DEFINITION: The Constitution of a country may be regarded as the fundamental law of the land, pertaining to the institution of the

State and the govt of that

country.

Constituere
(Latin
expression)

Constitution

"Founding
together",
"creating
jointly"

Constitution does not comprise of just the written Constitution of India, 1950. 2 reasons:
• Examples of Britain, Israel, or NZ show that constitution of a country need not be consolidated in one place in a single written document, as is the case in
India or US.
• Irrespective of constitution being a single doc, the State and the govt and their relations with their inhabitants keep changing all the time. Frequent changes
in text are discouraged to maintain the sanctity of the doc. Therefore, some other mechanism needs to be evolved to keep constitution in line with the changes
in society not only from within but also from outside such as the impact of globalisation or other external developments.

CLASSIFICATION OF THE CONSTITUTION

• Evolved and Enacted
• Written and Unwritten
• Flexible and Rigid

FRAMING OF THE INDIAN CONSTITUTION

− Indian Independence Act 1947 made Constituent Assembly (sovereign body free from all limitations)
− 1st sitting: 9 December 1946
− Election of interim President in first sitting and settling basic rules for transaction of business
 − 13 December 1946, Pandit Nehru moved 8 Objectives Resolution (OR) for the Constitution
− OR discussed for few days, and again in January 1947
− Later, OR reflected in entire constitution as well as special prominence in Preamble
− Assembly appointed several committees for efficiency and effectiveness
− Drafting undertook by Drafting Committee chaired by Dr Ambedkar, assisted by Dr. B.N. Rau who was the constitutional advisor to the Assembly
− Adoption: 26 November 1949
− Few provisions came into effect on adoption day, others on 26 January 1950 (day of commencement of constitution)

