Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.

Prof., BV YCLCK

CC-102: Indian Constitutional Law: The New Challenges

Syllabus:
Unit I - Federalism
1.1. Creation of new states
1.2. Allocation and share of resources - distribution of grants in aid
1.2.1. The inter-state disputes on resources
1.3. Rehabilitation of internally displaced persons.
1.4. Centre's responsibility and internal disturbance within States.
1.5. Directions of the Centre to the State under Article 356 and 365
1.6. Federal Comity : Relationship of trust and faith between Centre and State.
1.7. Special status of certain States.
1.7.1. Tribal Areas, Scheduled Areas
Unit II - Right to equality: Privatisation and its impact on affirmative action.
2.1 Introduction
2.2 Equality Before Law
2.3 Landmark Judgments
Unit III - Empowerment of women.
3.1 Introduction
3.2 Empowerment: Meaning and Importance
3.3 Empowerment of Women in India
3.4 Initiatives by the Judiciary
Unit IV - Freedom of press and challenges of new scientific development
4.1. Freedom of speech and right to broadcast and telecast.
4.2. Right to strikes, hartal and bandh.
Unit V - Emerging regime of new rights and remedies
5.1. Reading Directive Principles and Fundamental Duties into Fundamental Rights
5.1.1. Compensation jurisprudence
5.1.2. Right to education
[Link]. Commercialisation of education and its impact.
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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

[Link]. Brain drain by foreign education market.

Unit VI - Secularism and religious fanaticism.
6.1 Secularism
6.2 Secularism under Indian Constitution
6.3 Right to Religion
6.4 Religious Fanaticism
Unit VII - Separation of powers: stresses and strain
7.1. Judicial activism and judicial restraint.
7.2. PIL: implementation.
7.3. Judicial independence.
7.3.1. Appointment, transfer and removal of judges.
7.4. Accountability: executive and judiciary.
7.5. Tribunals
Unit VIII - Democratic process
8.1. Nexus of politics with criminals and the business.
8.2. Election
8.3. Election commission: status.
8.4. Electoral Reforms
8.5. Coalition government, 'stability, durability, corrupt practice'
8.6. Grass root democracy.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

Question Bank

Unit I -Federalism

Broad questions-

[Link] fully concept of "Federalism" in the Constitution of India and U.S.A.

[Link] policy of privatization and its impact on affirmative action in India.

Short notes-

1. Creation of new states

2. Rehabilitation of internally displaced persons.

[Link] 356 and 365

[Link] Comity.

[Link] status of certain States.

Unit II

[Link] is the concept of Right to equality under Indian Constitution?

[Link] do you mean by privatisation and its impact on affirmative action? Give
Landmark Judgments.

[Link] of equality ensured under Article 14 is combination of Positive and Negative

notion. Evaluate in the background of doctrine of reasonable classification.

[Link] equality can be established among unequals what test have been propounded by
the judiciary to establish equality in India-Discuss with

the help of decided cases

Short notes-

1. Equality under Indian Constitution.

2. Privatization and equality

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

Unit III

[Link] a note on women empowerment in the light of Indian Constitution.

2. "Article 15 (3) is the constitutional power of state to make special legislation in the
interest of women & children" Discuss in legislative & judicial perspectives.

[Link] the Constitutional Provisions and role of judiciary in 19 empowerment of

women.

Short notes -

[Link] of woman

2. Judicial recognition of women empowerment

Unit IV

[Link] freedom of speech and right to broadcast and telecast in detail.

[Link] discuss Indian Constitution on freedom of expression and increased use of

Social media in Indian polity.

[Link] detail note on freedom of press and right to privacy in India.

[Link] evaluate Freedom of press and challenges under Indian Constitution.

Short notes-

1. Right to Strike, Hartal and Bandh

[Link] of Press

Unit V

[Link] relation & conflict between Fundamental rights and Directive principles of
Indian constitution.

[Link] Principles of state policy are not enforceable in the Court of Law but,
nevertheless, they are fundamental in the governance of the country." Discuss this
statement with the help of decided cases.

3.'Reading Directive Principles & Fundamental Duties into Fundamental Rights' write a
detailed note about it.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

[Link] freedom of speech and right to broadcast and telecast in detail. Explain relation
& conflict between Fundamental rights and Directive principles of Indian constitution

Short notes-

[Link] to education

[Link] drain

3. Fundamental duties

[Link] and it's enforceability

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

Subject - CC-102 Indian Constitutional Law : New Challenges

Broad Question -1

Explain fully the concept of ‘Federalism’ in the Constitution of India and USA.

Introduction

A federation is a state having one central (federal) government acting for the whole country
and several state governments existing side by side having control over their areas. Both
the governments exercise power over their definite sphere as provided in the Constitutions
and does not interfere with each other’s functions. Countries like USA, Switzerland,
Australia, Canada, etc. have a federal form of government.

Meaning

In a federation, there is a division of powers between the central (federal) government and
state government.

Federalism is a system of government in which powers are divided between two or more
levels of government, such as the centre and the states or provinces. Federalism allows for
the accommodation of diversity and regional autonomy within a larger political unit.
Features of the Federal System of India
1. Dual government polity
2. Division of powers between various levels
3. Rigidity of constitution
4. Independence judiciary
5. Dual citizenship
6. Bicameralism

The Indian model of federalism is called a quasi-federal system, as it contains major

features of both a federation and union.

Comparison between Indian federalism and the USA federalism

There are certain similarities as well as differences between American Federalism and
Indian Federalism-

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

Both United States and India which are considered as the largest democratic countries in
the world are based on federalism in their political structure.

Similarities between the federalism of US and India

1) Written Constitution

The Constitution of both US and India is a written Constitution, which provides for a
federal political structure where both the governments exercise their respective powers.
The Constitutions of both the countries provide for amending the Constitution to meet the
changing circumstances and the growing political, economic, social needs and
demands political and economic needs and demands of their respective countries.

2) Bill of Rights and Fundamental Rights

The US Constitution has given its citizens fundamental rights such as the right to equality,
freedom, right against exploitation, freedom of religion, cultural and educational rights,
right to property, and the right to Constitutional remedies etc. by means of ‘The Bill of
Rights’, Part III of the Indian Constitution guarantees the fundamental rights of the people
as given in Articles 14 to 34.

3) Supremacy of the Federal or Union Government

In both the countries, the federal government works at the centre in which various states
have acceded to. In the US, there are 50 states who have associated them to the federal
government and in the Indian Union, as many as 29 states and 8 Union territories have
accepted this form of government. Both in US and India, states which have accepted the
Federal set up have no individual power to separate from the Central Government or the
Union Government. While both the Central as well as State Government is empowered to
makes laws on subjects given in the concurrent list, the law enacted by the Federal or Union
Government will prevail over the law enacted by the states on the same subject in case of
dispute. Thus, Federal or Union Government is supreme in the present federal structure.

4) Separation of powers

Both US and Indian Constitutions provides for separation of powers among three
institutions namely executive, legislature and judiciary. Each division is empowered with
a separate power. The executive governs the country, the legislature makes laws, and the
judiciary ensures justice. President of US is the chief executive head of US, whereas the
Union cabinet headed by the Prime Minister is the real chief executive body in India. Both
US and India have a bicameral legislature. The upper and the lower houses of US
legislature are called as the House of Senate and the House of Representatives respectively,

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

and the Indian Parliament has Lok Sabha and Rajya Sabha as its Lower and Upper house
respectively.

5) Powers of Checks and Balances

Though there is a clear-cut separation of powers between executive, legislature and

judiciary in both countries, still there can be overlapping of these powers. There are chances
of abuse of power or arbitrariness. Thus, there is a need for a system of ‘checks and
balances’ prevalent in both countries.

The President having chief executive power appoints the members of his ‘Kitchen Cabinet’
and he is the Supreme Commander-in-Chief of Army, Navy and the Air Force. He is
empowered to appoint the Chief Justice of the Supreme Court of the US. He enters into
treaties with other countries. However, his treaties must be approved by the House of
Senate. Otherwise, the treaty will not come into force.

Similarly in India, it is the Prime Minister and his cabinet who exercise real power.
They can be removed from power by a successful no-confidence motion passed by both
houses of parliament. The policy decisions become laws only after obtaining the requisite
majority of the parliament. However, the laws enacted by the parliament are subject to the
judicial review of the Supreme Court of India.

Thus, the powers of checks and balances have been the efficient method both in the US
and in India in protecting the democracy in both countries.

Differences between the federalism of US and India

There are certain differences that exist between the federalism of US and India. These
differences have been created by the architects of the Indian Constitution. The US
federalism is very strong and more rigid as envisaged in their Constitution by its leaders.
It is more federal than unitary in character. Whereas, India is more unitary than federal
and we can even say that it is a quasi-federal state.

Differences between the Governments of India and the USA

The differences between both governments are given under separate headings.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

Political Parties

India USA

Although there are currently 2 major national There are two major political parties here.
parties – the INC and the BJP; there are They are the Republican Party and the
hundreds of regional and smaller parties in the Democratic Party.
political scene.

Head of State

India USA

• The elected head of Government is the • Head of State is the President.

Prime Minister. He is the executive head. • Citizens cast their ballot in every state
• The President is the constitutional head of to elect members of the electoral
state. college (popular vote) who in turn cast
• Citizens cast their votes to elect their electoral votes to determine the
representatives to the Lok Sabha. The President.
party that wins a majority of seats in • The President holds office for a four-
the Lok Sabha gets invited by the year term.
President to form the government.
• The leader of that party becomes the
Prime Minister.
• Elections to the Lok Sabha are held every
five years generally.

Government

India USA

• The government can lose the mandate if its • The President is not dependent on the
majority cannot be proved in the Lok Sabha strength of his party in Congress
in the event of a no-confidence motion. (legislative body).
• This would lead to mid-term elections. • He remains in power for the four years of
• Parliamentary form of government. his term unless he is impeached or
incapacitated.
• Presidential form of government.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

Cabinet

India USA

• The Prime Minister appoints members of • President nominates cabinet members

his cabinet from his party or from those and sends them to the Senate for
supporting his coalition (if it’s a coalition confirmation.
government). • The cabinet members need not be
Congress members, and they could just
be industry experts.

Legislative Body

India USA

• The Parliament is the supreme legislative • Congress is the legislature of the USA.
body. • The Senate and the House of
• It is a bicameral legislature comprising of Representatives are the two chambers of
the President, the Lok Sabha and the Congress
the Rajya Sabha. • The House of Representatives (commonly
• Lok Sabha (House of the People) referred to as the House) is the Lower
members are elected directly by the House, while the Senate is the Upper
people. There are 545 members. House.
• Rajya Sabha (Council of States)
members are elected by the State
legislative assemblies. Its total
membership is 245.

Legislation authority

India USA

• There is no strict separation of powers. • Here, there is a clear separation of

• The executive is part of the elected powers between the executive, the
legislature and remains in power while legislature and the judiciary.
the House is in motion. • A law passed by the Congress can be
• The Prime Minister cannot override the vetoed by the President.
legislature to make laws. • He can send it back for consideration,
or he can also bypass the Congress and

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

• A bill becomes a law only when both issue an executive order (which has the
Houses pass it and it is signed by the force of law).
President. • However, Congress can override the
• The president can send any bill back to veto by obtaining a 2/3rd majority in
the parliament for consideration if he both Houses.
deems fit. But if it’s passed again, he
should sign it.
• Supreme Court can strike down any law
that it considers unconstitutional.

