INTRODUCTION

Constitution and Constitution Law

1. Constitution - text of the constitution including preambles, articles, schedules etc. It is

a unique legal document. It prescribes a certain norm that the statutes and other laws
have to follow and hence stands at the top of the normative pyramid. It shapes the
appearance of the state and what it has to achieve in history. It lays down ten
foundation of political and social values.
2. Constitutional law of India – It is a broader term than Consti. As it comprises of that
along with relevant statutory laws, conventions and political decisions. All the rules
and regulations enacted per the Constitution and in accordance with it. The
constitution mandates making of laws such as General Representation of people’s act
as per the constitution to hold the elections. There was also a case regarding Manoj
Nahula v Union of India in which the SC gave directions to not appoint Ministers of
Cabinet who have had criminal complaints against them.

Constitutional Law Statutory Law

1. Groundwork for statutory law. Statutory law cannot contravene it.
It is the greater law, higher law and These laws arise to supplement this law.
more fundamental law.
2. It was formulated by the drafting It was enacted by the legislature as the
Committee. (Constituent Assembly enacting authority.
of India). It is the Volkgeist,
people’s spirit and was given by the
people of India to themselves.
3. Broader in scope Specific in nature.

Calson’s pure theory of law: Every nation must have a grundnorm. Fundamental law of the
land to which the other laws are below it.

Why is the Constitution a grundnorm?

1. It is because the governing bodies in India have been created by the Constitution
itself.
2. Source is the people and it has been created for the people itself. Volksgeist
3. Powers of and organs of the government have clearly been defined here.
 4. It also gives powers to the organs to create laws for themselves.
5. Validity of Statutory law will be decided on the basis of the Consti hence making it a
groundwork for all laws.

E.g. Section 303 of the IPC, which provided for a mandatory death penalty for anyone guilty
of murder while serving a life sentence, was challenged in Mithu v. State of Punjab, AIR
1983 SC 473. The Section was held unconstitutional and struck down as violating the right to
equality as well as the right to life (Articles 14 and 21) “It is impossible to uphold Sec. 303 as
valid. Sec. 303 excludes judicial discretion. The scales of justice are removed from the hands
of the Judge as soon as he pronounces the accused guilty of the offence. So final, so
irrevocable is the sentence of death that no law which provides for it without involvement of
the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be
stigmatised as arbitrary and oppressive. “
Accordingly, it is evident that a compulsory death penalty cannot exist for any offence
and in any circumstance as the death penalty is valid in our country only because of its
applicability in select circumstances. It was struck down as invalid for violating
constitutional principles and hence IPC abide by Consti. In this case art. 303 has not been
omitted by IPC. If a larger bench declare it constitutional it will come back into force. Until
then it remains in the IPC but it cannot be enforced in courts, it will only be removed
from IPC by Parliament.

  E.P. Royal park case in 1940 basically states that any act which is arbitrary violates article
14 of the consti.

Shreya Singh case regarding Article 66A of the IT Act violating art 19. Was declared
unconstitutional.

Jan Chowkidar case what happened was that Rep of People’s Act was challenged. Art 102 of
Consti gives grounds of disqualification of any member. Now with 2 months’ time given to
file an appeal and if this appeal is accepted he will not be disqualified. SC has declared this 2
months of appeal time as unconstitutional. In Lily Thomas case, Consti provisions in proviso
102 was violated. (Could not understand completely, will explain later.)
In respect to anti defection law Kihoto Holohan v Zachillhu: The Constitution (Fifty-Second
Amendment) Act, 1985 which is popularly known as Anti-Defection Law came into force in
March 1985. It amended various articles of the constitution regarding vacation of the seats
and disqualification from membership of both the parliament as well as state legislatures. The
amendment also inserted a new schedule (tenth schedule) to the constitution setting out
various provisions detailing disqualification on the ground of defection. Not checking validity
of statutory law but consti law in this case itself.
Petitioners: S 10 is unconstitutional. Para 6 and 7 of S. 10 under question. Para 6 rendered
absolute power to disqualify on speaker. They said this violate rules of Principles of Natural
Justice (majority house is where Speaker is from therefore there may be bias).
They said it violated: 1.Fundamental Principles of Parliamentary Democracy
2 . F r e e d o m o f   S p e e c h   a n d 3.The right to dissent and the freedom of
conscience
SC rejected this contention and said that this was constitutional. The court finally held that
the law does not violate any rights of free speech or basic structure of the parliamentary
democracy.
SC however said that the decision of disqualification was subject to judicial review. This was
because Para 7 which bars jurisdiction of SC would bring about a change in Articles 136, 226
and 227 thus attracting the clause (2) of the Article 368 requiring ratification. The ratification
had not taken place. Judges unanimously agreed and said that because they had not followed
procedure laid out in the law of the land. Para 7 had to be scrapped.
Doctrine of severability was also used here to see if S. 10 would stand valid even after para 7
was severed from it and the answer was yes. They removed only those paras necessary and
did not scrap out whole of S. 10.

