ELECTIONS

The Election Commission of India is an autonomous constitutional authority responsible for administering
election processes in India at national, state and district level. The body administers elections to the
Parliament (LS+RS), State legislative assemblies, State legislative councils, and the offices of the President
and Vice President of the country etc. The Election Commission operates under the authority of Constitution
as per Article 324 and subsequently enacted Representation of the People Act. The commission has the
powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient
provisions to deal with a given situation in the conduct of an election. Part XV (15) of the Constitution
entitled as Elections constitutes a code in itself, providing the groundwork for the enactment of appropriate
laws and the setting up of suitable machinery for the conduct of elections. To superintend, direct and control
the election.

1. Constitution of the Election Commission

Article 324 provides that the Election Commission shall consist of the Chief Election Commissioner and
such number of other Election Commissioners, if any, as the President may from time to time fix. Until
Parliament makes any law in that behalf, the Chief Election Commissioner and other Election
Commissioners are appointed by the President. When any other Election Commissioner is so appointed, the
Chief Election Commissioner; shall act as the Chairman of the commission. The President may also appoint,
after consultation with the Election Commission, such Regional Commissioners as he may consider
necessary to assist the commission in the performance of its functions. The conditions of service and tenure
of office of the Election Commissioners and the Regional Commissioners shall be such as the President may
by rule determine. These rules, however, are subject to any law made by Parliament.

2. Chief Election Commissioner vis-a-vis other Election Commissioners

Clause (5) of Article 324 says that the Chief Election Commissioner shall not be removed from his office
except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service
of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. It is thus
clear that the Election Commissioners do not hold the same position as does the Chief Election
Commissioner. Because other Commissioners hold their office during the pleasure of the President, subject
to any law made by Parliament in this regard. Even their conditions of service are determined by the
president. However none of them can be removed from office by the president, except on the
recommendation of the CEC.

3. Staff of the Election Commission [Article 324 (6)]

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The Election Commission generally has few staff of its own. It however, can demand necessary staff from
the Central and State Governments whenever required. For that purpose, the President or the Governor when
so requested by the Commission, make available as such staff as may be necessary for the discharge of the
functions conferred on the Election Commission.

It permits the requisition of services of employees working under the President/Governor and not those of
Bank employees or that of LIC, or teachers during teaching days. It can direct the posting of such employees
for the purpose of ensuring a free and fair holding of elections as and when they have been sanctioned. The
Commission shall have power to recommend disciplinary action, to the competent authority, against the
officers for insubordination or dereliction of duty while on election duty.

3. Functions of the Election Commission

The Election Commission performs the following functions:
1. The superintendence, direction and control of the preparation of electoral rolls for all elections to
Parliament and to the Legislature of every State and of elections to the offices of President and Vice-
President.
2. The conduct of all the elections mentioned.
3. To advise the President or the Governor of a State, as the case may be, on the question of
disqualification of any Member of Parliament or a member of a State Legislature, respectively.

The power conferred on the Commission under Article 324 is subjected to two limitations, namely: When
Parliament or any State Legislature has made a valid law relating to or in connection with elections, the
Commission shall act in conformity with such law. The Commission while exercising power shall conform
to the rule of law, act bone fide and be amenable to the norms of natural justice.

4. One General Electoral Roll for every Constituency (Article 325)

There shall be one general electoral roll for every territorial constituency for legislative elections and no
person shall be ineligible for inclusion in any such roll on grounds only of religion, race, caste, sex or any of
them. Representation of the People Act empowers the Electoral Registration Officer of a constituency to
delete the name of a person from the Electoral Roll on certain grounds. It has been held that such deletion
must be done only after giving to the person concerned meaningful opportunity of hearing and after
following requisite procedure.

5. System of Adult Suffrage (Article 326)

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Article 326 incorporates the system of adult suffrage for elections to the Lok Sabha and the Legislative
Assembly of every State. According to this system, a person to be registered as a voter for these elections
must comply with the following requirements:
1. He must be a citizen of India.
2. He must not be less than 18 years of age on the appointed day.
3. He must not be otherwise disqualified under the Constitution or any law on the ground of non-
residence, crime, corrupt or illegal practice.
4. He must not be declared to be of unsound mind by competent court.

