Okay, let's delve into the details of Federalism as it pertains to your LLB notes.

Here's a
breakdown of the concepts and articles you've listed, aiming to provide a clear and insightful
overview:

1. Federalism: Concept and Idea

At its core, federalism is a system of government where power is constitutionally divided

between a central authority (the federal government) and constituent units (states, provinces,
or regions). Neither level of government is entirely dependent on the other; each has its own
defined powers and responsibilities.1 The essence lies in the sharing of sovereignty between
these levels, operating within their respective spheres of influence.2

The idea of federalism often arises from a desire to:

• Unite diverse entities: Allowing distinct regions or groups to come together under a common
framework while retaining their individual identities and some degree of autonomy.3
• Promote efficiency and responsiveness: Decentralizing governance can allow for policies
tailored to local needs and better responsiveness to citizens at the grassroots level.4
• Prevent concentration of power: Dividing authority helps safeguard against tyranny and
promotes checks and balances within the political system.5
• Facilitate economic integration: A common market and unified economic policies can be
fostered while allowing for regional variations.

State and Union Territories (Part-I and Part-VIII)

The Indian Constitution establishes a federal structure with a Union of States.6

• Part-I (Articles 1-4): The Union and its Territory7

o Article 1: Defines India as a "Union of States," emphasizing the indestructible nature of the
Union, although states can be reorganized.8 It also names the territories of India, comprising:
▪ The territories of the States.
▪ The Union Territories specified in the First Schedule.9
▪ Such other territories as may be acquired.
o Article 2:10 Empowers Parliament to admit new States into the Union or establish new States
on such terms and conditions as it thinks11 fit.12
o Article 3: Deals with the formation of new States and alteration of areas, boundaries, or
names of existing States.1314 This power rests with the Parliament, though it requires the
President to refer the bill to the concerned State Legislature for its views (which are not
binding).
o Article 4: States that laws made under Articles 2 and 3 for the amendment of the First and
Fourth Schedules and supplemental, incidental, and consequential matters shall not be
deemed to be amendments of the Constitution under Article 368.15
• Part-VIII (Articles 239-242): The Union Territories16
o Union Territories are directly administered by the Central Government (through an
administrator appointed by the President), although some may have their own legislative
assemblies and councils of ministers (like Delhi, Puducherry, and Jammu & Kashmir).17
o The administration of each Union Territory is specified in the relevant articles.18 Parliament
has the power to legislate for the Union Territories.19
o The rationale behind creating Union Territories has varied, including historical reasons,
strategic importance, the distinctiveness of their culture, or their small size and economic
viability.20

Features of Indian Federalism

The Indian Constitution establishes a unique form of federalism with certain distinctive
features:

• Written and Supreme Constitution: The division of powers between the Centre and the States
is clearly laid down in the Constitution, which is the supreme law of the land.21
• Dual Polity: India has a dual system of government, with a national government (Union
Government) and state governments, each operating in its own sphere.22
• Division of Powers: The Seventh Schedule of the Constitution demarcates the legislative
powers between the Union and the States through three lists:23
o Union List: Subjects on which only the Parliament can make laws (e.g., defense, foreign
affairs, banking).
o State List: Subjects on which the State Legislatures can ordinarily make laws (e.g., public
order, police, agriculture).
o Concurrent List: Subjects on which both Parliament and State Legislatures can make laws. In
case of a conflict, the law made by Parliament prevails.
• Supremacy of the Union Legislature: While there is a division of powers, the Union
Legislature generally holds a stronger position. For instance, residuary powers (subjects not
mentioned in any of the lists) vest with the Union Parliament.24
• Independent Judiciary: An independent judiciary, headed by the Supreme Court, acts as the
umpire to settle disputes between the Centre and the States or between the States themselves
regarding the interpretation of the Constitution and the division of powers.25
• Bicameralism at the Centre: The Parliament has two houses (Lok Sabha and Rajya Sabha),
with the Rajya Sabha representing the interests of the States.26
• Single Citizenship: Despite the federal structure, India has a single citizenship for the entire
country.27
• Integrated Judiciary: While there are separate High Courts for each state (or a group of
states), they are all integrated into a single judicial system under the Supreme Court.28
• All-India Services: Services like the IAS and IPS are common to both the Union and the
States, helping to maintain uniformity in administration.29
• Emergency Provisions: The Constitution allows for the transformation of the federal structure
into a unitary one during emergencies (national, state, or financial), granting overriding
powers to the Centre.30

Local Self-Governing Bodies: Panchayats and Municipalities (Part IX and IX-A)

The 73rd and 74th Constitutional Amendment Acts (1992) added Parts IX and IX-A to the
Constitution, respectively, granting constitutional status and protection to local self-
governing bodies.31 This marked a significant step towards decentralization and strengthening
grassroots democracy.

• Part IX (Articles 243 to 243-O): The Panchayats32

o Deals with the establishment of a three-tier system of Panchayats at the village, intermediate,
and district levels in every State.
o Provides for the composition, election, powers, functions, and finances of Panchayats.
o Ensures regular elections, reservation of seats for Scheduled Castes, Scheduled Tribes, and
women.
o Mandates the establishment of State Finance Commissions to review the financial position of
Panchayats and recommend principles for the devolution of funds.33
o Envisages the devolution of powers and responsibilities to Panchayats to enable them to
function as institutions of self-government34 and prepare plans for economic development
and social justice.35
• Part IX-A (Articles 243-P to 243-ZG): The Municipalities
o Deals with the constitution and organization of urban local bodies: Nagar Panchayats (for
areas in transition), Municipal Councils (for smaller urban areas), and Municipal
Corporations (for larger urban areas).
o Similar to Panchayats, it provides for their composition, election, powers, functions, and
finances.
o Ensures regular elections, reservation of seats, and the establishment of State Finance
Commissions.
o Envisages the devolution of powers and responsibilities to Municipalities to enable them to
function as institutions of self-government and prepare plans for economic development and
social justice36 within their urban areas.

Scheduled and Tribal Areas (Part X)

• Part X (Articles 244 and 244-A): The Scheduled and Tribal Areas37
o Article 244: Applies the provisions of the Fifth Schedule to the administration and control of
Scheduled Areas and Scheduled Tribes in any State other than Assam, Meghalaya, Tripura,38
and Mizoram.39
o Fifth Schedule: Contains provisions regarding the administration and control of Scheduled
Areas and Scheduled Tribes.40 It provides for the establishment of Tribes Advisory Councils
to advise the Governor on matters pertaining to the welfare and advancement of the
Scheduled Tribes in the State.41 The Governor has special powers to make regulations for
these areas.
o Article 244-A: Makes special provision for the formation of an autonomous State within the
State of Assam comprising certain tribal areas and for the creation of local Legislatures or
Executives or Councils of Ministers therefor.42

Special Status of Some States (Part- XXI)

• Part XXI (Temporary, Transitional and Special Provisions): Contains special provisions for
certain states, recognizing their unique historical, geographical, economic, or cultural
circumstances.43
o Article 370 (now abrogated for Jammu and Kashmir): Granted special autonomous status to
the State of Jammu and Kashmir.
o Article 371 and subsequent articles (371-A to 371-J): Contain special provisions with respect
to various other states, including Maharashtra and Gujarat, Nagaland, Assam, Manipur,
Andhra Pradesh, Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa, and Karnataka.
These provisions44 often relate to land ownership, employment, cultural identity, and the
allocation of resources. The specific provisions vary from state to state.

