix) spell out what these might be in more detail.

# The right to act to protect the environment This right is inherent in the UN Declaration and
associated Conventions, through the right to organise and to free assembly. This right is under
threat in many nations. The ‘Just Earth’ campaign run by the Sierra Club and Amnesty
International USA has highlighted many such examples.

# The right to information, to access to justice, and to participate in environmental decision-

making these rights enable citizens to play an active part in creating a healthy environment, and
they are directly linked to the key points in several UN Conventions and Declarations.

In Europe these rights are enshrined in the UNECE ‘Arhus Convention’ (the European
Convention on Access to Information, Public Participation and Access to Justice in
Environmental Decision-Making) (see below); other regions will need to consider how best to
deliver these rights within local circumstances. These rights do not exist in isolation: they cannot
be seen as separate from other human rights or from other issues linked to poverty, economic and
social exclusion.

A human rights perspective to sustainable development moves from the ‘traditional green’ issues
to a wider approach to protecting the most vulnerable in society. These rights can provide a
platform for environmental and sustainable improvements are likely to benefit the most
marginalised people, the poor, women, and minorities. The human rights perspective facilitates
policies that have a strong impact on poverty and exclusion for reasons of gender or race.

The right to information, justice and participation within the sustainable development context
includes rather than excludes people who have felt excluded from the traditional green
movement agendas. Environmental human rights support a bottom up approach. Active
involvement and shared control, by the people and states most affected by a degraded
environment is fundamental at local, national and global levels.

Indian Laws Relating to Environment and Human Rights

The chapter on fundamental duties of the Indian Constitution clearly imposes duty on every
citizen to protect environment. Article 51-A (g), says that It shall be duty of every citizen of
India to protect and improve the natural environment including forests, lakes, rivers and wild life
and to have compassion for living creatures.
Article 47 provides that the State shall regard the raising of the level of nutrition and the standard
of living of its people and the improvement of public health as among its primary duties. The
improvement of public health also includes the protection and improvement of environment
without which public health cannot be assured. Article 48 deals with organization of agriculture
and animal husbandry. It directs the State to take steps to organize agriculture and animal
husbandry on modern and scientific lines.

In particular, it should take steps for preserving and improving the breeds and prohibiting the
slaughter of cows and calves and other milch and draught cattle. Article 48 -A of the constitution
says that the state shall endeavour to protect and improve the environment and to safeguard the
forests and wild life of the country.

The Constitution of India under part III guarantees fundamental rights which are essential for the
development of every individual and to which a person is inherently entitled by virtue of being
human alone. Right to environment is also a right without which development of individual and
realisation of his or her full potential shall not be possible. Articles 21, 14 and 19 of this part
have been used for environmental protection.

According to Article 21 of the constitution, no person shall be deprived of his life or personal
liberty except according to procedure established by law . Article 21 has received liberal
interpretation from time to time after the decision of the Supreme Court in Maneka Gandhi vs.
Union of India, (AIR 1978 SC 597). Article 21 guarantees fundamental right to life. Right to
environment, free of danger of disease and infection is inherent in it. Right to healthy
environment is important attribute of right to live with human dignity.

The concept of Social Justice denotes a philosophy of life and sets a way in which all social life
should behave. The Preamble and Article 38 of the Constitution envision Social Justice as the
arch to ensure life to be meaningful and livable with human dignity. Justice is the key-stone of
our constitution and the principle of equality is the very foundation of justice.

The preamble of the constitution assures justice, social, economic and political as well as
equality of opportunity and status to every citizens of India. In pursuance of this assurance,
Article 14, 15, 16 have been enacted which embody certain fundamental rights guaranteed by the
constitution of India4 . The concept of social justice which the Constitution of India engrafted
consists of diverse principles essential for the orderly growth and development of personality of
every citizen.

Social Objectives of Reservation:

The concept of reservation is one of the crucial factors in the Constitution of India to secure
socio- economic justice to the downtrodden people and to bring them to the mainstream of the
national life. When the Constitution of India was being drafted; the Constitution makers inserted
the concept of equality so that no individual shall be treated unequally. They thought that the
meaning of equality based upon individual achievement was too hypothetical in our casteridden
society where group identification had been historically used for the purpose of discrimination
and separateness. Therefore, the makers of the constitution adopted a policy of preferential
treatment in favor of certain weaker sections of the society to offset the effect of inherited
inequality and remedy historic injustice. The Constitution permits the state to adopt such
affirmative action as it may deem necessary to uplift the backward classes of citizens to the
levels of equality with the rest of our countrymen.

Reservation of Seats in the Legislature:

Articles 330 and 332 provide for reservation of seats for the Scheduled Caste and Scheduled
Tribes in the House of the People and the Legislative Assemblies of the states. These special
provisions for the reservation of seats in the legislature were provided purely as a transitory
measure. Initially the reservation was for a period of ten years. However, this arrangement was
extended up to forty years by various constitutional amendments as it was felt that the scheduled
castes and the scheduled tribes needed the reservation for a longer period.

Reservation of Jobs:

Special privileges through reservation and percentage quotas in recruitment and promotion in
services have been given in pursuance to the provision contained under article 16(4). In order to
complete the stupendous task of social reconstruction of building an egalitarian society, the
framers of the constitution thought it fair that people who were socially, economically and
educationally backward should be given special concessions in the form of out – of – turn
opportunities in recruitment as well as promotion.

