Chapter 1

Historical Background

1.​ Regulating Act Of 1773 3. Charter Act of 1813

a.​ 1st to control & Regulate EIC a.​ Ended the monopoly of EIC in India,
b.​ 1st to Recog Pol & adm func of EIC Except monopoly in trade with china and
c.​ Laid Foundations of central Adm trade in tea
b.​ The company’s rule was extended to
-​ G of Bengal - GG of Bengal + 4 ; another 20 years.
W.Hastings c.​ Allowed (Christian Missionaries)
-​ G of Bombay & Madras - Subordinate to d.​ Act regulated the company’s territorial
GG of Bengal revenues and commercial profits. It was
-​ S.Court @ Calcutta (1+3) 1st CJustice asked to keep its territorial and
was Elijah Imphey commercial accounts separate.
-​ x private trade for company servants e.​ The company’s dividend was fixed at
-​ CoD of company to report revenue, civil, 10.5% per annum.
military affairs to chancellor of exchequer f.​ Invest Rs. 1 Lakh every year on the
and SoS for pol affairs. education of Indians.
g.​ Empowered the Local Governments in
India to impose taxes on persons and to
punish those who did not pay them.

2. Pitts India Act 1784 4. Charter Act of 1833

a.​ Distinguish commercial & pol func. -​ Final Step towards Centralisation
b.​ Cod = commercial & BoC - Pol. -​ GGB - GGI (All civil + military func)
c.​ BoC to supervise and direct all type of -​ Created GOI (1st GGI W.Bentick)
functions of British possessions in India -​ withdrawn Legis. power with Bombay &
Madras
British Govt was given Supreme control over -​ Laws under Previous acts were called -
company affair and administration Regulation ; Provisions under it - were
called Acts
-​ Ended EIC’s Commercial functions and
became purely Administrative body
 -​ EIC will hold Territories in trust of her
Majesty
-​ Attempted to introduce open comp for
civil service but CoD negated it

5. Charter Act of 1853 6. Government of India Act 1858

-​ Separated (Legis & Executive functions a.​ Act for good government
of GGI) b.​ Abolished EIC
-​ GGI - Indian Legis Council - 6 members. c.​ Transferred everything to B.Crown, did
‘Mini Parliament’, + local representation not alter way of Govt in India
in it eg 4/6 members were appointed by
Provincial govt of Bengal, Bombay, -​ India governed by & in the name of her
Madras, Agra majesty
-​ Legislation - treated as special function -​ GGI = Viceroy (Canning)
of Govt which required special machinery -​ Ended BoC and CoD
& process -​ Est Office of SoS (Member of B.Cabinet,
-​ Open system for civil service, Covenanted resp to B.Parliament)
civil services were opened for Indians, -​ SoS Chairman + 15 member Cabinet
Macaulay Committee on civil services -​ SoS in council = body corporate (suing &
was appointed in 1854 being sued in India & Britain
-​ Company allowed to retain B.Possessions
in trust (but up to what time - was not
specified)

7. Councils Act 1861 (asso Indian Coop in 8. Council Act 1892

Adm)

-​ Beginning of representative institutions -​ increased non official members in both

(associating Indians in Law Making) Center + Provinces (But official majority)
-​ Viceroy council enlarged to nominate -​ Legislature could - discus budget + ask
 Indians as non officials. (3 = Benaras, questions
Patiala, Dinkar Rao) -​ Provided for Nominated Non Official
-​ Initiated Decentralisation (restore Members at Center by Viceroy on
Legislative powers to Madras & Bombay) recommendation of Bengal Chamber of
-​ Legis Council - Bengal 1862, NWFP Comm, Prov Legis council
1866, Punjab 1897 -​ At Provinces by Governor on
-​ Portfolio system - By Lord Canning recommendations of dist board,
(Member of Viceroy’s exe council was municipality, university, trade assoc.
made in charge or one or more Govt Zamindar, chambers All this were termed
departments as limited & indirect election but
-​ Viceroy - to make rules for convenient “Election” was not used in the act.
transactions
Viceroy - to make ordinance during
emergency without Legislative
concurrence. ( lifetime = 6 month)