Forms of Government
 While federalism primarily deals with the distribution of powers between levels of
government, the "form of government" refers to the structure of the national (federal)
government itself. Common forms include:

• Parliamentary System: The executive (government) is responsible to the legislature

(parliament). The head of government (Prime Minister) is usually the leader of the majority
party in the legislature. India follows a parliamentary system.
• Presidential System: The executive (President) is independent of the legislature and is
directly or indirectly elected by the people. The President is both the head of state and head of
government (e.g., USA).
• Quasi-federalism: This term is often used to describe the Indian system, acknowledging its
strong centralizing tendencies despite its federal structure.

1.2 Concept of Cooperative and Competitive Federalism

These terms describe different dynamics in the relationship between the Centre and the
States:

• Cooperative Federalism: Emphasizes the interdependence and collaboration between the

Centre and the States. It involves mutual consultation, cooperation, and coordination in
policy-making and implementation to achieve common national goals. Institutions like the
Inter-State Council (Article 263) are meant to foster cooperative federalism.
• Competitive Federalism: Focuses on the idea that States compete with each other to attract
investment, resources, and development. The Centre can play a role in facilitating this
competition by setting benchmarks and providing incentives. While competition can drive
efficiency and innovation, it needs to be balanced to avoid regional disparities.

1.3 Centre-State Relations (Part-XI)

Part XI of the Constitution specifically deals with the relations between the Union and the
States.

• Chapter I: Legislative Relations (Articles 245-255)

o Territorial Extent of Laws: Defines the territorial limits within which the Parliament and
State Legislatures can make laws. Generally, Parliament can make laws for the whole or any
part of India, while State Legislatures can make laws for the whole or any part of their
respective States.
o Distribution of Legislative Powers: Elaborates on the subjects allocated to the Union List,
State List, and Concurrent List (as mentioned in the Seventh Schedule).
o Parliamentary Legislation in the State Field: Specifies circumstances under which Parliament
can legislate on subjects in the State List, such as during a national emergency, with the
consent of two or more States, or to implement international agreements.
o Residuary Powers: Vests the power to legislate on any matter not enumerated in the Union
List, State List, or Concurrent List with the Parliament.
o Doctrine of Repugnancy: Deals with conflicts between laws made by Parliament and State
Legislatures on subjects in the Concurrent List. Generally, the law made by Parliament
prevails.
• Chapter II: Administrative Relations (Articles 256-263)
o Obligation of States and the Union: States are obligated to ensure compliance with the laws
made by Parliament and existing laws applicable in that State, and the Union Executive is
empowered to give directions to the States for this purpose.
o Control of the Union over States: The Union Government can exercise control over States in
certain administrative matters to ensure uniformity and coordination.
o Mutual Delegation of Functions: The President can, with the consent of the State
Government, entrust functions to that Government, and vice versa. Parliament can also confer
powers and impose duties on State authorities.
o Disputes Relating to Waters: Article 262 provides for the adjudication of disputes relating to
the use, distribution, or control of the waters of inter-State rivers or river valleys. Parliament
can by law provide for the exclusion of the jurisdiction of all courts in such disputes.
o Inter-State Council: Article 263 empowers the President to establish an Inter-State Council to
inquire into and advise upon disputes between States, to investigate and discuss subjects45 of
common interest between the Union and the States, and to make recommendations for better
coordination of policy and action.

Finance, Property, Contract and Suits (Part-XII)

• Part XII (Articles 264-300-A): Finance, Property, Contracts and Suits

o Distribution of Revenues: Articles 268 to 281 deal with the allocation of taxing powers
between the Union and the States and the distribution of tax revenues collected by the Union
to the States. This includes provisions for grants-in-aid to the States.
o Finance Commission: Article 280 provides for the establishment of a Finance Commission
every five years (or earlier) to recommend the principles governing the distribution of net
proceeds of taxes between the Union and the States and the allocation of these proceeds
among the States.
o Borrowing Powers: Defines the borrowing powers of the Union and the States.
o Property, Contracts, and Suits: Articles 294 to 300 deal with the succession to property,
assets, rights, liabilities, and obligations, as well as the power to contract and the right to sue
and be sued by the Union and the States.
o Right to Property: Article 300-A states that no person shall be deprived of his property save
by authority of law (added by the 44th Amendment, 1978).

Special Provisions Relating to Certain Classes (Part-XVI)

• Part XVI (Articles 330-342): Special Provisions Relating to Certain Classes

o While this part primarily focuses on reservations for Scheduled Castes and Scheduled Tribes
in the Lok Sabha and State Legislative Assemblies, as well as provisions for the Anglo-
Indian community (which have undergone changes), it indirectly relates to the federal
structure by ensuring representation of diverse groups within the political system at both the
Union and State levels.
o Article 338: Deals with the National Commission for Scheduled Castes.
o Article 338-A: Deals with the National Commission for Scheduled Tribes.46
o Article 338-B: Deals with the National Commission for Backward Classes.
o These commissions play a crucial role in safeguarding the interests of these classes at the
national and state levels, influencing policy and resource allocation within the federal
framework.
 MODULE 2: Legislature and Executive under the Indian Constitution

2.1 Legislature and Executive under the Indian Constitution

The Indian Constitution establishes a parliamentary form of government where the executive
is responsible to the legislature. This module explores the structure, powers, and functions of
both the legislative and executive branches at the Union (national) and State levels.

Unicameral and Bicameral Legislatures

• Unicameral Legislature: A legislative body with only one chamber or house.

o Example in India: Many Indian states have a unicameral legislature, consisting only of the Legislative
Assembly (Vidhan Sabha).
o Advantages: Simpler legislative process, quicker decision-making, less duplication of effort,
potentially more cost-effective.
o Disadvantages: Potential for hasty legislation without thorough review, less representation of
diverse interests or regions within a state.
• Bicameral Legislature: A legislative body with two chambers or houses.
o Example in India: The Parliament of India (Lok Sabha and Rajya Sabha) and some Indian states (e.g.,
Maharashtra, Uttar Pradesh, Bihar, Karnataka, Andhra Pradesh, Telangana) have bicameral
legislatures. The lower house is usually directly elected, while the upper house represents states or
has members nominated based on expertise.
o Advantages: Provides for checks and balances on legislation, allows for more thorough deliberation
and scrutiny of bills, ensures representation of different interests or units (like states in the Rajya
Sabha), can accommodate experts and experienced individuals in the upper house.
o Disadvantages: Can lead to delays in the legislative process, potential for deadlock between the two
houses, can be more expensive to maintain.
Composition, Powers, and Functions of Union Legislature (Part-V, Chap-2)

The Union Legislature, also known as the Parliament, consists of the President and the two
Houses: the Lok Sabha (House of the People) and the Rajya Sabha (Council of States).

• Lok Sabha (Article 81):

o Composition: Members are directly elected by the people on the basis of universal adult suffrage.
The maximum strength is fixed by the Constitution (currently 550). Seats are allocated to states and
union territories based on population.
o Powers and Functions:
▪ Legislative: Can introduce and pass all types of bills (except Money Bills, which originate here). Has
co-equal powers with the Rajya Sabha in non-financial matters.
▪ Financial: Sole power to originate Money Bills and the Appropriation Bill. The Rajya Sabha can only
suggest amendments, which the Lok Sabha may or may not accept.
▪ Executive Control: Holds the Union Council of Ministers accountable through no-confidence
motions, questions, and debates.
▪ Constitutional: Can initiate amendments to the Constitution (along with the Rajya Sabha).
▪ Electoral: Participates in the election of the President and Vice-President.
▪ Judicial: Can impeach the President and remove judges of the Supreme Court and High Courts.
• Rajya Sabha (Article 80):
o Composition: Represents the states and union territories. Members are elected by the elected
members of the Legislative Assemblies of the states and by a special electoral college for union
territories. The President can nominate 12 members with special knowledge or practical experience
 in fields like literature, science, art, and social service. The maximum strength is fixed by the
Constitution (currently 250).
o Powers and Functions:
▪ Legislative: Co-equal powers with the Lok Sabha in initiating and passing non-financial bills.
▪ Financial: Can suggest amendments to Money Bills (to be returned within 14 days) and has powers
over financial matters other than Money Bills.
▪ Executive Control: Can scrutinize government policies and actions through debates and questions
but cannot move a no-confidence motion against the Council of Ministers (as the Council is
responsible to the Lok Sabha).
▪ Constitutional: Has equal powers with the Lok Sabha in amending the Constitution.
▪ Electoral: Participates in the election of the Vice-President.
▪ Special Powers: Can declare that Parliament should legislate on a matter in the State List (Article
249) and can create new All-India Services (Article 312).
Composition, Powers, and Functions of State Legislature (Part-VI, Chap-3)

The State Legislature varies depending on whether the state has a unicameral or bicameral
system.

