UNIT - II

The nature of the Indian Constitution refers to the essential characteristics that
define its structure, philosophy, and functioning. The Constitution of India,
adopted in 1950, is known for being unique, detailed, and balanced, combining
features from various constitutions around the world.
Here are the key features that explain its nature:
1. Written and Lengthiest Constitution
India has one of the most detailed written constitutions in the world. It
originally contained 395 Articles, 22 Parts, and 8 Schedules (now much more
due to amendments). At present, the Constitution of India consists of a
Preamble, 448 articles, 25 parts, and 12 schedules.
It covers every aspect of political and administrative structure.
2. Partly Rigid and Partly Flexible
The Indian Constitution is neither completely rigid nor fully flexible.
 Some provisions can be amended by a simple majority in Parliament.
 Others require a special majority and approval of half of state
legislatures.
3. Federal in Structure but Unitary in Spirit
India is described as a “Union of States”.
 It has federal features: division of powers, written constitution,
independent judiciary.
 It also has unitary features: strong Centre, emergency powers, single
Constitution for both Centre and states.
Hence, it is called quasi-federal.
4. Parliamentary System of Government
India follows the British model of parliamentary democracy.
 President = nominal head
 Prime Minister = real executive
 Council of Ministers collectively responsible to Lok Sabha
5. Blend of Different Constitutions
India borrowed features from many countries:
 Parliamentary system – UK
 Fundamental Rights – USA
 Directive Principles – Ireland
 Federal system – Canada
This makes it a blend of various constitutional practices.
6. Secular State
The Constitution ensures equal respect for all religions. No state religion, and
the State does not favour or discriminate against any religion.
7. Independent Judiciary
The judiciary is independent from the executive and legislature.
The Supreme Court ensures:
 Protection of Fundamental Rights
 Judicial Review
 Interpretation of the Constitution
8. Fundamental Rights and Duties
The Constitution guarantees citizens Fundamental Rights, such as equality,
freedom, and constitutional [Link] also prescribes Fundamental Duties for
citizens.
9. Directive Principles of State Policy (DPSP)
These are guidelines for the government to establish social and economic
justice, aiming for a welfare state.
10. Single Citizenship
Unlike federal countries such as the US, Indians have only one citizenship—
Indian citizenship.
11. Universal Adult Franchise
Every citizen aged 18 and above has the right to vote, regardless of caste,
religion, gender, or wealth.
12. Emphasis on Social and Economic Justice
The Constitution focuses on removing inequalities and ensuring a socialist,
democratic, republic, as stated in the Preamble.
Salient features of the Indian Constitution
Before making the present Constitution, the framers examined Constitutions of
various countries of the world and also the working of the Government of India
Act, 1935. They liberally borrowed appropriate provisions from Constitutions of
many countries of the world. The Constitution so adopted has the following
salient features—
1. The Lengthiest Constitution in the World.
Constitutions are classified into written, like the American Constitution, or
unwritten, like the British Constitution. The Constitution of India is the lengthiest
of all the written Constitutions of the world. It is a very comprehensive, elaborate
and detailed document.
The Indian Constitution originally consisted of 395 articles divided into 22 Parts
and 9 Schedules. Presently, it consists of a Preamble, about 448 articles divided
into 24 Parts and 12 Schedules.
2. Parliamentary Form of Government.-
The Constitution of India has opted for the British Parliamentary system of
Government rather than American Presidential System of Government. The
Parliamentary system is based on the principle of co-operation and co-ordination
between the legislative and executive organs while the Presidential system is
based on the doctrine of separation of powers between the two organs.
3. Unique Blend of Rigidity and Flexibility.-
The Constitution of India is neither rigid nor flexible but a synthesis of both. A
rigid Constitution is one that requires a special procedure for its amendment while
flexible Constitution is one that can be amended in the same manner as ordinary
laws are made.
4. Fundamental Rights.-
Part III of the Indian Constitution guarantees six fundamental rights to all the
citizens—
(a) Right to Equality (Articles 14-18);
(b) Right to Freedom (Articles 19-22);
(c) Right against Exploitation (Articles 23-24);
(d) Right to Freedom of Religion (Articles 25-28);
(e) Cultural and Educational Rights (Articles 29-30);
(f) Right to Constitutional Remedies (Article 32).
The Fundamental Rights are meant for promoting the idea of political democracy.
They operate as limitations on the tyranny of the executive and arbitrary laws of
the legislature.
5. Directive Principles of State policy.-
The Directive Principles of State Policy contained in Part of the Constitution set
out the aims and objectives to be taken by the state in the governance of the
country. According to B.R. Ambedkar “the Directive Principle of State policy is
a novel feature of the Indian Constitution. They can be classified into three broad
categories, Socialistic, Gandhian and Liberal-intellectual.
6. Fundamental Duties.-
By Forty-second Amendment Act, Part IVA has been added to the Constitution
which enumerates certain fundamental duties of the citizens. Originally, ten
duties were enlisted in clause (a) to (j) of article 51A. Clause (k), which imposes
duty on parents/wards has been added by the Constitution (86th Amendment) Act,
2002.
7. A Federation with Strong Centralizing Tendency.-
The term ‘federation’ has nowhere been used in the Constitution. Article 1
describes that India “is a Union of States” which implies two things: Firstly –
Indian federation is not the result of an agreement by the States; and Secondly –
no State has the right to secede from the federation. The Constitution of India
establishes a federal system of Government. It contains all the usual features of a
federation viz., two governments, division of powers, written Constitution,
Supremacy of the Constitution, rigidity of Constitution, independent judiciary
and bicameralism.
8. Adult Suffrage.-
In India every person, male or female, who has obtained the age of 18 years, is
entitled to vote in elections to Parliament or State Legislatures. Originally this
age limit was 21 years but after the 61st Amendment Act, 1988 it was reduced to
18 years.
9. An Independent Judiciary.-
Independence of Judiciary is essential for impartial adjudication of disputes
between individuals, between Union and State, between Union/State and
individuals, between Union and States or between States inter se. The Supreme
Court stands at the top of the integrated judicial system in the country. Below it,
there are High Courts at the State level. This single system of courts enforces both
the Central laws as well as the States laws.
The Supreme Court of India is a federal court, the highest court of appeal, the
guarantor of the fundamental rights of the citizens and the guardian of the
Constitution
10. A Secular State.-
The Constitution of India stands for a secular State. Hence, it does not uphold any
particular religion as the official religion of the Indian State. The term ‘Secular’
was added to the Preamble of the Indian Constitution by the 42nd Amendment
Act, 1976. Articles 25-28 of the Constitution give concrete shape to this concept
of secularism.
11. Single Citizenship.-
In most of the federation, people have double citizenship, citizenship of the Union
and citizenship of one of the several States which form the Union. Every citizen
is the citizen of India and enjoys the same rights of citizenship no matter in which
State he resides.
12. Separation of Powers.-
This doctrine was for the first time properly formulated by the famous Jurist
Montesquieu in his Escript Des Lois and exercised great influence on the French
legal system. Doctrine of separation of powers implies that powers of the three
organs of the government viz., Legislative, Executive and Judiciary should be
kept separate from each other.