SALIENT FEATURES
− Represents herculean task
o FIRST Needed constitution which would unite over 300 million people, a population which was not homogeneous and diverse in terms of language,
culture, religion, custom, habit, etc. Provisions for minorities, Dalits, backward classes and indigenous people needed.
o SECOND twofold problem of Indian Princely states.
▪ Central authority to keep Princes in order suddenly disappeared. In law, it became open to any Prince (or combination of them) to assume
independence.
▪ Smaller states, which had no form of popular representation but were autonomous, were vulnerable. They needed to be guaranteed the same
freedom as that of the Princely states.
o THIRD Communal problem. Second Round Table Conference failed because communal problem could not be solved. Several subsequent attempts
failed and finally led to the partition of the country. With the division, magnitude was reduced but Constitution needed to guard against its
reappearance.
o Reservation was initially for 10 years from commencement of constitution but it has been continued through successive amendments.
− Comprehensive document
o COI is an elaborate doc, said to be the world’s longest constitution consisting of 395 articles (divided into 22 parts) and 12 schedules besides several
additional articles and parts inserted by amendments. Factors increasing bulk of constitution:
▪ Unlike US and Australia (which provide for only federal govt), our constitution provides for both Federal (central), state and local governments
▪ Certain areas known as the trial and schedules areas are governed by special provisions to ensure the welfare and autonomy of tribal people
▪ Special provisions for minorities and backward classes (including SC, STs)
▪ Many provisions to transition from old to new as well as to accommodate diversities of different regions.
▪ Constitution devotes two of its parts (third added later) to fundamental rights, directive principles of state policy and fundamental duties. FRs
include limitations.
▪ Several provisions to ward off difficulties experienced in working of other constitutions
▪ Detailed provisions relating to working of various institutions to avoid difficulties which a newly born democratic republic could experience.
▪ Detailed provisions with respect to the exercise of executive and administrative powers because Constitution makers were not sure about the
strength of democracy and its capacity to effectively regulate these powers.
 o Comprehensiveness or specificity of the constitution has been found its strength rather than a weakness for its durability.
−
− Lengthiest constitution in the world
o Originally – 395 articles, 8 schedules, currently – 450+ articles, 12 schedules
o Reasons for length:
▪ Framers gained experience from all the other constitutions, aware of difficulties faced in working of different constitutions. Sought to
incorporate good provisions of other constitutions but wanted to avoid defects and loopholes that might come up in the future. (FRs – American
Constitution, Parliamentary system – UK, DPSP – Ireland)
▪ Constitution lays down structure of Central govt as well as States. American constitution leaves States to draw their own constitutions.
▪ Vastness of country, peculiar problems relating to language
▪ Long list of FRs and also a number of Directive Principles. DPSPs not legally enforceable but framers incorporated them with a view that it
would serve as a constant reminder to future govts that they will have to implement them in order to achieve the ideals of the welfare State as
envisaged in the preamble.
▪ Felt that smooth working of infant democracy might be jeopardised unless constitution mentioned in detail things which were left in other
constitutions to ordinary legislation. (e.g. – detailed provisions about organisation of judiciary, services, public service commissions, elections
and many other transitory provisions)
− Unique blend of rigidity and flexibility
o Rigid constitution one which requires special method of amendment of any of its provisions
o Flexible constitution allows any of its provisions to be amended by ordinary legislative process
o Written constitution generally said to be rigid
o Although IC is written, it is sufficiently flexible
o Only few provisions require consent of half of State Legislatures
o Rest can be amended by special majority of parliament
o Indian constitution amended 100+ times till date shows flexibility of our constitution
− Fundamental Rights
o Formal declaration of FRs in Part III of consti deemed to be distinguishing feature of a democratic State
o State cannot make a law which takes away or abridges any of these rights. If it does pass such a law, it can be declared unconstitutional by the courts
o Mere declaration no use, if no machinery for enforcement
o Therefore, IC conferred power to grant effective remedies in nature of 5 writs to SC (habeas corpus, mandamus, prohibition, quo warranto, certiorari)
o FRs are not absolute rights, subject to certain restrictions
o IC tries to strike balance b/w individual liberty and social interest
− Directive Principles of State Policy
o Contained in Part IV of consti
o Sets out aims and objectives to be taken up by states in governance of the country
o These rights are not justiciable, unlike FRs (failure to implement does not give rise to legal action)
 o Not justiciable in court, but State authorities have to answer for them to the electorate at time of election
o Idea of welfare state can only be achieved if states endeavour to implement them with high sense of moral duty
− A federation with strong centralising tendency
o Remarkable feature – federal consti but acquires unitary character during emergency
o Normal distribution of powers undergoes a change during emergency
o Emergency = all powers centralised in Union govt
− Adult suffrage
o Every man and woman above 18 years has right to elect representatives for legislature (Art 326)
o Bold – vast extent, overwhelming illiteracy
o Success – increased no of voters
− An independent judiciary
o FRs without safeguards = useless
o Existence of right depends on remedy
o Independent and impartial judiciary with a power of judicial review
o In federal consti – significant role of determining limits of power of centre and states
− A secular state
o Treats all religions equally (Art 25-28)
o Guarantees every person freedom of conscience and right to profess, practice and propagate religion
o State only regulates relationship between man and man
o Freedom of religion is not absolute, subject to regulatory power of state
o Religious freedom cannot be used to practice economic exploitation
− Single citizenship
o Consti federal, dual polity – centre and states, but single citizenship for whole of India
o American – dual citizenship – America and state
o In India, no state citizenship
o Same rights and powers of every citizen, regardless of which state he resides in
− Fundamental Duties
o 42nd amendment introduced code of 10 “FDs” for citizens
o Reminder = conferred certain FRs, also requires citizens to observe basic norms of democratic conduct
− Judicial review
o Power of courts to pronounce upon constitutionality of legislative acts which fall within normal jurisdiction
o Established – power corrupts man, attempts have been made to erect institutional limits on its exercise
o Montesquieu – doctrine of separation of powers – moved by desire to curb absolute power in any one organ of govt
o JR is interposition of judicial restraint on legislative as well as executive organs
o JR – first time propounded by SC of America in historic case of Marbury v. Madison
 o Express provisions for JR in IC
o In A.K. Gopalan v. State of Madras 1950: “In India, it is the consti that is supreme and that a statute law to be valid, must be in all conformity with
the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not.”
o Kesavananda Bharati v. State of Kerala 1973: Held that JR is the ‘basic feature’ of IC and therefore, it cannot be damaged or destroyed by amending
the consti u/ Art 368 of consti
− Three tier govt
o 73rd and 74th amendment – introduced panchayats
o Self-functioning villages in India