• Legislative Assembly (Vidhan Sabha) (Article 170): Exists in all states.

o Composition: Members are directly elected by the people on the basis of universal adult suffrage.
The maximum strength is generally 500 and the minimum is 60, with some exceptions for smaller
states.
o Powers and Functions:
▪ Legislative: Can legislate on subjects in the State List and Concurrent List. Money Bills originate only
in the Legislative Assembly.
▪ Financial: Has primary control over the state's finances.
▪ Executive Control: Holds the State Council of Ministers accountable through no-confidence motions,
questions, and debates.
▪ Constitutional: Can initiate amendments to certain provisions of the Constitution that require
ratification by state legislatures.
▪ Electoral: Participates in the election of the President and members of the Rajya Sabha.
• Legislative Council (Vidhan Parishad) (Article 171): Exists in some states.
o Composition: Members are indirectly elected or nominated. The total number of members cannot
exceed one-third of the total number of members in the Legislative Assembly and cannot be less
than 40 (except for some smaller states). Members are chosen from various categories:
▪ Elected by members of local authorities (e.g., municipalities, district boards).
▪ Elected by graduates residing in the state.
▪ Elected by teachers of at least three years' standing in secondary schools or higher educational
institutions.
▪ Elected by members of the Legislative Assembly (excluding themselves).
▪ Nominated by the Governor from persons having special knowledge or practical experience in fields
like literature, science, art, cooperative movement, and social service.
o Powers and Functions:
▪ Legislative: Can initiate and pass non-money bills. Can delay ordinary bills passed by the Legislative
Assembly for a limited period (generally three months, with an additional one month for
amendments).
▪ Financial: Has limited powers over financial bills. Can suggest amendments to Money Bills, but the
Legislative Assembly can either accept or reject them.
▪ Executive Control: Can discuss government policies and raise questions but cannot move a no-
confidence motion against the State Council of Ministers (which is responsible to the Legislative
Assembly).
▪ Advisory Role: Provides a forum for more considered debate and can act as a check on hasty
legislation by the Legislative Assembly.

1. Qualification, Disqualification and Privileges of-

Members of Parliament (MPs) (Articles 84, 102, 105)

• Qualifications (Article 84):

o Must be a citizen of India.
o Must make and subscribe an oath or affirmation according to the form set out in the Third Schedule.
o For Lok Sabha: Must not be less than 25 years of age.
o For Rajya Sabha: Must not be less than 30 years of age.
o Must possess such other qualifications as may be prescribed by or under any law made by
Parliament.
• Disqualifications (Article 102):
o Holds any office of profit under the Government of India or the government of any state (except
certain exempted offices).
o Is of unsound mind and stands so declared by a competent court.
o Is an undischarged insolvent.
o Is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any
acknowledgment of allegiance or adherence to a foreign state.
o Is so disqualified by or under any law made by Parliament1 (e.g., under the Representation of the
People Act, 1951, for conviction in certain offences).
• Privileges (Article 105): These are special rights and immunities enjoyed by the Members of
Parliament individually and collectively to enable them to effectively discharge their
functions.
o Freedom of Speech in Parliament: Members have freedom of speech and expression in Parliament
and no member shall be liable to any proceedings in any court in respect of anything said or any vote
given by2 them in Parliament or any committee thereof.3
o Freedom from Arrest: Members are exempt from arrest in civil cases during the session of
Parliament and for a period of 40 days before the commencement and 40 days after the conclusion
of a session. This privilege does not extend to criminal cases or preventive detention.
o Right to Publish Reports, Proceedings, etc.: Parliament has the right to control the publication of its
debates and proceedings.
o Collective Privileges: These include the right to control its internal proceedings, the right to punish
for breach of its privileges or contempt, and the right to receive immediate information of the arrest,
detention, conviction, or imprisonment of a member.
Members of Legislative Assembly (MLAs) (Articles 173, 191, 194)

• Qualifications (Article 173):

o Must be a citizen of India.
o Must make and subscribe an oath or affirmation according to the form set out in the Third Schedule.
o Must not be less than 25 years of age.
o Must be an elector for any assembly constituency in that state.
o Must possess such other qualifications as may be prescribed by or under any law made by
Parliament.
• Disqualifications (Article 191): Similar to the disqualifications for MPs, including:
o Holding an office of profit under the government (with exceptions).
o Being of unsound mind.
o Being an undischarged insolvent.
o Not being a citizen of India or having acquired foreign citizenship.
o Being disqualified by or under any law made by Parliament.
• Privileges (Article 194): Similar to the privileges of MPs, applicable to the State Legislature.
o Freedom of Speech in the Legislature: Members have freedom of speech and expression in the
Legislative Assembly or Council and are not liable to any court proceedings for anything said or any
vote given.
o Freedom from Arrest: Similar protection from civil arrest during sessions and a specified period
before and after.
o Right to Publish Reports, Proceedings, etc.: The State Legislature has the right to control the
publication of its proceedings.
o Collective Privileges: Similar rights to control internal proceedings and punish for breach of privilege.
Anti-Defection Law (Xth Schedule)

The Tenth Schedule of the Indian Constitution, often referred to as the Anti-Defection Law,
was added by the 52nd Amendment Act, 1985. It aims to prevent political defections by
elected members of Parliament and State Legislatures from one political party to another.

• Grounds for Disqualification: A member can be disqualified on the following grounds:

o Voluntary Giving Up Membership: If a member voluntarily gives up their membership of the political
party by which they were set up as a candidate.
o Voting/Abstaining Contrary to Party Directives: If a member votes or abstains from voting in the
legislature contrary to any direction issued by their political party, without obtaining prior
permission, and their action is not condoned by the party within 15 days.
o Joining Another Party After Election: If an independent member (elected without being affiliated to
any political party) joins a political party after their election.
o Nominated Members Joining a Party: If a nominated member of the legislature joins a political party
after the expiry of six months from the date they take their seat.
• Exceptions to Disqualification:
o Merger: Disqualification does not apply if a political party merges with another political party,
provided that at least two-thirds of the members of the party in the legislature have consented to
the merger.
o Speaker/Chairman: A member elected as the Speaker or Chairman of the House (or Deputy
Speaker/Deputy Chairman) does not incur disqualification if they resign from their original party
membership for the duration of their office and rejoin after demitting it.
• Decision-Making Authority: The Speaker of the Lok Sabha or the Chairman of the Rajya
Sabha (at the Union level) and the Speaker or Chairman of the respective state legislative
bodies (at the State level) is the authority to decide on questions of disqualification under the
Anti-Defection Law. Their decision is subject to judicial review.

1. Law making procedure

 The process of law-making in India involves several stages in both Houses of Parliament (or
the State Legislature).

