Indian Councils Act, 1909:

 Nationalist and freedom movement at its peak. These were the reason for this act.
 INC was never established as a political power but was formed by Britishers to gather
educated Indians.
 Educated people become part of INC. but they were merely doing the work of
discussion and deliberation because there was no access to education at large as there
were financial constraints. These people belonged to either rich or influential class.
The movement of INC became the movement of masses because of Gandhiji.
 Then Viceroys and secretary of state brought the idea of this act. The secretary sent it
to the parliament as he as he is the cabinet minister who acts as a link. act mean it is
about the legislative council and executive council.
 This was called as the Morley Minto reform. Minto was the viceroy (direct
representative) and Morley was secretary of the state (not a representative but rather a
link). Viceroy did all the ground work and secretary of state overlooked the
functioning.
 This provision was the provision of election that’s why the Morley Minto reform is
called the reform. But in reality, it’s not reform but a form of divide and rule.
 Electorate was based on communalism.
 The Morley Minto reformed believed that equal representation is not suitable to India
due to its heterogenous nature of the society but rather it should have representation
on the basis of classes and their interests. This is known as communal representation.
 This is prima facie a reform but it’s actually a communal representation. The society
need implementers who have good integrity and faith. They did not need new acts but
good implementers. If there would have been good government then the Indian
society would have united.
 It increased the size of central as well as provincial legislature. Central legislature is
headed by the governor general in council and provincial is headed by the president of
the province. Things which are concerned to Indian society but only for petty matters.
 Both had three types of members: ex-officio- some members of executive legislature
can become the ex officio member, nominated member- there were some people who
were nominated by the Britishers (any people who would work for the Britishers and
is loyal to them, can be anyone Indian or English people), elected people (communal
representation).
 More functions were given to the legislative council. More law for the Indian society.
There were some restrictions imposed on the council the matters of British
government interest could not be discussed by the council like defense treaties and
foreign relation.
 INC and Indian people were not satisfied with this law but Muslim were satisfied
because being the minority they got the representation.
 The first world war occurred, so the Britishers wanted help of Indians in terms of
finance and man power, so making repressive laws were of no use. Gandhiji became
part of this process. INC was divided into two parts Modernist and Extremist and
became a party of the masses. They did not focus on promotion of communal reforms.
 In this period INC became politically more powerful as they started raising their
demands. Post war various oppressive laws and legislation were imposed on Indians
to curb the freedom movement. Example in 1910 Indian press act was enacted and
 was applicable to each and every act, if the what is printed is seditious then the
printing press would be seized and punishments were given. During the law one law
came called the Defense of India act in 1915, its purpose was to control the situation
during the war time, essential commodity act so that hoarding should not happen.
 INC being initially the forum of educated people they were aware of democracy,
women rights, sovereignty, French revolution, republic etc. this also played an
important role as how INC emerged as a powerful political party.
 The demand for self-government emerged post-world war. Political awareness among
the people also increased. Many things introduced by the Britishers like
communication, press, railways etc. which they introduced for their own benefit
helped Indians grow.
 Britishers realized that they need to work for the constitutional reforms in India. The
self-government idea by proposed by then secretary Montague. He pronounced in
house of commons in 1917 and it is called the Montague Declaration of 1917.
 In 1915 a legislation called government of India act, to reduce the power of secretary.
They did so to gain support from Indians.
Montague Declaration 1917:
 Montague said in the house of commons “The policy of his majesty’s government
with which, the government of India are in complete accord is that of increasing
association of Indians in every branch of administration and the gradual
development of self-governing institutions with a view to the progressive
realization of responsible government in India as an integral part of the British
empire. The progress in this policy can only be achieved by successive stages. The
British government and the government of India must be the judges of the time
and measure of each advance”.
 The Indian person did not have the ultimate authority. It is responsible for the
revolutionary change.
 Montague started doing ground work. Due to him the new government act of 1919
came into picture.
 When Montague was the secretary, India’s viceroy was Chlemsford. This is said to
be act enacted post Montford Scheme.
Montford Scheme:
 It was a report formed on Indian situation sent to the parliament.
 As far as possible there should be complete popular control (representative of local
people) in local bodies and should be largely independent.
 Some measures of responsibility should be given at once and complete responsibility
be given as soon as condition permits.
 The government of India must remain wholly responsible to parliament of UK but
you can criticize the government.
 Control of UK parliament and secretary of state over government of India and
provinces should be gradually reduced.
 This scheme was to enact the scheme of self-government in India.
Government of India act, 1919:
 Certain changes were made in the home government in the UK in relations with the
government of India. Certain functions of secretary of state were reduced and were
given to the government of India. The number of people increased in the government
of India. Thy reduced the control of UK government over the government of India.
 Certain changes were made in the executive councils of government of India. The
new composition was 8 to 12 members, minimum 8 members and maximum 12
members. In this, 3 members will always be Indian. There were more than 3 members
as 3 was the minimum criteria. Their term will be of 5 years and they had a fix salary
for the security of the tenure.
 Certain changes in the legislature were made. The concept of Bicameralism was
introduced by the government of India act. They said that there will be two houses.
There will be two houses on both the level i.e. on central as well as state level. But
they still continued with communal representation in these houses. Governor general’s
approval on each law introduced by the legislature was removed though they kept it to
some extent like if it affects the safety of the British government.
 Local bodies were the provincial government. They said that the cases related to the
local bodies will be handled by the Indians only and the Britishers won’t interfere. It
 Indian civil servants can become part of executive council. A new post was created for
India called the High commission of India. His function was the function of agency,
he was basically a diplomat, to handle the matter between two countries.
 Still viceroy was appointed by the crown only.
 Since the power of state secretary was reduced, the viceroy became a powerful post in
India.
 Power of certification: the viceroy had the power to reject laws and legislation.
 He still had the power to issue ordinances.
 At central legislation there will be one council of states (upper house) and central
legislation assembly (lower house).
 Ministers of these houses were appointed in the name of the crown by the governor
general.
 There was a concept called Dyarchy (government at two level). They said there will
be the government at central level there will be central and state level.
 Reserved and transferred list was there. The subject on which Indian legislation can
make laws are transferred subjects and, on the subjects, they cannot make laws are
reserved subjects. There were central and provincial list and, in these lists, there were
reserved and provincial subjects.
 Indian government cannot make any changes in the British laws.