9. GOI 1909 (Lord Morley - Secretary of State ; 10. GOI 1919 (Montagu - SoS, Chelmsford -
Lord Minto - Viceroy) Viceroy)

-​ Increased strength of Legis council -​ 1st time objective of = Gradual Intro of

(Center from 16 to 60 + Provinces no Responsible Govt was declared
uniform strength) a.​ Dyarchy in provinces was introduced
-​ Center - Majority of official members was -​ Relax Center control over provinces
retained -​ Separated subjects of control between
-​ Provinces - Mjority of Non Official Center and Provinces , but structure was
Members was retained mainly centralized & unitary
-​ Widened legislative functions Eg -​ In Provinces subjects were divided into -
Supplementary Questions and resolutions Transferred & Reserved (Dyarchy)
could be brought on budget b.​ 1st time Bicameralism (Upper house aka
-​ 1st time included Indians in exe council, Council of states & Lower House aka
 Satyendra Prasad Sinha (Law Member ) Legislative Assembly)
-​ Communal Representation for Muslims -​ 1st time Direct elections were introduced (
was introduced - which Legalised Limited franchise based on Tax, property
Communalism education)
-​ Lord Minto - Father of Communalism -​ 3/6 in Viceroy’s Executive Council to be
-​ Provided Separate Representation for - Indians (excluding Commander in chief)
University, zamindar, presidency -​ Communal Representation was increased
corporations, chamber of commerce to - Sikh, Indian Christian, Anglo Indian,
Europeans
-​ Office of High.Commissioner of India
was established in London - some SoS
functions were to him
-​ Est of Public Service Commission in 1926
-​ Separate - Provincial & Center budget -
Provinces can now enact their own budget
-​ Appointment of Statutory Commission to
enquire the progess (after 10 years) which
was “Simon Commission”