Types of Bills

• Ordinary Bills: These bills deal with any matter other than financial matters. They can
originate in either House of Parliament (or either House of the State Legislature in a
bicameral system). They require a simple majority for passing at most stages.
• Financial Bills (Article 117): These bills contain some provisions having financial
implications, but are not Money Bills. They can only be introduced in the Lok Sabha (or the
Legislative Assembly in a state). The Rajya Sabha (or the Legislative Council) has limited
powers to amend or reject them.
• Money Bills (Article 110): These are special types of financial bills that deal exclusively with
matters such as the imposition, abolition, remission, alteration or regulation of any tax; the
regulation of the borrowing of money or the giving of any guarantee by the Government of
India;4 the custody of the Consolidated Fund or the Contingency Fund of India, the payment
of moneys into or the withdrawal of moneys from any such Fund; the appropriation of
moneys out of the Consolidated Fund of India; the declaring of any expenditure to be
expenditure charged on the Consolidated Fund of India or the increasing of the amount of any
such expenditure; the receipt of money on account of the Consolidated Fund of India or the
public account of India or the custody or issue of such money or the audit of the accounts of
the Union or of a State; or any matter incidental to any of the matters specified5 above.
o Special Features: Can only originate in the Lok Sabha (or Legislative Assembly). The Speaker (or the
Speaker of the State Assembly) certifies whether a bill is a Money Bill. The Rajya Sabha (or Legislative
Council) can only suggest amendments, which the Lok Sabha (or Legislative Assembly) is free to
accept or reject. The Rajya Sabha (or Legislative Council) must return the bill within 14 days.
• Appropriation Bills (Article 114): These bills authorize the withdrawal of money from the
Consolidated Fund of India to meet the expenditure voted by the Parliament and the
expenditure charged on the Consolidated Fund. No money can be withdrawn from the
Consolidated Fund without the enactment of an Appropriation Act. These are also considered
Money Bills and follow a similar procedure.
• Private Member Bills: A bill introduced by any member of Parliament (or State Legislature)
who is not a minister. These bills have a lower chance of being passed compared to
government bills due to the government's control over legislative business.
• Government / Public Bills: A bill introduced by a minister in the government. These bills
reflect the policies and legislative agenda of the government and usually have a higher
priority in the legislative process.

1. Qualification, Powers, and functions of-

President of India (Part-V, Chap-1)

• Qualifications (Article 58):

o Must be a citizen of India.
o Must have completed 35 years of age.
o Must be qualified for election as a member of the Lok Sabha.6
o Must not hold any office of profit under the Government of India or the government of any state or
any local or other authority subject to the control of any of the said governments.7
• Powers and Functions: The President is the head of the state and exercises executive,
legislative, judicial, emergency, and diplomatic powers.
o Executive Powers: Appoints the Prime Minister and other ministers, appoints governors, judges of
the Supreme Court and High Courts, Attorney General, Comptroller and Auditor General, etc. Carries
out executive functions through ministers.
o Legislative Powers: Summons and prorogues Parliament, addresses both Houses jointly or
separately, sends messages to Parliament, nominates members to the Rajya Sabha, gives assent to
bills passed by Parliament (without which a bill cannot become law), promulgates ordinances during
the recess of Parliament.
o Judicial Powers: Has the power to grant pardons, reprieves, respites, or remissions of punishment or
to suspend, remit, or commute the sentence of any person convicted of any offence.
o Emergency Powers (Articles 352, 356, 360): Can declare three types of emergencies: National
Emergency (on grounds of war, external aggression, or armed rebellion), State Emergency (due to
the failure of constitutional machinery in a state), and Financial Emergency (when the financial
stability or credit of India is threatened).
o Diplomatic Powers: Represents India in international forums, appoints and receives ambassadors
and diplomats, concludes treaties and agreements subject to parliamentary approval.

Vice-President of India (Part-V, Chap-1)

Vice-President of India

• Article 63: Establishes the office of the Vice-President of India.

• Election (Article 66): The Vice-President is elected by the members of an electoral college consisting
of the members of both Houses of Parliament1 (Lok Sabha and Rajya Sabha). The election is held in
accordance with the system of proportional representation by means of2 a single transferable vote3
and the voting is by secret ballot.
• Qualifications (Article 66): To be eligible for election as Vice-President, a person must:
o Be a citizen of India.
o Have completed the age of thirty-five years.
o Be qualified for election as a member of the Rajya Sabha.
o Not hold any office of profit under the Government of India or the government of any State4 or
under any local or other authority subject to the control of any of the said Governments.
• Term of Office (Article 67): The Vice-President holds office for a term of five years from the date on
which they enter upon their office.
• Functions:
o Ex-officio Chairman of the Rajya Sabha (Article 64): The Vice-President is the presiding officer of the
Rajya Sabha. They maintain order and decorum in the House, regulate debates and proceedings, and
have the power to adjourn the House.
o Discharge of President's functions (Article 65): In the event of a vacancy in the office of the President
due to death, resignation, removal, or otherwise, the Vice-President5 acts as the President until a
new President is elected. During this period, the Vice-President has all the powers and discharges all
the functions of the President.
o The Vice-President also acts as President when the President is unable to discharge their functions
due to absence, illness, or any other cause.
• Removal (Article 67): The Vice-President can be removed from office by a resolution passed by a
majority of all the then members of the Rajya Sabha and agreed to by the Lok Sabha.6 No formal
impeachment process like that of the President is required.
• Importance: The office of the Vice-President ensures continuity in the head of state's office and
provides a presiding officer for the upper house of the Parliament.
 Union Council of Ministers

• Article 74: Deals with the Council of Ministers to aid and advise the President. It states that there
shall be a Council of Ministers with7 the Prime Minister as its head to aid and advise the President
who shall,8 in the exercise of their functions, act in accordance with such advice. However, the
President can require the Council to reconsider such advice, and shall act in accordance with the
advice tendered after such reconsideration.
• Article 75: Contains other provisions related to Ministers:
o The Prime Minister shall be appointed by the President, and the other Ministers shall be appointed
by the President on the advice of the Prime Minister.
o The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not
exceed fifteen percent of the total number of members of the House of the9 People (Lok Sabha). This
provision was added by the 91st Constitutional Amendment Act, 2003.
o A Minister who is not a member of either House of Parliament for any period of six consecutive
months shall cease to be a Minister10 at the expiration of that period.
o The Ministers shall hold office during the pleasure of the President.
o The Council of Ministers shall be collectively responsible to the11 House of the People (Lok Sabha).
This principle of collective responsibility is fundamental to the parliamentary system.
o Before a Minister enters upon their office, the President shall administer to them the oaths of office
and secrecy according to the forms set out in the Third Schedule.
o The salaries and allowances of Ministers shall be determined by Parliament by law.
• Functions: The Council of Ministers is the executive body of the Union government. It formulates
policies, implements laws, and manages the affairs of the state. Each minister is responsible for one
or more portfolios. The Cabinet, comprising senior ministers, is the key decision-making body within
the Council of Ministers.
• Importance: The Council of Ministers, headed by the Prime Minister, is the real executive authority
in India's parliamentary system. It is responsible for the governance of the country and is
accountable to the Parliament, particularly the Lok Sabha.