Federalism

India USA

• India can be said to be a case of • It has a federal system, with each

cooperative federalism. state having its own constitution.
• There is only one constitution for the whole • Here, power is shared between the
country. federal government and state
• India is neither purely federal nor purely governments.
unitary.
• It is a federal structure with a strong unitary
bias.
• India is a union of states meaning states have
no authority to recede from India.

Short Note-1

Centre's responsibility and internal disturbance within States.

Ans.

The ‘Indian Federalism’ is known for maintaining an equilibrium between the centre and
the states regarding the distribution of powers.

Article 355 refers to the provision in the Constitution that states that “It shall be the
duty of the Union to protect every State against external aggression and internal
disturbance and to ensure that the government of every State is carried on in accordance
with the provisions of this Constitution”.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

The Article 355 is part of emergency provisions contained in Part XVIII of the
Constitution of India, from Article 352 to 360.

Purpose and scope of Article 355 of the Indian Constitution

Article 355 of the Indian Constitution states about –

The duty of the Union to protect every State against external aggression and internal
disturbance and to ensure that the Government of every State is carried on in accordance
with the provisions of the Constitution.

Article 355 of the Indian Constitution mandates the Union to protect the states from
internal disturbances and external aggression.

Even though this article has rarely been used, it is viewed as a tool to justify the
implementation of emergency under the provisions of emergency. Two words stand out in
this context: “internal disturbance” and “armed rebellion.”

S.R. Bommai v. Union of India (1994)

In this case, Judge P. B. Sawant opined that –

Article 355 is a rationale for the actions to be taken under Articles 356 and Article 357. It
is not an autonomous authority for interfering with the structure and function of the State
Legislature. However, It was also stated that ‘internal disturbance’ has a broader meaning
than ‘armed rebellion’ and thus, while a declaration of emergency under Article 352 can
only be issued in the event of an armed insurgency, such a declaration cannot be issued
for internal disruptions caused by several other conditions.

Conclusion

Since the adoption of Article 355 in the constitution of India, it has evolved from being a
validatory provision for union intervention to genuinely being a facilitator and protector
of the state from ‘internal disturbances and external aggression’. Initially, Article 355 was
presumed to be a weapon in the hands of the union government for justifying the
unreasonable encroachment into the domain of the state.

Short Note- 2

Directions of the Centre to the State under Article 356 and 365.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

According to Article 356 of the Constitution of India, the Union has the power to take
over the government of any state in case of failure or breakdown of constitutional
machinery in a state. This article is also known as ‘President’s Rule’.

Article 365 of the Constitution is a Part of the emergency powers of the President.

Relation Between Article 355 and Article 356

Article 365 comes under Part XIX (Miscellaneous) of the Indian Constitution. The
provisions of Article 365 are often overlooked. But it plays a crucial role in centre-state
cooperation and coordination and gives importance to the constitutional machinery.

Article 365 of the Constitution imposes the President’s rule on a state that fails to comply
with the directions given to it by the union government. Even though the states enjoy
autonomy and discretion in running their internal affairs and conducting the business of
the state, there are certain circumstances when the union gives particular directions that
must be adhered to by every state.

When the state fails to adhere to such instructions, the President can impose a state
emergency under Article 356 of the Constitution and impose President’s rule in the
particular state.

Provisions of Article 365 of the Indian Constitution

Article 365 of the Constitution is an extension of the provisions of Article 356 of the
Indian Constitution. President can impose emergency provisions under two situations:

1. A national emergency can be imposed by the President on the whole of India

under Article 352 of the Constitution.

2. When Article 365 is violated by any state, the President can impose a state
emergency under Article 356.

As per the Article, 2 grounds are mentioned on which President’s rule can be proclaimed
–

1. Article 356 authorises the President to issue a declaration if he believes that a

scenario has arisen wherein a state’s government cannot be carried out in full
compliance with the provisions of the constitution.

2. According to Article 365, when a state refuses to comply with or abide by any
direction from the centre, the President may declare that a condition has arisen

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

in which the state’s government cannot be executed in accordance with the

provisions of the constitution.

Post the imposition of the president’s rule, the President will be granted with certain
powers to normalise the situation. However, these actions have the scope of judicial
review.

As Article 355 is said to provide power to other articles of the constitution, it also
provides power to Article 356 of the Constitution of India. Article 356 can only be
proclaimed if the governor of the state is satisfied with the unfavourable situation and he
sends the report of the same to the president.

Broad question

What is the concept of Right to equality under Indian Constitution?

Ans.

The right to equality provides for the equal treatment of everyone before the law,
prevents discrimination on various grounds, treats everybody as equals in matters of
public employment, and abolishes untouchability, and titles (such as Sir, Rai Bahadur,
etc.). The Right to Equality is one of the Fundamental Rights enshrined in the
Constitution of India.

Equality before the law (Article 14)

Right to equality under Article 14

‘The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.’
• Article 14 tries to achieve ‘equality of status’ for all people.
• It aims at establishing the ‘rule of law’ in India.
• This guarantee available to both citizens and non- citizens.
• It applies to all persons, natural as well as juristic.
Equality before law
• It is taken from English Common law.
• This implies the absence of any special privileges in any person.
• Implies no discrimination before the law on inapposite grounds like rank, office,
etc.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

• It means that “the law should be equal and should be equally administered, that
like should be treated alike.” (JENNINGS)
• States that every individual is subject to the jurisdiction of ordinary courts
irrespective of their rank or position.
Equal protection of the laws
• It is corollary from equality before the law.
• It is based on the last clause of the first section of the 14th Amendment of the
US Constitution.
• It directs that equal protection should be secured to all persons within the
territorial jurisdiction.
• This implies that such protection should be without any favor and
discrimination.
• This implies equal treatment in similar circumstances, both in the privileges and
liabilities imposed by the law.
• It is a positive obligation of the state which it should achieve by bringing about
necessary social and economic changes, to ensure every person enjoys such
equal protection.
Prohibition of discrimination (Article 15)
This article prohibits discrimination in any manner. This article secures the citizens from
every sort of discrimination by the State, on the grounds of
ARTICLE 15(1)
‘The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them.’
• It is available against State
• Protection under this provision can be taken by any citizen when he is subjected
to discrimination in relation to any rights, liabilities or privileges conferred to it
by the constitution.
ARTICLE 15(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 palaces 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.’
• Word ‘shop’ is construed in a generic sense and will include every place where
goods are sold or services are rendered.
• It should be noted that under Art. 15(2)(b), a cause of action arises only when
such facilities are maintained wholly or partly by State funds or dedicated to the
use of the general public.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

• This guarantee is available only when such discrimination is on above-

mentioned grounds only and if such grounds are not the basis of discrimination
law will be considered valid.
ARTICLE 15(3)
‘Nothing in this article shall prevent the State from making any special provision for
women and children.’
• It implies that the Parliament has the right to make special provision.
• This article is an exception to the rule against discrimination.
• The intention of the framers of the constitution was to protect the interests of
children and women because these sections were considered comparatively
weaker sections of the society and the need for such provision was felt for their
upliftment.
• The language of the clause is in absolute terms and gives the power to State to
make any special provisions and laws for the protection of their interest. Such
special provisions are not restricted in any sense and need not be measures that
are beneficial in a strict sense.
ARTICLE 15(4)
‘Nothing in this article or in clause (2) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.’
• Added by the Constitution (1st Amendment) Act 1951 as a result of the
judgment of Supreme Court in State of Madras v. Champakam Dorairajan
• It doesn’t force the State to take any specific action for its fulfillment. It is just
an enabling section.
• This guarantee is available only to citizens of India.
Indira Sawhney v. Union of India (Mandal Commission Case)
• It was held in this case that except for any extraordinary circumstances, total
reservation should not exceed 50 percent. Moreover, such quota will not include
those SEBC’s who get selected on merit and will be adjusted towards the open
category.
• Such limit only applies to the reservation and not to concessions, exemptions, and
relaxation.
• ‘Carry forward’ rule is permissible as long as the limit is observed.
ARTICLE 15(5)
‘Nothing in this article or in sub-clause G of clause 1 of Article 19 shall prevent the state
from making any special provisions, by law, for the advancement of any socially and
educationally backward classes of citizens and scheduled castes or tribes in so far as such
special provisions relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the state, other than the minority
educational institutions referred to in clause 1 of Article 30.’

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

• It was added by the Constitution (93rd Amendment) Act’ 2006

• Special provisions can be made after this amendment only by law and not by executive
action.
• Central Educational Institutions (Reservation in Admission) Act 2006 was introduced
after this amendment. A petition was filed challenging the validity of the act and of the
amendment stating that such provision is violative of Art. 15(4). It was held by the
court that such provision and act doesn’t invalidate Article 15(4) of the constitution.
• The court suggested review of the reservation after every 10 years and negated the
notion of application of the provision of time limit to the Act of reservation.
Equality of opportunity in matters of public employment (Article 16)
Article 16(1)
• Equal opportunity should be there in matters relating to employment and appointment
to any office under the State for all citizens.
• It provides only the right to equal ‘opportunity’ which means it confers only a right to
be considered for such employment and appointment to any office of the State.
• There is no rule of equality between separate and independent classes of services.
• Requisite conditions and qualifications can be laid down by the State required for a
particular designation.
• The selection procedure for such employments and appointments should not be
arbitrary and should be based on some reasonable grounds.
• Guarantee of employment in this clause also covers:
1. Initial appointments
2. Promotions
3. Termination
4. Matters relating to salary, gratuity, pensions, etc.
• Guarantee of appointment in this clause also covers: Termination or removal
from services.
• Article 16 is a facet of principle of right to equality enshrined in Article 14 as
stated in Indra Sawhney v. UOI case by SC. Thus, enables reasonable
classification by the State for providing opportunities for the upliftment of
backward classes.
Article 16(2)
Prohibits discrimination in respect of any appointment under the State on the grounds of
1. Religion
2. Race
3. Caste
4. Sex
5. Descent
6. Place of birth
7. Residence

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

• It is available only against public employment.

• Private bodies can employ on the basis of grounds prohibited in this section.
• B. Venkataramana v. State of Madras
Reservation of posts in favor of Hindus, Muslims, and Christians was held to be violative
of Art. 16(2).
Article 16(3)
• Parliament is conferred with the power to regulate the extent to which State can
depart from the law laid down in clause (2).
• Such power is restricted only to State appointments and not the Union
appointments.
Article 16(4)
• Reservation of appointments or posts for any backward classes which in the
opinion of State not adequately represented in the services under the State.
• It can only be exercised to reserve posts for ‘backward class’.
• As there is no definition of backward class in the Constitution, it has been left
on the State to determine whether a particular class is backward or not, provided,
it is based on some reasonable criteria. If it is based on irrelevant considerations,
it can be challenged in court.
Article 16 (4-A)
• It was added by the Constitution (77th Amendment) Act, 1995
• It was added after the Mandal Commission case, to make the judgment
inapplicable on SCs and STs.
• It provides reservations with respect to promotions in favor of SCs and STs.
• It is an enabling section and is not a fundamental right and the state should try
to balance it with Art. 14 and Art 16(1).
Article 16 (4-B)
• It was added by the Constitution (81st Amendment) Act, 2000.
• It was introduced to overcome the disability of the State to make special
recruitment drives after the Mandal Commission case.
• Introduced the exception to 50 percent limit for the purpose of filling the
backlog vacancies.
• It is not just confined to SCs and STs.
Article 16(5)
• Appointments related to posts of religious institutions may be restricted to
persons of that particular religion and will not be considered violative of Article
16(1).
Abolition of untouchability (Article 17)
Article 17 prohibits the practice of untouchability.
• Untouchability is abolished in all forms.
• Any disability arising out of untouchability is made an offence.

