Constitution of India

Prudential Education
Siddharth S Jain
Chapter 1: Constitution of India

Learning agenda:
Broad Framework of the Constitution
Preamble
Structure
Fundamental Rights
Concept of State
Justifiability of Fundamental Rights (Doctrines)
All 6 Fundamental Rights: Explanation
Directive Principles of State Policy
Fundamental Duties
Ordinance Making Powers of President of India
Legislative Powers of the Union and the States
Power of Parliament to make Laws on State
Lists
Freedom of Trade. Commerce and Intercourse
Constitutional Provisions relating to State
Monopoly
The Judiciary
Writ Jurisdiction of High Courts and Supreme Court
Types of Writs
Delegated Legislation
OBJECTIVE QUESTIONS
Broad framework of the Constitution of India

- The Constitution of India came into force on January 26, 1950.
- It is a comprehensive document containing 395 Articles (divided into 22 Parts) and 12 Schedules.
- The Constitution makes detailed provisions for the rights of citizens and the principles to be followed by the State
(Directive Principles of State Policy
- All public authorities - legislative, administrative and judicial derive their powers directly or indirectly from it
- The Constitution derives its authority from the people.
- Shri B.R. Ambedkar is called the sculptor of the Indian Constitution
Industrial, Labour & General Laws
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Preamble
WE, THE PEOPLE OF INDIA,

having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political; LIBERTY of thought, expression, belief,
faith and worship; EQUALITY of status and of opportunity; and to promote
among them all FRATERNITY assuring the dignity of the individual and the unity
and integrity of the Nation;
(The word SOCIALIST was added by the ________ Amendment.)
Structure
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The issue of Federal vs. Unitary

Federal
Unitary
in a federal government, the power is divided between

national (federal) government and local (state)
governments.
Distributes power from the national government to local
governments in order to adopt their own laws
Allocates strong power to units of local government
within a country.
-A government with strong central powers
-Allows much authority
-Goes along with a multi national state
-Power is diffused
-Gives more power to local territories/ provinces to make
rules/laws
-The U.S.A. have a federal government
In a unitary government the power is held by one central

authority
A very strong national government dominates local
government decisions.
Places most power in the hands of central government
officials.
-Government system
-Central government possesses most of the authority
-Uniformly applied
-Tends to be dictatorship/totalitarianism
-France is a unitary government but is democratic
-Power is centrally concentrated
-Little to no provincial authority
-Major decisions are made by the central government
-Tends to go along with nation-state
-A unitary state is a country whose three organs of state
are governed as one single unit.
-In a unitary state, any sub-governmental units can be
created or abolished, and have their powers varied, by
the central government.
-A unitary state can broaden and narrow the functions of
such devolved governments without formal agreement
from the affected bodies.
- Peoples Republic of China, UAE, have unitary form of
government
Constitution of India is basically Federal but with some Unitary features

The political system introduced by our Constitution possesses all the aforesaid essentials of a federal polity as follows:
(a) In India there are Governments at different levels like Union and States.
(b) Powers to make laws have been suitably distributed among them by way of various lists as per the seventh
schedule.
(c) Both union and states have to follow the constitutional provisions when they make laws
(d) The judiciary is independent with regard to judicial matters and it can test the validity of law independently. The
Supreme Court decides the disputes between the Union and the States or the States inter se.
(e) The Constitution is supreme and if it is to be amended it is possible only by following the procedure explained in
Article 368 of the Constitution itself.
From the above it is clear that the Indian Constitution basically has federal features. But the Indian Constitution does not
establish two coordinate independent Governments. Both the Governments coordinate co-operates and collaborates in
each others efforts to achieve the ideals laid down in the preamble.
However, even our constitution has federal features, in times of need, it becomes unitary i.e. union has more powers
than the state under the following circumstances:
1. The union lists 97th entry has been left blank (residuary entry); and on this only parliament can make law.
2. Under state list, only state can pass law but Article 246 permits the parliament to pass law on state list matters under
5 circumstances:
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- National Interest
- Emergency
- Dispute between 2 or more states
- To give effect to an international agreement
- Breakdown of constitutional machinery in a state
3. Under concurrent list, if any law is passed on a particular matter by union as well as state and if there is an
inconsistency between two laws then the union law shall prevail over the state law.
4. In India we have a single citizenship concept, unlike in the USA where there is a concept of dual citizenship.
Fundamental Rights
A man, by birth, has certain rights which are universal and inalienable i.e. he cannot be deprived of them. It is the
function of the State to recognize them and allow them of free play so that human liberty is preserved, human
personality is developed and an effective cultured, social and democratic life is preserved.
The aforesaid rights are recognized in the form of Fundamental Rights in part III of the Constitution of India as follows:
Right
Articles containing
Article 31 provided for_______________________________________________________________________________________