Governor of a State

• Article 153: States that there shall be a Governor for each State. The 7th Constitutional Amendment
Act, 1956, made it possible for the same person to be appointed as Governor for two or more States.
• Appointment (Article 155): The Governor of a State shall be appointed by the President by warrant
under their hand and seal.
• Qualifications (Article 157): To be eligible for appointment as Governor, a person must:
o Be a citizen of India.
o Have completed the age of thirty-five years.
• Conditions of Governor's Office (Article 158):
o The Governor shall not be a member of either House of Parliament or of a House of the Legislature
of any State.12 If a member of either House13 is appointed Governor, they shall be deemed to have
vacated their seat in that House on the date on which they enter upon their office as Governor.
o The Governor shall not hold any other office of profit.
o The Governor shall be entitled to such emoluments, allowances, and privileges as may be
determined by Parliament by law and, until provision in that behalf is so made, such emoluments,
allowances, and privileges as are specified in the Second Schedule.
o Where the same person is appointed as Governor14 for two or more States, the emoluments and
allowances payable to the Governor shall be allocated among those States in such proportion as the
President may by order determine.
• Term of Office (Article 156): The Governor shall hold office during the pleasure of the President.
They usually have a term of five years from the date on which they enter upon their office, but this is
subject to the pleasure of the President.
• Functions (Article 159-161):
o Executive Powers: The executive power of the State is vested in the Governor and is exercised by
them either directly or through officers subordinate to them15 in accordance with the Constitution.
o Legislative Powers: The Governor is an integral part of the State Legislature. They summon and
prorogue the State Legislature and dissolve the State Legislative Assembly. They also address the
Legislature at the commencement of the first session after each general election and at the
commencement of the first session of each year.16 The Governor can also send messages to the
Legislature. Money bills cannot be introduced in the State Legislative Assembly except on the
recommendation of the Governor. The Governor gives assent to bills passed by the State Legislature,
which then become laws. They can also reserve certain bills for the consideration of the President.
o Financial Powers: The Governor causes to be laid before the State Legislature the annual financial
statement (budget). Money bills and demands for grants can be introduced only on their
recommendation.
o Judicial Powers: The Governor has the power to grant pardons, reprieves, respites, or remissions of
punishment or to suspend, remit, or commute the sentence of any person convicted of any offence
against any law relating to a matter to which the executive power of the State extends.
o Discretionary Powers: The Governor has certain discretionary powers17 which they can exercise
without the advice of the Council of Ministers, such as in the appointment of the Chief Minister
when no party has a clear majority, or in dissolving the State Legislative Assembly when the
government has lost its majority.
• Importance: The Governor acts as the constitutional head of the State and represents the President
at the state level, maintaining the federal structure of India. They play a crucial role in the
functioning of the state government and in ensuring adherence to the Constitution.

State Council of Ministers

• Article 163: Deals with the Council of Ministers to aid and advise the Governor. It states that there
shall be a Council of Ministers with the Chief Minister18 as its head to aid and advise the Governor in
the exercise19 of their functions, except in so far as they are by or under this Constitution required to
exercise their functions or any of them in their discretion. If any question arises whether any matter
is or is not a matter in respect of which the Governor is by or under this Constitution required to
act20 in their discretion, the decision of the Governor in their discretion shall be final, and the validity
of anything done by the Governor shall not be called in question on the ground that they ought or
ought not to have acted in their discretion.
• Article 164: Contains other provisions related to Ministers:
o The Chief Minister shall be appointed by the Governor, and the other Ministers shall be appointed
by the Governor on the advice of the Chief Minister.
o The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State
shall not exceed fifteen percent of the total number of members of the Legislative Assembly of
that21 State. However, the number of ministers, including the Chief Minister, in a State shall not be22
less than twelve. These provisions were added by the 91st Constitutional Amendment Act, 2003.
o A Minister who for any period of six consecutive months is not a member of the Legislature of the
State shall at the expiration of that period cease to be a Minister.
o The Ministers shall hold office during the pleasure of the Governor.
o The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.23
o Before a Minister enters24 upon their office, the Governor shall administer to them the oaths of
office and secrecy according to the forms set out in the Third Schedule.
o The salaries and allowances of Ministers shall be determined by the Legislature of the State by law.
• Functions: The State Council of Ministers is the executive body of the state government. It
formulates policies, implements laws enacted by the State Legislature, and manages the affairs of
the state. Each minister is assigned one or more portfolios. The Cabinet, comprising senior ministers,
is the key decision-making body within the State Council of Ministers.
• Importance: The State Council of Ministers, headed by the Chief Minister, is the real executive
authority at the state level in India's parliamentary system. It is responsible for the governance of
the state and is accountable to the State Legislative Assembly.

Alright, let's delve into Module 3 of Constitutional Law, focusing on Judicial Activism,
Independence of the Judiciary, Judicial Accountability, and the National Judicial
Appointments Commission. Here are some detailed notes on each of these crucial aspects:

3.1 Judicial Activism

Judicial activism refers to the proactive role played by the judiciary in upholding
constitutional values and ensuring justice, often going beyond a strict interpretation of the
law. It involves the judiciary using its powers to address societal issues, protect fundamental
rights, and hold the executive and legislature accountable.

Key Aspects:

• Definition: Moving beyond the traditional passive role of interpreting laws to actively shaping legal
and social landscapes.
• Methods:
o Public Interest Litigation (PIL): Entertaining petitions from individuals or groups on behalf of the
public, addressing issues like environmental pollution, human rights violations, and governance
failures.
o Judicial Review: Striking down laws or executive actions that are deemed unconstitutional. Activism
can manifest when the judiciary adopts a broader interpretation of the Constitution while exercising
this power.
o Creative Interpretation of Laws: Expanding the meaning and scope of existing laws to address
contemporary challenges.
o Issuing Guidelines: In the absence of specific legislation, the judiciary may issue guidelines to fill the
vacuum and protect rights (e.g., the Vishakha Guidelines on sexual harassment at the workplace).
o Suo Motu Actions: Taking up cases on its own initiative based on media reports or its own
knowledge of an issue of public importance.
• Rationale/Justification:
o Protection of Fundamental Rights: Stepping in when the executive or legislature fails to protect the
fundamental rights of citizens, especially marginalized groups.
o Filling Legislative Gaps: Addressing situations where there is a legislative vacuum or the existing laws
are inadequate to deal with pressing social problems.
o Ensuring Good Governance: Holding the government accountable and preventing abuse of power.
o Dynamic Interpretation of the Constitution: Adapting the Constitution to evolving societal needs and
values.
• Criticisms and Concerns:
o Judicial Overreach: Encroaching upon the powers of the legislature and the executive, violating the
principle of separation of powers.
o Subjectivity and Bias: Decisions may be influenced by the personal philosophies and biases of judges.
o Erosion of Public Trust: If judicial activism is perceived as politically motivated, it can undermine
public faith in the judiciary.
o Difficulty in Enforcement: Judicial pronouncements may sometimes lack effective mechanisms for
implementation.
o Burden on the Judiciary: Excessive intervention can lead to an overburdened judicial system.
• Landmark Cases Reflecting Judicial Activism in India:
o Kesavananda Bharati v. State of Kerala (Basic Structure Doctrine)
o Maneka Gandhi v. Union of India (Expanded interpretation of Article 21)
o Various PIL cases addressing environmental pollution, bonded labor, and the rights of prisoners.

3.2 Independence of Judiciary

The independence of the judiciary is a cornerstone of a democratic system and the rule of
law. It ensures that judges can perform their duties without fear of favor, pressure, or
influence from the other branches of government or any other external forces.