No person is entitled to be registered in the electoral roll for more than one constituency or of any
constituency more than once. Any disqualification which has been imposed by the Commission (not by law)
can be removed and is not of a temporary nature. Every person enrolled in the electoral roll is entitled to cast
a vote unless disqualified under law.

7. Enactment of laws with respect to Elections (Articles 327 and 328)

Article 327 provides that Parliament may by law make provisions for the preparation of electoral rolls, the
delimitation of constituencies and all other related. The law so made shall be subject to the provisions of the
Constitution. Similar power is conferred on the Legislature of a State with respect to the elections to the
Houses of the State Legislature. In the exercise of these powers conferred the Parliament has enacted the
Representation of the People Acts and Delimitation Commission Act. The Election Commission is to act
not inconsistent with these Acts.

8. Settlement of Election Disputes (Article 329)

Validity of any law relating to the delimitation of constituencies or the allotment of seats to such
constituencies shall not be called in question in any Court. Notwithstanding anything in the Constitution, no
election to either House of Parliament or the Legislature of a State shall be called in question except by an
election petition presented to such authority and such prescribed manner. authority. In pursuance of this
Clause, Parliament enacted the Representation of the People Act which has vested the power to decide any
election petition, in the High Courts.

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 NATIONAL EMERGENCY
A national emergency can be proclaimed in the situation of war, external aggression, or armed rebellion by
the President. Part (18) of the Indian Constitution contains emergency provisions from Article 352 to
360. These rules enable the central government to properly respond to any unusual event. Emergency under
Article 352 was proclaimed 3 times - due to external aggression (2) and once due to internal disturbance

1. Grounds Of Declaration
1. Under Article 352, the President can declare a national emergency when the security of India or a
part of it is threatened by war or external aggression or armed rebellion, even before any of these
events actually occur.
2. External Emergency (war + external aggression) and Internal Emergency (armed rebellion). The
word "armed rebellion" was added by the 44th amendment. It was previously called an internal
disturbance.
3. Emergency can be declared over the complete territory of India or any part thereof. This was enabled
by the 42nd Amendment Act of 1976 .
4. The President can declare an emergency only on the written advice of the cabinet. This means that
the emergency may only be proclaimed with the cabinet's approval and not only on the prime
minister's recommendation.

3. Parliamentary Approval And Duration Of National Emergency

1. Within a month after its declaration, the declaration of Emergency must be ratified by both Houses of
Parliament. The 44th Amendment Act of 1978 shortened the two-month time originally given to the
Parliament for approval.
2. Every proclamation made under article 352 (except a proclamation revoking the previous
proclamation) should be laid before each house of parliament and must be approved by them with
special majority - by a majority of the total membership of that house + by a majority of not less than
2/3rd of the members of that house present and voting.
3. If parliament fails to approve such a proclamation, then it ceases to be in operation on the expiry
of one month after the proclamation is made. If parliament approves such a proclamation, then it will
be in force for 6 months from the date on which it was approved by the parliament, unless revoked
earlier. It can be approved by parliament any number of times but not beyond 6 months at a time.

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 4. If Lok Sabha is not in session - If the proclamation of emergency is issued at a time when the Lok
Sabha is not in session, then the proclamation survives until 30 days from the first sitting of the Lok
Sabha after its reconstitution (as and when it does) provided the Rajya Sabha has in the meantime
approved it.
5. The proclamation of emergency made by the president under article 352 is subject to the judicial
review and its constitutionality can be questioned in a court of law on grounds of malafide
intentions.
4. Revocation Of Proclamation Of National Emergency
1. The Proclamation of emergency may be revoked by the President by another Proclamation at any
time during its continuance. Such a Proclamation need not be approved by the Parliament.
2. President must revoke if Lok Sabha passes a disapproval resolution.
3. Lok Sabha has the power to disapprove the operation of a national emergency at any time, if a
minimum of 1/10th of members of Lok Sabha issue a notice with the intention of disapproving an
emergency to the President. If there is no session, a special sitting of the LS shall be held within 14
days for the purpose of considering such a resolution.