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Concept of State
The term state is defined in Article 12 of Constitution of India. As per this, unless the context otherwise provides, the
term state includes:
1. The Government & Parliament of India
2. The Government and Legislature of each state
3. All Local or other authorities:
- Within the territory of India
- Under the control of Government of India
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The expression local authority includes the following:

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The expression other authority includes the following:
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The expression under the control of Government of India includes the following:
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Case Laws to remember
Justifiability/Amendability of Fundamental Rights

Article 13 of Constitution of India invalidates any pre or post constitutional law which is against the fundamental rights. It
also restricts the amendability of Fundamental Rights.
The question, whether a Fundamental Right can be amended or taken away has been examined in various cases was
finally settled in Golaknath case. In this case it was held that fundamental rights could neither be abridged nor taken
away nor amended by the law (Law includes a constitutional amendment). Thus, the fundamental rights cant be
affected even by constitutional amendment.
The aforesaid decision was set aside by _______________________________________________________________________
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Further, the aforesaid provisions of Article 13(4) were challenged in the case of Keshawanand Bharati v. State of
Kerela, where Honble Supreme Court has dismissed the petition and upheld the validity of Article 13(4) and held that
fundamental rights can be affected by a constitutional amendment but the basic structure of constitution cannot
be amended.
Article 13 came up for judicial review number of times and the courts hence evolved doctrines (principles).
Doctrine of
Severability
Doctrine of Severability states that when a part of the statute is declared unconstitutional, then
the unconstitutional part is to be removed and the remaining valid portion will continue to valid.
The idea is to retain the Act or legislation in force by discarding / deleting only the void portion
and retaining the rest.
(Principle of
seperability of
part of a law)
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid.
It is not dead totally but overshadowed by the fundamental right. The inconsistency (conflict)
can be removed by constitutional amendment to the relevant fundamental right so that eclipse
vanishes and the entire law becomes valid.
Doctrine of
Eclipse
(Principle of
detachability of
part of a law)
Doctrine of Waiver says that Fundamental Rights are not absolute and are subject to certain
reasonable restrictions and hence an individual cannot chose to get his fundamental rights
waived, relinquished or abandoned.
Doctrine of
Waiver of
Rights
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Fundamental Rights: A Birds eye view

Right to Equality
Article 14: Equality before law

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Article 16: Equality of opportunity in matters of public employment
Article 17: Abolition of Untouchability
Article 18: Abolition of titles
Right to Freedom
Article 19: Protection of certain rights regarding freedom of speech, etc.

Article 20: Protection in respect of conviction for offences
Article 21: Protection of life and personal liberty
Article 21A: Right to education
Article 22: Protection against arrest and detention in certain cases
Right against Exploitation
Article 23: Prohibition of traffic in human beings and forced labor

Article 24: Prohibition of employment of children in factories, etc.
Right to Freedom of Religion
Article 25: Freedom of conscience and free profession, practice and propagation of religion
Article 26: Freedom to manage religious affairs
Article 27: Freedom as to payment of taxes for promotion of any particular religion
Article 28: Freedom as to attendance at religious worship in certain educational institutions
Cultural and Educational Rights
Article 29: Protection of interests of minorities

Article 30: Right of minorities to establish and administer educational institutions
Article 31: [Repealed.]
Right to Constitutional Remedies
Article 32: Remedies for enforcement of rights conferred by this Part