Key Dimensions:

• Security of Tenure: Judges should have a fixed tenure and should not be easily removed from office.
The process for their removal should be rigorous and involve due process (e.g., impeachment).
• Financial Security: Adequate salaries and other benefits should be provided to judges to ensure their
financial independence and prevent them from being susceptible to bribery or other inducements.
• Independence from Executive and Legislative Interference: The executive and legislature should not
interfere with the judicial functions, appointments, transfers, or promotions of judges.
• Institutional Independence: The judiciary as an institution should be independent in its
administration and functioning, including control over its staff and resources.
• Separation of Powers: A clear demarcation of powers between the judiciary, executive, and
legislature is essential to prevent encroachment and ensure judicial independence.
• Appointment Process: The method of appointing judges should be free from political influence and
based on merit and competence.
• Rules of Conduct: Judges are expected to adhere to a strict code of conduct to maintain impartiality
and public trust.
• Freedom of Expression (within limits): While judges should be free to express their legal opinions in
judgments, they should refrain from making political statements that could compromise their
impartiality.

Constitutional Provisions in India Ensuring Judicial Independence:

• Article 124(4): Procedure for the removal of a Supreme Court judge through impeachment.
• Article 217: Procedure for the appointment and removal of High Court judges.
• Articles 125 and 221: Provisions for the salaries and allowances of Supreme Court and High Court
judges.
• Article 229: Chief Justice of a High Court has the power to appoint officers and servants of that High
Court.
• Separation of the judiciary from the executive (Article 50 - Directive Principle).

3.3 Judicial Accountability

While judicial independence is crucial, it should be balanced with judicial accountability.

Accountability ensures that judges are answerable for their conduct and decisions,
maintaining public trust and preventing abuse of power.
 Key Aspects:

• Internal Mechanisms:
o Self-Regulation: Judges are expected to adhere to a code of conduct and ethical standards.
o Peer Review: Senior judges may play a role in informally assessing the performance of their
colleagues.
o Administrative Oversight: Chief Justices have administrative responsibilities and can address certain
issues.
• External Mechanisms:
o Impeachment: A formal process for removing judges for proven misbehavior or incapacity (Article
124(4) and 217 of the Constitution). This is a difficult and rarely used mechanism in India.
o Judicial Review of Judicial Actions (Limited): While generally, judicial decisions are final within the
hierarchy, administrative decisions of the judiciary can be subject to review.
o Reporting and Transparency: Publishing judgments and some administrative information can
enhance transparency.
o Scrutiny by the Bar and Legal Academia: Legal professionals and scholars often critique judicial
decisions and conduct.
o Media Scrutiny: The media plays a role in reporting on judicial proceedings and the conduct of
judges, contributing to public awareness.
o Citizens' Right to Information (with limitations): Access to certain information about the judiciary can
promote accountability.
• Challenges to Judicial Accountability in India:
o Cumbersome Impeachment Process: The difficulty in impeaching judges makes it a less effective
mechanism.
o Lack of Robust Internal Mechanisms: Formal internal mechanisms for addressing complaints against
judges are still evolving.
o Concerns about Undermining Judicial Independence: Striking a balance between accountability and
independence is a delicate task.
o Politicization of Accountability Mechanisms: Attempts to hold judges accountable can sometimes be
perceived as politically motivated.

3.4 National Judicial Appointments Commission (NJAC)

The National Judicial Appointments Commission (NJAC) was an attempt by the Indian
government to change the system of appointing judges to the Supreme Court and High
Courts. It aimed to replace the collegium system, which involved the Chief Justice of India
and a panel of senior judges making recommendations for appointments.

Key Features of the NJAC Act, 2014:

• Composition: The NJAC was to be composed of:

o The Chief Justice of India (Chairperson)
o Two other senior-most judges of the Supreme Court
o The Union Minister of Law and Justice
o Two eminent persons to be nominated by a committee1 consisting of the Chief Justice of India, the
Prime Minister, and the Leader of Opposition in the Lok Sabha2 (or the leader of the single largest
opposition party).
• Functions: The NJAC would have been responsible for recommending candidates for appointment as
Chief Justice of India, other judges of the Supreme Court, Chief Justices of High Courts, and other
judges of High Courts.
• Transparency and Accountability: The government argued that the NJAC would bring greater
transparency and accountability to the judicial appointments process by including non-judicial
members.
• Requirement of Consensus: The Act stipulated that appointments could be made only if at least five
members of the NJAC agreed on a candidate. If two members disagreed, the appointment would not
be made.

Challenges to the NJAC and its Subsequent Striking Down:

• Challenge to Judicial Independence: The Supreme Court Advocates-on-Record Association and other
petitioners challenged the NJAC Act, arguing that it undermined the independence of the judiciary
by giving the executive and non-judicial members a significant role in the appointment process.
• Supreme Court's Decision: In 2015, a Constitution Bench of the Supreme Court struck down the NJAC
Act and the accompanying Constitutional Amendment (99th Amendment) as unconstitutional.
• Rationale for Striking Down: The majority opinion held that the NJAC compromised the primacy of
the judiciary in the appointment of judges, which is a key aspect of the basic structure of the
Constitution and essential for maintaining judicial independence. The Court reaffirmed the collegium
system with some suggestions for improvement.

Constitutional Law - Module 4 Notes

4.1 Emergency (Part XVIII)

Part XVIII of the Constitution of India, comprising Articles 352 to 360, deals with the
provisions related to different types of emergencies that can be proclaimed in the country.
These provisions are designed to enable the Union Government to deal effectively with
extraordinary situations that threaten the security, integrity, or stability of India.

Types of Emergencies:

The Constitution envisages three types of emergencies:

1. National Emergency (Article 352): This is proclaimed when the security of India or any part
thereof is threatened by war, external aggression, or armed rebellion.
o Historical Context: Initially, the ground for proclamation also included "internal
disturbance," but this was replaced by "armed rebellion" by the 44th Amendment
Act, 1978. This change aimed to prevent the misuse of emergency powers based on
vague grounds.
o Proclamation Process: The President can proclaim a National Emergency after
receiving a written request from the Cabinet.
o Parliamentary Approval: Every proclamation of emergency must be laid before each
House of Parliament and requires approval by a resolution passed by both Houses by
a special majority (majority of the total membership of the House and a majority of
not less than two-thirds of the members of the House present and voting) within
one month from the date of its issue. If the proclamation is issued when the Lok
Sabha is dissolved or if the dissolution takes place within one month, it must be
approved within 30 days from the first sitting of the reconstituted Lok Sabha.
o Duration: Once approved, a National Emergency continues for six months and can
be extended for further periods of six months by subsequent resolutions passed by
both Houses of Parliament with the same special majority.
 2. President's Rule (State Emergency or Constitutional Emergency) (Article 356):
This is proclaimed when the President, upon receipt of a report from the Governor of
a State or otherwise, is satisfied that a situation has arisen in which the government of
the State cannot be carried on in accordance with the provisions of the Constitution.
o Grounds for Proclamation: The primary ground is the failure of the constitutional
machinery in the State. This can occur due to various reasons, such as no party
securing a majority in the State legislative assembly, a breakdown of coalition
government, or the State government acting in violation of the Constitution.
o Proclamation Process: The President issues the proclamation.
o Parliamentary Approval: The proclamation must be laid before each House of
Parliament and approved by a simple majority in both Houses within two months
from the date of its issue. If the proclamation is issued when the Lok Sabha is
dissolved or if the dissolution takes place within two months, it must be approved
within 30 days from the first sitting of the reconstituted Lok Sabha.
o Duration: Initially, President's Rule could be imposed for six months and extended
up to a maximum of one year with parliamentary approval every six months.
However, the 44th Amendment Act, 1978, added a provision stating that beyond
one year, it can be extended only if:
▪ A National Emergency is in operation in the whole of India or in the
concerned State.
▪ The Election Commission certifies that difficulties exist in holding elections
to the State legislative assembly. The maximum period for which President's
Rule can be imposed is three years.
3. Financial Emergency (Article 360): This can be proclaimed by the President if he is
satisfied that a situation has arisen whereby the financial stability or credit of India or
of any part of its territory is threatened.
o Grounds for Proclamation: This emergency is invoked to deal with severe economic
crises.
o Proclamation Process: The President issues the proclamation.
o Parliamentary Approval: The proclamation must be laid before each House of
Parliament and approved by a simple majority in both Houses within two months
from the date of its issue.
o Duration: Once approved, a Financial Emergency continues indefinitely until
revoked by the President. No parliamentary re-approval is required.
o Note: So far, a Financial Emergency has not been proclaimed in India.