They laid down a test to check for validity.

1. Does Parliament have legislative competence?

2. …… violate fundamental rights?
3. …. Reasonable restriction
4. Does it violate any other constitutional provision or not.
 SALIENT FEATURES OF CONSTITUTION

1. Unique blend of rigidity and flexibility:

Written are usually rigid, legislative bodies can’t amend them easily. The rigid
constitution is one in which special procedure is diff from ordinary law and authority
of legislative powers of government is limited.
Flexible can be amended by ordinary law, they can be changed by the simple majority
and in that case the parliament is supreme and there are no rules and limitations on it.
Unique blend:
i. Some provisions can be amended like ordinary law, this is not provided for
under Article 368 but under the relevant provisions that can be amended this
way itself. Article 1, 2, 3 and 4. This shall not be termed as consti amendment.
ii. Procedure to amend the Constitution is in 368. 2 procedures. Flexible one is
special majority with 2/3rds of the members present and voting. Special
majority + ratification by half the members of the state. 368(2) is more rigid.
iii. President can send back legislation once if he is not satisfied.

This was the same as questioned in Kihoto case, minority judges said that if proper
procedure not followed whole of the amendment should be scrapped but they
followed doctrine of severability instead by scrapping out only para 7.

2. Drawn out from different sources: Some critics and appreciated this fact. Some called
it slavish copying. So Dr. Ambedkar comes to the defense and says tell me if at this
hour in the history of the world there can be something new framed in the
constitution. ‘
i. New things was that variations were made to remove the false and add new
things to accommodate for the needs of the country. E.g. Fundamental Rights
have been taken from the U.S. bill of Rights. India added the grounds on
which it can be imposed.
ii. DD Basu – credit to gather the best features of the known Constitutions of the
world, modify and to remove the false that has been disclosed to the workings
of the Consti, accommodating them to the needs of the Country. Ambedkar – a
beautiful patchwork.
3. Written Constitution:
i. Limitations on government: Within defined functions organs have to govern
and they cannot go beyond it. This can be seen with the example of DPSP and
FR. Formal restraints on abuse of power.
ii. Organic or fundamental law: reference to which the violation of ten other laws
is to be checked, it is a grundnorm and any law that contravenes with the
provisions of the Consti will be declared unconstitutional. It is organic because
the interpretations of the intention of constitution maker has to be looked at
through the view of the changing times. Though the basics remain unalterable
the interpretation must be dynamic and evolve according to the times.

4. Combination of parliamentary and presidential forms of government:

In U.S Parliament overpowers anything. Doctrine of implied powers: US judiciary
usually favours centre. U.S. real powers lie in that of the pres.
However in India no proviso says what happens in case of centre v states. This scope
not there in Indian Consti. Centre and state relations are quite diff in India, May be
scope of misuse in this case is less. Art 248 – residuary powers – Parliament makes
laws not given in any of the lists. (Concurrent/ state lists). India executive head is
president. UK head is monarch and they follow parliamentary form of government.

Parliamentary form Presidential form

Real executive powers in the PM + Art In India the president is the
74 council of ministers. Council constitutional head.
collectively responsible to Parliament.
Art 75(3).

Whereas the American System is based on the doctrine of separation of powers

between the executive and the legislative organs, the Indian system is based on the
principle of co-ordination and co-operation.
Compared with the Constitution of Eire. Indian Constitution is not an exact replica of
the Irish model either. The Constitution of Eire lays down that the constitutional
powers of the President can only be exercised by him on the advice of Ministers,
except those which are left to his discretion by the Constitution itself. But in the
 Indian Constitution there is no provision authorizing the President to act in his
discretion? on any matter.

5. Lengthiest Consti in the world: diff consti incorporated, centre and state functions
mentioned, exec, jud and leg. Scheme also in Canadian Consti.
We have special provisions for tribal areas also. Part 16, backward classes. Judicial
and non-judiciable rights, 3 and 4 part. Admin provisions are mentioned in the other
statutes. Local govt, panchayat provisions etc.
Implications: 1. Limited scope for jud to apply doctrine of implied powers in favour
of the state. 2. Less scope for art 248 as in residual powers 3. Ltd. Govt. 4. Organic/
fundamental laws.