Preamble of the Constitution

The Preamble of the Indian Constitution is an introductory statement that sets out
the guiding philosophy, ideals, and objectives of the constitution. It declares India
to be a "Sovereign, Socialist, Secular, Democratic, Republic" and aims to secure
justice, liberty, and equality for all its citizens, while promoting fraternity to
ensure the dignity of the individual and the unity and integrity of the nation. It
was adopted on November 26, 1949, and its ultimate source of authority is the
people of India, as stated in the opening words, "We, the People of India".
Key aspects of the Preamble
Sovereign, Socialist, Secular, Democratic, Republic: These words define the
nature of the Indian state.
Justice, Liberty, Equality, Fraternity: These are the core objectives that the
Constitution aims to achieve for its citizens.
Source of authority: The phrase "We, the People of India" establishes that the
constitution derives its power from the citizens.
Date of adoption: The Preamble was adopted on November 26, 1949.
Purpose: It serves as an introductory statement, reflecting the core values and
providing a guiding light for the interpretation of the constitution.

The Union and Its Territory

Introduction
Articles 1 to 4 contained in Part I of the Constitution of India, 1950 (COI) deals
with the Union and its territory and provides a mechanism for making changes in
the constitution of states or union territories of the Union of India.
Territory of India
 Article 1 of the COI defines India, that is, Bharat as a ‘Union of States’.
 The country is described as the Union although the Constitution is federal
in structure.
 The phrase Union of States has been preferred to Federation of States
because the Indian Federation is not the result of an agreement among
the States like the American Federation and the States have no right to
secede from the federation.
o The federation is a Union because it is indestructible.
 Although for the convenience of administration, the country and people
can be divided into different States, the country is an integral whole.
 As per Article 1, the territory of India can be classified into the following
three categories:
 o Territories of the States
o Union territories
o Territories that may be acquired by the government of India at any
time
 The Territory of India is a wider expression than the Union of
India because the Union of India includes only States which enjoy the
status of being members of the federal system and share the distribution of
powers with the Union.
 Whereas the Territory of India includes not only the States but also the
Union Territories and other territories that may be acquired by India.
Evolution of States and Union Territories
 At the time of the commencement of the constitution, the Union of India
consisted of States which were categorized into four main categories
namely Part A, B, C and D.
 By the States Reorganization Act, 1956 and the 7th Constitutional
Amendment Act, 1956, the distinction between Part A and Part B states
was put to an end and Part C states were abolished.
o And thus, all the categories were reduced into two only by creating
14 states and 6 union territories on November 1, 1956.
 Even after 1956, the political map of India had gone through continuous
changes because of pressure of popular agitations and political conditions.
 At present, there are 28 states and 8 union territories.
 The first schedule of the COI contains the names of States and Union
territories and their territorial extent.

Basis of Division of Four Main Categories of States 7 th Constitutional

Amendment


 Part A: It contained states who ever ruled by governors during

British India or were known as governor’s provinces.
 Part B: It contained states who were princely states and groups of
princely states.
  Part C: It contained states who were former chief commissioners’
provinces and some princely state during British India.
 Part D: It contained the state led by lieutenant governor.
Status of Jammu and Kashmir
 On 5th of August 2019, the President of India promulgated
the Constitution (Application to Jammu and Kashmir) Order, 2019.
 The order effectively revoked the special status accorded to Jammu and
Kashmir under the provision of Article 370.
 It superseded the Constitution (Application to Jammu and Kashmir)
Order, 1954 under which Article 35A was added to the COI.
o Article 35A stems from Article 370 and empowers the Jammu &
Kashmir legislature to define the permanent residents of the state,
and their special rights and privileges.
 The Jammu and Kashmir Reorganization Act 2019 which became
effective on 31st October 2019 provided for the bifurcation of the State
into two separate union territories of Jammu and Kashmir (with
legislature), and Ladakh (without legislature).
Admission or Establishment of New States
 Article 2 provides that the Parliament may, by law, admit into the Union
or establish new states on such terms and conditions as it thinks fit.
o Thus, it gives complete discretion to Parliament.
 Article 2 grants two powers to the Parliament which are:
o The power to admit into the Union of India new States – the states
which are duly established and are already in existence.
o The power to establish new States – formation of a state which was
not in existence.
 Article 2 deals with the admission or establishment of new states that are
not part of the Union of India.
Formation of New States and Alteration of Area, Boundaries or Names of
Existing States
 As per Article 3, a new state may be formed or established by the
Parliament in the following ways:
 o By separation of territory from any state or by uniting two or
more parts or parts of states or by uniting any territory to a part of
any State.
o By increasing the area of any State.
o By diminishing the area of any State.
o By altering the boundaries of any State
o By altering the name of any State.
Here the word State includes a Union Territory also.
 For the formation of a new state or alteration of the boundaries or names
of the existing states, under this article, the following two conditions have
been laid down:
1. No bill contemplating the above changes shall be introduced in either
House of the Parliament except on the recommendation of the President.
2. If the bill affects the area, boundaries or names of the states, the President
is required to refer the bill to the concerned State Legislature for
expressing its view within a specified period.
In the aforesaid conditions, the word State does not include Union Territory.
 The President may extend the period so specified. It the State Legislature
does not express its views within the period specified or extended, the bill
may be introduced in the Parliament.
 If the State Legislature expresses its views within the period specified or
extended, the Parliament is not bound by the views and may either
accept or reject them.
 Further it is not mandatory to make fresh reference to the State
Legislature every time an amendment to the bill is proposed or accepted.
 In the case of Union Territories, the Parliament can itself take any
action as it deems fit.
 Thus, it is clearly evident that the COI authorizes the parliament to form
new states or alter the areas, boundaries or names of existing states without
their consent.
Amendment of The First and The Fourth Schedule
 Article 4 declares that the laws made for admission or establishment of new
states (under Article 2) and formation of new states and alteration of areas,
boundaries or names of existing states (under Article 3) are not to be
considered as amendments of the Constitution under Article 368.
 Such laws can be passed by a simple majority and by the ordinary
legislative process.
 Article 4 also allows for consequential changes to the First Schedule and
the Fourth Schedule (number of seats allocated by each State to the Rajya
Sabha).
Case Laws:
 In Berubari Union Case (1960), the Supreme Court held that the power
of Parliament to diminish the area of a State under Article 3 does not
provide for the cession of Indian territory to a foreign country. Indian
territory can be ceded to a foreign state only by amending the Constitution
under Article 368.
 In the case of In Re: Article 370 of the Constitution (2023), the Supreme
Court upheld the abrogation of Article 370 and Article 35A and held that
the Parliament has the power to carve out a Union Territory from a
State.