Reservation in Educational Institutions:

Under Article 16(4) which specifically provided for reservation of jobs, there was no provision
in the constitution which permitted reservation of seats in educational institutions.

The Constitution permits preferences in the form of reservation under protective discrimination
provisions for three categories of people:

1. Scheduled Castes,

2. Scheduled Tribes, and

3. Other Backward Classes.

Reservation as A Right: Reservation under Articles 15(4), 15(5) and 16(4) no doubt fall under
Part III of the constitution comprising the Fundamental rights. Every provision of Part III
however does not confer a fundamental right. Some of the provisions of Part III are just
definitional; others are on the effect of fundamental rights on the existing and future laws. Still
others provide for the enforcement and implementation of the fundamental rights while some
others provide exceptions to the fundamental rights. Because of this variety of provisions, doubt
persists whether above Articles confer fundamental rights. It seems even the courts are not likely
to be responsive to such claims as a matter of enforceable rights.
 Secularism-

India is the birth place of four major world religions: Hinduism, Jainism, Buddhism and Sikhism.
Yet, India is one of the most diverse nation in terms of religion. Many scholars and intellectuals
believe that India's predominant religion, Hinduism has long been a most tolerant religion. India
is a country built on the foundations of a civilization that is fundamentally non-religious.

The Preamble of Indian Constitution aims to constitute India a Sovereign, Socialist, Democratic
Republic. The terms socialist and secular were added to it by the 42nd amendment.The whole
constitution is summarized in the preamble. It is the mirror to the spirit of the constitution. The
arrangement of the words in the preamble is also very significant. Indian society iws a multi-
religious society,it is having different csste,religion along with several religion diversification.
So, all these are the divisive factor in some way or the other and if not handled carefully then can
cause a threat to the unity and integrity of the nation.

The constituent assembly has visualized the peculiar situations of the country and a very
arranging the preamble it aims to secure to citizens justice, equality and liberty. The basic aim is
to promote fraternity while assuring unity and integrity of the nation along with individual
dignity. Fraternity is a very significant tool to combat the divisive factor. Religious harmony is a
must to promote fraternity particularly in Indian context.

So it's a constitutional mandate upon the state to combat the factors which curtails religious
fraternity. It is also incumbent upon the state to take positive as well as negative actions to
promote fraternity. Art. 25(1) guarantee to every person the freedom of conscience and the right
to profess, practice and propagate religion.

India is a secular country but what is secularism?

According to Donald Eugene Smith,' The secular state is a state which guarantees individual and
corporate freedom of religion deals with the individual as a citizen irrespective of his religion is
not constitutionally connected to a particular, nor does it seek either to promote or interfere with
religion upon closer examination it will be seen that the conception of a secular state involves
three distinct but inter-related sets of relationships concerning the state, religion and the
individual Indra V. Rajnarayan 1975 AIR, S.C 2299,the basic feature of the secularism was
explained by the hon'ble supreme court which held that, secularism means' that state shall have
no religion of its own and all persons of the country shall be equally entitled to the freedom of
their conscience and have the right freely to profess, practice and have the right freely to profess,
practice and propagate any religion''.

Secular not only meant that the state should have no religion of its own and should be neutral as
between different religious, but that political party which sought to capture the power, the
religious would come to capture the power, the religions would come to acquire a secondary or
less favourable position.

Secularism and Constitution of India:

Secularism as contemplated by the Constitution of India has the following distinguishing
features:

(1) The state will not identify itself with aor be controlled by any religion;

(2) While the state guarantees to everyone the right to profess whatever religion one chooses to
follow, it will not accord any preferential treatment to any of them.

(3) No discrimination will be shown by the state against any person on account of his religion or
faith.

(4) The right of every citizen, subject to any general condition, to enter any offices under the
state and religious tolerance form the heart and soul of secularism as envisaged by the
constitution. It secures the conditions of creating a fraternity of the Indian people which assures
both the dignity of the individual and the unity of the nation.

Art.26(b) of the constitution they had the right to manage their Indian Model of Secularism:

(2) It has a place not only for the right of individuals to profess their religious beliefs but also for
the right of religious communities to establish and maintain educational institution.

(3) The acceptance of community specific rights brings us to the third feature of Indian
secularism because it was born in a deeply multi-religious society, it is concerned as much with
inter-religious domination as it is with intra-religious domination.

(4) It does not erect a wall of separation between the state and religion. This allows the state to
intervene in religions, to help or hinder them without the impulse to control or destroy them.

(5) It is not entirely averse the public character of religion. Although the state is not identified
with a particular religion, there is official and therefore public recognition granted to religious
communities.

(6) Multiple values and principled distance means that the state tries to balance different,
ambiguous but equally important values.

This type of model makes its secular ideal more like a contextual, ethically sensitive ,politically
negotiated arrangement, rather than a scientific doctrine as conjured up by ideologies and merely
implemented by political agents.

Secularism undoubtedly helps and aspires to enable every citizen to enjoy fully the blessing of
life, liberty and happiness, but in the pursuit of this ideal, those who believes in secularism must
be inspired by a sense of ethical purpose in dealing with their fellow citizens.