5. Effects of National Emergency

The political system is drastically and broadly affected by a declaration of emergency. There are significant
effects on centre-state relations. Three categories, namely executive, legislative, and financial.

5.1 On Executive
The President of India can issue directions to the states as to the manner in which the executive power of the
states is to be exercised. State governments are not dismissed, they continue to operate but are brought under
the effective control of the centre which assumes the power to give instructions to the state government
which shall abide by such directions.

5.2 On Legislature
State legislatures continue to operate and legislate but parliament assumes concurrent legislative power on
state subjects and a law such enacted by parliament shall cease to operate at the expiry of six months after
the revocation of national emergency to the extent of incompetency (important). The life of Lok Sabha may
be extended by a law of Parliament for periods longer than its regular five-year period, up to an unlimited
number of years, when a declaration of a national emergency is in effect. However, this extension is only
valid for a total of six months after the emergency has ended.

5.3 On Financial relations

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The centre-state financial relations may be modified by presidential order subject to parliamentary approval
as soon as may be. However, this modification may never go beyond the financial year in which the
emergency is revoked. The President can suspend the distribution of financial resources between centre and
states and centre can make use of any national resource to fight the cost on the basis of which, emergency is
declared.

6. Effect on Fundamental Rights

1. Fundamental Rights guaranteed by Article 19 and all other such rights are suspended except those
guaranteed by Articles 20 and 21.
2. The six fundamental rights under article 19 are suspended only when National Emergency is
declared on the ground of war or external aggression and not on the grounds of armed rebellion.
3. The president can suspend the right to move any court for the enforcement of fundamental rights
during a National Emergency except for article 20 and article 21.

National Emergency declared so far in India - For the first time an national emergency was declared after
China attacked our borders in the North East. For the second time, it was declared in the wake of the second
India- Pakistan War. Another internal emergency was imposed in 1975 the grounds of ‘internal
disturbances’.

7. Criticism of Emergency Provision

The constitution's federal character will be lost, and the union will become all-powerful.
1. Fundamental rights will lose their significance, and the democratic foundation will crumble.
2. The state's powers, both in the Union and in the Units, will be concentrated totally in the hands of the
union executive.
3. The state's financial autonomy will be revoked.
4. The president will rise to the position of tyrant.

9. Amendments Relating National Emergency

38th Constitutional Amendment Act 1975

It empowered the president to proclaim a national emergency on different grounds even though an
emergency is already under operation. For example, President can issue a different proclamation on grounds
of war, external aggression, armed rebellion, or imminent danger thereof, whether or not there is a
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proclamation already issued by him and such proclamation is in operation. It made the declaration of the
National Emergency immune to judicial review. Deleted by the 44th Amendment Act of 1978.

39th Constitutional Amendment Act 1975

It was adopted in response to a judgment by the Allahabad High Court, which declared Prime Minister
Indira Gandhi's election to the Lok Sabha void on Raj Narain's petition. The president, vice president, prime
minister, and Speaker of the House of Representatives are no longer subject to the judiciary's jurisdiction.
They will be decided by whichever authority the Parliament deems appropriate.

42nd Constitutional Amendment Act 1976

It empowered the president to modify or vary national emergency. Under the original constitution only
imposition or revocations was possible. Under the original constitution, the president could have imposed a
national emergency only over the complete territory of India but now over a part was possible.

44th Constitutional Amendment 1978

It was enacted to prevent the misuse of emergency power by the executive. It has introduced a number of
safeguards . These are as follows:
1. The internal disturbance was a vague one, and could be misused by the executive. The Act
therefore introduced the expression "armed rebellion" in place of internal disturbance.
2. Initially approval was to be on the basis of simple majority, but at present it needs a special majority.
3. There was no parliamentary control, once a proclamation of emergency was approved by it when the
house was not in session. But now a special sitting of Lok Sabha can be held for the purpose of
considering disapproval.