In Re: The Berubari Union and Exchange of Enclaves, Presidential Reference

under Article 143(1) of the Constitution of India AIR 1960 SC 845
Facts of the Case
 After Partition in 1947, the Radcliffe Award ambiguously demarcated the
border near the Berubari Union in West Bengal.
 Both India and Pakistan claimed the area.
 In 1958, the Nehru–Noon Agreement was concluded to settle the dispute:
o Berubari Union would be divided between India and Pakistan.
o Certain Cooch Behar enclaves would be exchanged.
 Doubts arose whether such cession of Indian territory could be carried out
by:
 o Executive action alone, or
o Legislation under Article 3, or
o Whether a constitutional amendment was necessary.
 Due to this ambiguity, the President of India referred the matter to the
Supreme Court under Article 143(1) seeking an advisory opinion.
Judgment / Holding
a. Constitutional amendment is necessary
 The Supreme Court held that Indian territory cannot be ceded to a
foreign State without amending the Constitution under Article 368.
b. Article 3 is not sufficient
 Article 3 only deals with internal reorganization of states (formation of
new states, alteration of boundaries).
 Ceding territory to a foreign country is not covered under Article 3.
c. Executive power alone cannot cede territory
 The Government of India cannot transfer territory merely through a treaty
or executive decision.
d. Territorial sovereignty rests with the people
 Since the territory belongs to the people of India through the Constitution,
any part of it can be transferred only with constitutional approval.
Conclusion
 The Supreme Court concluded that the Nehru–Noon Agreement (1958)
could only be implemented through a constitutional amendment.
 Consequently, Parliament enacted the Ninth Constitutional Amendment
Act, 1960, enabling the transfer of part of Berubari Union to Pakistan.
 This case became a landmark precedent establishing that any cession of
Indian territory to a foreign State must be done through a
constitutional amendment, not by ordinary law or executive action.
Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr.
AIR 1973 SC 1461
The Kesavananda Bharati case (1973) addressed the balance between individual
rights and Parliament's constitutional amendment powers, originating from land
reform laws in Kerala affecting religious institutions like the Edneer Mutt.
Kesavananda Bharati challenged these amendments, arguing they violated his
rights.
The Supreme Court, in a 7:6 verdict, upheld Parliament's power to amend the
constitution but introduced the “basic structure doctrine,” stating core principles
like judicial review, federalism, and fundamental rights cannot be altered. This
doctrine has since limited legislative overreach, protecting the Constitution’s
integrity while allowing socio-economic reforms within these boundaries.
Case Background
The Kesavananda Bharati case is a landmark judgment balancing individual
rights with Parliament's power to amend the Constitution. It originated from
Kerala's 1950s-60s land reforms, aimed at redistributing land from large
landowners to the disadvantaged and landless.
In 1963, the Kerala Land Reforms Act was enacted, imposing restrictions on land
ownership and granting the government the authority to acquire surplus land for
redistribution.
This legislation notably affected various religious institutions, including
the Edneer Mutt, overseen by Kesavananda Bharati, which possessed
considerable landholdings.
Subsequent amendments introduced in 1969 and 1971 sought to enhance
governmental powers over land ownership while reducing judicial oversight.
On March 21, 1970, Kesavananda Bharati filed a petition in the Supreme
Court under Article 32 of the Constitution, challenging these amendments.
He contended that the amendments violated his fundamental rights as enshrined
in Articles 14 (right to equality), 19(1)(f) (right to property), 25 (freedom of
religion), and 26 (right to manage religious affairs).
This case ultimately culminated in the establishment of the basic structure
doctrine which posits that certain fundamental features of the Constitution are
inviolable and cannot be amended by legislative action.
Kesavananda Bharati Case Supreme Court Judgement
The Kesavananda Bharati case upheld Parliament's power to amend the
Constitution but limited it with the basic structure doctrine and reinforced judicial
review. The Supreme Court's judgment was delivered with a 7:6 majority,
highlighting key principles
Parliament's Amending Power: The Court held that Parliament does have the
authority to amend the Constitution but emphasized that this power is not
absolute. It cannot alter or destroy the Constitution's basic structure.
Basic Structure Doctrine: The Basic Structure Doctrine asserts that certain
principles, including the supremacy of the Constitution, rule of law, separation of
powers, federalism, and fundamental rights, form the Constitution's core
framework.
Judicial Review: The Court reaffirmed its right to review amendments made by
Parliament. It stated that any amendment infringing upon the basic structure
would be unconstitutional.
Constitutionality of Amendments: While upholding the validity of the 24th CAA,
which clarified Parliament's amending power, it found parts of the 25th
CAA unconstitutional for infringing upon judicial review.
Kesavananda Bharati Case Impact on Constitution
The Kesavananda Bharati case had a significant impact by establishing the basic
structure doctrine, which limits Parliament's amendment power, reinforces
judicial review, and safeguards fundamental rights against unchecked authority.
Establishment of Basic Structure Doctrine: The case established the basic
structure doctrine, asserting that while Parliament can amend the Constitution, it
cannot alter its fundamental framework.
It includes supremacy of the Constitution, rule of law, separation of powers,
federalism, judicial independence, and fundamental rights.
Limits on Parliamentary Power: The judgment imposed limits on Parliament's
amending power under Article 368, stating that amendments cannot undermine
the basic structure, thus curbing attempts to infringe on fundamental rights.
Reinforcement of Judicial Review: The Supreme Court upheld judicial review as
part of the basic structure, declaring amendments that infringe on it
unconstitutional, thus reinforcing the judiciary's role in protecting constitutional
values.
Socio-Economic Reforms and Constitutional Amendments: The ruling
recognized Parliament's authority to enact socio-economic reforms, provided
they do not violate fundamental rights or alter the Constitution's basic structure,
allowing for social justice while maintaining integrity.