IS IC FEDERAL?
− US constitution is regarded as TRULY federal
− It establishes dual polity or dual form of govt (Federal and State)
− Neither is subordinate to the other, but are coordinate and independent within the sphere of each
− Existence of coordinate authorities independent of each other is the gist of federal principle
− Federal = rule applies strictly with no exceptions?
− Prof. K.C. Wheare – some exceptions, but federal principle predominantly retained

− Consti embodying federal system normally has 5 characteristics –

o Distribution of powers
o Supremacy of the consti
▪ Neither of 2 govt should be in position to override prov of consti relating to power and status of each other
o Written consti
▪ If written, no misunderstandings and disagreements
▪ Impossible to remain supreme unless terms reduced to writing
o Rigidity
▪ Corollary of supremacy
▪ Power of amending consti (prov which regulate status and powers of Federal and State govt) should not be confided exclusively to either one
o Authority of courts
▪ 1st - some authority to prevent federal and state govt from encroaching upon each other’s powers and declare laws made by them ultra vires
on the ground of excess use of power
▪ 2nd - constitute a final SC not dependent on federal or state govt and should have authority to have the last say in matters of consti interpretation
− All essential characteristics present in IC
− Argued: consti doesn’t embody federal principle becuz centre can encroach on field reserved for states in certain contingencies, power of intervention by
Centre is inconsistent with federal system
− Modifications to federal principle in IC:
o Art 249 - Upper House of Union Parliament (CoS) passes resolution (supported by not < 2/3 of members present and voting) that it is necessary in
national interest that Parliament should make laws w.r.t. matters in the state list, it would be allowed to do so. They will be operative for such period,
not exceeding 1 year, as may be specified. Operation can be extended (for 1 year at a time) by resolutions of Council of States (CoS) passed in same
manner as first resolution.
o Art 352-54, 358, 359 - In emergency, Union Parliament can make laws on matters in State List, give directions to States on how to exercise their
power (BJP Kejriwal ko bol skti hai ki apna kaam dhang se karo), empower Union officers to execute matters in State List, etc.
o Art 356 - If president satisfied that govt of a state cannot be carried on in accordance with provisions of consti, can issue proclamation to that effect.
Then president becomes govt of state, including powers of governor. (tumse nahi ho raha, mei hi krleta hu) Cannot take over HC tho. Art 357 - Can
authorise Parliament to exercise powers of state legislature too.
o Art 155, 156, 163 - Governors of states appointed by president, hold their office during his pleasure, and to the extent they exercise their power in
their discretion.
o Art 200, 201, 288(2), 304 - Laws passed by state legislature may be reserved for consideration of President by governor. Some must specifically be
reserved, some cannot even be introduced or moved in State Legislature without prior sanction of the President.