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Different types of constitution:
 Written constitution and Unwritten constitution. When something is written the
boundaries and framework is decided. It is clearer and more comprehensive. The
amendment is difficult.
 Thomas Jefferson conducted an experiment where he came to a conclusion that 19
years is the period where the generation and society changes completely therefore the
entire constitution must be changed after every 19 years. He considers the written
constitution as rigid.
 All the constitution that has endured till now are flexible, inclusive and has a scope
for changes in the society. Written constitution is not only rigid but can also be
flexible. Indian constitution is a great example of rigidity as well as flexible.
 Australian constitution is an example of Written constitution which is rigid. It also
depends on how a law is applied. Only law does not work.
 Whenever something is written it give authenticity which may not be with the
unwritten constitution. Only UK has an unwritten constitution. Because they never
faced problems like India where they faced a complete shift in the society and power.
In UK monarchy is the continuous form. There was no major change in the
government setup so they felt the need of a written constitution. The very fact that the
constitution is unwritten makes it flexible and inclusive in nature.
 There is no theory of unwritten constitution. The unwritten constitution has the same
efficacy as the written constitution, so there is no problem of authenticity.
 Rigid and flexible constitution. Constitution is considered as a living document i.e. it
should have the tendency to grow, develop and change itself because constitution is
the supreme law of the country and if it cannot grow, develop and change itself then it
cannot fulfil the needs of the society. It cannot become a dead or stagnant document.
Flexible is the one which can change, can be interpreted, change. Judicial
interpretation helps in the growth of the constitution. Intentia Legis meaning intention
of the legislative.
 Judicial interpretation is the informal amendment and the procedure written in the
constitution is formal amendment.
 Ordinary legislative power is needed for changing any ordinary law or legislation. For
changing the provision of constitution, one should have constituent power. This same
power is with the constituent assembly.
 When judiciary came up with the doctrine of basic structure when they felt that the
constitution is being threaten or going away from the framework.
 When we talk about flexibility, it is not absolute flexibility, it is proportionate to meet
the need of the society. Flexibility and rigidity should be proportionate. Australian
constitution is the most rigid constitution. We’ve the model of rigidity with flexibility.
 Unitary and federal constitution. These are actually the form of government. Unitary
for of government means only one form of government for the entire country for
example UK and France. It means no central or state, only one power, power is not
divided, no concept of local government. Only one form of government where there is
executive and legislative whereas federal is divided between central and state or
regional for example India, USA, Canada, Australia. Unitary constitution means one
government i.e. constitutional power in the hand of that particular government for the
entire country. Unitary is suitable for the country where there is less regional diversity
but when there is more regional diversity federal is preferred. Federal is derived from
the word fedus meaning treaty. For federal written constitution is preferred. USA is
more federal as compared to India but in terms of theory India is federal.
  There was an idea that India must have lose confederation i.e. every state must have
different government but this idea was quashed due to partition.
 For federalism we have 7th schedule but when we talk about judiciary, India is
different from USA. Indian judiciary is called as the single integrated judiciary.
 Republican and Monarchial constitution. Republic means head of the state is the
elected person. Impeachment provision is also present in the republic. Monarchial is
hierarchical in nature. There is no provision of election.
 Presidential and Parliamentary constitution. Example of presidential is USA and
parliamentary is Canada, India. In USA president can be called as the De Facto head
(the one who’s actually working) of the government whereas in India Prime Minister
is the De Facto head.