11. GOI 1935 12. Indian Independence Act 1947

-​ 2nd milestone - towards responsible -​ June 3 1947 - British said constitution will
government not apply on those who are not willing to
-​ Provided for All India Federation (of accept it
Provinces + Princely states) ; but it never -​ Same day - Lord Mountbatten -
came into being because Princely states announced Partition Plan/ Mountbatten
didn’t join it. Plan (Accepted by Congress and Muslim
-​ Divided powers into 3 lists 59 Center > 54 League)
states > 36 Concurrent -​ Ended British Rule and declared India as
-​ Residuary powers were given to Viceroy Independent Sovereign Nation from 15
or GG August, 1947
-​ Abolished Dyarchy at Provinces and gave -​ Provide partition + 2 independent
 them Autonomy & function as dominions (India & Pakistan) with right to
autonomous units cede from commonwealth.
-​ Responsible govt was introduced in -​ Abolish viceroy office and Governor
provinces (1937 -1939) General for each dominion was to be
-​ Dyarchy was established at Center and appointed by British king on cabinet
subjects were divided into reserved and advice + British Govt was not responsible
transferred (didn’t get operationalised) w.r.t Govt of India or Govt of Pakistan
-​ Introduced Bicameralism @ 6/11 -​ Empower constituent assembly to frame
provinces (Bengal, Bombay, madras, const + abolish any act of British
Bihar, Assam, United provinces). But Parliament made for India including this
with many restrictions Independence Act
-​ Separate electorate which extended -​ All act of British Parliament from 15
communal representation for - SC, august to apply in India & Pakistan after
Women, Labour passed by legislature of that dominion
-​ Abolish SOS’s Council of India 1858, -​ Abolish SoS office - established SoS for
gave SoS a team of Advisors commonwealth
-​ Extended franchise - 10% of Total -​ Brought Lapse of B.Paramountancy with
Population Princely States + tribal areas from (15
-​ Est RBI - to control currency & credit Aug,1947)
-​ Est FPSC, PPSC, JPSC -​ Princely States - were given choice to join
-​ Est Federal Court - 1937 any of the dominion or be independent
-​ Governance till new constitution was to
be done under GOI 1935 but Legislature
of dominion can modify it
-​ British Monarch will have no power w.r.t
any Bill, but Governor General will have
full power to assent any bill in the name
of his majesty
-​ Governor General, Provincial Governor -
were Nominal/constitutional head - and
had to act on advice of CoM in all
matters
-​ emperor of india title was dropped from
 King of England
-​ No civil services appointment /
reservation by SoS, one’s appointed prior
to 15 Aug 1947 - same benefits
-​ Lord Mountbatten - 1st Governor General
-​ He swore J.Nehru as 1st PM of
independent India
-​ Constituent Assembly 1946 - 1st
Parliament of the Indian Dominion.
 Chapter 2
HISTORICAL UNDERPINNINGS
1922 – Mahatma Gandhi Demanded – India’s Political freedom
1928 – Nehru Report
1934 – Idea - M.N ROY (Founder of CPI)
1935 – INC demanded for it
1938 – Nehru Officially declare “Const should be framed, without outside interference by a Const.
Assembly elected on basis of ADULT FRANCHISE”
1940 – August Offer [Demand Accepted]
1942 – Cripps Mission [Draft proposal to frame const. which was to be adopted after WW-2] -> rejected
by Muslim League due to their demand of 2 separate const. assemblies
1946 – 24 March Cabinet Mission ( reject idea of 2 C.A’s ) but satisfied Muslim League
July – August - elections for Constituent Assembly
November - C.Assembly formed
9 December - 1st meeting , Temporary President -Dr Sachidanand Sinha
​ 11 December - President Dr Rajendra Prasad
13 December - Objectives Resolution by J.L Nehru
1947 – 22 January - Objectives Resolution Unanimously adopted
3 June - MOUNTBATTEN PLAN for Partition + Princely States joined
18 July - Indian Independence Act [ Legal Shape to Mountbatten Plan ]
22 July - Adopted National Flag
15 August - Got Independence
29th August - Set up Drafting Committee [ B.R Ambedkar Chairman ]
1948 – February - 1st Draft of the Const.
October - 2nd Draft of Const.
November - 3rd Final Draft of Const. (1st Reading + general discussion for 5 days )
November 15th - 2nd reading [ till oct 17 1949 ]
1949 – May - Ratified Membership of Commonwealth
October - 2nd reading ended
November - 3rd reading till 26th [ motion was passed ]
1950 – Jan 24 - National Song + National Anthem + Final Session of C.Assembly
Jan 26 - Constitution Came into Force , because in 1930 Poorna Swaraj Day was. celebrated
following Lahore Session Of INC in 1929
Constituent Assembly continued as PROVISIONAL PARLIAMENT OF INDIA till the formation of new
Parliament after 1951-52 General Elections.
With commencement of Const. Indian Independence Act and G.O.I 1935 repealed, only ABOLITION OF
PRIVY COUNCIL JURISDICTION ACT 1949 was continued.

Famous Committees
1.​ Union Powers Committee – Jawaharlal Nehru
2.​ Union Constitution Committee – Jawaharlal Nehru
3.​ Provincial Constitution Committee – Sardar Patel
4.​ Drafting Committee – Dr. B.R. Ambedkar
5.​ Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar
Patel. This committee had the following five sub-committees:
​ (a) Fundamental Rights Sub-Committee – J.B. Kripalani
​ (b) Minorities Sub-Committee – H.C. Mukherjee
​ (c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas ​​
Sub-Committee – Gopinath Bardoloi
​ (d) Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee – A.V.
Thakkar
​ (e) North-West Frontier Tribal Areas Sub-Committee8a
6.​ Rules of Procedure Committee – Dr. Rajendra Prasad
7.​ States Committee (Committee for Negotiating with States) – Jawaharlal Nehru
8.​ Steering Committee – Dr. Rajendra Prasad
9.​ Elephant Symbol of Constituent Assembly