Consequences of Proclamation:

The proclamation of a National Emergency under Article 352 of the Indian Constitution has
significant consequences across various aspects of governance and the fundamental rights of
citizens.1 These can be broadly categorized as follows:

Impact on Centre-State Relations:

• Executive: The executive power of the Union extends to giving directions to any State as to
the manner in which the executive power2 thereof is to be exercised (Article 353(a)).3 This
means the central government can instruct state governments on how to implement policies
and laws.
• Legislative: The Parliament gains the power to make laws on any matter in the State List
(List II of the Seventh Schedule) (Article 353(b)). While the State legislatures are not
suspended, their legislative power becomes subordinate to that of the Parliament. Laws made
 by Parliament on state subjects during an emergency cease to have effect six months after the
emergency ends, unless repealed or re-enacted.
• Financial: The President can modify the constitutional provisions relating to the distribution
of revenues between the Union and the States (Article 354). Such modifications remain in
effect until the end of the financial year in which the emergency ceases to operate and must
be laid before both Houses of Parliament.

Impact on the Life of Lok Sabha and State Assemblies:

• The normal tenure of the Lok Sabha can be extended by an Act of Parliament for a period not
exceeding one year at a time, but this extension cannot continue beyond a period of six
months after the proclamation of emergency has ceased to operate (Article 83(2)).4
• Similarly, the Parliament may by law extend the normal term of a State Legislative Assembly
for a period not exceeding one year at a time, not extending beyond six months after the
emergency has ended.5

Impact on Fundamental Rights:

The impact on fundamental rights is a critical consequence of a Proclamation of Emergency

and is governed by Articles 358 and 359.

• Suspension of Article 19: According to Article 358, when a National Emergency is declared
on the grounds of war or external aggression, the six fundamental rights guaranteed under
Article 19 (freedoms of speech, assembly, association, movement, residence, and profession)
are automatically suspended for the duration of the emergency. Laws can be made, and
executive actions can be taken that are inconsistent with Article 19 during this period.
However, the 44th Amendment Act of 1978 clarified that if the emergency is declared on the
ground of armed rebellion, Article 19 is not automatically suspended.6
• Suspension of Enforcement of Other Fundamental Rights: Under Article 359, the President
may, by order, declare that the right to move any court for the enforcement of such of the
fundamental rights (except Articles 20 and 21) as may7 be specified in the order shall remain
suspended for the period during which the emergency is in force or for a shorter period as
may be mentioned in the order.8 This means that while the emergency is in effect, a citizen
cannot approach the Supreme Court or High Courts for remedies if their specified
fundamental rights are violated. Importantly, Article 20 (protection in respect of conviction
for offenses) and Article 21 (protection of life and personal liberty) cannot be suspended even
during9 an emergency.10

In summary, a Proclamation of Emergency fundamentally alters the federal structure of India

towards a more unitary one, granting greater powers to the Union government in executive,
legislative, and financial matters. Simultaneously, it can lead to the suspension of certain
fundamental rights, significantly impacting the civil liberties of citizens.11 The specific
consequences on fundamental rights depend on the grounds of the emergency and the
Presidential orders issued under Article 359.
Judicial Review of Proclamation of Emergencies under Constitutional Law 2

The proclamation of a National Emergency under Article 352 is a serious matter that
significantly impacts the federal structure and fundamental rights.1 Initially, the satisfaction
of the President in proclaiming an emergency was considered subjective and beyond judicial
 review, particularly after the 38th Amendment Act of 1975. However, this position has
evolved significantly through subsequent constitutional amendments and judicial
pronouncements, establishing the scope for judicial review.

Evolution of Judicial Review:

• Pre-44th Amendment Era: The 38th Amendment Act of 1975 inserted clause (5) into Article
352, making the President's satisfaction final and conclusive, not to be questioned in any
court on any ground. This amendment aimed to exclude judicial scrutiny of the
proclamation.2 The Supreme Court's majority judgment in ADM Jabalpur v. Shivakant
Shukla (1976), during the Emergency of 1975-77, further reinforced the executive's power by
holding that the right to move any court for enforcement of fundamental rights (including the
right to life and personal liberty under Article 21) remained suspended during the emergency.
• The 44th Amendment Act, 1978: A Turning Point: The 44th Amendment Act of 1978
brought about crucial changes aimed at preventing the misuse of emergency powers and
restoring the balance between the executive and the judiciary.3 Key provisions related to
judicial review include:
o Deletion of Clause (5) of Article 352: This deletion explicitly removed the bar on judicial review of the
President's satisfaction.
o Grounds for Proclamation: The ground of "internal disturbance" was replaced with "armed
rebellion," making the conditions for proclamation more specific and justiciable.4
o Cabinet Recommendation: The President can declare an emergency only upon a written
recommendation from the entire Cabinet, not just the Prime Minister, ensuring collective decision-
making.

Scope of Judicial Review Post-44th Amendment:

Following the 44th Amendment, the judiciary regained the power to review the proclamation
of a National Emergency, albeit within certain limitations. The principles governing this
review were laid down in landmark cases, particularly:

• Minerva Mills v. Union of India (1980): The Supreme Court held that while the court cannot
question the wisdom or political expediency of the President's decision, the proclamation
could be challenged on grounds of:
o Mala fide intention: If the proclamation was issued with a dishonest or ulterior motive.5
o Extraneous or irrelevant facts: If the decision was based on grounds wholly outside the purview of
Article 352 or facts that had no bearing on the security of India.
o Absurdity or perversity: If the satisfaction of the President was based on utterly unreasonable or
illogical grounds. The Court affirmed that the limitations conferred by the Constitution on the
exercise of emergency powers are subject to judicial review.
• S.R. Bommai v. Union of India (1994): While this case primarily dealt with the proclamation
of President's Rule under Article 356, the principles laid down regarding judicial review of
Presidential satisfaction are also relevant to Article 352. The Court emphasized that:
o The President's satisfaction must be based on relevant material. While the court would not examine
the correctness or adequacy of the material, it could scrutinize its existence and relevance.
o The proclamation is not immune from judicial review if it is found to be mala fide or based on wholly
irrelevant or extraneous grounds.6

Limitations on Judicial Review:

 It's important to note that the judicial review of a Proclamation of Emergency is not an appeal
on the merits of the decision. The courts will not substitute their judgment for that of the
executive and will generally defer to the executive's assessment of the security situation. The
review is limited to ensuring that:

• The procedural safeguards laid down in Article 352 have been complied with (e.g., Cabinet
recommendation, parliamentary approval within the stipulated time).
• The President's satisfaction was based on some relevant material and was not actuated by mala fide
or wholly irrelevant considerations.

Conclusion:

The journey of judicial review of emergency proclamations reflects a crucial aspect of

constitutionalism – the need to balance executive authority with the protection of
fundamental rights and the federal structure. The 44th Amendment Act was a significant step
in this direction, restoring the judiciary's role as a guardian against potential executive
overreach.7 While the courts exercise restraint in reviewing the merits of the proclamation,
their power to scrutinize the process and the basis of the President's satisfaction provides a
vital safeguard in India's democratic framework. The landmark judgments in Minerva Mills
and S.R. Bommai have further clarified the scope and limitations of this judicial oversight.