India has taken the idea of preamble from USA constitution. It lays out certain objectives,
principles. Indian preamble is divided into 4 parts: who drafted the constitution i.e. talks
about in whom sovereignty lies, type of government which India has, objectives of the state,
date of adoption.
Justice, equality, liberty, fraternity are the objectives of the state. Justice talks about social,
economic and political justice. Liberty of thought, expression, beliefs, faith and worship.
Equality of status and opportunity. Fraternity assuring the dignity of the individual and unity
and integrity of the nation.
Under Art 394 is written that on 26th January the constitution was enacted.

29/4/25:
President has the power that from a particular state a person request that a particular language
should be made as the official language then the president may consider it under article 347
but it’s at the discretion of the president and not right of the people.
Article 350 A is use of mother tongue in primary education. It’s the responsibility of the state.
constitution announced Hindi to be a link language which links all the people.
Reberubari case which was regarding the boundary dispute where the SC said that the
preamble is not a part of constitution in 1960. Then after 13 years in Kessavanadand Bharti
case SC said that preamble I very much part of the constitution and can be used for
interpretation of the constitutional provinces. There cannot be Indian constitution without
preamble and this idea was borrowed from the USA.
According to Nehru there must a law that provides for the fundamental rights of the people.
There were various committee like drafting committee, minority committee etc. for the
drafting of the constitution.
Fundamental rights will be justiciable in the court of law i.e. they will be enforceable by law
and the other rights which will be unjusticiable are directive principle of state policy. we
borrowed it from the Irish constitution.
A non-citizen has the right to approach SC and HC under art. 32 and 226 but only under the
rights which are provided to them.
A non-citizen has rights under art. 14, 20,21,22.
In an art if the word citizen is mentioned then that right is available to the citizens only but if
the word person is mentioned then it is available to both citizens and non-citizens as well.
Article 12:
It is included to know against whom the fundamental rights can be availed. We will not limit
the scope of fundamental rights.
Article 13:
Judicial power:
Judiciary’s power to review legislative and executive power. This is in spirit of doctrine of
separation of power.
Executive actions are delegated action.
Article 13 clause 3 tells what all is included in law. They talk how law is an instrument of
social engineering.
Personal law is a law but it is not a law under art. 13. So, we can consider that personal law is
a law and also that it is not a law.
This idea of judicial review was borrowed from the USA.
Article 14:
It is the genesis of fundamental rights. India referred to both UK and USA while drafting the
fundamental rights.
Dicey a well know jurist he came up with a theory of rule of law where law is supreme and
everyone is equal in front of the law. Equality before law was taken from the UK and equal
protection of law was taken from the USA. He believed that even monarch should be equal
before law.
This article is kept wider in nature.
Article 15 and 16:
These articles are specific in nature. Discrimination may happen on basis of religion, caste,
sex, place of birth and color. So, article 15 lay downs the detailed provision for the
discrimination.
Women and children were vulnerable of part of society so they were given special rights to
them. Though there must be no discrimination on the basis of sex but women can have
special law under article 15 clause 3. It defies article 15 clause 1. It is called the affirmative
action by law.
There was reservation for employment in article 16 clause 4. Article 16 makes sure that there
is no discrimination in public employment. only citizen can avail this right. Descent means
family background and family lineage and resident means the place where you live. So, it
basically means a government job cannot be denied based on your family background and the
place where you live but state can do discrimination based on the place you live.
Ameliorative justice means like will be treated likely and unlikes will be treated unlikely.
Which means same will be treated likely and unequals will be treated differently.
Freedoms under article 19:
This article guarantees fundamental freedoms to all its citizen. Freedom of speech is
considered as the mother of all liberties. Our freedom is wider than the USA as USA only
provide freedom of speech but we give speech and expression. But USA also give freedom
press but India doesn’t. India gives restriction on this freedom expressly in the constitution
but US constitution doesn’t give. USA have absolute fundamental right whereas India has
reasonable restriction on the fundamental rights.
Ground of sedition was already a criminal offence under sec 124 A was discussed in the
constituent assembly. They decided to remove this clause from IPC as it goes against the
freedom of speech and expression.