− Prof. Wheare – Consti establishes a system of govt which is quasi-federal at most; a unitary state with subsidiary federal features rather than a federal state
with subsidiary unitary features.
− State of W.B. v. UOI 1963: Federalism is one of the basic features of constitution
− SBI v. Santosh Gupta 2016: IC is quasi-federal
− IC cannot be described as unitary for the simple reason that there is a division of power between Centre and States.
− True that IC heavily biased towards Union, but bias necessitated by historical reasons and political expediency
− Centralising theme noticeable also in other acknowledged federations like US, Canada, Australia.
− Shift towards centralisation is indicative of the transformations in the traditional concept of federation
− IC recognized this transformation and adapted itself
− IC express, other federations inferred from growth through judicial decisions and conventions
− No identifiable label of federalism which could serve as an ideal for a federal system
− Range of institutional variations implementing the basic federal principle and different patterns

− Our federal polity has distinctive features:

o Single citizenship
o Single constituent authority
▪ US states have power to make their own constitutions. No such right in India
o Minimises rigidity and legalism
▪ Rigidity – Amending written consti
 ▪ Legalism – necessary predominance given to judiciary
o In emergencies, the consti can become unitary
o It maintains unity in basic matters
o State and Union not rivals
− S.R. Bommai v. UOI 1994: SC emphasized the federal character of consti and imposed several procedural restraints on the exercise of power by the Centre
under Article 356.

UNIT II
PARLIAMENT
i. COMPOSITION

Representatives
of the states -
Council of States 238 max
President (Rajya Sabha)
(Art 80)
President's
Parliament
Nominees - 12
2 houses
Territorial
constituencies in
House of People states - 530
(Lok Sabha) (Art
81)
Union Territories
- 20

Council of States: (Art. 80)

1. Representatives of each state shall be elected by members of legislative assembly of State in accordance with system of proportional representation.
(Representatives of UT are selected by an electoral college.)
2. Members to be nominated by the president shall consist of persons having special knowledge or practical experience in respect of literature, science, art and
social service.

• Permanent body
 • 1/3 of members retire every year
• Vice President is ex-officio chairman of the council of states

House of People: (Art. 81)

1. Direct election from territorial constituencies in the states – 530 members
a. Each state allotted a specific number of seats in proportion to its population, ratio of all states more or less same
b. Each state divided into territorial constituencies in a manner that ratio of population and no of seats is more or less same throughout the state
2. Representatives of the Union Territories – 20 members
3. Art. 331: Anglo – Indian community appointed by president – 2 members
“Population” = last preceding census, may change after every census

ii. PARLIAMENTARY PRIVILEGES (ART 105)

Can be claimed only when the person is a member of the house. As soon as he ends to be a member, the privileges are said to be called off.