CONSTITUENT ASSEMBLY
1.​ Constituted on Nov 1946, Acc. To Cabinet Mission Plan -> 389 Total seats {296 B.Indian States
+ 93 Princely States}
2.​ Allocation of Seats - acc. To 1 is to 10 lakh ratio
3.​ British Provinces – seats divided among – among 3 – (Muslim, Sikh, General) in proportion of
their population
4.​ Members were Elected by- Members of that Community in Provincial Legislative Assembly by
Proportional representation by means of single transferable vote.
5.​ Princely State’s Members – Nominated by head of Princely States
6.​ Hence Constituent Assembly wax *partly Elected + partly Nominated
7.​ Provinces- Indirectly elected by Members who themselves were elected on Limited Franchise
8.​ But when elected- constituent assembly Widely represented all sections Sc’s ST’s women + all
communities , except Gandhi ji
9.​ Temporary President – Oldest Member following French Practise was Dr. Sachidanand Sinha
 Chapter 3 (Salient Features)
Presently (Originally) - 465 (395) Articles, 25 (22) parts, 12 (8) Schedules
Q) Why the lengthiest written constitution ?
-​ Geographical Vastness, Diversity
-​ His - GOI 1935
-​ Single constitution for center + states
-​ Legal persons dominance
-​ Detailed Principles of governance + administrative provisions

Q) Sources
Dr. B.R. Ambedkar: Constitution of India has been framed after ‘ransacking all the known Constitutions
of the World'.
Structural - GOI 1935 (Federal scheme, Judiciary, Governor, emergency, pub service Comm, adm
details. (More than half identical to GOI 1935)
Philosophical - FR (US) & DPSP (Irish)
Political - Cabinet Form + Relation of Exe & Legis - Britain

1.​ Government of India Act of 1935 Federal Scheme, Office of governor, Judiciary,
Public Service Commissions, Emergency
provisions and administrative details.

2.​ British Constitution Parliamentary government, Rule of Law,

legislative procedure, single citizenship, cabinet
system, prerogative writs, parliamentary privileges
and bicameralism.

3.​ US Constitution Fundamental rights, independence of judiciary,

judicial review, impeachment of the president,
removal of Supreme Court and high court judges
and post of vice- president.

4.​ Irish Constitution Directive Principles of State Policy, nomination of

members to Rajya Sabha and method of election
of president.
 5.​ Canadian Constitution Federation with a strong Centre, vesting of
residuary powers in the Centre, appointment of
state governors by the Centre, and advisory
jurisdiction of the Supreme Court.

6.​ Australian Constitution Concurrent List, freedom of trade, commerce and

inter- course, and joint sitting of the two Houses
of Parliament.

7.​ Weimar Constitution of Germany Suspension of Fundamental Rights during

Emergency.

8.​ Soviet Constitution Fundamental duties and the ideal of justice (social,
economic and political) in the Preamble.

9.​ French Constitution Republic and the ideals of liberty, equality and
fraternity in the Preamble.

10.​ South African Constitution Procedure for amendment of the Constitution and
election of members of Rajya Sabha.

11.​ Japanese Constitution Procedure established by Law.

Q) Why a Federal System with a Unitary Bias ?

Federal System Non-Federal Features

2 Governments (@Center & State Level) Strong Center

Division of Powers (Exe, Judiciary, Legis) - Appointment of State Governor by Center

All India Services
Article 50
Emergency Provisions.

Bicameralism Single Citizenship

Written constitution Single Constitution

Supremacy of Constitution
 Rigidity of constitution Flexibility of Constitution

Independent Judiciary Integrated Judiciary

So, Federal in form but Unitary in Spirit = As K.C Wheare said, Quasi Federal.

Universal Adult Franchise

Every citizen who is not less than 18 years of age has a right to vote without any discrimination of caste,
race, religion, sex, literacy, wealth and so on.
Originally - 21 years. Vs 61st Constitution Amendment, 1988 - 18 years.