Article 32A: [Repealed.]
Article 33: Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.
Article 34: Restriction on rights conferred by this Part while martial law is in force in any area
Article 35: Legislation to give effect to the provisions of this Part
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Right to Equality
Right to equality is one of the basic fundamental human rights afforded by the Constitution of India.
Equality before the Law
Article 14 of CoI provides:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of
India.
The expression equality before law is a negative concept and it applies the absence of any special privilege in favor of
any individual, whatever be his rank or status, and the equal subjection of all classes to ordinary law.
The expression equal protection of the laws is a positive concept and it implies equality of treatment in equal
circumstances. In other words, same law should be applicable among equals. Now, in order to make sense of right to
equal treatment in similar circumstances, the law shall have to make a classification between persons who are equally
situated. Thus if there is a reasonable basis of clarification, the legislature would be entitled to treat different classes
differently.
In Ramkishan Dalmiya v. Justice Tendulkar Honble SC has summarized the rules w.r.t permissible classifications as
follows:
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It may be noted that, Article 14 applies to any person and is not limited to citizens alone. Thus, a corporation, which is
only an artificial person, but not a citizen, is also entitled to the benefit of this article.
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Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15 provides that The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State
funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children and the state
shall be vested with powers to make special provisions for Schedule Castes and Schedule Tribes.
Equality of opportunity in matters of public employment
Article 16 provides for equal opportunities for all citizens in matter of appointment to any office under the State. The
aforesaid rule shall be subject to following exceptions:
1. The Parliament can make any law prescribing any requirement as to resident in a state in respect of any particular
class or classes of employment in that state.
2. The state can make provisions for the reservation of post in favor of any backward class of citizens.
3. Offices connected with religious institutions may be reserved for the persons of a particular religion.
Abolition of Untouchability
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Abolition of Titles
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Right to Freedom
As per Artcle 19, All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions or co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(g) to practise any profession, or to carry on any occupation, trade or business.
It may be noted that aforesaid rights are not absolute and hence reasonable restrictions may be imposed on them.
Right to Freedom of Speech & Expression
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Maneka Gandhi v. Union of India
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Bijoe Emmanuel v. State of Kerela
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Narmada Bachao Andolan v. Union of India
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Permissible Restrictions:
1. ___________________________________________________ 5. ___________________________________________________
2. ___________________________________________________ 6. ___________________________________________________
3. ___________________________________________________ 7. ___________________________________________________
4. ___________________________________________________ 8. ___________________________________________________
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Right to assemble peacefully & without arms