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Abolition of titles (Article 18)

Article 18 abolishes titles.
• The State shall not confer any titles except those which are academic or military
titles.
• The article also prohibits citizens of India from accepting any titles from a foreign
State.
• The article abolishes the titles that were awarded by the British Empire such as Rai
Bahadur, Khan Bahadur, etc.
• Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and
military honours like Ashok Chakra, Param Vir Chakra do not belong to this
category.

Short Note -1 Privatisation and its impact on affirmative action

AFFIRMATIVE ACTION - Introduction
Affirmative action refers to the set of policies of the Governments to support members of
disadvantaged groups that have historically faced discrimination in the areas of
education, employment, housing and respect in the society.
Usually, such special measures aim at protecting, or promoting the welfare of the
members of a group previously discriminated against, provided that the group desires
such measures.
Affirmative actions in India can be categorized into 3 main dimensions, which are given
below.
1. Appointment and promotion in government services.
2. Reservations in public education institutions.
3. Reservation of seats in Central and State legislatures.
Purpose of Affirmative action?
The purpose of affirmative action is to establish fair access to employment opportunities
to create a workforce that is an accurate reflection of the demographics of the qualified
available workforce in the relevant job market.

AFFIRMATIVE ACTION IN PRIVATE SECTOR IN INDIA

The demand for affirmative action in private sector emanates from the fact that this
would enable participation of the weaker section in employment and market, since they
suffer multiple discriminations.

The liberalization, privatization and globalization process are ushering in the power of
markets. Privatization has further marginalized the weaker sections by reducing the scope
of available in public sector, since the public sector itself is being disinvested.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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Uplifting of the weaker section is a stated objective of our Country and thus, reservation
in Private Sector is part of social responsibility of the Government, as well as the Private
Sector.

Short Note -2 Doctrine of reasonable classification

Article 13 of the Indian constitution forbids class legislation but it does not prohibit the
reasonable classification of objects, persons, and transactions for the purpose so as to
achieve specific ends by the parliament.

Such classification should not be artificial, arbitrary or evasive and it must rest on
substantial distinction which is real. It must bear a reasonable and just relation to the
sought object which is to be achieved by the legislation.

Classification

For effective implementation of laws, it is necessary for legislation to group individuals

according to their equal and unequal aspects.
Article 14 permits reasonable classification but prohibits class classification.
• Following two conditions should be fulfilled for a valid classification:
Intelligible differentia (Intelligent reason for classification)
1. Intelligible differentia means difference which is apparent and capable of being
understood.
2. Classification distinguishing persons or things that are grouped together from
others left out of the group should be based on an intelligent reason.
3. Classification must be based on a just objective to be achieved.
Rational Nexus (Relationship between classification and desired result)
1. The differentia must have a rational relation to the object of the statute in
question.

BQ.

Write a note on women empowerment in the light of Indian Constitution.

ANS.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

Need for empowerment arose due to centuries of domination and discrimination done
by men over women; women are the suppressed lot. They are the target of varied types of
violence and discriminatory practices done by men all over the world. India is no different.

India is a complex country. We have, through centuries, developed various types of

customs, traditions and practices. These customs and traditions, good as well as bad, have
become a part of our society’s collective consciousness.

We worship female goddesses; we also give great importance to our mothers, daughters,
sisters, wives and other female relatives or friends.

But at the same time, Indians are also famous for treating their women badly both inside
and outside their homes.

Women Empowerment- meaning

Women empowerment in simple words can be understood as giving power to women to

decide for their own lives or inculcating such abilities in them so that they could be able to
find their rightful place in the society.
According to the United Nations, women’s empowerment mainly has five components:
• Generating women’s sense of self-worth;
• Women’s right to have and to determine their choices;
• Women’s right to have access to equal opportunities and all kinds of resources;
• Women’s right to have the power to regulate and control their own lives, within and
outside the home; and
• Women’s ability to contribute in creating a more just social and economic order.

Constitution of India and Women Empowerment

India’s Constitution makers and our founding fathers were very determined to provide
equal rights to both women and men. The Constitution of India is one of the finest equality
documents in the world. It provides provisions to secure equality in general and gender
equality in particular. Various articles in the Constitution safeguard women’s rights by
putting them at par with men socially, politically and economically.

The Preamble, the Fundamental Rights, DPSPs and other constitutional provisions provide
several general and special safeguards to secure women’s human rights.

Preamble:
The Preamble to the Constitution of India assures justice, social, economic and political;

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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equality of status and opportunity and dignity to the individual. Thus it treats both men and
women equal.

Fundamental Rights:
The policy of women empowerment is well entrenched in the Fundamental Rights
enshrined in our Constitution. For instance:

• Article 14 ensures to women the right to equality.

• Article 15(1) specifically prohibits discrimination on the basis of sex.

• Article 15(3) empowers the State to take affirmative actions in favour of women.

• Article 16 provides for equality of opportunity for all citizens in matters relating to
employment or appointment to any office.

These rights being fundamental rights are justiciable in court and the Government is
obliged to follow the same.

Directive Principles of State Policy:

Directive principles of State Policy also contains important provisions regarding women
empowerment and it is the duty of the government to apply these principles while making
laws or formulating any policy. Though these are not justiciable in the Court but these are
essential for governance nonetheless. Some of them are:

• Article 39 (a) provides that the State to direct its policy towards securing for men and
women equally the right to an adequate means of livelihood.

• Article 39 (d) mandates equal pay for equal work for both men and women.

• Article 42 provides that the State to make provision for securing just and humane
conditions of work and for maternity relief.

Fundamental Duties:
Fundamental duties are enshrined in Part IV-A of the Constitution and are positive duties
for the people of India to follow. It also contains a duty related to women’s rights:

Article 51 (A) (e) expects from the citizen of the country to promote harmony and the spirit
of common brotherhood amongst all the people of India and to renounce practices
derogatory to the dignity of women.

Other Constitutional Provisions:

Through 73rd and 74th Constitutional Amendment of 1993, a very important political
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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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right has been given to women which is a landmark in the direction of women
empowerment in India. With this amendment women were given 33.33 percent
reservation in seats at different levels of elections in local governance i.e. at Panchayat,
Block and Municipality elections.

Thus it can be seen that these Constitutional provisions are very empowering for women
and the State is duty bound to apply these principles in taking policy decisions as well as
in enacting laws.

Specific Laws for Women Empowerment in India

Here is the list of some specific laws which were enacted by the Parliament in order to
fulfil Constitutional obligation of women empowerment:
• The Equal Remuneration Act, 1976.
• The Dowry Prohibition Act, 1961.
• The Immoral Traffic (Prevention) Act, 1956.
• The Maternity Benefit Act, 1961.
• The Medical termination of Pregnancy Act, 1971.
• The Commission of Sati (Prevention) Act, 1987.
• The Prohibition of Child Marriage Act, 2006.
• The Pre-Conception & Pre-Natal Diagnostic Techniques (Regulation and Prevention
of Misuse) Act, 1994.
• The Sexual Harassment of Women at Work Place (Prevention, Protection and) Act,
2013.

Above mentioned and several other laws are there which not only provide specific legal
rights to women but also gives them a sense of security and empowerment.

International Commitments of India as to Women Empowerment

India is a part to various International conventions and treaties which are committed to
secure equal rights of women.

One of the most important among them is the Convention on Elimination of All Forms of
Discrimination against Women (CEDAW), ratified by India in 1993.

Other important International instruments for women empowerment are: The Mexico Plan
of Action (1975), the Nairobi Forward Looking Strategies (1985), the Beijing Declaration
as well as the Platform for Action (1995) and the Outcome Document adopted by the
UNGA Session on Gender Equality and Development & Peace for the 21st century, titled
“Further actions and initiatives to implement the Beijing Declaration and the Platform for
Action”.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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All these have been whole-heartedly endorsed by India for appropriate follow up.

Conclusion

Whatever improvement and empowerment women have received is especially due to their
own efforts and struggle, though governmental schemes are also there to help them in their
endeavour.

The need of us is to educate and sensitize male members of the society regarding women
issues and try to inculcate a feeling of togetherness and equality among them so that they
would stop their discriminatory practices towards the fairer sex.

Short notes -1 Role of judiciary in empowerment of women.

The judiciary can bring important changes in society when the judiciary operates without
gender bias and supports gender equality. The decisions given by the judiciary becomes a
norm for all the people in the society through established mediums of state-citizen
engagement and the influence of the court goes beyond those who come in direct contact
with them.

Judicial decisions

It is the foremost duty of the courts to decide cases by interpreting the constitution and
uphold gender equality in such decisions. Courts have the right to strike down legal
provisions that promote discrimination based on gender such as the unequal rights
inheritance of properties.

Case laws

The judicial decisions given by the Indian Judiciary has affected and brought a lot of
important changes in the usual norms of the society.

In the case of Air India Etc. vs Nergesh Meerza, Indian airlines had laid down some
provisions which were held violative of Article 14 of the Constitution of India. The
provision stated that the air hostesses will not marry for their first four years of their joining
and shall lose their jobs if they become pregnant and shall retire at the age of 35 unless it
is extended by the managing director at his discretion.

The Supreme Court held that the termination of service on the first pregnancy conflicts
Article 14 and the extension of the job by the managing director also violates the principle
of equality established by Article 14 because this provision gives unrestrained authority in
the hands of one person.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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In P Geetha v. Kerala Domesticated animals Improvement Load up Ltd, the candidate, who
turned into a mother through surrogate method, was not conceded maternity leave by the
Respondents on the ground that birth of the youngster was not under typical conditions.
The High Court held that while conceding maternity leave, ladies couldn't be segregated
simply in light of the fact that the infant was gotten through surrogacy.

Short note- 2. Special legislation in the interest of women & children

The Indian Constitution through the judiciary has protected women from injustice. The
Constitution of India has always uplifted the rights of women.

Various Constitutional provisions for women & children-

Article-15 prohibits discrimination on the grounds only religion, race, caste, sex or place
of birth. But the state is empowered to make special provisions for women and children.

Article-23 prohibits traffic in human beings and forced labour. Under this article, the
Supreme Court in the case of M. C. Mehta vs. State of Tamil Nadu-1997 has held the child
labour illegal.

Article-24 expressly provides that children below the age of fourteen shall not be employed
to work in any factory or mine or be engaged in any other hazardous employment.