Schedules
1.​ Name of State & UT’s + Territory
2.​ Emolument + Allowance + Privileges (Prezi , Governor, Presiding officers of Union & state,
Judge of SC & HC, CAG)
3.​ Oaths (Candidates for election to Union & State Legislature, MP’s & MLA’s, Union & State
Ministers, Judges of SC & HC, CAG)
4.​ Allocation of Seats in Rajya Sabha
5.​ Provisions related to of Scheduled Areas and Scheduled Tribes (Art 244)
6.​ Administration of Tribal Areas Assam, Meghalaya, Tripura, Mizoram(Art 244, 275)
7.​ Union, state, concurrent lists (Art 246)
8.​ Languages in 8th schedule (Bodo, Dogri, Kashmiri, Konkani, Maithili, Manipuri, Nepali, Odia,
Santhali, Urdu, Sanskrit) (Art 344, 351) **English is not there.
a.​ 71st CAA 1992 – Konkani, Manipuri ,Nepali.
b.​ 92nd CAA 2003– Bodo, Dongri, Mythili, Santhali.
c.​ 96th CAA 2011 – Odia.
9.​ Protect act & regulation form Judicial Review (Art. 31B)
10.​ Disqualification on basis of Defection (Art 102, 191) added via 52nd Amendment, 1985 aka Anti
Defection Law.
11.​ Panchayats (Art 243-G) - 73rd Amendment
12.​ Municipalities (Art 243-W) - 74th Amendment
Q) Parts 9B - Cooperatives - 97th CAA 2011, (243ZH - 243ZT)
Q) Special provisions for some states - part 21

Chapter 8
Directive Principles of State Policy
Part IV ; Article 36-51
Borrowed from - Irish Constitution
Resemble - Instruments of Instruction, (GOI Act 1935)

Features of DPSP
1.​ They are Ideals & constitutional Instructions/Recommendations to Legislative, Executive and
Administrative authorities while formulating and implementing policies.
2.​ They aim to ensure the concept of “Welfare State”.
3.​ They Aim at realising the Ideals enshrined in preamble (Justice, Liberty, Equality, Fraternity,
Socialist) etc
4.​ They are Non-Justiciable (ie Not legally enforceable) by courts of Law but they are fundamental
in the governance of the country and it shall be the duty of the state to implement them (Article
37)
5.​ They help the court in examining the constitutional validity of a law.

Classification (Not mentioned in the Constitution)

Socialistic Gandhian Liberal Intellectual

Article 38 Article 40 Article 44

Ensure Social Economic & Organise village panchayats and Uniform civil code
Political Justice + Minimise endow them with powers for self
inequalities of Income, status, government.
facilities & opportunities.

Article 39 Article 43 Article 45

Right to adequate means of Promote cottage industry on Early Childhood care and
Livelihood + Equitable co-operation or Individual basis Education until age of 6 years
Distribution of material in rural areas.
resources + Prevention of
concentration of wealth + Equal
pay for Equal work + Protect
health of the workers &
Childern against abuse + healthy
development of children.
Article 39A Article 43B Article 48
Promote equal Justice & Free Promote formation & Organise Agriculture and animal
legal aid to poor. Autonomous functioning of husbandry on scientific lines
Co-operative societies.

Article 41 Article 46 Article 48A

Ensure Right to work, education Promote educational & Protect Environment, safeguard
& Public assistance in case of economic interests of SC/ST and forest forests and wildlife
old age, sickness and other weaker section to protect
disablement. them from social injustice &
exploitation.

Article 42 Article 47 Article 49

Ensure just and humane Prohibit Intoxicants and drugs Protect Monuments/ places of
conditions at work. consumption. historic interest & national
importance

Article 43 Article 48 Article 50

Secure a living wage & decent Prohibit slaughter of Separate Judiciary from
standard of life, socio-cultural cows/calves & other executive in Public services of
opportunities for workers. milch/fraught cattle to improve the state.
their breed.

Article 43A Article 51

Ensure workers participation in Promote International peace &
management of industry. security + have just &
honourable relations + respect
international law & treaties +
promote dispute settlement via
Arbitration.

Article 47
Raise level of Nutrition and
standard of living to
improvePublic health.

DPSP added via Amendments Directives outside Part IV

42nd Amendment, 1976 Article 335, Part XVI

a.​ Article 39 Consider claims of SC/ST into appointment to
b.​ Article 39A services & posts consistently while maintaining
c.​ Article 43A efficiency in administration.
d.​ Article 48A

44th Amendment, 1978 Article 350A, Part XVII

a.​ Article 38 Facilities for providing instructions in mother
younger at primary stage to children belonging to
Linguistic minority groups.
 86th Amendment, 2002 Article 351, Part XVII
a.​ Article 43B Development of Hindi as a language, expressing
elements of composite culture of India.