It is the right to citizens to assemble peacefully and without arms. However reasonable restrictions may be imposed for:
1. ___________________________________________________
2. ___________________________________________________
Right to form association & union
Right to form associations and unions is guaranteed so that the people can form a group of people having similar views.
Also, no one can be compelled to be a member of an association; and reasonable restrictions may be imposed for:
1. ___________________________________________________
2. ___________________________________________________
3. ___________________________________________________
Right to move freely throughout the territory of India
Right to freely move is confined only to territory of India and cannot be extended to travel abroad. This right is also
subject to some reasonable restrictions, which may be imposed:
1. ___________________________________________________
2. ___________________________________________________
Right to reside and settle in any part of the territory of India
The right to freedom of residence is intended to remove internal barriers within the territory of India to enable every
citizen to travel freely and settle down in any part of state of union territory. This freedom is also subject to reasonable
restrictions, which may be imposed:
1. ___________________________________________________
2. ___________________________________________________
Right to to practise any profession, or to carry on any occupation, trade or business.
All citizens shall have right to practice any profession or to carry on any occupation trade or business. This freedom is
also subject to reasonable restrictions, which may be imposed:
1. ___________________________________________________
2. _________________________________________________________________________________________________________
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3. _________________________________________________________________________________________________________
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R.C. Cooper v. Union of India ______________________________________________________________________________
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Article 20
Article 20 guarantees to all persons, whether citizens or non-citizens, the three rights. They are as follows:
1) Protection against ex-post facto laws:
Ex-post facto laws (from a thing done afterward) are laws, which punish what had been lawful when done. If a particular
act was not an offence according to the law at the time when the person did that act, then he cannot be convicted
under a law, which, with retrospective effect, declares that act as an offence. Even the penalty for the commission of an
offence cannot be increased with retrospective effect.
Thus, the meaning of the above two provisions is that so far as criminal law creates a new offence or increases the
penalty, it shall be applicable only to those offences which are committed after its coming into force and cannot cover
those offences which have already been committed in the past.
Exceptions
i) Protection under this Article is available only for offences and their punishments under criminal law and not for any
civil liability, where retrospective laws can be passed.
ii) Article 20 prohibits the conviction under ex-post facto law only in respect of substantive law but not in respect of
procedural law, as no one has vested right in procedure. [Shiv Bhadur Singh v. State of Vindhya Pradesh]
2) Protection against double jeopardy:
No person can be prosecuted and punished for the same offence more than once, however if a person has been let off
after prosecution, without being punished, he can be prosecuted again.
3) Protection against self-incrimination:
A person accused of any offence cannot be compelled to be a witness against himself. In other words, an accused
cannot be compelled to state anything, which goes against him.
Article 21
Article 21 of the constitution confers on every person the fundamental right to life and personal liberty. It says that no
person shall be deprived of his life or personal liberty except according to the procedure established by law.
Thus Article 21 seeks to prevent encroachment upon personal liberty by the executive except in accordance with law
and in conformity with the provisions of the law. The scope, application and effect of Article 21 may be well understood
through the following important judicial decisions.
In Philips Alfred Malvin v. Y. J- Gonsalvis, it was held that right to life includes those things which make life meaningful.
For instance, the right of a couple to adopt a son. In one of the leading cases, life has been interpreted as a decent life
in a democratic society.
In A. K. Gopalan v. State of Madras, a very narrow meaning was given to the expression personal liberty confining it to
the liberty of the persons i.e., of the body of a person. It was held that only if the persons physical movement is totally
restricted, then there was need for law and procedure, otherwise his personal liberty would be restricted in any Way
without violating Article 21.
That the expression Personal liberty is not limited to bodily restraint or to confinement to prison only is well illustrated by
Kharak Singh v. State of U.P. In this case, the question raised was of the validity of the police regulation authorizing the
police to conduct what are called domiciliary visits against bad characters and to have surveillance over them. The court
held that such visits were an invasion on the part of the police, of the sanctity of a mans house and intrusion into his
personal security and his right to sleep, and therefore violates personal liberty of the individual, unless authorized by a
valid law.
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In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi, it was held that right to travel abroad is included
within the expression personal liberty and therefore, no person can be deprived of his right to travel except according to
the procedure established by law. Since a passport is essential for the enjoyment of this right, the denial of a passport
amounts to deprivation of personal liberty. The view of this case was reiterated in Menaka Gandhi v. Union of India by
the Supreme Court.
At present, personal liberty includes various other liberties like right to bail, public interest, litigation, right to free legal
aid, right to speedy trial, etc. The expression procedure established by law means procedure laid down by statute or
prescribed by the law of the State.
Article 22
Article 22 lays down certain specific safeguards against arbitrary arrest and detention. These safeguards are:
i) A person who is arrested cannot be detained in custody, unless he has been informed of the grounds for such arrest,
ii) Such person shall have the right to consult and to be defended by lawyer of his choice.
Such person must be produced before the nearest Magistrate within 24 hours of arrest, excluding the time of journey,
and
iii) Such a person shall not be detained in custody beyond 24 hours without the authority of the Magistrate.
It may be noted that aforesaid safeguards are not available to :
i) Alien enemies, and
ii) Persons messed or detained under preventive detention law. (TADA, POTA)
The object of 'preventive detention' is to detain a person with the intention of preventing him from committing an
offence. It can be done without a charge being proven. The reasons can be varied, generally it is for defence purposes,
public order and security and continuance of supply of essentials.
In order to ensure that this provision is not used illegitimately, the following safeguards have been provided > No person can be detained beyond a period of three months unless this period has been enhanced by a parliamentary
law or an advisory board of people qualified to be high court judges has seen sufficient cause in detaining him beyond
that period.
> He has been intimated the grounds of his detention.
> He was given a fair chance of presenting his defence.
RIGHT AGAINST EXPLOITATION [ARTICLES 23 & 24]
Introduction
Articles 23 and 24 guarantee certain rights to weaker sections of the society to prevent their exploitation by
unscrupulous individuals or even by the State. Article 23 imposes a complete ban on traffic in human beings and forced
labour. Article 24 prohibits employment of children in factories, etc.
Article 23
Article 23 provides that traffic in human beings and begar and other similar forms of forced labour are prohibited and
any contravention of this provision shall be an offence punishable in accordance with law
Traffic in human beings means to deal in men and women like goods such as to sell or let or otherwise dispose off
them. It includes not only slavery but also traffic in Women or the crippled for immoral or other purposes.
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Begar is a system where a person is compelled to render involuntary and free service. Even if there is payment of
wages, a person cannot be compelled to work against his will.
Article 24
Article 24 provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged
in any other hazardous employment.
Various laws like The Factories Act, 1948, The Employment of Children Act, 1938, The Child Labour (Prohibition and
Regulation) Act, 1986 are some of the legislations, which protect employment of child labour.
RIGHT TO FREEDOM OF RELIGION [ARTICLES 25 TO 281]
Article 25
It guarantees to every person freedom of conscience and the right to profess, practice and propagate any religion freely.
Article 26
It guarantees to every religious denomination the following rights:
i) The right to establish and maintain institutions for religious and charitable purposes.
ii) The right to manage its own affairs in matters of religion.
iii) Right to own and acquire movable and immovable property.
iv) Right to administer that property in accordance with law.
Article 27
It provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in
payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28
It provides that no religious instructions shall be provided in any educational institution wholly maintained out of State
funds. However, this prohibition shall not apply to any educational institution which is administered by the State but has
been established under any endowment or trust which requires that religious instructions shall be imparted in such
institution.
CULTURAL AND EDUCATIONAL RIGHTS [ARTICLES 29 & 301]
Article 29
It provides the following :
i) Any section of the citizens residing in the territory of India having distinct language, script or culture of its own shall
have the right to conserve the same, and
ii) No citizen shall be denied admission into any educational institution maintained by the State on grounds only of
religion, race, caste, language or any of them.
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Article 30
It provides the following:
i) All minorities, whether based on religion or language, shall have the right to establish and administer educational
institutions of their choice, and
ii) The State shall not, in granting aid to educational institutions, discriminate any educational institution on the ground
that it is under the management of the minority, whether based on religion or language.
RIGHT TO CONSTITUTIONAL REMEDIES [ARTICLE 32]
- Article 32 guarantees the enforcement of fundamental rights.
- Article 32 makes it a fundamental right that a person, whose fundamental right is violated, has a right to move the
Supreme Court for the enforcement of his fundamental rights. Thus, a person need not first exhaust the other remedies
and then go to the Supreme Court.
- On the other hand, he can directly raise the matter before the highest court of the land and the Supreme Court may
pass the appropriate orders and writs for the enforcement of the right, the violation of which has been alleged.
Ubi jus ibi remedium means where there is a right there is a remedy. A right without a remedy is useless. The
fundamental rights guaranteed by the Constitution are protected by adequate remedial measures. The Constitution of
India provides such remedial measures to all citizen of violation of any fundamental rights. Such remedies are available
in the nature of 1) Habeas corpus: Legal right to appear before a Judge
2) Mandamus: Command to follow order
3) Prohibition: Command to forbid action
4) Certiorari: A command ordering a lower court to deliver its record in a case so that the higher court may review it.
5) Quo Warranto: A legal proceeding during which an individual's right to hold an office is challenged.
Directive Principles Of State Policy