The 86th Amendment Act 2002 has inserted Article 21(A) as a Fundamental Right
providing free and compulsory education for the children of six to fourteen years.

Article 39(e) says that the tender age of children is not to be abused.

Article 39 (f), as inserted by the Forty-Second Amendment, directs the state to give children
opportunities and facilities to develop in a healthy manner and in conditions of freedom
and dignity. Also, that childhood and youth are to be protected against exploitation and
against moral and material abandonment.

Article-45, as amended by 86th Amendment Act 2002, now directs the state to provide
early childhood care and education for all children until they complete the age of six years.
It is also a fundamental duty, as newly inserted by 86th Amendment Act 2002, in Article
51 A(k) that a parent or guardian is to provide opportunities for education to his child or
ward, between the age of six and fourteen years.

The constitution has laid down provisions for safeguarding their rights and also allows for
making special laws for women such as –

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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• the Dowry Prohibition Act 1961,

• the Medical Termination of Pregnancy Act 1971,
• the Immoral Traffic (Prevention) Act, 1956,
• the Maternity Benefit Act 1961,
• Indecent Representation of Women (Prohibition) Act, 1986.

Specific provisions have been drafted in the personal law to give maintenance to women
under section 24 and section 25 of the Hindu Marriage Act, 1955 and Section 18 of
the Hindu Adoptions and Maintenance Act, 1956 and these provisions are also available
under the Parsi Marriage and Divorce Act, 1936 and the Indian Divorce Act, 1869.
Maintenance to Muslim women have been granted under the Muslim Women (Protection
of Rights and Divorce) Act, 1986.

By way of legislative support to Child’s Rights, the State has enacted the Child Labour
Prohibition laws, the Juvenile Justice Act, Child Marriage Restraint Act, etc. the Pre
Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act,

B.Q.

Critically evaluate Freedom of press and challenges under Indian Constitution.

Introduction

Freedom of press or media refers to the rights given by the Constitution of India under the
freedom and expression of speech in Article 19(1)(a). It encourages independent journalism
and promotes democracy by letting the people voice their opinions for or against the
government’s actions.

Meaning

Article 19 was brought to light after the Romesh Thappar vs State of Madras
case highlighted the importance of media being the fundamental basis of all democratic
organizations.

Freedom of the press refers to the minimal interference of the state in the operation of press
on any form of communication including, print (newspapers, magazines, journals, reports);
audio (radios, podcasts); video (news channels, OTT platforms like YouTube) and over
other electronic mediums like news apps, social media feeds, etc.

Importance of freedom of press in India

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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Venkataramiah J. of the Supreme Court of India in Indian Express Newspapers (Bombay)

(P) Ltd. v. Union of India has stated: “In today’s free world, freedom of the press is the
heart of social and political intercourse. The press has now assumed the role of the public
educator making formal and non-formal education possible on a large scale, particularly
in the developing world, where television and other kinds of modern communication are
not still available for all sections of society. The purpose of the press is to advance the
public interest by publishing facts and opinions without which a democratic electorate
(Government) cannot make responsible judgments. Newspapers being purveyors of news
and views having a bearing on public administration very often carry material which would
not be palatable to Governments and other authorities.”

However, there are certain restrictions in Article 19(2) to protect the nation and its integrity.
The restrictions can be imposed in case of threats against:
▪ Sovereignty and integrity of India
▪ Security of the State
▪ Friendly relations with foreign states
▪ Public order, decency or morality
▪ Contempt of court
▪ Defamation
▪ Incitement to an offence

Scope of Freedom of Press under Article 19(1)(a)

Freedom to spread information

Without this liberty, freedom of the press is nugatory. Though this right is also implicit in
the freedom of expression, Romesh Thapar v State of Madras makes it explicit. The
mainline of difference between the freedom of the press and freedom of expression for an
individual is that an individual can’t communicate to masses on his own, but a press can
by means of its publications on various mediums like print, broadcasts, electronic, etc.
Thus, freedom to spread information is an intrinsic part of freedom of the press.

Freedom to criticize

The press, just like individuals have the liberty to criticize the government, its officials, its
policies, its actions, its laws, its statements, etc. However, the press cannot take abuse this
right and cannot provoke the public against the government or cannot abet riots, rebels,
or mutiny or insecurity of the state or the government.

Freedom to receive the information

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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Again, the heart of the liberty to press. If the press is not equipped with the information, it
cannot empower the public with the knowledge and thus, the right of expression will
become futile because there will be no access to information on whose basis anything can
be expressed.

Freedom to conduct interview

This right is necessary to bring in first hand knowledge from the experts on the particulars
subjects and to enlighten the society at large. Though this right is not absolute, there are
three caveats to it as follow:
1. Interview will only take place on the consent of the interviewee;
2. Interview shall stop when the interviewee wants to it to be;
3. Interviewer can’t force interviewee to answer any question against his/her will.
Freedom to report court proceedings
In the words of Jeremy Bentham, “the soul of justice is publicity”. In Sahara India Real
Estate Corpn ltd v SEBI, SC held that it is the right of the media to report the judicial
proceedings.
In Saroj Iyer v Maharashtra Medical (Council) of Indian Medicine, SC held that the right
to print faithful reports of the legal proceedings witnessed is available even if it is against
quasi-judicial tribunals.
Freedom to attend and report legislative proceedings
Article 361 of the Constitution equips us with the right of publishing a kosher report of the
parliamentary proceedings. The only limitation of this freedom is that there should be no
mala fide intention behind such publications. When the right of reporting of legislative
proceedings which is implicitly envisaged in the right of expression (A.19) is in discord
with parliamentary privileges (A.105 and A. 194), the right of speech and expression shall
overshadow the parliamentary privileges. Today it is mandatory to do live telecast of the
parliamentary proceedings.
Freedom to act as an advertising platform
We know that the major income of most of the presses comes from the advertisement,
whether it is a radio, or news channel, or mobile application, or newspaper. It was after Tata
Press v Mahanagar Telephone Nigam that SC incorporated the right to advertisement as a
part of the right to freedom of expression.
Freedom to broadcast

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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In the modern age of technology, power to broadcast is essential as it is one of the major
channels to spread information. This right not only includes broadcasting on news
channels, radios, but also on the internet like websites, blogs, mobile applications. We have
witnessed some of the most reliable journalism on these platforms like Alt News, ThePrint,
TheWire, Quint, etc.
Concerns / Challenges to freedom of press in India
• The 2017 National Press Day was observed with the theme as "challenges before the
media".
Paid news and making “credibility” a casualty in the pursuit to sensationalise news.
• Corporate and political power has overwhelmed large sections of the media and
distorting facts to further their interest
• Experts say there are threats of violence from vested interests and pressure from
political parties
• Defamation cases against journalists.
• Excessive coverage or hype of sensitive news has led to communal riots at times.
• Commercialization has created a stiff competition in media.
• Attacks on journalists. Recent murder of Kannada journalist Gauri Lankesh
• Investigative reporting is increasingly becoming a dangerous occupation.
• News censorship. NDTV – which came under fire for its coverage of the Pathankot
operation
• Vulnerability of RTI activists has increased.
• The Criminal Laws (Rajasthan Amendment) Ordinance, 2017, puts restrictions on the
media. To register its strong opposition 'Rajasthan Patrika' leaves its editorial blank.
Landmark Cases on Freedom of Press
There have been several landmark cases in India that have upheld the freedom of the
press & are now important precedents for the safeguard of this fundamental right. These
are:
1. Romesh Thapar vs. State of Madras (1950): This was the first case to test the
limits of freedom of the press in India wherein SC held that the state government's
ban on the publication of a magazine called Cross Roads infringed the right to
freedom of speech and expression under Article 19(1)(a) of the Constitution.

2. Brij Bhushan vs. State of Delhi (1950): In this case, the Supreme Court held that
the press has the right to criticize and comment on the government actions and

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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public officials, as long as it does not amount to defamation or incitement to

violence.

3. Bennett Coleman & Co. vs. Union of India (1972): The principle was
established in which the government cannot impose prior restraints on the press
unless it is necessary to prevent a clear and present threat to national security or
public order.

4. Indian Express Newspapers vs. Union of India (1985): The Supreme Court in
this case held that the freedom of the press includes the right to withhold
information that may be harmful to national security or public interest, as far as
there is a reasonable basis for such withholding.

5. Sahara India Real Estate Corporation Ltd. vs. SEBI (2012): In this case, the
Supreme Court held that the press has the right to report on matters of public
interest, even if it may harm individuals or corporations reputation.

Conclusion

Press is supposed to be the voice of the public to the government. According to Article
19(1)(a): All citizens shall have the right to freedom of speech and expression. This implies
that all citizens have the right to express their views and opinions freely. This includes not
only words of mouth, but also a speech by way of writings, pictures, movies, banners, etc.

Short Note- 1 Right to privacy in India.

Introduction
Privacy is a fundamental human right enshrined in many international treaties. Privacy is
a right that all human beings enjoy by virtue of their existence. It also extends to physical
integrity, individual autonomy, free speech, and freedom to move, or think.
Although Article 21 does not speak specifically about the right to privacy, the Supreme
Court of India, in various instances, extended the meaning of Article 21. There are many
such SC rulings-
• A.K Gopalan v. The State (1950)
In this case, the petitioner argued that the search and seizure operation carried out in his
property violated the provision of Right To Property, as mentioned in Article 19(1).
However, the court rejected the argument regarding the right to privacy, saying that the
act of police did not obstruct his right to utilise his property. The court also mentioned the
caveat of ‘reasonable cause’, which gives police the power to search and seize.
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• Kharak Singh V. The State of UP

In this case, the petitioner argued that the nightly domiciliary visit to his home by the
police violated his right to move freely across India, as enshrined by Article 19 of
the Indian Constitution.
The petitioner also objected to the police shadowing him. While the court agreed that the
nightly domiciliary visits did violate the petitioner’s right to live a dignified and free life,
it also agreed that the right to privacy was not a fundamental right, and hence surveillance
of his movements did not violate the Constitution.
• Justice K.S. Puttaswamy (Retd) vs Union of India (2017)
During the hearing of a petition that challenged the constitutional validity of the Aadhar
based biometric system, the Supreme Court of India unanimously agreed that the right to
privacy is a fundamental right as enshrined by the Constitution.
The court expanded the purview of Article 21 and said that the Right to Life and Liberty,
as stated in Article 21, also included the right to privacy. Since Article 21 falls under Part
III of the Indian Constitution, which deals with fundamental rights, the right to privacy
thus automatically became a fundamental right after the judgement. Since then, the right
to privacy has been a fundamental right in India.

Short Note- 2 Right to broadcast and telecast

The freedom of speech under Article 19(1) (a) includes the right to express one's views
and opinions at any issue through any medium, e.g. by words of mouth, writing, printing,
picture, film, movie etc.

In general usage, broadcasting most frequently refers to the transmission of information

and entertainment programming from various sources to the general public.

Meaning-

Meaning of the word broadcasting according to Black's Law Dictionary is "The distribution
of audio and video content to a dispersed audience via broadcast radio, broadcast television,
or other technologies. Receiving parties may include the general public or a relatively large
subset of thereof.