1. Freedom of Speech in the parliament [105(1)]

a. Members of parliament are exempted from any civil or criminal liability for any statement made or act done in the course of their duties.
b. Held in Justice (Retd.) Markandey Katju v. Lok Sabha 2017 SC, that freedom of speech in Parliament is absolute and unfettered.
c. Alagaapuram R. Mohanraj v. Tamil Nadu Legislative Assembly 2016 SC: The scope and amplitude of the freedom of speech existing for a citizen and
available to a member of the legislative body are totally different [Art 19(2) is different from Art 105(1)]
2. Freedom from arrest
a. Limited to civil causes and not applied to criminal charges or detention under Preventive Detention Act, 1950
b. Held in K. Ananda Nambiar & R. Umanath v. Govt of Madras 1966, that members of parliament do not enjoy special status as compared to an ordinary
citizen in respect of valid orders of detention.
3. Right to exclude strangers
a. In the House of People, the Chair has the power of ordering the withdrawal of strangers from any part of the House.
b. When House is in secret session, no stranger permitted to be present in the chamber, lobby or galleries. Exceptions are members of Rajya Sabha and
persons authorised by Speaker.
4. Right to prohibit publication of debates [105(2)]
a. In M.S.M Sharma v. Sri Krishna Sinha 1959, it was held that: “The House had at the relevant time the power or privilege of prohibiting the publication
of an inaccurate version of such debates or proceedings.”
 b. Art 361-A (44th amendment, 1979): no person shall be liable to any proceedings civil or criminal for reporting the proceedings of either House of
Parliament of a state legislature unless the reporting is proved to have been made with malice.
5. Right of the House to regulate its own Constitution
a. Connected rights:
i. Seat vacant – Election Commission calls upon the parliamentary constituency to elect a person
ii. Art 103 – Any question whether member of either house has become subject to disqualification, question shall be referred to President whose
decision shall be final. (He acts on opinion of Election Commission)
6. Right to regulate internal proceedings
a. House adjudicates upon matters arising within the House
b. Art 122 – Validity of any proceedings shall not be called into question on the ground of alleged irregularity of procedure
c. Indira Nehru Gandhi v. Raj Narain 1975: Art 122 prevents SC from going into any question relating to irregularity of proceedings ‘in Parliament’.
d. Ramdas Athawale (S) v. UOI 2010: Each House of Parliament is sole judge of lawfulness of its own proceedings. The Court cannot go into lawfulness
of proceedings of House of Parliament.
7. Freedom from appearing as a witness
a. Indira Nehru Gandhi v. Raj Narain 1975: For the purposes of Art 105(3), a conviction under penal laws or detention under emergency laws must be
deemed to be valid till it is set aside.
b. Amarinder Singh v. Punjab Vidhan Sabha 2010: Legislative Privileges are exercised to safeguard the integrity of legislative functions against
obstructions which could be caused by members of the house as well as non-members.
c. Facebook v. Delhi Legislative Assembly 2022: Summoning/Compelling attendance of a non-Member by a committee duly constituted by legislative
assembly is permissible.
8. Right to punish members or outsiders for contempt
a. House has 2 powers
i. To punish for breach of its specific or defined privileges
ii. To punish for contempt of the House
b. Can: Reprimand, Admonition or Imprisonment
9. Right to expel members
a. Thought to be covered under 7, but after Raja Ram Pal v. Hon’ble Speaker, Lok Sabha 2007, it deserves to be treated separately
b. Raja Ram Pal case – 11 members expelled on allegations of having accepted bribe, challenged that Parliament does not have right to expel, court held
privilege exists
Privileges of House under article 194(3) are not subject to provisions of Part III: held in M.S.M Sharma v. Sri Krishna Sinha 1959.
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha 2007: If citizen complains that his FRs u/ Art 20 or 21 had been contravened, it is the duty of this court to examine
the merits of said contention, especially when impugned action entails civil consequences.

EXECUTIVE POWER
Executive power nowhere defined in the consti. Art 73 merely defines matters with respect to which executive authority of the Union extends. Executive authority
can be said to be the authority to carry out the executive function of the govt.
Scope of executive function has become extremely wide in recent times. Involves the provision and administration or regulation of a vast system of social services
as well as prov of defence, order and justice and finance. With the rise in executive functions, methods of govt have changed. Necessity to confer the powers on the
executive other than those of purely executive or administrative nature.

PRESIDENT’S POWER
 President's powers

Executive power (Art

Legislative power Financial power Emergency power Judicial power
53)

Demand for grant - Grant pardons, suspend

All executive functions Summon a joint sitting National Emergency President's Rule (Art Financial Emergency
recommendation remit or commute
executed in his name of both houses (Art 352) (6 months) 356) (6 months) (Art 360)
needed sentences (Art 72)

Session of Parliament, Money bill - prior Must be approved Reprieves, Respites,

Appoints PM and other Approval by both Approval within 2
prorogation and recommendation within 2 months by the Commutation,
ministers houses within 1 month months by both houses
dissolution (Art 85) needed Parliament Remission

Annual Financial
Appoints Governors, Indira Nehru Gandhi v. Gujarat Mazdoor Sabha S. R. Bommai v. UOI
Statement i.e. Union Offences against Union
CJI, Judges of SC and HC Raj Narain 1975 v. State of Gujarat 2020 1994
Budget laid by him laws, punishment/
sentence by a court
martial, all sentences of
death
Art 80, Art 331 Contingency Fund of
Council of Ministers in Last measure, must be
(nomination of India advances can be
his aid - Art 74 used sparingly
members to Houses) made by him