30/4/25:
Article 20:
It uses the word person which means its available to non-citizens as well. Article 20 has 3
major fundamental rights namely, Ex-post facto laws (criminal offences must be prospective
and not retrospective), Double Jeopardy law (Jessica Lal case) and right against self-
incrimination (no person can be compelled to be a witness against himself). For amending the
constitution, we need special majority i.e. 2/3 of the total members of the house and for
ordinary legislation doesn’t require majority and that is how article 20 was accepted.
Article 21:
No person shall be deprived of his life and personal liberty expect the procedure established
by law. Earlier it was due process of law. It was the original provision but was later amended.
Our constitutional advisor B.N Rao went on a visit to the US and met justice Frankfurter,
where he said due process by law is very vague and ambiguous but it mentions the word due
which means right which is very ambiguous as what is right for me might not be right for
you. Procedure established by law was taken from the Japanese constitution. Members of the
constituent assembly were divided as few were in favor of due process ad some were in favor
of procedure established to law. Ambedkar argued that what if people in power came up with
laws but it’s not due since its procedure established by law, so they can make laws which are
not due since it’s not mandatory. Later in AK Gopalan case it was established that the
procedure established by law need to be just, fair and reasonable. The word personal before
liberty means infringement of one’s own liberty, if not then a person may approach court even
if their own liberty is not violated.
Article 22:
It was drafted as a response or reaction to article 21. It provides protection against arrest and
detention. The legislature may wrongfully arrest a person on the pretext of procedure
established by law. It is divided between 2 parts: rights of arrested person and preventive
detention (not an arrest but detention; the person is a detainee).
Article 23:
It prohibits traffic in human beings and forced labour, including beggar (compulsory labour).
Article 24:
It prohibits the employment of children below the age of 14 in any factory, mine, or
hazardous occupation.
Article 25 to 30:
To give effect to secular principle article 25 to 30 were drafted. Article 29 and 30 are for the
protection of the rights of minorities.
Article 25
It guarantees freedom of conscience and the right to freely profess, practice, and propagate
religion. This right is given to all the people. This right is not absolute. This allowed Sikh
people to carry Kirpan (a knife). The first clause of this article give right to Practise, profess
and propagate. Alladi Krishna Swami Iyer suggested that the word religion might invalidate
existing social welfare legislation. A new clause was added which is an exception that the
religion must not invalidate existing social welfare legislation. It does not give absolute
freedom to the religion.
Article 26
It provides Freedom to manage religious affairs.
Article 27
It provides Freedom as to payment of taxes for promotion of a particular religion. Fee to a
particular religion is fine.
Article 28
It deals with the freedom of attendance at religious instruction or worship in certain
educational institutions. It provides 2 purposes as stated by Dr. Ambedkar namely, it allows
the educational institution to impart religious education and it also gives right to the students
who might study there and not want to follow the particular religious teaching.
Article 29 and 30
Minority is not only based on religion but it is also based on culture, language or script. This
articles provides right to the minority. No cannot be denied admission in any educational
institution based on their religion, race, caste and sex. This is borrowed from the constitution
of Poland. According Govind Panth, the rights of minorities should not be in the fundamental
rights but it should rather be part of directive principles as it would not be a compulsion for
the legislation but it would be a directive as it would neglect the minorities interest, but it was
not accepted. This right achieves the objective that the majority does not discriminates
against the minorities and this right is only available to the citizens. Dr. Ambedkar explained
the word minority. He said the word minority is not used but used the word any section of
citizen because when we hear the word minority, religion comes into play and they gave a
contention that they did not want to protect only religion but also language, script and culture.

2/5/25:
Article 31:
This article is replaced by 44th amendment. This dealt with freedom to possess property. It
was available to citizens only. There was a principal provision that the property can be
acquired by the state because only restriction is not sufficient. It was similar to the
compulsory acquisition of property. B.N. Rao gave the example of US where no proper
provisions about the compulsory acquisition there was chaos in the same way India had due
process in the constitution like US, so no matter how much compensation the government it
would never be enough. K.T. Shah said for reasons for economic efficiency, social justice and
national defense certain forms of national wealth for example land, mines and minerals,
forests and rivers should be excluded from the purview of the individual’s right to property
and their ultimate ownership reserved to the community.
Article 32:
It is the heart and soul of the constitution. According to this article you need not follow the
complicated, lengthy process of litigation and technical process of SC and can directly go the
apex court if one’s fundamental rights are being violated. Alladi Krishna Swami Iyer said the
citizens right to be embodies in the constitution should consist of guarantees enforceable in
courts of law and that it was no use laying down precepts which remained unforeseeable or
ineffective. He meant if we are providing rights to people and if we give no remedy to protect
the rights then the rights are of no use. Mr. Munshi gave a global perspective wherein he said
in US and UK all the fundamental rights (USA) and civil liberty (UK) are preserved for so
long and the reason for the same is independent judiciary and prerogative writs. So, he meant
even in India to protect the fundamental rights we need these 2 remedies. Writs were
borrowed from the UK. Dr. Ambedkar said “I’m strongly in favor of prerogative writs as a
speedy and effective means of guaranteeing fundamental rights” but he also said the present
status of writ jurisdiction in India is subject to 3 limitations namely, the powers given by the
letter’s patent (writ jurisdiction power) is available only to the HC in the presidency town,
these powers are subject to laws made by the legislature (this power may be changed by the
legislature, it is limited to the statutory law), powers given under government of India act
1932 are restricted and may prove insufficient for the protection of the aggrieved person. If
we want to give effective protection to the fundamental rights we must achieve 2 objectives
namely, to give the fullest power to the judiciary to achieve what under English law is called
as prerogative writs and to prevent the legislature from curtailing these powers in any manner
whatsoever. The jurisdiction of SC to issue all types of writs should be expressly derived
from the constitution so that no legislature under any circumstances except during national
emergency would have the power to take away the right.
Article 32 clause 2 says the SC has the power to issue direction, orders or writs including
writs in the nature of other 5 writs. This term “in the nature of” (to issue writ different from
the traditional meaning of the power) suggested by Nasiruddin Ahmed. Earlier the term was
by the writs which suggested according to the UK constitution but was replaced by in the
nature of meaning can used interpreted differently from the traditional meaning. Example can
be Sunil Batra case. The power of SC to issue writs should not be restrictive but should be
elastic in nature. Some of the people said that the fundamental rights should be absolute but
Ambedkar argued that in times of emergency the superior right of the state to protect itself
must prevail otherwise the individual would be in danger of losing himself but there is an
exception to only article 20 and 21 and only for these two articles, article 32 is available
during the times of emergency. Alladi Krish Sway Iyer suggested all the HC should have the
power to issue writs and this is how article 226 was inserted in the constitution. SC was
limited to fundamental rights and HC all the legal rights therefore 226 had wider scope than
32.
Article 8 of UDHI says “everyone has right to effective remedy by the competent national
tribunal for act of violating fundamental rights granted to him by the constitution or the law”.