10. Judicial Pronouncements Related To National Emergency

1. Minerva Mills case – SC held that National emergency can be challenged in the court on the ground
of malafide intention or that the declaration was based on wholly extraneous and irrelevant facts.
2. Bhut Nath v. State of West Bengal - SC held the ‘satisfaction of the president as used in Article
352 is to mean “final and conclusive” and “could not be challenged in any court of law”.
3. ADM Jabalpur v. Shiv Kant Shukla – during the imposition of national emergency no person has
any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus
or any other writ

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 STATE EMERGENCY

President’s Rule is explained under Article 356 of the Indian Constitution. Under this Article, the President
may issue a proclamation to impose emergency in a state if he is satisfied on receipt of a report from the
Governor or otherwise, that a situation has arisen under which the Government of the State cannot be carried
on smoothly. In such a situation, proclamation of emergency by the President is called ‘proclamation on
account of the failure (or breakdown) of constitutional machinery in the State.’ It is also known as ‘State
Emergency’ or‘ Constitutional Emergency’.

1. Grounds of Declaration
The Center has a responsibility to make sure that each state's government is operating in line with the
Constitution's rules. In the event that the state's constitutional machinery malfunctions, the Center assumes
this role and, pursuant to Article 356, assumes control of the state's administration. The President’s Rule can
be proclaimed under Article 356 on two grounds :- one mentioned in Article 356 itself and another
in Article 365:
Under Article 356 - If the President determines that a situation has developed that prevents a state's
administration from continuing in conformity with the Constitution.
Under Article 365 - Whenever a state refuses to follow or implement a directive from the centre, it is
legal for the president to declare that a situation has developed in which the state's administration can
no longer be carried out in accordance with the terms of the constitution.

2. Parliamentary Approval and Duration of President Rule

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Like National Emergency, such a proclamation must also be placed before both the Houses of Parliament for
its approval. In this case approval must be given within two months; otherwise, the proclamation ceases to
operate.
1.1 Lok Sabha dissolved: If during these two months, the Lok Sabha is dissolved and the Rajya Sabha
has approved it, then the proclamation shall cease to operate on expiration of thirty days from the
date on which the Lok Sabha first sits after its reconstitution unless it is approved by the Lok Sabha
before the expiration of this period.
1.2 Period: A proclamation so approved, unless revoked, ceases to operate on the expiration of a period
of six months from the date of issue of the proclamation.
1.3 Extension: Unless revoked, its life can be extended by six months each, several times but in no case
beyond three years. Thereafter, the President’s Rule must come to an end, and the normal
constitutional machinery must be restored in the State.

3. Revocation of President Rule

Any such Proclamation may be revoked or varied by a subsequent Proclamation. It can be revoked by the
President only on his own. A proclamation issued under Article 356(1) expires in any of the following
modes:
1. After two months of its making, it is not presented for approval before both Houses of the
Parliament.
2. Even before two months, if the proclamation on presentation to the Houses of Parliament fails to get
approval from any House.
3. After 6 months from the date of the proclamation, in case no further resolution is passed by the
House of Parliament after the passage of the initial resolution approving it.
4. Maximum limit of 3 years from the date of the proclamation.
5. A National Emergency is already in operation.

Subject to Judicial Review - The 44th Amendment Act of 1978 says that the President's satisfaction is
subject to judicial review.

5. Effects of President Rule

The declaration of emergency due to the breakdown of Constitutional machinery in a State has the following
effects:
1. The President can assume to himself all or any of the functions of the State Government or he may
vest all or any of those functions with the Governor or any other executive authority.

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 2. The President may dissolve the State Legislative Assembly and authorise the Parliament to make
laws on behalf of the State Legislature.
3. The President can make any other incidental or consequential provision necessary to give effect to
the object of proclamation.
4. The President is not, however, authorised to assume the powers of the High Court, or to suspend any
constitutional provision pertaining to it.
5. It has no effect on Fundamental Rights of the citizens.