Citizenship
Citizenship is the status of a person recognized under law as being a legal member
of a sovereign state or belonging to a nation. In India, Articles 5 – 11 of the
Constitution deals with the concept of citizenship. The term citizenship entails
the enjoyment of full membership of any State in which a citizen has civil and
political rights.

Article 5: Citizenship at the commencement of the Constitution

This article talks about citizenship for people at the commencement of the
Constitution, i.e. 26th January 1950. Under this, citizenship is conferred upon
those persons who have their domicile in Indian territory and –
1. Who was born in Indian territory; or
2. Whose either parent was born in Indian territory; or
3. Who has ordinarily been a resident of India for not less than 5 years
immediately preceding the commencement of the Constitution.
Article 6: Citizenship of certain persons who have migrated from Pakistan
Any person who has migrated from Pakistan shall be a citizen of India at the time
of the commencement of the Constitution if –
1.
1. He or either of his parents or any of his grandparents was born in
India as given in the Government of India Act of 1935; and
2. (a) in case such a person has migrated before July 19th, 1948 and
has been ordinarily resident in India since his migration, or
(b) in case such as a person has migrated after July 19th, 1948 and he has been
registered as a citizen of India by an officer appointed in that behalf by the
government of the Dominion of India on an application made by him thereof to
such an officer before the commencement of the Constitution, provided that no
person shall be so registered unless he has been resident in India for at least 6
months immediately preceding the date of his application.
Article 7: Citizenship of certain migrants to Pakistan
This article deals with the rights of people who had migrated to Pakistan after
March 1, 1947, but subsequently returned to India.
Article 8: Citizenship of certain persons of Indian origin residing outside
India
This article deals with the rights of people of Indian origin residing outside India
for purposes of employment, marriage, and education.
Article 9
People voluntarily acquiring citizenship of a foreign country will not be citizens
of India.
Article 10
Any person who is considered a citizen of India under any of the provisions of
this Part shall continue to be citizens and will also be subject to any law made by
the Parliament.
Article 11: Parliament to regulate the right of citizenship by law
The Parliament has the right to make any provision concerning the acquisition
and termination of citizenship and any other matter relating to citizenship.
Citizenship of India constitutional provisions
 Citizenship in India is governed by Articles 5 – 11 (Part II) of the
Constitution.
 The Citizenship Act, 1955 is the legislation dealing with citizenship. This
has been amended by the Citizenship (Amendment) Act 1986, the
Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act
2003, and the Citizenship (Amendment) Act, 2005.
 Nationality in India mostly follows the jus sanguinis (citizenship by right
of blood) and not jus soli (citizenship by right of birth within the territory).
Citizenship Act, 1955
Citizenship of India can be acquired in the following ways:
1. Citizenship at the commencement of the Constitution
2. Citizenship by birth
3. Citizenship by descent
4. Citizenship by registration
 5. Citizenship by naturalization
6. By incorporation of territory (by the Government of India)
 People who were domiciled in India as on 26th November 1949
automatically became citizens of India by virtue of citizenship at the
commencement of the Constitution.
 Persons who were born in India on or after 26th January 1950 but before
1st July 1987 are Indian citizens.
 A person born after 1st July 1987 is an Indian citizen if either of the parents
was a citizen of India at the time of birth.
 Persons born after 3rd December 2004 are Indian citizens if both parents
are Indian citizens or if one parent is an Indian citizen and the other is not
an illegal migrant at the time of birth.
 Citizenship by birth is not applicable for children of foreign diplomatic
personnel and those of enemy aliens.
Termination of Indian Citizenship
Termination of citizenship is possible in three ways according to the Act:
1. Renunciation: If any citizen of India who is also a national of another
country renounces his Indian citizenship through a declaration in the
prescribed manner, he ceases to be an Indian citizen. When a male person
ceases to be a citizen of India, every minor child of his also ceases to be a
citizen of India. However, such a child may within one year after attaining
full age become an Indian citizen by making a declaration of his intention
to resume Indian citizenship.
2. Termination: Indian citizenship can be terminated if a citizen knowingly
or voluntarily adopts the citizenship of any foreign country.
3. Deprivation: The government of India can deprive a person of his
citizenship in some cases. But this is not applicable for all citizens. It is
applicable only in the case of citizens who have acquired the citizenship by
registration, naturalization, or only by Article 5 Clause (c) (which is
citizenship at commencement for a domicile in India and who has
ordinarily been a resident of India for not less than 5 years immediately
preceding the commencement of the Constitution).
Persons of Indian Origin (PIO) Card
A person would be eligible for the PIO card if he:
 1. Is a person of Indian origin and is a citizen of any country except Pakistan,
Sri Lanka, Nepal, Bangladesh, Bhutan, China or Afghanistan, or
2. Has held an Indian passport at any other time or is the spouse of a citizen
of India or a person of Indian origin.
PIO cardholders can enter India with the multiple entry feature for fifteen years.
They do not need a separate visa.
Overseas Citizen of India (OCI) Card
 OCI Card is for foreign nationals who were eligible for Indian citizenship
on 26th January 1950 or was an Indian citizen on or after that date.
 Citizens of Pakistan and Bangladesh are not eligible for OCI Card. An OCI
cardholder does not have voting rights.
 OCI is not dual citizenship. OCI cardholders are not Indian citizens.
 The OCI Card is a multipurpose, multiple entry lifelong visa for visiting
India.
 Persons with OCI Cards have equal rights as NRIs in terms of financial,
educational, and economic matters. But they cannot acquire agricultural
land in India.