Meaning of Directive Principles of State Policy
Directive principles of State Policy are contained in Part IV, Articles 37 to 51, of the Constitution of India. They are
declared as fundamental to the governance of the country. The State shall apply these principles in framing the laws.
But these cant be enforced by the intervention of the court.
Important Directive Principles of State Policy
Following are some of the important directive principles of state policy:
1) State to secure a social order for the promotion of the welfare of the people.
2) Certain principles and policies to be followed by the State, such as
a) Equal pay for both men and women,
b) The ownership and control of the material resources of the community are so distributed as best to sub-serve
the common good,
c) Prevention of concentration of economic wealth to the common detriment.
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3) Equal justice and free legal aid.

4) Organization of village panchayats
5) The State shall endeavour to secure the citizens a uniform civil code through out the territory of India.
6) The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife.
7) The State shall take steps to separate the judiciary from the executive
8) The State shall endeavour to promote international peace and security.
Relationships of Directive principles of State policy with Fundamental Rights.
There is no conflict between Fundamental Rights (FR) and Directive Principles of State Policy (DP). Both are important to
achieve the objectives of the Constitution. But what will be the legal position if a law is enacted to enforce a DP, which
violates the FR. To understand the correct position, we may look into the various stages of development.
In the initial stages, if any law was passed giving effect to FR but violating DP then DP was totally ignored. In State of
Madras v. Champakam Dorairajan, it was held that the DP couldnt override the FR. The DP have to conform and to run
as subsidiary to the FR. Subsequently, the Supreme Court applied the principle of harmonious construction by which
whenever any law involves with both FR and DP, an attempt was made to give effect to both, to the extent possible, and
when it become impossible, DP was ignored.
Subsequently, Article 31-C was inserted in the Constitution of India by an amendment, which provided that any law
passed to give effect to the directive principles of prevention of concentration of economic wealth to the common
determent (MRTP Act) cannot be challenged even it violates Article 14 or 19.
Subsequently, Article 31-C was amended and its scope was widened in the sense that any law passed to give effect to
any DP cannot be challenged even if it violates FR under Article 14 or 19. In Keshvanand Bharti v. Union of India, the
court observed that the FR and DP are meant to supplement each other. It can well be said that the DP prescribes the
goals to be attained and FR lays down the means to achieve them. Therefore the present position is that the violation of
FR is legally enforceable but if it is due to any law giving effect to DP, it cannot be enforced as far as Article 14 or 19 are
concerned.
FUNDAMENTAL DUTIES
Rights and duties go hand in hand Thus, Article 51A of Constitution of India imposes the number of Fundamental duties
on every citizen of India. However, they are not enforceable in the court of law.
Following are some of the important fundamental duties:
1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
2. To uphold and protect the sovereignty, unity and integrity of India.
3. To defend the country and render National service when called upon to do so.
4. To promote harmony and spirit of common brotherhood amongst all the people of India transacting religious,
linguistic and regional or sectional diversities.
5. To renounce practices derogatory to the dignity of women.
6. To value and preserve the rich heritage of our composite culture.
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ORDINANCE MAKING POWERS OF THE PRESIDENT OF INDIA