5/5/25:
There are 3 types of system from organizational point of view:
1. Unitary
2. Confederation
3. Federation
According to Dicey, ‘unitary form of government means concentration of strength of states in
the hands of one sovereign’. He was of idea that UK legal system was perfect for the public
welfare.
Confederation means loose federation of independent state. In confederation all the states are
equal. A state can go out of the nation in confederation whereas in federation this is not
possible.
Federation is derived from a word Fedus means treaty between two government. Federalism
evolved from various political experiences. US constitution is the first written form of
constitution to adopt federation government. Some power which state earlier possessed now
surrender it to the center. Defense, foreign affairs, trade and communication between states,
decision on war and peace are surrendered and domestic powers are kept with the states.
According to Britishers before 1935, they were of the view that federation is not preferred for
India. But then in Government of India act 1935 they came up with the federal government.
Reasons for all India federation:
 Britishers never wanted to establish any permanent government so they were not
concerned with the government but wanted to establish a political institution.
 Britishers only created a link between union government of Britishers and various
provinces. This link is a way of means for common communication. Road, railways,
posts, telegraphs, telephones, common official language, common system of
administration were the types of common communication. It creates a link between
the center and the state.
 National freedom movement and political struggle against Britishers created a sense
of national cohesion and desire to be free from foreign rule.
 At that time British crown had entered into treaties with the rules of the Indian
provinces. The Britishers would protect them from external aggression and in return
they can help in different ways.
 The Britishers had vast trading interest in India which they wanted to prevail and for
that purpose annexation of those states was beneficial for the Britishers to protect
their interests.

Objective resolution:
Nehru proposed a confederation for Indians. He was of the view that we are diverse in
nature so how can we come together but later this idea faded and we came from
confederation to federation. Because of partition we suffered communal violence and may
other things and since the partition was on the basis of religion and there were many
religions, it’s obvious that they would want a different state so, for this reason the
constituent assembly decided to go for strict federation.
Meerut session:
Chairman of Meerut session J.B Kriplani suggested that Indian states should have higher
autonomy but the structure of India should be federal in nature. This is pre constituent
assembly.
Views of Ambedkar on federation:
Dr. Ambedkar presented article 1 stating that India is a union of states. The word is union
for India because our states are not making an agreement to come together but rather the
constitution is making a provision that’s why it’s union and not united.
We can say, Federalism is a system of government of a country under which there exists
simultaneously a federal or central government and state or provincial governments.
Feature of federalism in India:
 You must have a written constitution for the purpose of there a strict division of
power between centre and state, if not there will be a chaos between both.
 There must be a power of judicial review. Government cannot interpret the
constitution, only judiciary can do so.
 There must be dual government or dual polity.
 In federalism there is a reconciliation of unity with multiplicity, centralization
with decentralization and nationalism with localism.
 In a federal country, constitution is supreme.
 Federation is a union of autonomous units.
 Both the governments have direct authority over the people.
 There cannot be unilateral change in the provisions of the state. There cannot be
unilateral change in the constitution. There must be a 50% majority of states to
change the provisions of the constitution.
 Indian federalism is similar to the federalism of Canada. Residuary powers are
with the states in US whereas in India it is with the centre according to article 248.
 The overall tendencies of India is that it is centralized in nature. It avoided the
disintegration of states.
Gopal Swamy Ayyangar, a member of constituent assembly said that we must provide for a
method of dividing sovereign powers so that the government at the centre and state are within
a defined sphere, they co-ordinate as well as they are independent.
Dr. Ambedkar said these provision that we’re more centralized, make the Indian constitutions
both unitary as well as federal according to the requirement of time and circumstances. He
further says, in normal times constitution is framed to work as a federal system but in times
of war it is so designed as to make it work as though it was a unitary system. Articles 250,
352, 353 are related to this.