Article 12 of the Indian Constitution

Part III of the Indian Constitution guarantees Fundamental Rights. For enforcing
these rights, it is essential to know *against whom* they are enforceable. Article
12 performs this crucial function by defining the term *“State.”* This definition
acts as the foundation for constitutional remedies under *Articles 32 and 226*.
The scope of Article 12 has evolved significantly through judicial interpretation,
expanding the ambit of bodies that can be considered “State.”
Elements of Article 12
1. Government and Parliament of India
This includes:
* Executive organs of the Central Government
* Lok Sabha and Rajya Sabha
* Departments and ministries
2. Government and Legislature of each State
This covers:
* State executive authorities
* State legislative assemblies and councils
* State administrative departments
3. Local Authorities
Defined in the General Clauses Act, these include:
* Municipalities
* Panchayats
* District Boards
* Improvement Trusts
* Notified Area Committees
4. “Other Authorities”
This is the most crucial and judicially interpreted term. The Constitution does not
define it, so courts have expanded its meaning to include bodies that perform
public duties or are under government control.
Judicial Interpretation of “Other Authorities”
1. Rajasthan Electricity Board v. Mohan Lal (1967)
Principle:
First case to interpret “other authorities.” The Supreme Court held that *any
authority created by the Constitution or statute* and having *power to make laws
or issue binding directions* is “State” under Article 12.
Facts:
* Rajasthan Electricity Board was created under a statutory law.
* A worker claimed violation of rights by the Board.
* Question: Is the Board “State”?
Held:
Yes. The term “other authorities” is *broad* and includes statutory authorities
performing governmental or commercial functions.
Significance:
Started the *widening interpretation* of Article 12 beyond government
departments.
2. Sukhdev Singh v. Bhagatram (1975)
Principle:
Statutory corporations like LIC, ONGC, IFC are “State” because they perform
*public functions* and have *deep government control*.
Facts:
Employees of LIC, ONGC raised disputes about service conditions and
challenged them as violation of fundamental rights.
Held:
These corporations are “State” since:
* Created by statutes
* Government controls policy, finance, and management
* Perform public functions
Significance:
Strengthened the principle that *statutory corporations = State
3. R.D. Shetty v. International Airport Authority (1979)
Principle:
Introduced the *“instrumentality or agency” test* to determine if a body is
“State.”
Facts:
Airport Authority rejected a tender on arbitrary grounds.
Was the Airport Authority a “State”?
Tests Laid Down (Instrumentality Tests):
1. Entire share capital owned by government
2. Financial assistance of state
3. Monopoly status
4. Transfer of government functions
5. Government control over policies
6. Functions of public importance
Held:
International Airport Authority = “State.”
Significance:
Shift from *origin-based* (statutory body) → *function-based* and *control-
based* analysis.
4. Ajay Hasia v. Khalid Mujib (1981)
Principle:
Even *societies and registered bodies* can be considered “State” if they satisfy
the *instrumentality/agency tests.*
Facts:
Admission process in a college run by a society was challenged for arbitrariness.
Does a society registered under Societies Registration Act come under Article 12?
Held:
Yes—because the society was:
* Completely funded by the government
* Controlled by government nominees
* Performed important public functions (education)
Significance:
Expanded Article 12 to *non-statutory bodies* also.
5. Som Prakash Rekhi v. Union of India (1981)
Principle:
Government-owned companies (like Bharat Petroleum) are “State” because they
act as *extended arms* of the government.
Facts:
Retired employee sought pension from Bharat Petroleum (BPCL), a government
company.
Held:
BPCL is “State” under Article 12.
Significance:
Corporate veil cannot hide government ownership and control.
6. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (CSIR)
(2002)
Principle:
Laid the 7-judge bench authoritative test:
Deep and pervasive control + Public function + Government funding = “State”.
Facts:
Whether CSIR (Council of Scientific & Industrial Research) is “State”.
Held:
Yes.
Because:
* Government exercises *dominant control*
* CSIR performs important public functions
Significance:
This is the *current authoritative test* for deciding what is “State.”
7. Zee Telefilms Ltd. v. Union of India (2005)
Principle:
Not all bodies performing public functions are “State.”
BCCI *is not “State” despite controlling cricket in India.
Facts:
Players challenged BCCI for violation of their rights.
Is BCCI “State”?
Held:
No.
Because:
* No deep and pervasive government control
* Not created by statute
* Functions independently
Significance:
Public importance ≠ State
Reinforced limits of Article 12.
8. Binny Ltd. v. V. Sadasivan (2005)
Principle:
Even if a body is *not State, writs can be issued if it performs **public duty*.
(But not a fundamental rights violation.)
9. Ajantha Industries v. Central Board of Direct Taxes (1976)
Held that authorities exercising statutory powers = “State.”
10. Justice K.S. Puttaswamy v. Union of India (Privacy Case) (2017)
Not directly about Article 12, but affirmed that *public authorities* under Article
12 must respect *privacy rights*, expanding accountability.