Q) Difference between DPSP and Fundamental Rights ?

DPSP Fundamental Rights

Ensure Social & Economic democracy Ensure Political Democracy

They are positive (Enable state to take steps) Negative (prohibit state from taking actions
against the interest of individuals)

Ensure welfare of Community Ensure welfare of Individual

Non Justiciable Justiciable

Have Moral & Political sanctions Have Legal sanctions

Need a legislation to get enforced Automatically enforceable (no legislation required

to enforce them)

Courts cannot declare any law unconstitutional if Courts can declare any law unconstitutional if it is
it is violative of DPSL but they can uphold the violative of fundamental rights
validity of any law, if it gives effect to any DPSP

Minerva Mills Case, 1980

-​ Accepted Fundamental Rights under Article 14 & 19 are subordinate to DPSP under Article
39(b)Equal distribution of material resources & (c ) prevent concentration of wealth
-​ Indian Constitution is based on the bedrock of the balance between Fundamental Rights and
DPSP.

Examples of Laws for Implementation of DPSP :-

1.​ Establishment of Planning Commission & NITI Aayog
2.​ Land Reform laws
3.​ Minimum Wages Act and Labour related laws.
4.​ Maternity benefit act 1961, Equal Remuneration Act 1976
5.​ Nationalisation of all kinds (Eg Insurance companies, banks etc)
6.​ Legal Services Authority act, 1987
7.​ Boards like (Handicraft, Khadi & Village Industries board)
8.​ Environmental laws (WPA, EPA, FCA)
9.​ Panchayati Raj System
10.​ Reservation for Weaker sections
11.​ National Level Commissions (SC,ST,BC)
 12.​ Policy of Non Alignment
13.​ CrPC, 1973 (Separated Executive & Judiciary)
14.​ Primary Health care centers and Initiatives for TB, Malaria
15.​ Ancient & Historical Monument Archeological Sites and Remains Act, 1981
Chapter 9
FUNDAMENTAL DUTIES
Part IVA ; Article 51A
Source : USSR
On Recommendation of Sardar Swaran Singh Committee (1976) who recommended 8 F.Duties —
42nd CAA 1976 included 10 F.Duties in constitution — Original Constitution didn’t incorporate F.Duties

Recommendations of Swaraj Singh Committee that were not incorporated

a.​ Duty to pay taxes
b.​ Punishment for non-compliance to duties
c.​ Law imposing such punishment outside Judicial Review

Features
1.​ They are moral & civic duties.
2.​ Reflection of Indian way of Life (Traditions, mythologies, religions, practice).
3.​ Apply only to citizens and to Foreigners.
4.​ They are non-justiciable but Parliament can enforce them by suitable legislation.

Significance
1.​ They help the courts in examining the constitutional validity of laws.
a.​ S.C said - If any law is against Article 14 & 19 and it is brought to give effect to any
fundamental duty, it will not be declared void.

Fundamental Duties
1.​ To abide by constitution, respect its ideals and institutions (National Flag & Anthem)
2.​ To cherish and follow the noble ideals of freedom struggle
3.​ To uphold and protect sovereignty, unity and integrity
4.​ To defend the nation & render national service
5.​ To promote spirit of harmony & renounce practices derogatory to the dignity of women
6.​ To value and preserve the rich heritage
 7.​ To protect natural environment & have compassion for living creatures
8.​ To develop scientific temper, humanism, spirit of enquiry.
9.​ Safeguard public property & abjure violence
10.​ Strive for excellence in all spheres of individual and collective activity
11.​ Providing opportunities for education of children in the age group 6-14 years (86th CAA 2002)

Verma Committee, 1999 — To identify the legal provisions for the implementation of F.Duties. Eg
1.​ Prevention of Insults to National Honour Act, 1971
2.​ Laws providing punishment for promoting enormity & hatred
3.​ IPC ; UAPA, 1967
4.​ Representation of People’s Act, 1951
5.​ WPA, 1972 & FCA, 1980
6.​ Protection of Civil Rights Act, 1955
 Chapter 10
Amendment of The Constitution
Part XX ; Article 368
Source - South Africa