6/5/25:
Legislature has the legislative power i.e. they have the power to make power. The parliament
and state legislature in India have ordinary legislature power to make statute but when the
function is to amend the constitution then the power is called the constituent power under
article 368.
Executives implement the laws made by the legislative. They also have the power to
implement the laws.
In India we have a single integrated judiciary. This is a feature of unitary country.
In constitution to give the division of power in detail there is provision for separation of
powers. In USA states are more powerful than center.
Government of India act was the first act which introduced federalism. They also gave
division of power though it was not in detail.
In Article 245 territorial jurisdiction is given for central legislature and state legislature.
The constituent assembly it was decided which legislature can make laws for which territory.
Sec 99 of government of India act, 1935 is similar to article 245. The difference is, in
government of India act the word provision and the constitution replaced it with state.
In article 245 clause 2 there is a word extra territorial power word is used which means
foreign law so the center will make law for the same.
Article 245 clause 1 says center can make laws only for the Indian territory. Therefore article
245 clause 2 is an exception to clause 1.
Article 246 read with 7th schedule is about Subject matter jurisdiction it means on which
subject you can make law. We’ve divided the subjects in 3 lists namely, union list, state list
and concurrent list and it is inspired by the government of India act sec 100.
During the assembly debates it was decided that the power to make laws for the UTs will be
with the union i.e. with the parliament. It was suggested by T.T Krishnamachary. It is in the
Article 246 clause 4.
Article 247
When there is a need to establish a new court for the matter regarding the union list, the
power to establish is with center. It restricted only for those law which they’ve made and it is
expressly given.
And state can do it for state list. It restricted only for those law which they’ve made but it is
not expressly given.
District courts can be made on the suggestion of SC and can be made by the government.
To show that center is stronger in India constitution gave residuary power under article 248.
Residue means something which is left behind. Something which is not mentioned in the
legislative list on that matter laws will be made by the center. In Australia and USA, it is with
the state. Objective resolution and cabinet mission plan decided this. It is supposed to be read
with entry 97 of union list.
B.N Rao wanted put residuary power in the state list since he was in the favor of loose
federation.
Though there is strict bifurcation as to the matters of the list but parliament can also make
laws for the state list. This is an exception. I.t may be done in case of national emergency
Article 249
The constituent assembly said the subject matter should not be rigid in nature as it is not
important than nation’s interest. They can do this if it is in national interest. It was the advice
of B.N. Rao.

7/5/25:
Article 250:
It is about power of the parliament to legislate with respect to any matter in the state list when
if the proclamation of emergency is in operation. It is about the national emergency. This
power is with the center. This law is operational only for 6 months. Government of India act
section 102 is similar to this article.
Article 251:
If there is situation that on a matter of state list, the state already has a law about that certain
matter and now even the center is making a law for the same and both of them are
contradicting to each other, then the center’s law would prevail. This is a reply to article 249
and 250.
According to Alladi Krishna Swamy Iyer article 251 gives superior and premium power to
the union encroaching on the state field and striking at federal structure of constitution. He
used the word premium for the union. Due to majority this article was accepted.
Article 252:
Power of parliament to legislate for two or more states by consent. It is a provision that state
legislature is not able to make a law for themselves even though the matter is of the state list
and the state voluntarily ask the center to make laws for them. It is done by more than one
state. It may happen that such law may be adopted by any other state, it’s not necessary for
the state to be part of the consent party for them to adopt the law. This is similar to section
103 of government of India act. It is also found in the Australian constitution.
Dr. Ambedkar suggested that if such provision is passed by the state, then the parliament has
no power to say no, they have to make law if asked by the state. And once the law is made the
state must follow the law.
Article 253:
It is about international agreements. So, whenever the nation enter into an international
agreement, it is only the center who can make the law not the state.
Article 254:
Inconsistency between laws made by the parliament and laws by the state. The area where
both can make laws is concurrent list. This article is still a bit tilted towards the center. The
laws made by both the parliament and the state law would prevail except the repugnant part
on the part of the state.
Clause 2 is an exception so that state should not feel infringed. If there is any repugnancy and
the law made by state is reserved for the president’s assent and if they receive the assent then
the law of state and not center would prevail but the president acts on the act and advice of
council of ministers of the center.
Article 256 to 261 is about administrative relations
Article 261, 262 and 263 are considered as the features of Co-operative federalism (water
dispute. Inter-state dispute)
Constituent assembly debates on election:
The power to conduct the elections were given to the executives.
ELECTIONS
 C.A debates on elections
 Direct elections not just indirect
 In that our history taught as a lot -Indian council act when we talk about political
justice
 Who will conduct the elections?
 If bureaucrats conduct elections concern as legislature making law for it which is
political party, and they are only conducting election
 Hence independent body required to conduct
 Who will make the machinery?
 Power with const regarding it
 ECI-under article 324
 Elections-important part of the democracy
 And conducted by voting which is a political right to the citizens
 Ambedkar keen on including right to vote in the const
 Infact he wanted both right to vote and both power functions in the fundamental rights
part
 Democracy cannot sustain without elections and It is fundamental
 Right to vote in the nature of civil and political right
 Right to vote is something person cannot lead the life
 Right to vote in part 3 by Ambedkar was rejected by Raj gopalachari Nature of
rights is different.
 Basic given in constitution and detailed given in RPA
 Right to vote not considered as FR not interpreted in that way.
 Independent machinery ECI-there power is wide in nature-superintend, direction and
control of elections to be vested in an Election Commission.
 Anonymity can be maintained by ECI as it has wide power so that executive and
legislative do not control them
 Eci is not as such a big office, but it has only one permanent M
 Whenever elections president and governor provide the staff for conducting the
elections.
 No need to have the huge office with permanent M of ECI as elections is not a day-to
day affairs happening and will be burden on state
 Hence if there are elections staff will be there
 But otherwise, elections is a permanent independent constitution assembly as chief
elections commissioner will always be there
 Composition -1 CEC+ 2 election commissions
 This menace of untouchability and social exclusion very rampant
 Principle of equality will flow thru the elections also and that is how article 325 came
into place.
 325 No person to be ineligible for inclusion in, or to claim to be included in a
special, electoral roll-on grounds of religion, race, caste or sex.
 So that the separate electorates thing doesn’t happen again
 Ambedkar said that object of this article is top discard separate electorates as
practiced earlier
 Universal adult suffrage-article 326  Elections to the House of the People and to the
Legislative Assemblies of States to be based on adult suffrage.
 As the experience we had in history -Indian council act and even Morley Montague
reforms as very class centric divisions done to give vote.
 If a person is adult he may not be allowed to vote
 Limitations on voting:
o non residence
o unsoundness of mind
o crime or corrupt illegal practice
 delimitation borrowed from section 291 of GOI act
 327 and 328about delimitation similar to S291 OF GOI but how delimitation will
happen of that there will be a delimitation commission apart from that there can be detailed
laws. Everything regarding elections. Use of EVM-eci cant do it unilaterally and there is a
need for a law to do that and initially in Kerala without law they took election in EVM did it
and elections were declared void as provisions of evm and serious thing. Law should state the
usage of EVM only then