Tests to Determine ‘State’ under Article 12

Courts have developed several tests:
1. Functional Test
Does the body perform governmental or public functions?
2. Financial Test
Is it substantially funded by the government?
3. Control Test
Is there deep and pervasive government control?
4. Administrative Test
Is it created by statute or performing statutory duties?
5. Monopoly Test
Does it enjoy monopoly status due to state protection?
6. Public Importance Test
Are its functions closely related to public welfare?
No single test is conclusive; a combination is used.
Bodies Not Considered ‘State’
* Private bodies with no substantial government control
* Cooperative societies (unless performing public functions with heavy govt
control)
* Autonomous sports bodies like BCCI (Zee Telefilms v. Union of India, 2005—
though BCCI is subject to writs under Article 226)
Significance of Article 12
1. Ensures Enforceability of Fundamental Rights
Only bodies falling within Article 12 can be taken to court for violating
fundamental rights.
2. Expands Accountability
As more authorities are included, citizens can challenge arbitrary state actions.
3. Adapts to Changing Governance
With liberalisation and public-private partnerships, courts must ensure that public
functions do not escape constitutional scrutiny.
Doctrine of Instrumentality (Article 12)
The Doctrine of Instrumentality is a judicial principle developed by the Supreme
Court of India to determine which bodies can be considered “State”* under
Article 12.
Article 12 defines “State” as including Government, Parliament, Legislature,
local authorities, and other authorities. Because the term “other authorities” is
broad, courts created the Doctrine of Instrumentality to identify bodies that may
not be formally government but function as an instrument or agency of the State.
Meaning of the Doctrine
A body is considered an “instrumentality or agency of the State” if it performs
public functions, is under deep and pervasive control of the government, or is
financially, administratively, or functionally dominated by the government.
hus, even statutory corporations, government companies, societies, universities,
etc. can be declared “State” for the purpose of fundamental rights enforcement.
To ensure that
✔ fundamental rights can be enforced against modern bodies performing
governmental functions
✔ the State cannot escape constitutional responsibilities by creating separate
corporations
✔ public accountability is maintained even outside traditional departments of
Government
Key Tests for Determining Instrumentality (from landmark judgments)
1. Financial Assistance Test
If the government gives *substantial funding* (not just minor grants), the body
may be State.
2. Deep and Pervasive Control Test
If the government controls day-to-day functioning, policies, or administration.
3. Public Importance and Governmental Function Test
If the body performs functions of *public importance* that were traditionally
done by the Government.
4. Monopoly Status Test
If the body enjoys monopoly status “protected or conferred by the State”.
5. Transfer of Government Department Test
f a government department is transferred to a corporation or society]
Landmark Judgments Developing the Doctrine
1. R.D. Shetty v. International Airport Authority (1979)
This is the “foundational case”.
The Court laid down criteria to determine whether a body is an “agency or
instrumentality” of the State.
“Key contribution” → the “instrumentality test”.
2. Ajay Hasia v. Khalid Mujib (1981)
The doctrine was “expanded” and given clearer parameters.
The Court held that:
Even a “registered society” can be “State”
What matters is the “nature of control”, not the legal form
This case listed the “six-factor test” still used today.
3. Som Prakash v. Union of India (1981)
Held that “Bharat Petroleum” (then a government company) is “State”.
Emphasised “public function” and government control.
4. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002)
A Constitution Bench clarified:
* The presence of “deep and pervasive control” is the most important factor
* The *Council of Scientific and Industrial Research (CSIR)* was held to be
“State".
This case refined Ajay Hasia and remains the *leading authority*.
Article 13 – Laws inconsistent with or in derogation of Fundamental Rights
Article 13 is a protector of Fundamental Rights. It ensures that no law can
violate the rights guaranteed in Part III of the Constitution.
Key Points of Article 13
1. Pre-Constitution laws inconsistent with Fundamental Rights are void
(Article 13(1))
 Any law that existed before 26 January 1950 and violates Fundamental
Rights becomes invalid to the extent of the inconsistency.
 These laws are not erased — they simply stop working wherever they
clash with Fundamental Rights.
Example:
If a pre-1950 law allowed detention without trial, that part is void because it
violates Article 21.
2. State cannot make laws violating Fundamental Rights (Article 13(2))
 Parliament and state legislatures cannot create any new law that takes
away or reduces Fundamental Rights.
 If they do, such a law is automatically void.
3. Definition of “Law” under Article 13 (Article 13(3))
The word “law” includes:
 Acts of Parliament/State legislatures
 Ordinances
 Rules
 Regulations
 Notifications
 Even customs and usages that have the force of law
This means every type of rule made by the government must follow
Fundamental Rights.
4. Doctrine of Severability
If only a part of a law violates Fundamental Rights, only that part becomes
void, not the whole law.
5. Doctrine of Eclipse
Applies to pre-constitutional laws:
 If a pre-1950 law violates Fundamental Rights, it gets “eclipsed” (inactive).
 If the Fundamental Right is later amended, the law can become active
again.
Important Supreme Court interpretations
a) Article 13 does not apply to Constitutional Amendments (initially):
 Shankari Prasad (1951) and Golak Nath (1967) gave conflicting views.
b) Final position – Basic Structure Doctrine:
In Kesavananda Bharati (1973):
 Constitutional amendments are not "law" under Article 13.
 BUT Parliament cannot damage the basic structure of the Constitution,
including key Fundamental Rights.

1. Doctrine of Severability
Meaning
The Doctrine of Severability (also called Doctrine of Separability) means that
when a part of a statute is unconstitutional, only the offending portion is struck
down, and the rest of the statute remains valid, if it can stand independently.
Basis
 Drawn from Article 13(1) & 13(2) of the Indian Constitution.
 Article 13 declares laws inconsistent with Fundamental Rights as void “to
the extent of the inconsistency.”
Key Principle
If removing the unconstitutional part still leaves a workable and independent law,
the court will separate (sever) the bad part and preserve the rest..
Conditions for Applying Severability
Courts examine:
1. Whether the valid part is independent and enforceable without the invalid
part.
2. Whether the legislature would have enacted the valid part alone.
3. Whether the valid and invalid provisions are so intertwined that separation
is impossible.
4. Whether the statute’s purpose/intent can survive after severance.
Example (Simple)
If a law has:
 Section 1: Valid
 Section 2: Violates Fundamental Rights
Only Section 2 is removed; Section 1 stays.