The Supreme Court in Swapnil Tripathi vs Supreme Court of India (2018) had ruled in
favour of opening up the apex court through live-streaming. Gujarat High Court was the
first high court to livestream court proceedings followed by Karnataka high court.
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Odyssey Communications (P) Ltd. v. Lokvidayan Sangatana

The Supreme Court ruled that viewers have the freedom to show films on Doordarshan as
long as they abide by the channel's rules and regulations. In accordance with Article
19(1)(a) of the Constitution, broadcasting is a part of the fundamental right to freedom of
expression and may only be restricted within the terms of Article 19(2) that is reasonable
restrictions on Article 19(1).
Forms of Broadcasting Media
• Television.
• Radio (AM, FM, Pirate Radio, Terrestrial Radio, and Satellite)
• Traditional Telephone.
• Film/Movie/Motion Picture.
• Video Games.
• Audio Recording and Reproduction.

B.Q.

Explain relation & conflict between Fundamental rights and Directive principles of
Indian constitution.

Introduction

The Fundamental Rights are enshrined in Part III of the Constitution starting from Article
12 to Article 35. Directive Principles of State Policy or the (herein referred to as DPSP)
are encompassed in Part IV of the Constitution of India from Article 35-51.
Part III of the Constitution of India (Article 12 to Article 35)
• Right to equality (Article 14-18)
• Right to Freedom (Article 19-22)
• Right against Exploitation (Article 23 and 24)
• Right to Freedom of Religion (Article 25- Article 28)
• Cultural and Educational Rights (Article 29 and Article 30)
• Right to seek Constitutional remedies: Article 32

Directive Principles of State Policy (Part – IV)

These principles aim at ensuring socio-economic justice to the people and establishing
India as a Welfare State. Legislature, executive and administration of Independent India
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were expected to exercise their powers in accordance with the direction and guidelines
given in this part of the Constitution.

Relation between Part III and Part IV

Part III deals with the Fundamental Rights and contains Articles 12 to 35. In this regard,
the framers of the Constitution derived inspiration from the Constitution of the USA (that
is, the Bill of Rights). Part III is rightly described as the Magna Carta of India.

Part IV deals with the Directive Principles of State Policy and contains Articles 36 to 51.
The framers have borrowed this idea from the Irish Constitution of 1937, which had
copied it from the Spanish Constitution.

Difference between Fundamental Rights and Directive Principles of State Policy

Point of Directive Principles of State

Fundamental Rights
Differentiation Policy

Directive Principles are written in

Classification
Fundamental Rights are sometimes Part 4 of the Constitution of
and Placement
considered as a kind of restriction India. They are given in Articles
in the
imposed on the State. 36-51 of the Constitution of
Constitution
India.

The basic rights that are guaranteed Directive Principles of the Indian
Purpose and to Indian citizens by the constitution are the guidelines to
Nature Constitution of India are known as be followed by the Government
Fundamental Rights. while framing policies.

Role in Political Democracy is established Economic and Social Democracy

Establishing in India with the help of is established with the help of the
Different Types Fundamental Rights given in the Directive Principles of State
of Democracy Constitution of India. Policy.

The welfare of each and every The welfare of the entire

Scope of
citizen is promoted through the community is fostered with the
Welfare
Fundamental Rights. help of Directive Principles.

Violation of Directive Principles

As per the law, the violation of
Punishability is not a punishable crime unlike
Fundamental Rights is punishable.
violation of Fundamental Rights.

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Directive Principles are not

Fundamental Rights are justiciable
justiciable as they cannot be
Enforceability as they can be enforced legally by
enforced by the courts if there is
the courts if there is a violation.
a violation.

If there is a law in violation of

If there is a law which is in
Directive Principles, then the
violation of fundamental rights
Judicial Power courts do not have the power to
then the courts can declare it as
declare it as invalid and
invalid and unconstitutional.
unconstitutional.

Directive Principles are

Fundamental Rights are sometimes
Nature of directions for the Government in
considered as a kind of restrictions
Imposition helping it to achieve some
imposed on the State.
particular objectives.

Fundamental rights can be

Suspension suspended during a national Directive Principles of State
during emergency. But, the rights Policy can never be suspended
Emergency guaranteed under Articles 20 and under any circumstances.
21 cannot be suspended.

Directive Principles of State

Fundamental Rights were borrowed Policy were borrowed from the
Origin and
from the Constitution of the United Constitution of Ireland, which
Source
States of America. was in turn copied from the
Constitution of Spain.

Case Laws on the Relationship between Fundamental Rights and DPSP

Champakam Dorairajan Case (1951)
Supreme Court ruled that in any case of conflict between Fundamental Rights and
DPSPs, the provisions of the former would prevail. DPSPs were regarded to run as a
subsidiary to Fundamental Rights.
Golaknath Case (1967)
Supreme Court ruled that Parliament cannot amend Fundamental Rights to implement
Directive Principles of State Policy.
Minerva Mills Case (1980)
Supreme Court also held that ‘the Indian Constitution is founded on the bedrock of the
balance between the Fundamental Rights and the Directive Principles.’
Conclusion:

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The harmony and balance between Fundamental Rights and Directive Principles of State
Policy is an essential feature of the basic structure of the Constitution.

Short Note-1 Right to education

Introduction

Fundamental rights have been stated in the Constitution of India as the basic human
rights which are guaranteed to all citizens.

Fundamental Rights are mentioned under Article 12 to Article 35 of the Indian

Constitution. However, these Fundamental rights are not absolute.
The right to higher education is not specifically mentioned in the Indian Constitution.
Unni Krishnan J. P. v. State of Andhra Pradesh (1993) and Mohini Jain v. State of
Karnataka (1992) are two of the most significant rulings concerning the right to
education.
Mohini Jain v. State of Karnataka (1992)
The Supreme Court ruled in this case that even though the Right to Education as such has
not been protected by the Constitution as a fundamental right, it is obvious from the
Preamble and the Directive Principles of the Constitution that the state was intended to
provide education for its citizens. Additionally, they ruled that private educational
institutions’ collection of capitation fees violated the Right to Education that is implied
by the Rights to life, human dignity, and equal protection under the law.
Unni Krishnan, J.P & Ors v. State of Andhra Pradesh (1993)
The case challenged the constitutionality of state regulations governing capitation fees
levied by some private professional educational institutes.
In Unni Krishnan’s case, the Court disagreed with the ruling in Mohini Jain v. State of
Karnataka (1992) that the Constitution guarantees the Right to Education at all levels.
According to the Supreme Court the fundamental Right to Life (Article 21) implies the
right to a minimum level of education as well. The Court ruled that the scope of the right
must be understood in light of the Directive Principles of State Policy, including Article
45, which mandates that the State must make every effort to provide free and mandatory
education for all children under the age of 14.

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Nine years after this pronouncement, the State responded by adding Article 21A to the
Constitution.
Right to Education (Article 21-A)
Initially, the right to education was not a part of the fundamental rights enumerated in the
Indian Constitution.
The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the
Constitution of India to provide free and compulsory education of all children in the age
group of six to fourteen years as a Fundamental Right in such a manner as the State may,
by law, determine.
The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which
represents the consequential legislation envisaged under Article 21-A, means that every
child has a right to full time elementary education of satisfactory and equitable quality in
a formal school which satisfies certain essential norms and standards.
Article 21-A and the RTE Act came into effect on 1 April 2010.

Conclusion

The opinion of Justice Bhandari in the Ashoka Kumar Thakur case (2008), possibly the
most important affirmative action case decided by the Supreme Court of India in the
recent decade or more, serves as the most notable example of discussing the Right to
Education.

Short Note-2 Fundamental duties

Introduction

The Fundamental Duties are dealt with in Article 51A under Part-IV A of the Indian
Constitution.
Fundamental Duties are categorized into two – Moral Duty & Civic Duty
1. Moral Duty: cherishing noble ideals of freedom struggle
2. Civic Duty: respecting the Constitution, National Flag and National
Anthem
History
The Swaran Singh Committee in 1976 recommended Fundamental Duties, the necessity
of which was felt during the internal emergency of 1975-77. The 42nd Amendment Act of

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1976 added 10 Fundamental Duties to the Indian Constitution. The 86th Amendment Act
2002 later added the 11th Fundamental Duty to the list.

Fundamental duties

The list of 11 Fundamental Duties under Article 51-A to be obeyed by every Indian
citizen is given in the table below:

[Link] 11 Fundamental Duties

1. Abide by the Indian Constitution and respect its ideals and institutions, the National
Flag and the National Anthem

2. Cherish and follow the noble ideals that inspired the national struggle for freedom

3. Uphold and protect the sovereignty, unity and integrity of India

4. Defend the country and render national service when called upon to do so

5. Promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities and to
renounce practices derogatory to the dignity of women

6. Value and preserve the rich heritage of the country’s composite culture

7. Protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures

8. Develop scientific temper, humanism and the spirit of inquiry and reform

9. Safeguard public property and to abjure violence

10. Strive towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavour and achievement

11. Provide opportunities for education to his child or ward between the age of six and
fourteen years. (This duty was added by the 86th Constitutional Amendment
Act, 2002)

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Importance of Fundamental Duties – Part IV-A

Fundamental Duties are an inalienable part of fundamental rights. The importance of

these are given in the table below:

[Link] Importance of Fundamental Duties

1. They remind Indian Citizens of their duty towards their society, fellow citizens and
the nation

2. They warn citizens against anti-national and anti-social activities

3. They inspire citizens & promote a sense of discipline and commitment among them

4. They help the courts in examining and determining the constitutional validity of a
law

Conclusion

The Fundamental Duties are confined to Indian citizens only . They are also
nonjusticiable similar to the Directive Principles of State Policy. There is no legal
sanction against their violation.

B.Q. Secularism under Indian Constitution

Introduction

The term “Secular” means being "separate" from religion, or having no religious basis.

A secular person is one who does not owe his moral values to any religion. His values are
the product of his rational and scientific thinking.

Meaning

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Secularism means separation of religion from political, economic, social and cultural
aspects of life, religion being treated as a purely personal matter.

It emphasized dissociation of the state from religion and full freedom to all religions and
tolerance of all religions.

It also stands for equal opportunities for followers of all religions, and no discrimination
and partiality on grounds of religion.

Indian philosophy of secularism is related to “Sarva Dharma Sambhava” (literally it

means that destination of the paths followed by all religions is the same, though the paths
themselves may be different) which means equal respect to all religions.

Features of Secularism

The features of Indian Secularism are as follows:

• Equal respect and recognition of all religions by the state

• No interference in the functions of any religion by the state
• No discrimination by the state based on religion
• There is no official religion in India

As per Article 25 of the Indian Constitution, an individual has the right to practice,
profess and propagate any religion in India

Secularism and the Indian Constitution

There is a clear incorporation of all the basic principles of secularism into various
provisions of constitution.

The term ‘Secular’ was added to the preamble by the forty-second constitution
Amendment Act of 1976, (India is a sovereign, socialist, secular, democratic, republic).

Article 14 grants equality before the law and equal protection of the laws to all, Article
15 enlarges the concept of secularism to the widest possible extent by prohibiting
discrimination on grounds of religion, race, caste, sex or place of birth.