 Article 329exclusion of judicial review in electoral matters
 ECI is not pers se doing state work and it is a huge process which ECI needs to
complete
 Art 329 was Ambedkar’s brainchild
 These provisions have been drafted taking into considered
 Equality
 Independence
 Free and fair elections
 And these 3 are implemented properly then only democracy will sutain

INDIRA GANDHI TIME

 She incorporated soime provisions in the elections
 Her 44th amendment made some arbitrary provisons like position of speaker and PM
cant be challenges-later declared null and void
 Ambedkar said federal in peace time and unitary in war time
 Similar to section 102 of GOI 1935
 BN rau in his draft included the provision
 Executive will have the power to declare emergency and not legislature hence it is
with the president of india
 Bn rau draft gave special resp on president for prevention of grave menace to peace or
tranquillity of union of any part of it
 Initially we did not have specific ground it was wider in nature
 President acts on advice of the council of minister
 Hence 3 grounds of emergency
1. War
2. Exernal aggression
3. Internal disturbance
 Till today cant be a judicial review of the president declaring emergency
 Bu then we know internal disturbance was misused in Indira time that is why it was
replaced with armed rebellion
 President should have the power to suspend the right of the people in times of
emergency
 Article 358 and 359 provisions for suspension of rights is given and this no other
federation has
 From federal and unitary we can convert –uniqueness of indian const—originally all
FR could be suspended
 But now due to experience of indire
 Now article 20 and 21 cant be
 While adopting this ground of internal aggression
 Ambedkar proposed the word that we should have domestic violence
 DV was not accepted in replacement of internal aggression by others.
 Mr HV kamatduring C.Anow this provision was there that president will act on
advice of COM which is implied but he wanted to keep it express in the emergency provision
but this was not accepted
 Article 352proclamation of emergency amendment link between proclamation and
advice
 KT shah

What will happen once emergency is proclaimed what all will change?
 Decided that this usual process or practice
 Parliament can make law for state in national emergency
 Centre will emphasise legislative power for all states and justified
 National existence>>> regional interests
 Executive and legislative power will rest with the centre

ARTICLE 354
 About the revenue distribution-finance or financial matters they cannot be dealt in a
similar way like peace situation
 We cannot expect that what happens in peace time happen in war time
 It is essential for the union to adjust financial relations during the emergency
 Ambedkar said: final relations must be adjusted even salaries can be reduced during
emergency
 It is a financial consequence of an emergency, ordinary course of business cant
happen.
 Propionate how much should be given that should only be provided
 National emergency is when threat to national existence
 It can be for a part of the country also

16/5/25:
Article 355:
It is about provision of the constitution are applied properly to every state. Duty of the center
to ensure that constitution is uphold in every state. Whenever there is failure of government
in the country, president’s rule applies. State is sometimes not able to carry out ordinary
functions, then that may be the case of national emergency. If in the case of political
instability, i.e., if no party is able to form their government in the state, then it is the
responsibility of the Union (central government) to ensure that the provisions of the
constitution are properly applied in all the states in the country. However, this does not mean
that state is anywhere inferior from the central government. Ambedkar said that, union will
not be unfair to the states. At the backdrop of this duty, article 356 comes into picture. Similar
to section 93 of the GOI Act, 1935.