2. Doctrine of Eclipse
Meaning
The Doctrine of Eclipse states that a law that violates Fundamental Rights is not
completely invalid—it is merely eclipsed (covered by a shadow) and becomes
inoperative as long as the violation exists.
When the conflict is removed (e.g., by constitutional amendment), the law
becomes revived and operative again.
Where It Applies
 Applies mainly to pre-Constitution laws under Article 13(1).
 Such laws are not void ab initio; they are only dormant or eclipsed.
Key Case Laws
1. Bhikaji Narain Dhakras v. State of M.P. (1955)
Explained Doctrine of Eclipse. A pre-Constitution law inconsistent with
Fundamental Rights was revived after amendment of Article 19(6).
2. Deep Chand v. State of U.P. (1959)
Court held post-Constitution laws violating Fundamental Rights are void
and cannot be revived—thus doctrine does not apply to post-Constitution
laws.
3. State of Gujarat v. Ambica Mills (1974)
Confirmed eclipse applies only to pre-Constitution laws.
Key Points
 Pre-Constitution laws inconsistent with FRs
→ Eclipsed (inoperative), not dead → Can revive.
 Post-Constitution laws inconsistent with FRs
→ Void ab initio → Cannot revive.
Example (Simple)
Suppose a 1930 law restricts free speech.
After 1950 (when FRs came into force), this law becomes inoperative (eclipsed).
If the Constitution is later amended to allow such restrictions, the law becomes
active again.

Short Comparison Table

Feature Doctrine of Severability Doctrine of Eclipse
Remove only Unconstitutional law becomes
Main Idea
unconstitutional parts inoperative (shadowed)

Both pre- and post-

Applies to Mainly pre-Constitution laws
Constitution laws
Feature Doctrine of Severability Doctrine of Eclipse

Valid part survives Law can revive if inconsistency

Effect
immediately removed

Based on Article 13(2) Article 13(1)

Post-Constitution
Struck down completely Cannot revive
invalid laws

Quick Notes
 Severability = Cut the bad part, keep the good part.
 Eclipse = Law is shadowed but not dead; revives when shadow
(inconsistency) removed.
 Severability decides which parts of law survive.
 Eclipse decides whether a law can revive after constitutional changes.

Judicial Review
1. Definition
Judicial review is the power of courts to examine the actions of the executive,
legislature, and administrative bodies to ensure they comply with the Constitution
or governing law.
It is a mechanism to check abuse of power and protect individual rights.
2. Purpose of Judicial Review
 Maintain Rule of Law
 Ensure legality of government action
 Protect fundamental/constitutional rights
 Prevent arbitrary or unreasonable decisions
 Maintain separation of powers
3. Grounds for Judicial Review
Courts generally review decisions on three major grounds (the GCH framework
or Wednesbury principles in common law):
A. Illegality
The decision-maker:
 Acted without legal authority (ultra vires)
 Misinterpreted the law
 Took into account irrelevant considerations
 Ignored relevant factors
 Delegated power improperly
B. Irrationality / Unreasonableness
Often linked to Wednesbury unreasonableness:
 A decision so unreasonable that no reasonable authority could ever have
made it.
C. Procedural Impropriety
Includes:
 Failure to follow statutory procedures
 Breach of natural justice:
o Right to a fair hearing (audi alteram partem)
o Rule against bias (nemo judex in causa sua)
(Modern additions)
 Proportionality (especially in human rights cases)
 Legitimate expectation (procedural or substantive)
4. Types of Judicial Review
Courts review:
1. Administrative actions
 Government decisions
 Licensing, permits, disciplinary orders
2. Legislative actions
 Reviewing constitutionality of laws
3. Constitutional interpretation
  Clarifying scope and meaning of constitutional provisions

5. Remedies in Judicial Review

Courts can issue:
A. Certiorari
Quashes an unlawful decision.
B. Mandamus
Compels a public authority to perform a duty.
C. Prohibition
Prevents an authority from acting beyond its powers.
D. Habeas Corpus
Challenges unlawful detention.
E. Declaration
Court declares the legal rights of parties.
F. Injunction
Prevents unlawful action.

6. Limitations on Judicial Review

 Political questions
 National security concerns
 Time limits for filing (varies by jurisdiction)
 Standing (locus standi) requirements
 Court deference to administrative expertise

7. Principles of Natural Justice

1. Right to Fair Hearing
 Notice of case
  Opportunity to present evidence
2. Rule Against Bias
 Actual bias
 Apparent bias
 Presumed bias

8. Doctrine of Ultra Vires

Central to judicial review of administrative action.
Types
 Substantive ultra vires → acting beyond legal powers
 Procedural ultra vires → failing to follow required procedures

9. Legitimate Expectation
Arises when:
 A promise or consistent past practice creates an expectation
 Authority must honor or fairly justify departure
Can be:
 Procedural (expectation of hearing)
 Substantive (expectation of benefit)

10. Proportionality Test

Often applied in human rights cases:
1. Legitimate aim
2. Rational connection
3. Necessity
4. Fair balance (least restrictive measure)
1. Doctrine of Ultra Vires
Meaning
“Ultra vires” literally means “beyond the powers.”
In administrative and constitutional law, the doctrine holds that any action taken
by a public authority must remain within the powers granted to it by law
(statute or Constitution).
Types
1. Substantive Ultra Vires
o When the authority acts beyond the substantive limits of the law.
o Example: A municipal authority imposes a tax it has no legal power
to impose.
2. Procedural Ultra Vires
o When the authority violates mandatory procedures laid down by
law.
o Example: Granting a license without giving a required notice or
hearing.
3. Jurisdictional Ultra Vires
o When the decision-maker lacks jurisdiction from the very
beginning.
Effect
Any act that is ultra vires is void, illegal, and unenforceable.

2. Proportionality Test
Meaning
The proportionality test evaluates whether state action that interferes with
rights is justified, necessary, and appropriately balanced.
It is commonly used in constitutional rights cases, particularly after the
expansion of fundamental rights (e.g., privacy, equality, free speech).
Elements of Proportionality (4-prong Test)
1. Legitimate Aim
o The restriction must pursue a constitutionally valid objective.
 2. Rational Connection
o The measure must be logically connected to achieving that aim.
3. Necessity / Least Restrictive Means
o No less-restrictive alternative should be available.
4. Balancing / Proportionality stricto sensu
o The adverse impact on rights must not exceed the societal benefit.
o Courts weigh the rights of individuals against the interests of the
state.
Use in Indian Law
 Explicitly used in cases under Article 14, Article 19, and Article 21.
 Recognized in Modern Dental College v. State of MP (2016) and
Puttaswamy (2017).