Normally, Parliament has legislative powers and it alone can pass laws on Union list matters.
However, our constitution under Article 123 gives special legislative powers to President of India by promulgating
ordinance under certain circumstances.
Following are the important provisions regarding ordinance-making powers of the President of India:
1. The President gets the powers only when the Parliament is not functioning. Even if one house of Parliament is not
functioning, the President can pass an ordinance.
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2. The President has powers to pass ordinance on the matters on which the Parliament has powers.
3. The Councils of Ministers should suggest the passing of an ordinance on such matters.
4. The President himself should also be satisfied about the need for the ordinance and he cannot be compelled.
5. Once an ordinance is passed, it should be placed before both the Houses of Parliament and approved by them within
six weeks of their respective dates of re-assembly.
6. The ordinance lapses if it is not approved within the aforesaid six weeks or if it is rejected earlier or if the President
himself withdraws the ordinance.
7. The ordinance cannot be challenged except on the limited grounds of mala fide intention in passing the ordinance.
[Coopers Case]
Note: Article 213 of the Constitution of India deals with Ordinance making powers of the Governor of a state, on the
same lines as given under Article 123.
Writs
Writs are extra ordinary remedies in cases where there is either no remedy available under the ordinary law or the
remedy available is inadequate.
Articles 32 and 226 of our Constitution empower anyone, whose rights are violated, to seek writs. Under Article 32, the
Supreme Court can be moved for enforcement of fundamental rights only. However, under Article 226, High Court can
be moved for enforcement of any right including fundamental rights.
Writ of Habeas Corpus (Bandi Pratyakshikaran Yachika)

The words habeas corpus literally means to have a body. It is a remedy available to a person who is confined without
legal justification. Through this writ, the court let it know the reasons for detention of the person and if there is no
justification, order the authority concerned to set the person free. The writ of habeas corpus, thus, entails the authority
to produce the person before the court. The applicant of this writ may be the prisoner or any person on his behalf to
safeguard his liberty. It seeks immediate relief from unlawful detention, whether in prison or private custody.
The writ of habeas corpus is the nature of an order calling upon the person who has detained another to produce the
latter before the Court in order to let the Court know, the ground of his detention and to set him free if there is no legal
justification. This is a very powerful safeguard to the subject against arbitrary acts of private individuals and also
executives.
Writ of Mandamus (everyone has to follow)

Mandamus literally means a command. This Writ of command is issued by the Supreme Court or High Court when any
government, court, corporation or any public authority has to do a public duty but fails to do so. To invoke the
performance of such duty, this writ of mandamus is issued.
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It should be noted that it should not be discretionary duty of the authority, which is challenged. It should be a
compulsory one; the applicant too should have a legal right to enforce such performance. It may further be noted that
this writ cannot be issued against President or the Governor.
Writ of Prohibition (confining of jurisdiction)

Writ of Prohibition is issued by Supreme Court or High Court to subordinate court preventing latter from usurping the
jurisdiction, which is legally not vested in it. The writ lies in both for excess of jurisdiction or absence of jurisdiction. It is
generally issued before the trial of the case or during the pendency of the proceeding but before the order is made. It
may be noted that this writ is available against judicial and quasi-judicial body.
Writ of Certiorari
If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the affected party can move this writ
for a direction against such lower court or tribunal to ignore such decisions based on wrong jurisdiction. The writ of
certiorari is issued to sub-ordinate judicial or quasi-judicial body by Supreme Court or High Court when they act:
a) Without or in excess of jurisdiction,
b) In violation of the prescribed procedure,
c) In contravention of principles of natural justice,
d) Resulting in an error of law apparent on the face of record.
The writs of prohibition and certiorari are of the same nature, the only difference being that the writ of prohibition is
issued at an earlier stage, before the order is made and the writ of certiorari is available on a later stage i.e., after the
order has been passed.
Writ of Quo Warranto

The term Quo Warranto means what is your authority. Whenever any one holds any public office not qualified to hold it,
it can be challenged by this writ by any person. An order issued by the court to such an authority to explain under what
valid grounds he is holding such a post. If it is found on investigation that he is not entitled to the office, the court may
restrain him from acting in the office and declare the office to be vacant.
This is a procedure by which the Court enquires into the legality of the claim, which a party asserts to a public office and
to oust him. For this purpose, the office must be a public office and is created by a statute or by the Constitution. There
must be a violation of the Constitution or the statute in appointing-such person to that office. The basic thing is that the
public has an interest to see that an unlawful claimant does not usurp a public office.
Distribution Of Legislative Powers