Article 16 (1) guarantees equality of opportunity to all citizens in matters of public

employment and reiterates that there would be no discrimination on the basis of religion,
race, caste, sex, descent, place of birth and residence.

Article 25 provides ‘Freedom of Conscience’, that is, all persons are equally entitled to
freedom of conscience and the right to freely profess, practise and propagate religion.

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Article 25 provides:

• Freedom of Conscience
• Right to Practice any Religion
• Right to Propagate any Religion
• Right to Profess any Religion

Article 25 covers religious beliefs, and religious practices as well. And these rights are
available for citizens and non-citizens as well.

As per Article 26, every religious group or individual has the right to establish and
maintain institutions for religious and charitable purposes and to manage its own affairs
in matters of religion.

As per Article 27, the state shall not compel any citizen to pay any taxes for the
promotion or maintenance of any particular religion or religious institution.

Article 28 allows educational institutions maintained by different religious groups to

impart religious instruction.

Article 29 and Article 30 provides cultural and educational rights to the minorities.

Article 51A i.e. Fundamental Duties obliges all the citizens to promote harmony and the
spirit of common brotherhood and to value and preserve the rich heritage of our
composite culture.

Secularism in light of notable case laws in recent times

Kesavananda Bharati v. State of Kerala

In 1973, in the Kesavananda Bharati v. State of Kerala judgment, the Supreme Court of
India held that secularism is a part of the basic structure of the Constitution. Further, it
was held that elements that constitute the basic structure cannot be amended by the
Parliament.

S.R Bommai v. Union of India

The principle laid down in the Kesavananda Bharati case was reiterated in 1994 in the
case of S.R Bommai v. Union of India. The Supreme Court cleared the doubt over the
word ‘secularism’ in the Constitution. The Court held that a secular nature of a society
does not make it an atheist society. Secularism makes society more heterogeneous. The
law of a secular nation provides equal status to all religions and does not favour or
discriminate against anyone.

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Ahmedabad St. Xavier’s College v. State of Gujarat

In the landmark case of Ahmedabad St. Xavier’s College v. State of Gujarat, the Supreme
Court held that secularism neither means anti-God nor pro-God. It ensures that nobody
shall be discriminated against based on religion. Secularism, therefore, eliminates the
concept of God in matters of the state.

Stainislaus Rev v. State of MP

The High Court of Madhya Pradesh, in Stainislaus Rev v. State of MP, explained that
freedom of ‘profession’ means one’s right to state in public the creed he belongs to.
Moreover, the Court said that freedom of ‘practice’ means one’s right to worship in
private or public. It was further explained that the right to propagate one’s religion gives
one the right to convey his/her religious beliefs to another individual but not to convert a
person to one’s religion.

Indian Young Lawyers Association v. State of Kerala

In the case of Indian Young Lawyers Association v. State of Kerala, it was held that
preventing the women in their “menstruating years” from entering the Sabarimala temple
as per the religious custom, violates women’s constitutionally protected fundamental rights
to equality. The dissent of Justice Indu Malhotra has raised doubts regarding the extent to
which established religious practices can be challenged based on equality.

Conclusion

India is one of the 96 secular nations that provides equal protection to all
religions. Enacting a Uniform Civil Code (Article 44) is only a directive principle of state
policy and is not binding on the state.

Short Note- 1 Right to Religion

Introduction

The Right to Freedom of Religion is guaranteed to all Indians by the Constitution under
Articles 25 to 28.

Right to Freedom of Religion

The Constitution of India guarantees the right to freedom of religion to not only
individuals but also religious groups in India. This is enshrined in Articles 25 to 28.

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Article 25 (Freedom of conscience and free profession, practice, and propagation of

religion)

Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and
propagate religion to all citizens.

The above-mentioned freedoms are subject to public order, health, and morality.

This article also gives a provision that the State can make laws:

That regulates and restricts any financial, economic, political, or other secular activity
associated with any religious practice.

That provides for the social welfare and reform or opening up of Hindu religious
institutions of a public character to all sections and classes of Hindus. Under this
provision, Hindus are construed as including the people professing the Sikh, Jain, or
Buddhist religions, and Hindu institutions shall also be construed accordingly.

People of the Sikh faith wearing & carrying the kirpan shall be considered as included in
the profession of the Sikh religion.

Article 26 (Freedom to manage religious affairs)

This Article provides that every religious denomination has the following rights, subject
to morality, health, and public order.

The right to form and maintain institutions for religious and charitable intents.

The right to manage its own affairs in the matter of religion.

The right to acquire the immovable and movable property.

The right to administer such property according to the law.

Article 27 (Freedom as to payment of taxes for promotion of any particular religion)

According to Article 27 of the Constitution, there can be no taxes, the proceeds of which
are directly used for the promotion and/or maintenance of any particular
religion/religious denomination.

Article 28 (Freedom as to attendance at religious instruction or religious worship in

certain educational institutions)

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This article permits educational institutions that are maintained by religious groups to
disseminate religious instruction.

This provides that no religious instruction shall be provided in State-run educational

institutions.

Educational institutions administered by the State but that were established under any
endowment or trust which requires that religious instruction shall be imparted in such
institutions are exempt from the above clause (that no religious instruction shall be
provided).

Any person who attends any educational institution recognized by the State or receiving
State aid shall not be required to participate in any religious instruction that may be
imparted in such institution, or also attend any religious worship in such institutions
unless he/she has given consent for the same. In the case of minors, the guardians should
have given consent for the same.

Major Judicial Pronouncements on Freedom of Religion

Bijoe Emmanuel and Ors. v. State of Kerala (1986):

In this case, three children of Jehovah’s Witnesses sect were suspended from the school
as they refused to sing the national anthem claiming that it is against the tenets of their
faith. The court held that expulsion is violative of fundamental rights and the right to
freedom of religion.

Acharya Jagdishwaranand v. Commissioner of Police, Calcutta (1983):

The Court held that Ananda Marga is not a separate religion but a religious denomination.
And the performance of Tandava on public streets is not an essential practice of Ananda
Marga..

M. Ismail Faruqui v. Union of India (1994):

The apex court held that the mosque is not an essential practice of Islam, and a Muslim
can offer namaz (prayer) anywhere even in the open.

Raja Birakishore v. State of Orissa (1964.):

The validity of the Jagannath Temple Act, 1954 was challenged as it enacted provisions to
manage the affairs of Puri temple on the grounds that it is violating Article 26. The court
held that the Act only regulated the secular aspect of seva puja, therefore, it is not violative
of Article 26.

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The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra

Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282

Clause (2)(a) of article 25 reserves the right of the State to regulate or restrict any
economic, financial, political and other secular activities which may be associated with
religious practice and the State by sub-clause (b) can legislate for social welfare and
reform even though by so doing it might interfere with religious practices.

Conclusion

The Right to Freedom of Religion is guaranteed to all Indians by the Constitution under
Articles 25 to 28. The Constitution of India guarantees the right to freedom of religion to
not only individuals but also religious groups in India.

Short Note- 2 Religious Fanaticism

Introduction

Fanaticism has been in evidence across the world. This question becomes particularly
relevant in the context of terrorism. Fanaticism results from being blinded by the intensity
of the luminosity of one’s own religious tradition.

Meaning

Fanaticism means enthusiastic, ecstatic; raging, fanatical, furious. Fanaticism is a belief

or behavior involving uncritical zeal or an obsessive enthusiasm. Fanaticism is blind.

Religious fanaticism means that spirit of religiosity which so controls the life of its
victims that it blinds their eyes to any other truths or causes, natural, logical, or scientific.

There is growing “religious fanaticism” and “acts of communal hysteria” in the

country under the cover of “Constitution and religious freedom”.

Series of dastardly acts revealing communal hysteria, rallies, demonstrations, violation

of social discipline, custom and conventions under the guise of the Constitution and
religious freedom, inciting violence by instigating meagre causes, promoting illegal
activities, etc. is increasing,”.

Historically, the term was applied in Christian antiquity to denigrate non-Christian

religions. Since Osama bin Laden's fatwa in 1998, jihad has increasingly become an
internationally recognized term.

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Conclusion

Religion in itself is neither fanatic nor communal. Fanatical intolerance, hostility, and
violence are pressing problems in the contemporary world.

BQ. Discuss- Theory of Separation of powers: stresses and strain.

Introduction

The three branches of the government are the executive, the legislature and the judiciary.
Although the three have distinct functions to perform, their scope sometimes meet.

Concept - ‘Separation of Powers’

In the strictest sense, the doctrine of separation of powers is very rigid.

Background of the concept
• This concept was first seen in the works of Aristotle, in the 4th century BCE,
wherein he described the three agencies of the government as General Assembly,
Public Officials and Judiciary.
• In the Ancient Roman Republic too, a similar concept was followed.
• In modern times, it was 18th-century French philosopher Montesquieu who made
the doctrine a highly systematic and scientific one, in his book De l’esprit des lois
(The Spirit of Laws).
• His work is based on an understanding of the English system which was showing
a propensity towards a greater distinction between the three organs of
government.
• The idea was developed further by John Locke.

The term “separation of powers” or “trias–politica “ was initiated by Charles de

Montesquieu.

Montesquieu was the first one who articulated this principle scientifically, accurately and
systemically in his book “Esprit des Lois” (The Spirit Of Laws) which was published in
the year 1785.

Montesquieu discovered that when power is concentrated in the hands of a single person
or a group of people, a despotic government emerges.

Purpose of the Separation

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The purpose of separation of powers is to prevent abuse of power by a single person or a

group of individuals.

It will guard the society against the arbitrary, irrational and tyrannical powers of the state,
safeguard freedom for all and allocate each function to the suitable organs of the state for
effective discharge of their respective duties.

Meaning of Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e.
Legislature, Executive and the Judiciary. Although different authors give different
definitions, in general, we can frame three features of this doctrine.

1. Each organ should have different persons in capacity, i.e., a person with a
function in one organ should not be a part of another organ.

2. One organ should not interfere in the functioning of the other organs.

3. One organ should not exercise a function of another organ (they should stick to
their mandate only).

Thus, these broad spheres are determined, but in a complex country like India there often
arises conflict and transgression by one branch over the other.

Separation of Powers – in India

In India, a separation of functions rather than of powers is followed. Unlike in the US, in
India, the concept of separation of powers is not adhered to strictly. However, a system
of checks and balances have been put in place in such a manner that the judiciary has
the power to strike down any unconstitutional laws passed by the legislature.

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of the Constitution,
although not specifically mentioned. The legislature cannot pass a law violating this
principle. The functions of the three organs are specifically mentioned in the
Constitution.

Let us take a look at some of the articles of the Constitution which suggest separation of
powers.

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Article 50: This article puts an obligation over the State to separate the judiciary from the
executive. But, since this falls under the Directive Principles of State Policy, it is not
enforceable.

Article 123: The President, being the executive head of the country, is empowered to
exercise legislative powers (Promulgate ordinances) in certain conditions.

Articles 121 and 211: These provide that the legislatures cannot discuss the conduct of a
judge of the Supreme Court or High Court. They can do so only in case of impeachment.

Article 361: The President and Governors enjoy immunity from court proceedings.

There is a system of checks and balances wherein the various organs impose checks on
one another by certain provisions.