3. Difference Between Ultra Vires and Proportionality

Aspect Ultra Vires Proportionality Test
Whether the authority acted Whether the degree of interference
Focus
within legal powers. with rights is justified.

Basis Legality Reasonableness and balancing

Question “Is the action authorized by “Even if authorized, is the action

Asked law?” suitable, necessary, and balanced?”

Primarily administrative Constitutional rights, judicial review

Scope
law, delegated legislation. of restrictions.

Action is void if beyond Action may be modified or struck

Outcome
statutory power. down if excessive or rights-violating.

The Doctrine of Ultra Vires requires that administrative authorities act strictly
within the limits of the powers conferred upon them. Any act done beyond
jurisdiction, against statutory limits, or without following mandatory procedures
is considered ultra vires and is void.
The Proportionality Test is used to judge whether state action that interferes with
fundamental rights is justified. The court examines whether the measure pursues
a legitimate aim, has a rational nexus with that aim, is necessary (least restrictive),
and balances individual rights against public interest.
While ultra vires focuses on legality of power, proportionality evaluates the
reasonableness and intensity of the restriction.

Maneka Gandhi v. Union of India, (1978) 1 SCC 248

Bench: 7-Judge Constitution Bench
2. Background Facts
* Maneka Gandhi’s passport was issued on July 1, 1976 under the Passport Act,
1967.
* On July 2, 1977, the Regional Passport Officer (RPO) ordered her to surrender
her passport under Section 10(3)(c) citing “public interest”.
* She asked for reasons, but the government refused, saying disclosure would not
be in the public interest.
* She filed a writ petition under Article 32, alleging violation of:
* Article 14 – Equality
* Article 19(1)(a) & (g) – Freedom of speech and profession
* Article 21 – Personal liberty
Her argument: the right to travel abroad is part of personal liberty; it cannot be
restricted except by a “fair, just, and reasonable” procedure.
3. Issues Before the Court
1. Whether the right to travel abroad is part of “personal liberty” under Article
21?
2. Whether “procedure established by law” in Article 21 must be fair, just, and
reasonable?
3. Whether Articles 14, 19, and 21 are inter-related and must be read together?
4. Whether the Passport Act’s power to impound a passport violates fundamental
rights?
4. Arguments
Petitioner (Maneka Gandhi)
* Right to travel abroad is a part of personal liberty.
* The government’s refusal to disclose reasons was “arbitrary” and violated
Article 14.
* Any restriction on liberty must follow a “fair, reasonable, and non-
arbitrary*”procedure.
Union of India
* Passport was impounded in public interest, and reasons need not be disclosed.
* Power under the Passport Act is valid.
* Traveling abroad is not an absolute fundamental right.
5. Judgment
The Supreme Court delivered a landmark, expansive interpretation of
fundamental rights.
1. Right to travel abroad is included in “personal liberty” under Article 21.
2. “Procedure established by law” must be:
* Fair
* Just
* Reasonable
Not arbitrary, oppressive, or fanciful.
3. Articles 14, 19, and 21 are mutually connected.
This is called the *“Golden Triangle”* of the Constitution.
Any state action affecting life or liberty must satisfy all three Articles
simultaneously.
4. Passport Act is constitutional, but reasons for impounding should normally be
given unless special circumstances justify withholding them.
5. Introduced the doctrine of *substantive due process* in Indian constitutional
law.
Significance
* Expanded the scope of Article 21 far beyond mere physical restraint to include
multiple aspects of personal liberty.
* Shifted Indian constitutional interpretation from a “narrow (Gopalan)” view to
a broad, rights-oriented view.
* Strengthened judicial review over arbitrary state action.
Established that any law affecting fundamental rights must be non-arbitrary*
(Article 14).
Laid the groundwork for future rights such as:
* Right to privacy
* Right to a clean environment
* Right to legal aid
* Right against solitary confinement, etc.
7. Conclusion
Maneka Gandhi v. Union of India is one of the most significant judgments in
Indian constitutional history. It transformed Article 21 into a powerful source of
numerous implied fundamental rights and ensured that the State cannot curtail
liberty without a “fair, just, and reasonable procedure” in harmony with Articles
‘14, 19, and 21”.

A.K. Gopalan v. State of Madras (1950)

A.K. Gopalan v. State of Madras (1950) is the first major Supreme Court decision
on Fundamental Rights, especially Article 21 (life and personal liberty) and
preventive detention. It laid down the “Gopalan Doctrine”, which was later
overturned by the Court in Maneka Gandhi.
Introduction
* The case involved A.K. Gopalan, a communist leader detained under the
*Preventive Detention Act, 1950*.
* He filed a writ of Habeas Corpus under Article 32, claiming violation of
*Articles 19, 21 and 21.
* The case became the foundation for interpreting personal liberty in India.
Issues
1. Whether Article 21 requires a “fair, just, reasonable*” procedure.
2. Whether Articles 19 and 21 are “interconnected or independent”.
3. Whether the Preventive Detention Act, 1950 is constitutionally valid.
4. Whether detention without full disclosure of grounds violates Article 22(5).
Judgment (Majority – 5:1)
1. Articles 19 and 21 are independent
* The Court held each Fundamental Right is “distinct”.
* A law restricting personal liberty under Article 21 does “not” need to satisfy
Article 19.
2. “Procedure established by law” = any procedure enacted by Parliament
* The Court rejected the American concept of “due process of law”.
* No requirement of fairness, justice, or reasonableness.
3. Preventive Detention Act largely valid
* Preventive detention is constitutionally permitted under Article 22.
* However, Section 14, restricting disclosure of grounds of detention, was struck
down as violative of Article 22(5).
Dissent – Justice Fazl Ali
* Articles 19, 21 and 22 must be read together.
* “Procedure established by law” must be fair, just, reasonable.
* His dissent later became the law in Maneka Gandhi (1978).
Significance
* Narrow interpretation of personal liberty.
* Gave supremacy to legislative procedure, even if unfair.
* Allowed wide scope for preventive detention.
* Stood for almost 28 years until Maneka Gandhi replaced it with a liberal, rights-
oriented approach.