Since India is a federal State, there is distribution of powers among the Centre and the states. In this regard, Article 246
provides for the following lists:
i) List I or the Union List: This list includes subjects over which Parliament has the exclusive power to legislate. The list
contains 97 items, some of which are defence, foreign affairs, citizenship, currency, judiciary, central taxes, etc.
ii) List II or the State List: This list contains 66 items over which the state legislature have the exclusive power to
legislate. Some of the important items are public health and sanitation, pilgrimage, roads, agriculture, state taxes, etc.
iii) List III or the Concurrent List: This list contains 47 entries over which both Parliament and the state legislatures can
legislate. Some of the important items are marriage, economic and social planning, trade unions, etc. It may be noted
that Parliament has exclusive powers to make any law with respect to any matter which is not covered in any of three
lists. This is known as residuary power of legislature.
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Power of the Parliament to Make Laws on State List Matters

Normally the state legislature has the exclusive powers to make laws with respect to subjects enumerated in the state
list. But Article 246 of our constitution empowers Parliament to make laws even on state list matters under the following
five circumstances:
1) In the National Interest (Article 249): National Interest has not been defined but whenever parliament feels that it is
necessary to pass laws on state list matters in public interest, it is covered under this Article
2) During proclamation of emergency (Article 250): While proclamation of emergency is in operation, Parliament shall
have the power to make laws for whole or any part of the territory of India on any matter in the state list. Here
emergency includes periods of internal disturbances, external aggression, etc.
3) On request of two or more states (Article 252): If there is a dispute between two or more states and they pass a
resolution in their assemblies to refer the matter to Parliament for any law on state list matters concerning them, the
Parliament can pass law.
4) Legislation for enforcing international agreements (Article 253): If there is any international agreement between
foreign country and India, and to give effect to such agreement if a law is to be passed, the Parliament can pass the law
even if the matter is contained in state list.
5) Breakdown of Constitutional machinery in a state (Article 356): Parliament can make law with respect to all state
matters as regard the state in which there is breakdown of constitutional machinery and is under President Rule.
Article 356 is activated when there is a situation of breakdown of the constitutional machinery in the States. In such a
case, the President may dissolve a State Legislature and dismiss the State Government. This is done upon the report of
the Governor of the disturbed State that a situation has arisen in which the Government of the State cannot be carried
on in accordance with the provisions of this Constitution.
When this article is activated, the powers shift from the state legislature to the President.
Literally interpreted, the provision empowers the Central Government to dismantle State Governments and Legislatures,
and to assume powers until the situation normalizes.
Pith and Substances Rule
The rule of pith and substance is applied when a law dealing with a subject in one list also touches a subject in another
list. In such cases the pith and substance of the legislation i.e., the true object of legislation is to be determined. If on
such examination, it is found that the legislation in its existence is within the legislative competent of the legislature,
which enacted it, it is valid even if it accidentally encroached on a subject in another list.
'Pith' means a substance in the stem of a plant and 'substance' means an important and essential part of some thing.
The term is used in law to ascertain the essential part of the law, which the legislatures mean the most important in
framing the law. While making any law in any matter contained in List I or II or III, the legislatures may slightly encroach
other List. If challenged, the Court will apply the doctrine of pith and substance of the law and determine the validity of
the law.
Colorable Legislation
The theory behind this concept is, you cannot do indirectly what you cannot do directly. The object of distribution of
legislative powers to different legislatures is that they ought to act within their respective boundaries marked by the
specific entries. There are some cases where the legislature passes an Act, which outwardly purports to be dealing with
a subject within its legislative competence, but in substance it covers a subject not within its powers. Such type of law
is called colorable legislation and the Court will strike it down.
Plenary Powers
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When a legislative power is given with respect to any subject, the legislatures have the power to make laws on such
subject and also any matter incidental to such subject. This is called giving plenary of powers. For example, when a
power is given on tax matter, the legislatures have the power to make law for imposition of tax, refund of tax, and also
not to impose and collect tax.
Delegated Legislation
Delegated legislation means law making by authorities other than legislatures (i.e., Executive and Judiciary) on the basis
of power given by the legislatures. It is a process, which proceeds from any authority other than the sovereign power
and is, therefore, dependent for its continued existence and validity on some superior or supreme authority.
When any law is enacted, it becomes necessary to delegate powers for carrying out the policy laid down in the law.
Generally, ancillary and subsidiary powers are delegated and the legislative functions are retained in the hands of the
legislatures. The delegated is authorizer to make rules only on subsidiary and ancillary matters within the authority given.
A rigid legislative procedure is not feasible for execution of the legislative schemes. In each law there are clauses which
empowers others to make rules for 'removal of difficulties, in executing the policy.
Freedom Of Trade, Commerce And Intercourse