6. Federation with strong centralising tendencies:

We have a quasi-federal nature. – Historical reasons.

Prof K.C Wheare – quasi, if US yardstick then not federal.

Unitary Federal
1. Art 2, 3, and 4, power of 1. fundamental written law,
parliament to create new states. 2. neutral body to resolve conflict as in
U.S agreement between states independent Judiciary,
United states, no agreement in 3. Distinction of powers between states
India, “union of India”. and centre. Done by consti not
2. Constitution of India has not parliament
described India as a federation.  4. Create a rep., Gov has to be appointed
Article 1 of the Constitution as under art 356.
describes India as a “Union of
States.” This means, India is a
union comprising of various States
which are integral parts of it.
3. The Indian Union is not
destructible. Here, the States
cannot break away from the union.
 They do not have the right to
secede from the union. In a true
federation, the constituting units or
the States have the freedom to
come out of the union.
Constitution of India has not
described India as a federation. 
Article 1 of the Constitution
describes India as a “Union of
States.” This means, India is a
union comprising of various States
which are integral parts of it. The
Indian Union is not destructible.
Here, the States cannot break away
from the union. They do not have
the right to secede from the union.
In a true federation, the
constituting units or the States
have the freedom to come out of
the union.
5. In certain situations, 246(4),
power of parliament to enact on
state subjects.
6. US we took emergency
provisions – 352, 356, 360,
parliament can assume control of
state, bias towards centre.

Therefore, The Supreme Court of India also describes it as “a federal structure with a strong
bias towards the Centre”.

7. Fundamental Rights:
i. Enforceable
 ii. Bill of rights
iii. Restrictions on govt and grounds on which govt can impose restrictions on us.
iv. Some for citizens and non citizens
v. Against State/individals Art 23, 24 and 15(2) usually invoked against state

8. DPSP:
i. compared to FR, non –enforceable
ii. importance given in art 37, fundamental in governance of country, obligation on
state- duty to keep in mind while enforcing laws
iii. state for Article 12 extended to DPSP by article 36
iv. Borrowed from Ireland which had copied it from the Spanish constitution .
v. Establishes the concept of Welfare State.
VI. CONFLICT BETWEEN FR AND DPSP, DOES FR PREVAIL?

The significance of the Fundamental Rights has been modified by introducing the non-
justiciable DPSP .

• Though the object of the original Constitution was to provide certain non-justiciable
ideals, the Directives have gained predominance vis-à-vis the Fundamental Rights in
two ways:

• 1. By EXPANDING THE SCOPE OF ARTICLE 31C, by the 42nd Amendment Act,

1976.

• By the Supreme Court’s activist view that IN INTERPRETING THE

FUNDAMENTAL RIGHTS, THE DIRECTIVE PRINCIPLES SHOULD BE READ
INTO THE RIGHTS and that the use of directions under Article 32 can be made to
indirectly enforce the non-justiciable Directive Principles as well as Fundamental
Duties.

Champakam Dorairajan Case

Facts : This conflict between Fundamental Rights and DPSP came to the Supreme Court for
the first time in Champakam Dorairajan Case (1952). Smt Champakam Dorairajan was a
woman from the State of Madras. In 1951, she was not admitted to a medical college because
of a Communal G.O. (Government Order) which had provided caste based reservation in
government jobs and college seats. This GO was passed in 1927 in the Madras Presidency.
Champakam Dorairajan Case was a first major verdict of the Supreme Court on the issue of
Reservation. Champakam Dorairajan Case led to the First amendment of Indian Constitution.
This was the case, which when was in Supreme Court; the Lok Sabha was not formed. Lok
Sabha was formed in 1952.