Some instances when the President’s rule is imposed are:

1. Council of Ministers lost the majority in the assembly
2. State administration fail to maintain peace and public order
3. State administration against secular values [S.R Bommai case]

FINANCIAL EMERGENCY

The President of India proclaims the Financial Emergency under Article 360. When a situation has emerged
that threatens India's financial stability or credit, or any portion of its territory. Financial Emergency can be
declared for as long as the circumstances require, but it can be overturned by a future proclamation. So
far, no Financial Emergency has been declared in India. Under such a situation, the executive and legislative
powers will go to the centre. Like the other two types of emergencies, it has also to be approved by the
Parliament and as per the 44th amendment, it is subject to judicial review.

2. Parliamentary Approval and Duration of Financial Emergency

1. A proclamation declaring a financial emergency must be approved by both the Houses of Parliament
within two months from the date of its issue, passed by either House only by a simple majority, that
is, a majority of the members of that house present and voting.
2. However, if the proclamation of Financial Emergency is issued at a time when the Lok Sabha has
been dissolved then the proclamation survives until 30 days from the first sitting of the Lok Sabha
provided the Rajya Sabha has in the meantime approved it.
3. Financial Emergency can operate as long as the situation demands and may be revoked by a
subsequent proclamation. The proclamation once approved by the Parliament with simple majority
continues indefinitely till it is revoked. This means that there is no maximum period. There is no
repeated parliamentary approval
4. A resolution approving the proclamation of financial emergency can be passed by either House of
Parliament only by a simple majority, that is, a majority of the members of that house present and
voting.

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3. Effects of Financial Emergency
1. The Union Government may give direction to any of the States regarding financial matters.
2. The President may ask the States to reduce the salaries and allowances of all or any class of persons
in government service including the Judges of the Supreme Court and the High Courts
3. The President may ask the States to reserve all the money bills for the consideration of the
Parliament after they have been passed by the State Legislature.

AMENDMENT OF CONSTITUTION AND THEORY OF BASIC STRUCTURE

Key Concepts
The Indian Constitution is a mixture of both flexibility and rigidity. The idea of amending the constitution
has been borrowed from the Constitution of South Africa. The procedure for amendment is detailed
under Article 368. A constitutional amendment can only be initiated by the introduction of a Bill in either
House of Parliament. Parliament may alter any provision of the Constitution by adding, modifying, or
repealing it in line with the method established for that purpose. However, the sections that comprise the
Constitution's ‘basic structure’ cannot be amended by Parliament. The Supreme Court decided on this in
the Kesavananda Bharati case (1973). Article 368 in itself has been amended by the Parliament through 24th
Amendment Act, 1971 and 42nd Amendment Act, 1976.

1. Procedure for Amending Indian Constitution

1. A constitutional amendment can only be initiated in either House of Parliament, not in state
legislatures. The bill can be filed by either a minister or a private member, and no previous
authorization from the president is required (authorisation is need only in money bill).

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 2. A special majority is needed which is a majority of the entire membership of the House + a majority
of two-thirds of the members present and voting. The law must be passed separately by each House.
There is no provision for calling a joint sitting of the two Houses for the purpose of consideration
and passing of the bill if the two Houses disagree.
3. If the law aims to change federal provisions of the Constitution, it must also be adopted by the
legislatures of half of the states by a simple majority.
4. The bill is brought to the president for assent after being officially enacted by both Houses of
Parliament and confirmed by state legislatures, if required. The bill must be signed by the president.
He cannot withdraw his assent to the law or return it to Parliament for reconsideration.
5. Following the president's signature, the bill becomes an Act (i.e., a constitutional amendment act),
and the Constitution is altered in line with the Act's terms.