Procedure under 368

Introduction of bill in EITHER House of Parliament — can be a Government or Private member bill (no
prior presidential recommendation required) — Passage by Special majority in each House ie ⅔ of the
members present & voting + Majority of the total membership of the house — each house should pass it
separately — no provision of joint sitting in case of disagreement — if bill involves Federal provisions (it
needs to be ratified by half of the state legislatures as well by Simple Majority — President Must give the
assent (24th Amendment, 1971)

Types of Amendment

By Simple Majority By Special Majority By Special Majority +

Ratification of half of the
states

Admission/Establishment/Forma Fundamental Rights Election of President

tion of new states (Article 2&3)

Abolition & Creation of DPSP Executive powers of Union &

Legislative Councils States

2nd ; 5th ; 6th Schedule All others (Not included under Supreme courts & High Courts
Simple & Special majority with
Ratification of Half of States)

Quorum in Parliament 7th Schedule

Citizenship Acquisition & Representation of States in

Termination Parliament

Delimitation of Constituencies Article 368 (Itself)

Elections to Parliament and

 State Legislature

Thumb rule = where no

Center-state relations are
involved

Kesavananda Bharati Case, 1973 - Parliament cannot amend those provisions which form the Basic
Structure of the Constitution.

Chapter 11
Basic Structure
Evolution with cases:

Shankari ●​ Questioning whether fundamental rights can be amended under Article 368.
Prasad case ●​ Questioned the constitutional validity of the First amendment act that curtailed the right to
(1951) property.
●​ SC said that Parliament can amend the Fundamental rights under article 368.

Effect:
laws under Article 13 are ordinary laws & hence can be taken away by Parliament by
amendment.

Golak Nath ●​ Questioned the constitutional validity of putting some state laws under Schedule 9 of the
Case (1967) constitution (by 7th Amendment Act).
●​ Any law put under Schedule 9 is not available for Judicial Review.
●​ SC ruled that- Fundamental Rights are given a transcendental and immutable position
and hence the Parliament cannot abridge or take away any of these rights
●​ The constitutional amendment is also law under Article 13 & hence can’t take away the
fundamental rights.

Kesavananda
Bharati case ●​ SC Overruled its judgment in the Golak Nath case (1967).
●​ SC Upheld the validity of 24th Amendment Act ( 1971)
●​ SC Stated that Parliament is empowered to abridge or take away any of the FR.
●​ SC laid down a new doctrine of the basic structure (basic features) of the Constitution
●​ SC Ruled that the constituent power of Parliament under Art. 368 does not enable it to
alter the ‘basic structure’ of the Constitution.
 ●​ Parliament cannot abridge or take away a Fundamental Right that forms a part of the
‘basic structure’ of the Constitution.

Effect:
➢​ It has set specific limits to the Parliament’s power to amend the Constitution.
➢​ It allows the Parliament to amend any and all parts of the Constitution subject
to basic structure.
➢​ It places the Judiciary as the final authority in deciding if an amendment
violates basic structure and what constitutes the basic structure.

42nd CAA ●​ Amended Art. 368 – no limitation on the constituent power of Parliament..
1976 ●​ Any amendment cannot be questioned in any court on any ground.

Minerva mills
case (1980) ●​ The 42nd Constitutional Amendment Act, 1976 was declared invalid.
●​ Ruled that the limited amending power of parliament is part of basic structure.
●​ Parliament cannot expand its amending power under article 368 into unlimited.

Effect:
➢​ The judgment makes clear that the Constitution is supreme not the Parliament.
➢​ Court added two features to the list of Basic Structure features. They were:
judicial review and balance between Fundamental Rights and DPSP.

Waman Rao SC clarified that doctrine would be applicable to constitutional amendments enacted after
case (1981) April 24, 1973 (Kesavananda Bharati case) (Including 9th schedule).