Theory of separation of power- Stresses and strain

Merits of separation of power

The theory of separation of powers in its strictest form is considered undesirable and
unworkable. As a result, it is not entirely acknowledged in any nation on earth. However,
its importance resides in emphasising the checks and balances that are required to avoid
abuse of the vast executive powers.

Creating a system of checks and balances

One aspect of the theory of separation of powers is checks and balances. According to
this characteristic, each organ has certain checking abilities over the other two organs in
addition to its own power. The inter-organ relationships are governed by a system of
checks and balances during the process.

The separation of powers thesis was good in principle. When it was attempted to be
utilised in actual life circumstances, however, various flaws became apparent in practice.

Protection of liberty and rights

According to the doctrine of the separation of powers, an individual’s freedoms and

rights are protected, and they are shielded from various types of dictatorship and
oppression.

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Improvement in government efficiency

As authority is divided across government agencies, these agencies learn in-depth

information about the issues they are responsible for and improve their effectiveness. The
tasks required in governance are sometimes too many for one branch of the government
to handle.

Therefore, the division of powers aids in lightening the strain on each individual branch
of government.

Encourages order in governance

Each of the three branches of the government is given a certain set of responsibilities.
Each person would have to do their part solely if the concept were to be strictly followed.
This guarantees that the state is run in an orderly manner.

Prevents abuse of authority

The separation of powers is an excellent safeguard against the abuse and haughtiness of
power. Because various departments are given varying degrees of authority, the
emergence of a dictatorship is prevented.

Achieves judicial independence

The idea of judicial independence holds that the judiciary ought to be separate from the
other arms of the government. In practically every constitution, the judiciary is granted
the authority to decide all constitutional problems and the authority to deem the actions of
the other branches of government null and invalid.

Demerits of separation of power

Misreading of the British system

The Cabinet system of government existed at the time Montesquieu formed his thesis on
the division of powers. At the time, Britain lacked a clear division of authorities. Instead,
there was a focus on who was responsible for what. Montesquieu incorrectly assumed
that there was a division of powers in Britain after seeing the British people enjoy their
freedom. He had the politics of Britain wrong.

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Unhistorical

The British Constitution during the first half of the eighteenth century, as he understood
it, served as inspiration for Montesquieu. In actuality, the English Constitution did not
have a division of powers. This theory was never included in the British Constitution.

The idea is predicated on the false premise that the three branches of government—
legislative, judicial, and executive—are distinct from one another. In the current welfare
state model, these three roles overlap. The government could become more effective as a
result of this division.

Not in favour of the welfare state idea

The welfare state of today must address several intricate sociopolitical economic issues
facing a nation. It is impossible to follow this concept in the current situation.

Unrealistic in and of itself

Deadlocks and inefficiencies can result from the separation of powers:The division of
powers might result in impasses and ineffective government operations. It could lead to
circumstances where each organ engages in combat and becomes stuck with the other
two organs.

Not completely achievable

This notion is not entirely achievable. The legislature also has some judicial duties, while
the executive plays a little part in rulemaking. The legislature, for instance, carries out
judicial actions like impeachment. Separation of powers causes administrative
challenges.

Could cause confusion and deadlock

The division of powers can occasionally cause rivalry, mistrust, and conflict amongst the
several branches of government. It might cripple the government while causing discord
and uncertainty. As a result, even in times of emergency, the government frequently
makes poor judgments.

Power inequality

Although this theory is founded on the equality of powers assumption, this premise has
flaws. While the administration is most powerful under a presidential system, the
legislature, which represents the people, is most powerful in a parliamentary one.

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Separation of powers is one of the factors that contribute to liberty, but it is not the only
one. Liberty also heavily depends on people’s minds, perspectives, political awareness,
customs and traditions, basic rights, the rule of law, the independence of the judiciary,
economic equality, and other factors.

Could upset the balance of power

As it carries out several crucial tasks, the government has become stronger. It is
necessary to offer welfare to the people in addition to solving problems and managing
crises. All of this has increased the executive’s authority and thrown off the balance
between the three branches of government. Not so much the “division” of authorities as
their “fusion” is necessary for planning, security, and welfare.

Conclusion

The theory of separation of powers in its strictest definition is seen undesirable and
unworkable. In my opinion, this doctrine has a great significance as it protects the liberty
of the individual from the arbitrary rule and prevents the organs from usurping the
essential functions of other organs.

Judicial Activism:

o Judicial activism signifies the proactive role of the Judiciary in protecting the
rights of citizens.
o The practice of Judicial Activism first originated and developed in the USA.
o In India, the Supreme Court and the High courts are vested with the power to
examine the constitutionality of any law, and if such a law is found to be
inconsistent with the provisions of the constitution, the court can declare the law
as unconstitutional.
o It has to be noted that the subordinate courts do not have the power to review
constitutionality of laws.
Origin:
• The term judicial activism was coined by historian Arthur Schlesinger, Jr. in
1947.
• The foundation of Judicial Activism in India was laid down by Justice V.R
Krishna Iyer, Justice P.N Bhagwati, Justice [Link] Reddy, and Justice
D.A Desai.
Judicial Restraint:

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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o Judicial Restraint is the antithesis of Judicial Activism.

o Judicial Restraint is a theory of judicial interpretation that encourages judges to
limit the exercise of their own power.
o In short, the courts should interpret the law and not intervene in policy-making.
o Judges should always try to decide cases on the basis of:

1. The original intent of those who wrote the constitution.

2. Precedent – past decisions in earlier cases.
3. Also, the court should leave policy making to others.
Here, courts “restrain” themselves from setting new policies with their decisions.
Public Interest Litigation:
• Public interest litigation means a suit filed in a court of law for the protection of
public interest.
• Judicial activism in India acquired importance due to public interest litigation. It is
not defined in any statute or act.
• In India, PIL initially was resorted to towards improving the lot of
the disadvantaged sections of the society who due to poverty and ignorance were
not in a position to seek justice from the courts.
• Justices P.N. Bhagwati and V.R. Krishna Ayer has played a key role in
promoting this avenue of approaching the apex court of the country.
Some other famous cases of Judicial Activism include -
o Kesavananda Bharati case (1973): The apex court of India declared that the
executive had no right to intercede and tamper with the basic structure of the
constitution.
o Sheela Barse v. State of Maharashtra (1983): A letter by Journalist, addressed
to the Supreme Court addressing the custodial violence of women prisoners in Jail.
The court treated that letter as a writ petition and took cognizance of that matter.
o I. C. Golaknath & Ors vs State Of Punjab & Anrs. (1967): The Supreme Court
declared that Fundamental Rights enshrined in Part 3 are immune and cannot be
amended by the legislative assembly.
o Hussainara Khatoon (I) v. State of Bihar (1979): The inhuman and barbaric
conditions of the undertrial prisoners reflected through the articles published in the
newspaper. Under article 21 of the Indian Constitution, the apex court accepted it
and held that the right to speedy trial is a fundamental right.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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o A.K. Gopalan v. State of Madras (1950): The Indian Supreme Court rejected the
argument that to deprive a person of his life or liberty not only the procedure
prescribed by law for doing so must be followed but also that such procedure must
be fair, reasonable and just.
Conclusion

In India, Judiciary has played an active role through its activism, especially through
PIL. This has restored the rights of disadvantaged sections of the society.
Short Note Appointment, transfer and removal of judges.
Introduction
Judiciary in our country is the main pillar of democracy which helps in the smooth
functioning of democracy. Judges are the main aspects of the judiciary. It is mandatory that
the judges have to be efficient in order for the judiciary to be successful.
Appointment of Judges in the District Courts
According to Article 233, the appointment can be done only after consulting the
Governor of the State and also the Judges of the High Court that is exercising jurisdiction
in the State.
Appointment of Judges in the High Courts
Article 217 of the Indian Constitution provides the procedure regarding the appointment
of judges in the High Courts.
Appointment of Judges in the Supreme Court
Article 124 of the Indian Constitution deals with the appointment of Chief Justice and
Judges of the Supreme Court. The collegium system is still followed for the appointment
of the Judges.
The President has the power to appoint Judges after consulting the Chief Justice of India,
the other Judges of the Supreme Court and also in certain cases other judges of the High
Court.
Transfer of Judges
Transfer of Judges in the High Court
Article 222 of the Indian Constitution provides the transfer of Judges from one High Court
to another. The same procedure is also followed even for the transfer of Chief Justice. The
President has the power to transfer the Judges from one High Court to another. This transfer
must be made only after consulting the Chief Justice.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
Prof., BV YCLCK

Landmark Judgments
S.P Gupta v Union of India
The majority opinion was that “the opinions of Chief Justice of India and opinions of the
Chief Justice of High Court were merely consultative and that power of appointment
solely resides in the Central Government”.
Supreme Court Advocates on record association v. Union of India
Writ petitions questioned the constitutionality of the 99th Amendment and the NJAC Act.
The majority verdict the Chief Justice has the power to appoint and transfer Judges. The
Chief Justice of India needs to consult only two senior-most judges during the time of
appointment.
Conclusion
Judges are the most important part of the judiciary. It is important to ensure that the Judges
are competent enough to handle various issues that arise every day.

Short Note Tribunals

Meaning

Tribunal is a quasi-judicial institution that is set up to deal with problems such as

resolving administrative or tax-related disputes. It performs a number of functions
like adjudicating disputes, determining rights between contesting parties, making an
administrative decision, reviewing an existing administrative decision and so forth.

The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of
the Classical Roman Republic’.

Need for Tribunals?

▪ To overcome the situation that arose due to the pendency of cases in various
Courts, domestic tribunals and other Tribunals have been established under
different Statutes, hereinafter referred to as the Tribunals.

▪ The Tribunals were set up to reduce the workload of courts, to expedite

decisions and to provide a forum which would be manned by lawyers and
experts in the areas falling under the jurisdiction of the Tribunal.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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▪ The tribunals perform an important and specialised role in justice mechanism.

They take a load off the already overburdened courts. They hear disputes related
to the environment, armed forces, tax and administrative issues.
Tribunals were not part of the original constitution, it was incorporated in the Indian
Constitution by 42nd Amendment Act, 1976.
▪ Article 323-A deals with Administrative Tribunals.
▪ Article 323-B deals with tribunals for other matters.
The Administrative Tribunals Act, 1985 provides for three types of tribunals:
▪ The Central Government establishes an administrative tribunal called
the Central Administrative Tribunal (CAT).
▪ The Central Government may, upon receipt of a request in this behalf from
any State Government, establish an administrative tribunal for such State
employees.
▪ Two or more States might ask for a joint tribunal, which is called the Joint
Administrative Tribunal (JAT), which exercises powers of the administrative
tribunals for such States.
There are tribunals for settling various administrative and tax-related disputes,
including:

• Central Administrative Tribunal (CAT),

• Income Tax Appellate Tribunal (ITAT),
• Customs, Excise and Service Tax Appellate Tribunal (CESTAT),
• National Green Tribunal (NGT),
• Competition Appellate Tribunal (COMPAT) and
• Securities Appellate Tribunal (SAT), among others.

Characteristics of Administrative Tribunals

▪ Administrative Tribunal is a creation of a statute.