1.1 Amendment by simple majority

It means a simple majority of the members present and voting i.e., more than 50%. It includes :-
1. Formation of new states, changes in the names and boundaries of the states.
2. Delimitation of constituencies.
3. Creation or abolition of the legislative council
4. Salaries and allowances of President, Vice-President, Judges of Supreme Court and High Courts.
5. Power, privileges, and immunities of members of Parliament.
6. citizenship.
1.2 Amendment By special majority
It means a majority of not less than 2/3rd of the members of that house present and voting. The following
provision of the constitution also fall under the same category:
1. Fundamental Rights
2. Directive Principles of State Policy
3. All parts of the Constitution, with the exception of the specific provisions mentioned in Article 368

1.3 Special Majority a/w ratification by state legislature

It means a simple majority of the total membership of that House and by a majority not less than 2/3rd of the
members present and voting; then the amendment must be ratified by the state legislature of not less than
one-half of the States by simple majority. In this regard Article 368 of the Constitution provides for a list of
Article which may be amended only by a rigid method. These are:

1. The seventh schedule.

2. Provision pertaining to the Supreme Court of India
3. Provision pertaining to the High Court of India

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 4. High Court for Union Territories
5. Provision dealing with the amendment of the Constitution (Article 368) itself.

2. Salient Features Of Amendment Procedure

1. No separate body as exists in some other countries.
2. Only in Parliament not in State Legislature
3. "shall give his assent' in Clause (2) of the Article 368, has taken away the President's power to veto
a bill for amendment of the constitution by the 24th amendment.
4. But there is no time limit within which the President must give his assent.

6. Criticism
1. There is no provision for a special body.
2. Power is held only by the National parliament.
3. The Constitution does not specify when state legislatures must accept or reject an amendment that
has been offered to them. It is also silent on whether or not states can revoke their permission after
giving it.
4. If there is a deadlock over the passage of a constitutional amendment bill, there is no provision for a
joint sitting of both Houses of Parliament. In the event of an ordinary measure, however, a provision
is created for a joint sitting.

K.C. Wheare - "strikes a reasonable balance

B. BASIC STRUCTURE DOCTRINE

The basic structure doctrine that a sovereign state's constitution contains specific features that cannot be
changed by its legislature. The basic structure doctrine was developed by the Supreme Court of India in the
landmark judgement of Kesavananda Bharati v State of Kerala in 1973. It was determined that the "basic
structure of the Indian Constitution could not be repealed even by a constitutional amendment". Bangladesh,
Malaysia, Pakistan, and Uganda all accept the ideology.

1. Elements
The Supreme Court is yet to define or clarify what constitutes the basic structure of the Constitution.
From the various judgments, the following have emerged as basic features of the Constitution or
elements of the basic structure of the constitution:

1. Supremacy of the Constitution.

2. Sovereign, democratic and republican nature of the Indian polity.
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 3. Secular character of the Constitution.
4. Separation of powers between the legislature, the executive, and the judiciary.
5. Federal character of the Constitution.
6. Unity and integrity of the nation.
7. Welfare state (socio-economic justice).
8. Judicial review.
9. Parliamentary system.
10. Rule of law.
11. Harmony and balance between Fundamental Rights and Directive Principles.
12. Principle of equality.
13. Free and fair elections.
14. Independence of Judiciary.
15. Limited power of Parliament to amend the Constitution.
16. Powers of the Supreme Court under Articles 32, 141 and 142.
17. Powers of the High Courts under Articles 226 and 227.

2. Evolution
1. In the early years of Independence the Supreme Court conceded absolute power to Parliament in
amending the Constitution which was seen in the verdicts of Shankari Prasad case and Sajjan
Singh case. The Supreme Court ruled that the power of the Parliament to amend the Constitution
under Article 368 also includes the power to amend Fundamental Rights and the word ‘law’ in
Article 13 includes only ordinary laws and not the constitutional amendment acts.
2. But in the Golak Nath case the Supreme Court reversed its earlier stand and ruled that Parliament
cannot abridge or take away the fundamental rights. That a constitutional amendment act is also a
law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental
Rights.
3. The Parliament reacted by enacting the 24th Amendment Act (1971), which amended Articles 13
and 368. It declared that the Parliament has the power to abridge or take away any of the
Fundamental Rights under Article 368 and such an act will not be law under the meaning of Article
13.

4. However, in the Kesavananda Bharati case (1973), the Supreme Court overruled its judgment and
stated that Parliament is empowered to abridge or take away any of the Fundamental Rights but
cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the
Constitution.