Okay, let's delve into the details you've outlined under constitutional law, focusing on the
Second Amendment and the basic structure doctrine, followed by brief notes on the other
topics you've listed.

4.2 Amendment of the Constitution (Part XX) and the Basic Structure
Doctrine

Article 368: Power of Parliament to Amend the Constitution and Procedure Thereof

Part XX of the Constitution deals with the amendment process. Article 368 grants Parliament
the power to amend the Constitution by way of addition, variation, or repeal of any provision
in accordance with the procedure laid down in this article.

Procedure for Amendment:

1. Initiation: An amendment can be initiated only by the introduction of a Bill for the
purpose in either House of Parliament.
2. Passing in Each House: The Bill must be passed in each House by a special majority,
that is, a majority of the total membership of that House and by a majority of not less
than two-thirds of the members of that House present and voting.
3. Presidential Assent: Once passed by both Houses, the Bill is presented to the
President for assent. Upon the President's assent, the Constitution stands amended in
accordance with the terms of the Bill.
 4. Special Provisions for Certain Amendments: For amendments relating to certain
specified matters (like the federal structure, representation of states in Parliament,
etc.), ratification by the legislatures of not less than one-half of the States by
resolution is also required before the Bill is presented to the President for assent.

The Second Amendment Act, 1952:

The Second Amendment Act, 1952, was a relatively minor amendment. It primarily dealt
with the readjustment of representation of constituencies in the House of the People (Lok
Sabha) following the completion of the first census after independence. It amended Article
81 of the Constitution, which deals with the composition of the House of the People. The
amendment aimed to ensure that the allocation of seats to states and the division of states into
territorial constituencies were based on the population figures of the 1951 census.

The Basic Structure Doctrine:

The Basic Structure Doctrine is a significant judicial principle that limits the amending power
of the Parliament under Article 368. It holds that while Parliament has the power to amend
the Constitution, this power does not extend to altering or destroying the "basic structure" or
the "essential features" of the Constitution.

Evolution of the Doctrine:

• Early Views: Initially, it was held that Parliament's amending power was unlimited
(e.g., Shankari Prasad v. Union of India, 1951).
• Shift in Stance: The Supreme Court in Sajjan Singh v. State of Rajasthan (1965)
reiterated the view in Shankari Prasad but hinted at a possible limitation in the future.
• Golak Nath Case (1967): This landmark case held that Parliament had no power to
amend Part III (Fundamental Rights) of the Constitution. The Court reasoned that
fundamental rights were transcendental and beyond the reach of the amending power.
• Kesavananda Bharati Case (1973): This is the most crucial case that firmly
established the Basic Structure Doctrine. While the Court upheld the validity of the
24th Amendment (which sought to overcome the Golak Nath ruling), it also ruled that
Article 368 does not enable Parliament to alter the basic structure or framework of the
Constitution. However, the Court did not explicitly define what constitutes the basic
structure, leaving it to be determined on a case-by-case basis.
• Post-Kesavananda Bharati Developments: The Supreme Court has, in subsequent
cases, identified several features as forming part of the basic structure, including:
o Supremacy of the Constitution
o Republican and democratic form of government
o Secular character of the Constitution
o Separation of powers between the legislature, executive, and judiciary
o Federal character of the Constitution
o Rule of law
o Judicial review
o Sovereignty of India
o Dignity of the individual
o Unity and integrity of the nation
o Principles of free and fair elections
o Welfare State
Significance of the Basic Structure Doctrine:

• It safeguards the fundamental principles and values enshrined in the Constitution.

• It prevents Parliament from making radical changes that would alter the core identity
of the Constitution.
• It establishes a balance between the amending power of the Parliament and the
immutability of the Constitution's foundational elements.
• It empowers the judiciary to review constitutional amendments and strike down those
that violate the basic structure.

4.3 Constitutional Bodies and Offices

These are independent bodies or significant offices created by the Constitution itself,
ensuring their autonomy and playing crucial roles in the functioning of the Indian democracy.

• Union Public Service Commission (UPSC) and State Public Service Commissions
(SPSCs) (Part-XIV, Chapter-2): These are independent bodies responsible for
recruiting civil servants for the Union and the respective states. Articles 315 to 323
deal with their composition, appointment, removal, functions, and powers, ensuring
merit-based selection.
• Election Commission of India (ECI) (Part-XV): Established under Article 324, the
ECI is an autonomous constitutional authority responsible for conducting free and fair
elections to the Parliament, State Legislatures, the office of the President, and the
office of the Vice-President. It plays a vital role in upholding democratic principles.
• Attorney General for India (Relevant Chapters from Part-V): The Attorney
General (Article 76) is the highest law officer of the Union Government. Appointed
by the President, they advise the government on legal matters and represent the Union
in legal proceedings.
• Advocate Generals (Relevant Chapters from Part-VI): Similar to the Attorney
General at the Union level, the Advocate General (Article 165) is the highest law
officer of a state government, appointed by the Governor to advise the state
government on legal matters.
• Comptroller and Auditor General of India (CAG) (Chapter-V, Part-V): Article
148 establishes the CAG, an independent authority responsible for auditing the
accounts of the Union and State governments, as well as bodies financed by them.
The CAG plays a crucial role in ensuring financial accountability and transparency.
• Finance Commission (Art. 280, Art-281): Constituted by the President every five
years (or earlier), the Finance Commission recommends the distribution of financial
resources between the Union and the States and lays down principles governing
grants-in-aid to the States.
• National Commissions for SC, ST and Backward Classes (Art. 338, Art. 338-A,
Art. 338-B): These commissions are established to safeguard the interests of
Scheduled Castes, Scheduled Tribes, and Other Backward Classes. They investigate
grievances, monitor the implementation of safeguards, and advise the government on
policy matters concerning these communities.

4.4 Inter-state Trade and Commerce (Part-XIII)

Part XIII of the Constitution aims to ensure the free flow of trade, commerce, and intercourse
throughout the territory of India, promoting economic unity.
 • Freedom of trade, commerce, and intercourse (Article 301): Subject to the other
provisions of Part XIII, trade, commerce, and intercourse throughout the territory of
India shall be free. This ensures that no state erects barriers to impede the movement
of goods and services across state borders.
• Restrictions on the freedom (Articles 302-307): While Article 301 guarantees
freedom, Articles 302 to 307 empower Parliament to impose restrictions on this
freedom in the public interest. State legislatures can also impose reasonable
restrictions, subject to certain conditions and the overriding power of Parliament.
These restrictions aim to balance the need for free trade with other legitimate
concerns like public health, public order, and essential supplies.

4.5 Co-operative Societies (Part-IX-B)

Part IX-B, inserted by the 97th Constitutional Amendment Act, 2011, deals with co-operative
societies. This part aims to promote the autonomous and democratic functioning of co-
operative societies.

Key provisions in Part IX-B include:

• Definition and Incorporation: Provisions regarding the definition of co-operative

societies, their incorporation, and the number of directors.
• Election of Board Members: Emphasis on the democratic election of members of
the board.
• Term of Office: Fixed term for the elected members of the board.
• Audit of Accounts: Mandatory and regular auditing of the accounts of co-operative
societies.
• Supersession of Board: Conditions and procedures for the supersession of the board
and the appointment of an administrator.
• Offences and Penalties: Provisions for offences related to the functioning of co-
operative societies and the penalties for such offences.

Part IX-B aims to bring greater accountability, transparency, and efficiency to the functioning
of co-operative societies in India, recognizing their importance in the socio-economic
development of the country.