Indra ●​ Examined the scope and extent of Article 16(4), which provides for the reservation of jobs
Sawhney case in favor of backward classes.
(1992) ●​ It upheld the constitutional validity of 27% reservation for the OBCs with certain
conditions (like creamy layer exclusion, no reservation in promotion, total reserved quota
should not exceed 50%, etc.)
●​ Here, ‘Rule of Law’ was added to the list of basic features of the constitution.

S.R. Bommai ●​ SC tried to curb the misuse of Article 356 (regarding the imposition of President’s Rule on
case (1994) states).
●​ There was no question of the constitutional amendment but the concept of basic doctrine
was applied.
●​ The Supreme Court held that policies of a state government directed against an element of
the basic structure of the Constitution would be a valid ground for the exercise of the
central power under Article 356.

COMPONENTS/ELEMENTS – FROM JUDICIAL PRONOUNCEMENTS

Kesavananda Chief Justice Sikri:
Bharati case ➢​ Supremacy of the Constitution
➢​ Republican and democratic form of government
➢​ Secular character of the Constitution
➢​ Separation of powers between the legislature, executive and the judiciary
➢​ Federal character of the Constitution.

Justices Shelat and Grover:

➢​ The mandate to build a welfare state contained in the Directive Principles of State
Policy.
➢​ Unity and integrity of the nation.
➢​ Sovereignty of the country.

Justices Hegde and Mukherjea :

➢​ Democratic character of the polity
➢​ Unity of the country
➢​ Essential features of the individual freedoms secured to the citizens
➢​ Mandate to build a welfare state Unity and integrity of the nation

Justice Jaganmohan Reddy:

➢​ Equality of status and the opportunity
➢​ Sovereign democratic republic
➢​ Justice – social, economic and political
➢​ Liberty of thought, expression, belief, faith and worship

Indira Nehru Justice H.R. Khanna:

Gandhi v. Raj ➢​ Democracy is a basic feature of the Constitution and includes free and fair elections.
Narain, 1975:
Justice K.K. Thomas :
➢​ Power of judicial review is an essential feature.

Justice Y.V. Chandrachud:

➢​ Sovereign democratic republic status
➢​ Equality of status and opportunity of an individual
➢​ Secularism and freedom of conscience and religion
➢​ Government of laws and not of men i.e. the rule of law

Nachane, The doctrine of equality enshrined in Art.14 of the Constitution, which is the basis of the
Ashwini Rule of Law, is the basic feature of the Constitution.
Shivram v.
State of
Maharashtra,
1998:

Raghunath
Rao v. Union of The unity and integrity of the nation and Parliamentary system.
India case,
1993:
Bommai case. Secularism and “Democracy and Federalism are essential features of our Constitution and
1994 are part of its basic structure.”

Kihoto Democracy is a part of the basic structure of our Constitution, and rule of law; and free and
hollohan Vs. fair elections are basic features of democracy.
Zachillhu, 1992

Chandra Chief Justice Sikri:

Kumar v. ➢​ The supremacy of the constitution.
Union of India ➢​ A republican and democratic form of government.
(1997) ➢​ The secular character of the Constitution.
➢​ Maintenance of the separation of powers.
➢​ The federal character of the Constitution.

Justices Shelat and Grover:

➢​ Maintenance of the unity and integrity of India.
➢​ The sovereignty of India.
➢​ The democratic character of the polity.
➢​ The unity of the countr y.
➢​ Essential features of individual freedoms.
➢​ The mandate to build a welfare state.

SIGNIFICANCE & ARGUMENTS IN FAVOUR OF BASIC STRUCTURE

1.​ The Basic Structure doctrine is one of the biggest contributions of Indian Judiciary to the theory
of constitutionalism.
2.​ It acts as a limitation upon the constituent power and has helped in arresting the forces which may
destabilize the democracy.
3.​ Helps in maintaining the supremacy of the Constitution
4.​ It saved Indian democracy from degenerating into an authoritarian regime.
5.​ It helps to retain the basic ideals envisioned by founding fathers.
6.​ By restraining the amending powers of the legislative organ of State, it provided basic Rights to
Citizens which no organ of State can overrule.
7.​ It has also given immense untold unbridled power to the Supreme Court and made it the most
powerful court in the world.