Issues Raised:
Petitioner’s Issues:
The learned Advocate-General appearing for the State contends that the provisions of this
article have to be read along with other articles in the Constitution. He urges that article 46
charges the State with promoting with special care the educational and economic interests of
the weaker sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and with protecting them from social injustice and all forms of
exploitation. It is pointed out that although this article finds a place in Part IV of the
Constitution which lays down certain directive principles of State policy and though the
provisions contained in that Part are not enforceable by any Court, the principles therein laid
down are nevertheless fundamental for the governance of the country and article 37 makes it
obligatory on the part of the State to apply those principles in making laws. The argument is
that having regard to the provisions of article 46, the State is entitled to maintain the
Communal G.O. fixing proportionate seats for different communities and if because of that
Order, which is thus contended to be valid in law and not in violation of the Constitution, the
petitioners are unable to get admissions into the educational institutions, there is no
infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras
even contends that the provisions of article 46 override the provisions of article 29(2). We
reject the above noted contentions completely. The directive principles of the State policy,
which by article 37 are expressly made unenforceable by a Court, cannot override the
provisions found in Part III which, notwithstanding other provisions, are expressly made
enforceable by appropriate Writs, Orders or directions under article 32. The chapter of
Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or
Executive Act or order, except to the extent provided in the appropriate article in Part III. The
directive principles of State policy have to conform to and run as subsidiary to the Chapter of
Fundamental Rights. In our opinion, that is the correct way in which the provisions found in
Part III and IV have to be understood. However, so long as there is no infringement of any
Fundamental Right, to the extent conferred by the provisions in Part III, there can be no
objection to the State acting in accordance with the directive principles set out in Part IV, but
subject again to the Legislative and Executive powers and limitations conferred on the State
under different provisions of the Constitution.

Respondent’s Issues:
In the next place, it will be noticed that article 16 which guarantees the fundamental right of
equality of opportunity in matters of public employment and provides that no citizen shall, on
grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of any employment or office under the State
also includes a specific clause in the following terms :-

"(4) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments of posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State."

. If the arguments founded on article 46 were sound then clause (4) of article 16 would have
been wholly unnecessary and redundant. Seeing, however, that clause (4) was inserted in
article 16, the omission of such an express provision from article 29 cannot but be regarded
as significant. It may well be that the intention of the Constitution was not to introduce at all
communal considerations in matters of admission into any educational institution maintained
by the State or receiving aid out of State funds. The protection of backward classes of citizens
may require appointment of members of backward classes in State services and the reason
why power has been given to the State to provide for reservation of such appointments for
backward classes may under those circumstances be understood. That consideration,
however, was not obviously considered necessary in the case of admission into an
educational institution and that may well be the reason for the omission from article 29 of a
clause similar to clause (4) of article 16.

Judgment in this case was that FR override the DPSP. The Supreme Court held that Article
37 expressly says that the directive principles are not enforceable by court. Supreme Court
mandated that the chapter on Fundamental rights in the constitution is sacrosanct and the
directive principles have to conform to and run subsidiary to the chapter on Fundamental
Rights. This means that

Fundamental Rights were given superiority over the Directive principles.

After judgement
25th amendment brought in “31C: Saving of laws giving effect to certain directive principles”
in 1971.

42nd amendment was made to reduce effect of champakam dorairajan and made during
emergency. It made something enforceable lose importance which was not possible.

Kesavanand Bharti Case 1973

In the Kesavananda Bharti Case the Supreme Court ruled that Parliament could amend any
and every part of the Constitution including Fundamental Rights but it could not destroy the
basic structure of the Constitution. To nullify the kesavanand Bharti Case, the 42nd
Amendment further amended article 31 (C) and now it said that “No law giving effect to the
policy on the ground” that is inconsistent with or takes away or abridges any of the rights
conferred by article 14, 19 or 31.

Acc to state, Article 14 and 19 were considered lesser than 39 (b) and (c);However SC held
them to be equally important and over ruled Champakam Dorairajan. power of judicial
review taken away by 42nd amendment act. Which was unconstitutional as power of judicial
review was a basic structure of consti.

Minerva Mills Case

It abided by Kesavananda Bharti, which said primacy to DPSP over FR is not right. The
parliament by 42nd amendment further widened the scope of the Fundamental Rights.
However in the Minerva Mills v/s Union of India (1980) case, the Supreme Court struck
down these provisions. On the ground that it changed the basic structure of the Constitution.
The Supreme Court held that the Constitution exists on the balance of part III and Part IV.
Giving absolute primacy to one over other will disturb the harmony of the Constitution. This
took the Article 31(C) to its prior condition that ” a law would be protected by article 31C
only if it has been made to implement the directive in article 39(b) and (c) and not any of the
articles included in Part IV. After the Minerva Mills Case, The supreme court to the view that
there is no conflict between the Fundamental Rights and the DPSP and they were
complimentary of each other. There was no need to sacrifice one for the sake of the other. If
there is a conflict it should be avoided as far as possible.