Kehar Singh v. UOI 1989

(Art 72 discussed)
Veto power - bills
Samsher Singh v. State
(Absolute, Qualified,
Finance Commission of Punjab 1974
Suspensive, Pocket)
every five years -
distribution of taxes
between Centre and
States
Introducing money bills
- prior consent required

Ordinance making
power (Art 123)

A. K. Roy v. UOI 1982

 1. Article 53(2): supreme command of defence forces vests in the President
a. 1st limitation: “without prejudice to the generality of the foregoing provision” = military power is subject to general executive power, military power
subordinated to civil power2
b. 2nd limitation: the exercise of the supreme command can be regulated by law
2. Art 72: power to grant pardon and remit punishments
3. All important appointments to be made by him, including:
a. Art 75: Prime minister and other Central Ministers
b. Art 155: Governors
c. Art 124(2): Judges of SC
d. 217: Judges of HC
e. 316: Chairman and members of UPSC
f. 76(1): Attorney General
g. 324(2): Chief Election Commissioner and other Election Commissioners
h. 148: Comptroller and Auditor General of India
4. He also appoints the:
a. Finance Commission
b. National Commission for the SCs and STs
5. Wide powers given in an emergency including the power to suspend the enforcement of FRs
6. Art 123: Legislative power extends to the issuing of ordinances during recess of parliament
7. Every Bill to become law requires his assent
8. He can refuse his assent to a Bill or send it back for reconsideration
9. He can dissolve the House of People, convene joint sessions of both houses and address or send messages to either or both of them
10. No money can be granted unless recommended by the president nor can money bills be introduced except on his recommendation
11. Bill passed by State Legislatures may be reserved for his consideration, and a Bill affecting the powers of the HC must always be reserved
12. State laws relating to certain matters are not to be effective unless assented to by the President
13. His assent is also required to the amendments of the Constitution
Constitutional position of President – Art 53, 74 and 75
Ram Jawaya Kapur v. State of Punjab 1955: Though the executive power is vested in the President, he is only a formal or constitutional head of the executive. The
real power is vested in the Council of Ministers whose aid and advice the President acts on in the exercise of his functions.

GOVERNOR’S POWER
 Powers of Governor

Executive power [Art Legislative Power [Art

Financial Power
154(1)] 168(1)]

all executive actions of Raja Ram Pal v. Annual Budget laid on

State govt taken in Hon'ble Speaker, Lok behalf of Governor by
name of Governor Sabha 2007 FM

Governor can act with

Power to summon State Contingency
aid and advice of
state legislature Fund is at his disposal
Council of ministers

State of Bihar v. Sunny No Bill can become law Finance Commission

Prakash, 2013 w/o assent every 5 years -
financial position of
panchayats and
municipalities
Money/Financial Bill
appoints: CM and needs
others recommendation of
governor

recommends
constitutional
Ordinances (Art 213)
emergency in state to
president

B.P. Singhal v. UOI D.C. Wadhwa v. UOI

2010 1987
JURISDICTION OF SC
Article 32 (Writ Jurisdiction)
•
INDEPENDENCE OF JUDICIARY
• Courts should not be subject to improper influence from other branches of govt or from private interests.
• Public confidence in the administration of justice
• Independent SC envisioned by constitution.
Diverse devices to ensure Independence:
1. Security of Tenure
2. Salary of judges fixed
3. Parliament can extend but cannot curtail the jurisdiction and power of SC
4. No discussion in the legislature on the conduct of judges
5. Power to punish for its contempt (Art 129, 215)
6. Separation of judiciary from executive (Art 50)
7. Executive cannot appoint judges without consultation with judges of the SC [Art 124(2)]
8. Prohibited practice after retirement [Art 124(7)]
Judicial Review – Art 13
Writ jurisdiction – Art 32 (SC) and Art 226 (HC)

UNIT III
CENTRE STATE LEGISLATIVE RELATIONS (Art 245-255)
During emergency: Unitary form of govt followed.