▪ An Administrative Tribunal is vested in the judicial power of the State and thereby
performs quasi-judicial functions as distinguished from pure administrative
functions.

▪ Administrative Tribunal is bound to act judicially and follow the principles

of natural justice.

▪ It is required to act openly, fairly and impartially.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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▪ An Administrative Tribunal is not bound by the strict rules of procedure and

evidence prescribed by the civil procedure court.

Difference Between Tribunal and Court?

▪ Administrative Tribunals and Ordinary Courts both deal with the disputes
between the parties which affects the rights of the subjects.

▪ Administrative Tribunal is not a court. Some notable differences between a

court and Administrative Tribunal are as follows -

No. Court of Law Tribunal

A court of law is a part of

An Administrative Tribunal is
the traditional judicial
an agency created by the
1. system whereby judicial
statute and invested with judicial
powers are derived from the
power.
state.

Tribunal is also known as the

The Civil Courts have judicial
Quasi-judicial body. Tribunals
power to try all suits of a civil
2. have the power to try cases
nature unless the cognizance is
of special matter which are
expressly or impliedly barred.
conferred on them by statutes

Judges of the ordinary courts of

Tenure, terms and conditions of
law are independent of the
the services of the members
executive in respect of their
3. of Administrative Tribunal are
tenure, terms and conditions of
entirely in the hands of
service etc. Judiciary is
Executive (government).
independent of Executive

The president or a member of the

The presiding officer of Tribunal may not be trained as
4. the court of law is trained in well in law. He may be an expert
law. in the field of Administrative
matters.

A judge of a court of law must

An Administrative Tribunal may
be impartial who is not
5. be a party to the dispute to be
interested in the matter directly
decided by it.
or indirectly.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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An Administrative Tribunal is not

A court of law is bound by all
bound by rules but bound by
6. the rules of evidence and
the principles of nature of
procedure.
Justice.

Administrative Tribunal may

Court must decide all decide questions by taking into
questions objectively on the account departmental policy, the
7.
basis of evidence and materials decision of Administrative
on record. Tribunal may be subjective
rather than objective.

A court of law can decide vires Administrative Tribunal cannot do

8.
of a legislation so

BQ-
Election commission in India
Introduction
The Constitution of India has established a permanent and independent body to ensure
free and fair elections in the country known as the Election Commission. The
commission is responsible for holding Lok Sabha elections of India.
Independence of the Election Commission
Article 324 of The Constitution of India mentions the provisions to safeguard and ensure
the independent and impartial functioning of the Election Commission
Article 324
The Constitution provides the Election Commission of India with the power of direction,
superintendence, and control of elections to parliament, state legislatures, the office of
president of India and the office of vice-president of India.
The Election Commission is an all-India body that is common to both the Central
government and the State governments. It must be noted here that the commission does
not deal with the elections to the Municipalities and Panchayats in the states. Hence, a
separate State Election Commission is provided by the Constitution of India.
Powers of Election Commission of India
In details, these powers of the Election Commission of India are:

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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• Determining the Electoral Constituencies’ territorial areas throughout the country

on the basis of the Delimitation Commission Act of Parliament.
• Preparing and periodically revising electoral rolls and registering all eligible
voters.
• Notifying the schedules and dates of elections and scrutinising nomination papers.
• Granting recognition to the various political parties and allocating them election
symbols.
• Acting as a court to settle disputes concerning the granting of recognition to
political parties and allocating election symbols to the parties.
• Appointing officers for inquiring into disputes concerning electoral arrangements.
• Determining the code of conduct to be followed by the political parties and
candidates during elections.
• Preparing a program for publicising the policies of all the political parties on
various media like TV and radio during elections.
• Advising the President on matters concerning the disqualification of MPs.
• Advising the Governor on matters concerning the disqualification of MLAs.
• Cancelling polls in case of booth capturing, rigging, violence and other
irregularities.
• Requesting the Governor or the President for requisitioning the staff required for
conducting elections.
• Supervising the machinery of elections throughout the country for ensuring the
conduct of free and fair elections.
• Advising the President on whether elections can be held in a state that is under the
President’s rule, in order to extend the period of emergency after 1 year.
• Registering political parties and granting them the status of national or state
parties (depending on their poll performance).
The Commission is aided in its function by deputy election commissioners. The deputy
ECs are taken from the civil services and they are appointed by the Commission. They
have a fixed tenure. They are aided by the secretaries, deputy secretaries, joint secretaries
and under-secretaries posted in the commission’s secretariat.
Functions of Election Commission
1. To direct and control the entire process of conducting elections to Parliament and
Legislature of every State and to the offices of President and Vice-President of
India.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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2. To decide the election schedules for the conduct of periodic and timely elections,
whether general or bye-elections
3. To decide on the location of polling stations, assignment of voters to the polling
stations, location of counting centres, arrangements to be made in and around
polling stations and counting centres and all allied matters
4. To prepare electoral roll and issues Electronic Photo Identity Card (EPIC)
5. To grant recognition to political parties & allot election symbols to them along
with settling disputes related to it
6. To sets limits of campaign expenditure per candidate to all the political parties,
and also monitors the same
7. To advise in the matter of post-election disqualification of sitting members of
Parliament and State Legislatures.
8. To issue the Model Code of Conduct in the election for political parties and
candidates so that no one indulges in unfair practice or there is no arbitrary abuse
of powers by those in power.
Composition of Election Commission
Article 324 of the Constitution has made the following provisions with regard to the
composition of the election commission:
• The President appoints the Chief Election Commissioner and other election
commissioners.
• When any other EC is so appointed, the CEC acts as the Election Commission’s
Chairman.
• The President can also appoint regional commissioners to assist the Commission,
if necessary after consulting with the Election Commission.
• The tenure of office and the conditions of service of all the commissioners shall
be determined by the country’s President.
Importance of Election Commission for India
• The Election Commission has been successfully conducting national as well as
state elections since 1952. Now, it plays an active role to ensure the greater
participation of people.
• The Commission has brought discipline among the political parties with a threat
of derecognizing if the parties failed in maintaining inner-party democracy.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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• It supports the values preserved in the Constitution viz, equality, equity,

impartiality, independence; and rule of law in superintendence, direction, and
control over the electoral governance.
• ECI helps in conducting elections with the highest standard of credibility,
fairness, transparency, integrity, accountability, autonomy and professionalism.
• In the electoral process, it ensures the participation of all eligible citizens in an
inclusive voter-centric and voter-friendly environment.
• The Election Commission of India engages with political parties and all
stakeholders in the interest of the electoral process.
• It creates awareness about the electoral process and electoral governance amongst
stakeholders (political parties, voters, election functionaries, candidates and
people at large) to enhance and strengthen confidence and trust in the electoral
system of this country.

Short Note- Coalition government

Introduction
A coalition government is a form of government in which political parties cooperate to
form a government. The usual reason for such an arrangement is that no single party has
achieved an absolute majority after an election.
Meaning of Coalition Government
The term ‘coalition’ is derived from the Latin world ‘coalitio’ which means ‘to grow
together’. Thus, technically, coalition means the act of uniting parts into one body or
whole. Politically, coalition means an alliance of distinct political parties
Coalition usually occurs in modern parliaments when no single political party can muster
a majority of votes.
Two or more parties, who have enough elected members between them to form a
majority, may then be able to agree on a common programme that does not require too
many drastic compromises with their individual policies and can proceed to form a
government.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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Features of Coalition Government

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

Merits Demerits

• There is an accommodation of diverse • They are unstable or prone to

interests in the functioning of the instability. The difference of
government. opinion among coalition members
• A coalition government acts as a channel to leads to the collapse of the
meet the expectations and redress the government
grievances of different groups • Leadership of the Prime Minister is
• India is a highly diversified country. There a principle of parliamentary form
are different cultures, languages, castes, of government. This principle is
religions and ethnic groups. This means that curtailed in a coalition government
the coalition government’s more as the Prime Minister is required to
representative in nature and reflects the consult the coalition partners
popular opinion of the electorate before taking any major decisions.
• A coalition government comprises different • The Steering Committee or the
political parties having their own ideologies Coordination Committee of the

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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or agendas. But the government policy coalition partners acts as the

requires the concurrence of all the coalition ‘Super-Cabinet’ and thereby it
partners. Therefore, a coalition government undermines the role and position of
leads to consensus-based politics the cabinet in the functioning of the
• Coalition politics strengthens the federal government machinery
fabric of the Indian political system. This is • There is a possibility of the smaller
because a coalition government is more constituents of the coalition
sensitive and responsive to regional government playing the role of a
demands ‘king-maker’. They demand more
• A coalition government reduces the chances than strength in the Parliament
of despotic rule. This is due to the reduced • The leaders of regional parties
domination of a single political party in the bring in the regional facts in the
functioning of the government. All the national decision-making. They
members of the coalition participate in the pressurise the central executive to
decision making. act on their lines; otherwise, they
would threaten to withdraw from
the coalition
• The members of the coalition
governments do not assume
responsibility for the administrative
failures and lapses. They could
play blame games and there by
escape from collective and
individual responsibilities

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

BQ- Electoral Reforms in India -Discuss.

Introduction
It is generally accepted that while the first three general elections were held in a free and
fair manner, a plummeting of standards started during the fourth general elections in 1967.

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Notes on Indian Constitutional Law: The New Challenges, LL.M. I, by Dr. M. S. Khairnar, Asst.
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India is the largest democracy in the world. Elections are the most integral and important
part of politics in a democratic system of governance. True democracy can function only
when elections to the offices of power are held in a free and fair manner.

Electoral Reforms Post 2000

The electoral reforms target the election process in the country. The list of such electoral
reforms are given below:

1. Ceiling on election expenditure: At present, there is no limit on the amount a political

party can spend in an election or on a candidate. But, the Commission has put a cap on
individual candidates’ spending. For the Lok Sabha elections, it is Rs. 50 – 70 lakh
(depending on the state they are contesting the Lok Sabha seat from), and Rs. 20 – 28
lakh for an assembly election.
2. Restriction on exit polls: The EC issued a statement before the 2019 Lok Sabha
elections saying that exit poll results could be broadcast only after the final phase of
the elections were over. This was done to avoid prospective voters being misguided or
prejudiced in any manner.
3. Voting through postal ballot: In 2013, the EC decided to expand the ambit of postal
ballot voting in the country. Previously, only Indian staff in missions abroad and
defence personnel in a limited way, could vote via postal ballots. Now, there are 6
categories of voters who can use the postal ballot: service voters; special voters; wives
of service voters and special voters; voters subjected to preventive detention; voters on
election duty and Notified voters.
4. Awareness Creation: The government decided to observe January 25th as ‘National
Voters Day’ to mark the EC’s founding day. Read more on the National Voters’
Day here.
5. Political parties need to report any contribution in excess of Rs 20000 to the EC for
claiming income tax benefit.
6. Declaring of criminal antecedents, assets, etc. by the candidates is required and
declaring false information in the affidavit is now an electoral offence punishable with
imprisonment up to 6 months or fine or both.
Conclusion

Electoral reforms can make the democratic process more inclusive by bringing more people
under the electoral process, reduce corruption, which is pervasive, and make India a
stronger democracy.

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