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 5. Re-affirmed in Indira Nehru Gandhi case which invalidated a provision of the 39th Amendment
Act that kept the election disputes outside the jurisdiction of all courts.

6. Parliament reacted to the doctrine of the basic structure by enacting the 42nd Amendment Act
(1976) which amended Article 368 and declared that there is no limitation on the constituent power
of Parliament and no amendment can be questioned in any court on any ground including that of the
contravention of any of the Fundamental Rights.
7. The Supreme Court in the Minerva Mills case invalidated this provision as it excluded judicial
review which is a ‘basic feature’ of the Constitution.
8. Waman Rao Case (1981) - The SC again reiterated the Basic Structure doctrine. It also drew a line
of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that
it should not be applied retrospectively to reopen the validity of any amendment to the Constitution
which took place prior to that date. The 9th Schedule was added to the Constitution by the First
Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms
laws. This was done in order to prevent them from being challenged in court. The Waman Rao case
held that amendments made to the 9th Schedule until the Kesavananda judgement are valid, and
those passed after that date can be subject to scrutiny.
9. Indra Sawhney and Union of India (1992) - ‘Rule of Law’ was added to the list of basic features of
the constitution.

Criticism
1. No basis in the wording of the Constitution. For that it lacks a scriptural foundation. There is no
clause stating that this Constitution has a basic structure that is outside the scope of modifying
power.
2. Empowers the court to impose its worldview on a democratically established government. Leads to
judicial over reach.
3. There is no clear definition of what defines basic structure, making the notion vague.

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 S.R. BOMMAI V. UNION OF INDIA, 1994
As per Article 356 the central government, through presidential proclamation can take control of any State
government if a situation has arisen in which the State government machinery cannot be carried on in
accordance with the provisions of the Constitution and therefore matters related to this Article are always
involved in controversy. The Supreme Court gave a historic judgement, in the case of S.R. Bommai that
serves as a guide for all disputes arising out of the use (and the alleged ‘misuse’) of Article 356 and the
tussle between the Centre and the states.

1. Background/Facts
1. S.R. Bommai was the Chief Minister in Karnataka representing the Janta Dal. His government was
dismissed under Article 356 and President’s Rule was imposed on grounds that the incumbent
government does not have majority due to the defection of a large number of MLAs.
2. The then-Governor refused to give him an opportunity to prove his party’s majority in the Assembly.
Bommai went to court. He approached the High Court first, which dismissed his writ petition as a
result of which, he sought remedy from the Supreme Court.
3. On the other hand, Indira Gandhi had constituted the Sarkaria commission which suggested that
Article 356 must be used only in extreme cases, as a measure of last resort where all other
alternatives have been exhausted. The report of the commission was obviously not binding on the
legislature but the Supreme Court took the recommendation into consideration it in the S.R. Bommai
case.

2. Issues Raised
1. Is the Proclamation issued by the President under Article 356, amenable to judicial review?
2. If yes, what is the scope of judicial review in this respect?
3. What is the meaning of the expression “A situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of this Constitution” used in Art. 356(1)?

3. Ratio Decidendi
1. The court held that such a proclamation is subject to judicial review at least to the extent of
examining whether the conditions precedent to the issuance of the Proclamation have been satisfied
or not. As to whether there existed material for the satisfaction of the President that such a situation
had arisen.
2. President has no power to dissolve the Legislative Assembly of the State by using this his power till
the Proclamation is approved by both the Houses of Parliament. He may have power only to suspend
the Legislative Assembly.

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 3. Court has the power to overrule the Proclamation issued by the President whether it is approved by
Parliament or not. This will mean that the courts also have the power to restore the status quo and,
therefore to restore the Council of Ministers and the Legislative Assembly as they stood on the date
of the issuance of the Proclamation.
4. If the Ministry of State resigns or loses majority then Governor can’t advise President to impose
President’s Rule until enough measures are taken by Governor for formation of an alternative
Government.
5. The Court restored the dismissed state government

The Supreme Court of India in its judgment in the case said that it is well settled that Article 356 is an
extreme power and is to be used as the last method in cases where it is manifest that the constitutional
machinery in a State has collapsed

KESAVANANDA BHARTI V. STATE OF KERALA, AIR 1973

1. Background and Core Facts

1. In this case, the petitioner Kesavananda Bharati was the chief of a Hindu monastery in Kerala. This
had certain pieces of land acquired under its name. When the Kerala govt. passed the Kerala Land
Reforms Act some lands were to be acquired by the State to fulfill its socio-economic obligations.