The Constitution of India in Part XIII, wide Articles 301 to 305, deals with freedom of Trade, Commerce and Intercourse.
Out of these Articles, Article 301 creates an overall limitation on all legislative powers of the Union and the State
legislature. The bar on state powers to interfere in the free trade, commerce and intercourse (Article 301) is loosened by
Articles 302, 303 and 304.
Article 305 provides for state monopoly.
Study of the Articles 302 to 305 will reveal when and how the Constitution of India permits the government to restrict
freedom of trade, commerce and intercourse
Article 301:
- The trade and commerce throughout the territory of India shall be free and without restriction.
- The restriction can generally be by the way of taxes.
- But if the tax is levied to regulate or to prevent certain people from carrying on business, it amounts to restriction.
Thus the object of Article 301 is to break down the barriers between the states and to make the country as one unit with
a view to encourage trade and commerce.
Article 302:
However, the Parliament can impose restrictions on freedom of trade, commerce and intercourse in public interest.
Article 303:
The Parliament, while imposing restrictions under Article 302, cannot discriminate between different states. However,
the Parliament can discriminate in case of scarcity of goods.
Article 304:
It enables state legislature to impose taxes on goods coming from other states, if goods produced within the state are
subjected to such taxes.
Article 305:
Any law passed by the Union so creating the state monopoly shall not be affected by the provisions of Part XIII of the
Constitution of India.
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Important Case Laws

1) In Zee Telefilms Ltd. v. Union of India,
-- the Supreme Court held that the Board of Control for cricket in India (BCCI) was not State for purposes of Article 12
because it was not shown to be financially, functionally or administratively dominated by or under the control of the
Government and control exercised by the Government was not extensive but merely regulatory in nature.
2) Secretary of State of Karnataka v. Umadevi
-- Supreme Court held that adherence to the rule of equality in public employment is a basic feature of the Constitution
-- and since the rule of law is the core of the Constitution, a Court would certainly be disabled from passing an order
upholding a violation of Article 14.
-- Equality of opportunity is the promise and the Constitution has provided also for affirmative action to ensure that
unequal are not treated as equals.
-- Thus any public employment has to be in terms of the Constitutional Scheme.
3) Supreme Court in Cricket Association of Bengal v. Ministry of Information & Broadcasting has held that the right to
communicate through any media - print, electronic and audio visual is included under Article 19(1)(a) of the Constitution.
4) Supreme Could in Union of India v. Naveen Jindal has held that right to fly the National Flag freely with respect and
dignity is a fundamental right of a citizen within the meaning of Article 19(1)(a) of the Constitution being an expression
and manifestation of his allegiance and feelings and sentiments of pride for the nation.
5) Supreme Courts decision in Chintamana Rao v. State of M.P. is a leading case on the point where the
constitutionality of Madhya Pradesh Act was challenged.
-- The State law prohibited the manufacture of bidis in the villages during the agricultural season.
-- No person residing in the village could employ any other person nor engage himself, in the manufacture of bidis
during the agricultural season.
-- The object of the provision was to ensure adequate supply of labour for agricultural purposes.
-- The bidi manufacturer could not even import labour from outside, and so, had to suspend manufacture of bidis during
the agricultural season.
-- Even villagers incapable of engaging in agriculture, like old people, women and children, etc., who supplemented their
income by engaging themselves manufacturing bidis were prohibited without any reason. The prohibition was held to be
unreasonable.
6) In T.M.A. Pai Foundation v. State of Karnataka, while interpreting Article 30, the Supreme Court held that
-- minority includes both linguistic and religious minorities and for determination of minority status, the unit would be the
State and not whole of India.
-- Further, the right of minorities to establish and administer educational institutions (including professional education)
was not absolute and regulatory measures could be imposed for ensuring educational standards and maintaining
excellence thereof.
-- Right of minorities included right to determine the procedure and method of admission and selection of students,
which should be fair and transparent and based on merit.
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Constitution of India

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Constitution of India

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Prudential Education

Chapter 1: Constitution of India

Broad Framework of the Constitution

Justifiability of Fundamental Rights (Doctrines)

All 6 Fundamental Rights: Explanation

Directive Principles of State Policy

Ordinance Making Powers of President of India

Legislative Powers of the Union and the States

Power of Parliament to make Laws on State

Freedom of Trade. Commerce and Intercourse

Constitutional Provisions relating to State

Writ Jurisdiction of High Courts and Supreme Court

Broad framework of the Constitution of India

Industrial, Labour & General Laws

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WE, THE PEOPLE OF INDIA,

(The word SOCIALIST was added by the ________ Amendment.)

Industrial, Labour & General Laws

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The issue of Federal vs. Unitary

in a federal government, the power is divided between

In a unitary government the power is held by one central