Article 356:
It is about state emergency. state has the right because they have the power to protect the
state. It is similar to Sec 93 of government of India act. Whenever there is any failure of
constitutional machinery then president has the power to proclaim. It is done with the aid and
advice of council of minister. S. R. Bommai v. Union of India, the case is about state
emergency. Dr Ambedkar cautioned that “this provision can be abused and employed for
political purposes”. He said this article should be the dead letter as it should not be used or if
used it should be used rarely. The people who believed that the state should be stronger
opposed the provision and people like Alladi Krishna and BR Ambedkar supported the
provision because at times of the emergency we cannot give the power to the state politicians.
The provision makes sure that Constitution is applied, common people are protected as
people’s rights are preserved. The emergency can still occur without the governor’s report
because the word otherwise is used. India is unitary at times of war and federal at times of
peace and the war must be officially declared by the centre and should not be done by the
state because the war is with a nation and state cannot handle such matters. India tilts more
towards unitary and less toward federal that’s why India is termed as the quasi-federal nation.
Alladi Krishna Swamy Iyer said “article 356 is justified because primary obligation is upon
the union to see that constitution is maintained in every state. Article 355 and 356 must be
read together.
Suspension of fundamental rights during emergency:
We are talking about national emergency because fundamental rights cannot be suspended by
state emergency. Without fundamental rights the constitution is of no use. The constituent
assembly came up with the fact that the fundamental rights are only during normal times and
not at the times of emergency and this came as a shock for certain people as constitution
cannot exist without the fundamental rights so certain people justified it. What is the use of
the rights if your life is at risk. Alladi Krishna Swamy Iyer said that “War could not be fought
on the principles of magna carta and in a situation threatened by war in a country with large
population, some people with possibly divided loyalties, freedom of speech of might be used
for the purpose of endangering the State (nation) and crippling the resources of the country”.
Article 358 is only for article 19 and article 359 is about the whole part III of the constitution.
All the fundamental rights can be suspended in original constitution but after 44 th amendment
in 1977 article 20 and 21.
Article 360 talks about financial emergency but India has never faced this emergency.
Dr KM Munshi told why the provision for financial emergency is important. He said that
“this provision is realisation of one supreme fact that the economic structure of the country is
one and indivisible, he further said that centre and state and inter-dependent on each other for
financial matters. If they don’t co-operate, they may break financially”.

Amendments:
Indian constitution is the blend or mix of both rigidity and flexibility. It is given in article
368. The parliament has the power to amend the constitution. There are two types of
amendment, namely formal amendment (article 368 is the formal) and informal amendment
(judicial interpretation are the informal). The power required for amending constitution is
known as “Constituent Power”. This power is given under article 368. This power is the same
power which was with the constituent assembly. So, when the parliament amends the
constitution then they act as the constituent assembly and while making any act, statues they
are legislative assembly, so basically while exercising their power under article 246 they are
legislative assembly. Constitution can be amended by only special majority i.e. 2/3 rd of the
total number of the members of the house and the voting must be done affirmatively and the
2/3rd is a must have. This 2/3rd is from both the houses of the assembly and then the bill goes
to the president for his assent. They discussed how federal structure is protected during the
amendment so, after a lot of discussion they said that even the state must be involved in the
amendments. State will only be involved when there is a threat to the federal structure.
Federal structure in amendment by giving a list of Entrenched provision (those provision
which affects the federal structure of the constitution). It is given is article 368 clause 2.
Firstly, they circulated the amendment provisions of different countries in the constituent
assembly and then they invited suggestion that how it should be done in India. Mr. Ayyangar
and Alladi Krishna Swamy Iyer that there must 2/3 rd majority in both house of parliament
plus 2/3rd of state for any provision of the constitution but it was very difficult so, we came
with the original solution. Also, we came from 2/3 rd of state’s approval to ½ of the state for
only federal provision and for all the other provision we do not require the state’s permission.
Union constitution committee finalized the procedure for the amendment of the constitution.
The original title of the article 368 was the procedure for the amendment of the constitution
but now there is also the word power as originally, we only have procedure. It shows
constitutionalism and limitation. It shows that the constituent assembly member considered
the amendment as the procedural aspect. Australian constitution is the example of rigid
constitution as it can only be amended by referendum and India is not too flexible.