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 2. Therefore, the Fundamental Rights such as Article 14 (Right to equality before the law), Article 25
(Freedom of conscience and free profession, practice, and propagation of religion), Article 26
(Freedom to manage religious affairs), were infringed.
3. Kesavananda Bharati challenged the Constitutional validity of this act first in Kerala High Court and
later in Supreme Court under Article 32 (Right to Constitutional Remedies).
4. Meanwhile, the Kerala Government again passed another Kerala Land Reforms (Amendment) Act,
1971, when the petition was still pending in the Supreme Court. Both the Kerala Land Reforms
Legislations were challenged in Supreme Court.

2. Arguments Presented By Petitioner:

1. The petitioner advanced that the Parliament could not interfere with the basic structure of the
constitution and that the fundamental rights were contained within this purview. The Parliament’s
authority to make such amendments was not unlimited. The govt. itself cannot be the sole determiner
of the people’s rights.
2. He sought protection over the rights of his property under Art. 19(1)(f) of the Constitution and
claimed that the amendments violated this right.

3. Arguments Presented By Respondent:

1. The respondents claimed that the Parliament had the power to alter or abrogate fundamental rights
such as that of religion, speech and expression etc. They advocated for the supremacy of the
Parliament.
2. They went further to state that the rule of democracy could even be replaced by a one-party system if
the Parliament wished so by the exercise of its powers, i.e., the powers were unlimited.
3. They cited Re Berubari Union Case to cement their arguments and claimed that the Parliament’s
authority must not be limited as it needs such power to fulfill its social and economic obligations.

4. Cases That Led To The Final Judgment Of The Case

4.1 Shri Sankari Prasad v. UOI & State of Bihar

In this case, the First Constitutional Amendment Act of 1951 was challanged on the grounds that it
violated the Fundamental Rights enshrined in Part III. The Supreme Court confirmed that the authority
of the legislature to change any section of the Constitution under article 368 includes also the power to
amend 'fundamental rights' Part III had no unique status and, like any other regular part of the
constitution, the provisions included in this Constitution were likewise amendable under Article 368 by
the legislature.

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4.2 Sajjan Singh V. State of Rajasthan
In this case, while most opinions backed Sankari Prasad's correctness, some judges were in disagreement
and believed that the Indian Constitution had some fundamental characteristics and those should not fall
under the purview of the Article 368. The fundamental characteristics, sacred and impregnable, must remain
protected from arbitrary state intrusions.

4.3 Golakhnath and Ors. V. State of Punjab

In this decision, the Supreme Court changed the view takin in the Sajjan Singh and Sankari Prasad cases and
held that the fundamental human rights are not subject to Article 368's provisions. The Court has called the
legislative authority under Part III of the Constitution to modify any of the fundamental rights ultra vires, or
beyond powers. That a Constitutional Amendment Act and an Amendment Act of any regular legislation do
not vary greatly. Therefore, if any of the 'fundamental rights' is 'taken away or abridged by the legislative
body, the court is entitled to disallow that Constitutional Amendment Act in accordance with Article 13

Issues
1. Whether the ‘Fundamental Rights’ contained in Part III of the Constitution are amenable by the
Parliament within the scope of Article 368 or not.
2. Whether 24th, 25th & 29th Constitutional Amendment Acts were valid or not.

Final Judgement Of The Case - The Constitutional Bench concluded by a 7-6 judgement that Parliament
should be prohibited from modifying the ‘basic structure’ of the Constitution. The Court did not, however,
define the so-called 'fundamental structure' and simply included several concepts — federalism, secularism,
democracy. Since that time, more features have been added by the Court.

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