Parliament State
Art 245 Can make laws all over India AND extra-territorial Can make laws only for state
(Territorial Jurisdiction) jurisdiction
Art 246 List I and List III of Schedule 7 List II and List III of Schedule 7
(Subject Matter Jurisdiction)
 Art 248 RESIDUARY MATTERS (not covered in any of the State has no power over residuary matters
(Residuary Powers) lists) completely in its jurisdiction
Art 249 Lok Sabha gets power by Rajya Sabha to make laws Rajya Sabha gives power to Lok Sabha
(National Interest) on matters of State List
Art 250 Parliament can start making laws in List II during All power of State finishes during emergency
emergency (India starts behaving like a Unitary state
during emergency)
Art 252 Parliament can make laws on the subject matter 2 or more states request Parliament
requested by the states
The law would only be applicable on those particular
states which requested it
Art 253 To make law to implement international treaty,
(International Treaty) Parliament can make laws on State List

In case of INCONSISTENCY:
Union Parliamentary Law State Law
Art 249 Prevails -
Art 250 Prevails -
Art 254 Prevails -
(Repugnancy)

Order of Validity (Principal of Federal Supremacy):

Union Law > Concurrent List Law > State Law

Exceptions to the power of Parliament u/ Art 245

• Art 240 (UTs – Daman & Diu, Dadar & Nagar Haveli, Andaman & Nicobar Islands, Lakshadweep Islands)
o President has power to make regulations for their peace, progress and good governance
o President can amend, modify, repeal any law of the Parliament for these 4 UTs
• th
5 schedule
o Governors of scheduled areas can say laws of parliament do not apply to these areas, at any time
• th
6 schedule
o Assam, Mizoram, Meghalaya, Tripura – Tribal areas
o Governors can say Parliament’s laws do not apply, need to be amended or modified
DOCTRINES
Doctrine of Territorial Nexus –
• No law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial jurisdiction (i.e. Outside India also)
• Applicable when there is sufficient nexus between the state and the object
• E.g. – data sharing
• State legislatures can’t do this
• Wallace v. ITC Bombay 1948
• State of Bombay v. RMDC 1957
Doctrine of Pith and Substance –
• Read a law in its entirety, not specific words
• Refer to Object – Scope – Effect of laws
• The essence of two laws should be inconsistent to be called repugnant
• In such a case of repugnancy, Union Law will prevail
• Prafulla Kumar v. Bank of Commerce 1947:
o
• State of Bombay v. F.N. Balsara 1951:
o

CENTRE STATE ADMINISTRATIVE RELATIONS (ART 256-263)

CENTRE STATE FINANCIAL RELATIONS (ART 264-293)

AMENDMENT OF THE CONSTITUTION

Procedure:
 categories of provisions

those requiring special

those effected by a simple
those effected by a special majority + ratification by
majority, required for the
majority as laid down in 368(2) resolution passed by not less
passing of an ordinary law
than 1/2 of State legislatures

amendments which seek to

excluded from purview of all constitutional amendments
make change to prov referred
Article 368 other than 1st category
to in proviso to Art 368(2)

majority of total membership 1. Election and manner of

amendments comtemplated of each House, majority of not election of president (Art 54,
in: Art 4, 169, 239-A and Para less than 2/3 of the members 55)
7, 21 of 5th, 6th schedules of that House present and 2. Extent of executive power
voting of the Union (Art 73)

3. Extent of executive power

of state (Art 162)