9. Fundamental duties: 42nd Consti amendment: 4(a) amended Art 51(A) in 1976. Also
amended by 86th amendment in 2002. Duty (k) was added then which said that it shall
 be the duty of every person to educate their child within the age of 6-14 years of age.
They are not enforceable.

10. Secular state: A secular state has no religion of its own. Treat all religions equally.
Preamble –to secure to all its citizens “liberty of belief, faith and worship”. Article 25
to 28 gives concrete shape to this concept of constitution.

 An independent and impartial judiciary: is said to be the first condition of

liberty .It’s a custodian of the rights of citizens. Provisions of the Constitution
intended to secure independence and impartiality of the Supreme Court and the High
Courts: Appointment –
 President appoints the judges after consultation with judicial authorities.
 Security of tenure is guaranteed to every judge. (Article 124 & 128)
 Salaries of the Judges have been fixed by the Constitution & cannot be varied by the
Legislature except during the period of financial emergency.
 Once appointed, their privileges, rights and allowances cannot be altered to their
disadvantage. (Articles 125,221,360)No discussion shall take place in the Legislature
of a State or in Parliament with respect to the conduct of any judge of the Supreme
Court or of a High Court in the discharge of his duties. (Article 121,211) Expenditure
in respect of the salaries and allowances of the judges is not put to vote of the
Legislatures. (Article 146,229)
 The administrative expenses of the Supreme Court are charged on the consolidated
fund of India.(146,229)
 Debar from pleading before any court: The Constitution debars the Supreme Court
judges from pleading before any court or judicial authority in India after retirement.
Also after retirement a judge of the High Court can practice only in the Supreme
Court or in the High Court in which he has not been a Judge. (Article 124(7), 220).
 The Supreme Court & the High Court have given authority to recruit their staff and
frame rules regarding conditions of service. (Article 146, 229.
 Art 121 imposes restrictions on Parliament, no discussion about conduct of judge.

Appointment of judges
 S.P. Gupta v Union of India: Concurrence is not consultation, President not bound by
opinion of CJI. The final say for apt and transfer of judges, primarily lies with the
executive. 1982 judgement. Judges transfer case: Justice Bhagati.

SC record on advocate’s case: Judges Transfer Case, the president is bound by

collegium. CJI + 2 senior most judges consultation means concurrence.

In re presidential reference case: JTC 124A, 124B, 124C, CJI+4 senior judges.

JAC: National Judicial Appointments Commission (NJAC) is a proposed body

responsible for the appointment and transfer of judges to the /higher judiciary in India.
The Commission is established by amending the Constitution of India through the
ninety-ninth constitution amendment vide the Constitution (Ninety-Ninth
Amendment) Act, 2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya
Sabha on 14 August 2014. A new article, Article 124A, (which provides for the
composition of the NJAC) has been inserted into the Constitution. As per the
amended provisions of the constitution, the Commission will consist of the following
persons:

 Chief Justice of India (Chairperson, ex officio)

 Two other senior judges of the Supreme Court next to the Chief Justice of India - ex
officio
 The Union Minister of Law and Justice, ex-officio
 Two eminent persons (to be nominated by a committee consisting of the Chief Justice
of India, Prime Minister of India and the Leader of opposition in the Lok Sabha or where
there is no such Leader of Opposition, then, the Leader of single largest Opposition Party
in Lok Sabha), provided that of the two eminent persons, one person would be from
the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman.
The eminent persons shall be nominated for a period of three years and shall not be
eligible for re-nomination.

The functions of the Commission include the following:

 Recommending persons for appointment as Chief Justice of India, Judges of the
Supreme Court, Chief Justices of High Courts and other Judges of High Courts.
 Recommending transfer of Chief Justices and other Judges of High Courts from one
High Court to any other High Court.
 Ensuring that the persons recommended are of ability, merit and other criteria
mentioned in the regulations related to the act.

Impeachment process

(1)  Justice V. Ramaswami: He was the Punjab and Haryana high court chief justice of in the
year 1993 when he was impeached by the Lok Sabha by 196 votes because of his incapacity
to do work; the supreme court had charged Justice V. Ramaswami as failed “TO DO
COMPLETE JUSTICE”.

(2) Justice Dinakaran – Found guilty but he resigned

(3) Justice Soumitra Sen: He was the Calcutta high court chief justice, the chief justice of
India K.G Balakrishnam had recommended him for impeachment to the parliament because
he had misappropriating Rs. 22.83 lakh .than on 2009 a three members commitee was set up
and investigation was started and he was found guilty and finally on 17 August 2011 he was
impeached by Rajya Sabha.