4. And Chap. IV of Part V,

Chap. V of Part VI, Art 241,
Chap. I of Part XI, Sch. IV, 7th
schedule, Art 368

• In Kihoto Hollohan v. Zachillhu 1993, para. 7 of 10th schedule to the Constitution was invalidated by the court because it had the effect of amending the
power of the SC and the HCs without following the procedure required in the proviso to Art 368(2).
o Applying the doctrine of severability, the majority held that Para. 7 was severable from the rest of the schedule and therefore, its invalidity did not
affect the rest of the schedule.
 o This is the first instance of an amendment having been invalidated for non-compliance with the procedure laid down in the proviso to clause (2) of
Article 368.
o Minority opinion: Doctrine of severability could not be applied to an amendment which required observance of the procedure laid down in proviso
of 368 (2), but in fact did not observe such procedure.

Amending Bill Ratified by Amendment

introduced in required may specify date
either House number of of its
states Presented to the commencement
• However, it must Constitution
be passed by each President for his
• Only needed in • Or leave it to the stands amended
House by special certain cases [as assent President to bring
majority [Art 368] mentioned in it into effect from
proviso of 368 (2)] such date as he
may notify

In other respects, the normal procedure of each House is to be followed so far as that may be applicable consistently with the express provisions of Article 368.
Shankari Prasad Singh Deo v. UOI 1951:
• Whether an amendment of Fundamental Rights (FR) guaranteed by Part III of the Constitution is permissible under Article 368?
• Validity of Constitution (1st amendment) Act, 1951, especially inclusion of Art 31-A and 31-B was challenged
• Court held: Power to amend FR contained in Art 368 and “law” in Art 13(2) did not include an amendment of the Constitution which was made in the
exercise of the constituent, and not the legislative power.
Sajjan Singh v. State of Rajasthan 1965:
• 17th amendment which added several legislations to the 9th schedule, making them immune from attack on the ground of violation of FR, was challenged
• 3 of 5 judges fully approved of the Shankari Prasad case
• 2 of them, in separate but concurring opinions, doubted whether FR created no limitation on the power of amendment
Golak Nath v. State of Punjab 1967:
 • Majority of 6:5 dissented from Shankari Prasad and Sajjan Singh and held that FR were outside the amendatory process, if amendment took away or
abridged any FR
• 3 writ petitions involved
• Most contentions raised from both sides were already raised before the SC in the Shankari Prasad and Sajjan Singh cases
• Judgement given a prospective effect and did not invalidate any of the amendments disputed in the case
• Reasoning of the majority:
i. Constitution incorporates an implied limitation that the FR are out of the reach of the Parliament. Article 13 is not the source of the protection of FR
but the expression of that reservation. Importance attached to FR is so transcendental that a Bill enacted by a unanimous vote of all the members of
both the Houses is ineffective to derogate from its guaranteed exercise.
ii. Art 368 does not contain power to amend, but merely provides the procedure for amending the Constitution.
iii. Amendment of the Constitution can be nothing but “law”. If amendment is intended to be something other than law, the constitutional insistence on
the legislative process is unnecessary. The word “law” in Art 13(2) includes the constitutional amendments.

25th, 26th and 29th

Constitution (24th
Golak Nath case amendments abridged/took
amendment) Act, 1971
away FR in some respects

Effect of 24th amendment:

1. Tried to nullify Golak Nath judgement
a. Added clause (4) to Art 13 – nothing in Art 13 would apply to amendments made u/ Art 368
b. Added clause (3) to Art 368 – nothing in Art 13 shall apply to amendment made u/ this article
2. Changed “procedure for amendment of the constitution” to “Power of Parliament to amend the Constitution and procedure therefor”
a. In reply to ii. Reasoning of the majority in Golak Nath case
b. Amendment recognized distinction b/w an ordinary law and a constitutional amendment
3. Changed “it shall be presented to the President for his assent and upon such assent being given to the Bill” to “it shall be presented to the President who
shall give his assent to the Bill”
a. Took away all discretion of the President

All amendments challenged in Kesavananda Bharati v. State of Kerala 1973:

• 13 judge bench