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Indian Constitution- historical underpinnings, evolution, features,

amendments, significant provisions, basic structure.


Functions and responsibilities of the Union and the States, issues and
challenges pertaining to the federal structure, devolution of powers and
finances up to local levels and challenges therein. Separation of powers
between various organs dispute redressal mechanisms and
institutions. Comparison of the Indian constitutional scheme with that of
other countries. Parliament and State Legislatures - structure, functioning,
conduct of business, powers & privileges and issues arising out of
these. Structure, organization and functioning of the Executive and the
Judiciary Ministries and Departments of the Government; pressure groups
and formal/informal associations and their role in the Polity. Salient
features of the Representation of People's Act. Appointment to various
Constitutional posts, powers, functions and responsibilities of various
Constitutional Bodies. Statutory, regulatory and various quasi-judicial
bodies
Indian Constitution- historical underpinnings, evolution, features,
amendments, significant provisions, basic structure.
 Constitution: a living document: evolves with time.
 Divided we stand!!
o It is the inherent nature of democracies to be deeply divided
(US: Trump won despite a minority vote share, BJP (2014, 282 seats, 31%
votes), Rajiv Gandhi (1984, 409 seats, 49%))

historical underpinnings,
 Constitution: Aimed at changing social, political, economic and psychological
 Decisions in Constituent assembly: Consensus, Accommodation and by theArt of selection
and modification
 Timelines:
o 1922: Gandhi talked aboutself-determination in Young India
o 1928: “Nehru Report”
o 1938: Haripura session, demandfor constituent assembly
o 1940 (August offer): Constitutionfor the Indians was offered
o 1942 (Cripps offer): Constitutionfor Indians by the Indians

evolution: Cover in History

features
 Blend of Federal and Unitary
 Independent Judiciary (Keshavand Bharati)
 Advisory Jurisdiction of SC (Art 143): Not in US
 Rigidity and flexibility, Emergency Provisions
 Indian Socialism (Marxist + Gandhian): Right to Work absent
 Economic Democracy
 Other features: FR, DPSP, FD
o FR - J Bhagvati in Menaka Gandhi vs Union of India
o DPSP - Unnikrishnan vs State of AP - Directive Principles are as good as
fundamental rights.

 FR – DPSP fight (Includes some important CAA and Basic Structure) [CAA:
1, 17, 24, 42]
o Shankari Prasad v. UoI (1951)
 constitutional validity of CAA 1, 1951 challenged: curtailed Right to
Property
 SC: Power to amend under Article 368 also includes the power to amend FRs
o Champakam Dorairajan case, 1951
 DPSP-FR supplementary, interpret harmoniously > If conflict > FR will
prevail
o GolakNath v. State of Punjab (1967): CAA 17, 1956: inserted certain state
acts in 9th Sch
 SC: FRs are immutable (REVERSED stand) - cannot abridge/ take away
o CAA 24, 1971: Parliament can amend any part using
368, President MUST give assent to CAA
o CAA 25, 1971: Added 31(C):
 Law to implement DPSP 39(b) & 39(c) may violate FRs (14 & 19), cannot be
held void, cannot be challenged in court of law (took away JR)
 39(b): Equitable distribution of wealth (LDC goes to PHC)
 39(c): Prevention of concentration of wealth in fewer hands
o Kesavananda Bharati v. State of Kerala (1973): 13 Judge Bench
 Concept of Basic Structure: cannot be amended
 Preamble is part of IC (overturned Berubari Union case)
 Struck down JR part of CAA 25. DPSP 39(b) & 39(c) CAN override 14 & 19
 JR as basic structure
o CAA 42, 1976 (To counter SC): amended Art 368 (no limitation on the
constituent power of Parliament)
 Change to 31(c): made all DPSP > 14,19,31 (extension of CAA 25), kept JR
open
o Minerva Mills v. UoI (1980) – Struck down amendment of 368
 Basic Structure/Feature: JR, FR-DPSP Harmony and balance
 Struck down the provision of CAA 42 which under Article 31-C gave pre-
eminence to all DPSP against FR 14,19,31
 Held that Social Welfare Law cannotcurtail the FRs
amendments
 Kesavananda Bharati vs. State of Kerala (1973): Parliament cannot amend
‘basic structure’
 Initiation: either House, minister/pvt member, No Joint sitting, special
majority
 Types of Majority
o Ordinary/Simple Majority (NOT in 368): a majority of the House present
and voting
o Absolute majority: a majority of the total membership of each House
o Special Majority: a majority of the total membershipof each House and a
majority of two-thirds of the members of each House presentand voting
 Examples
o Simple (outside the scope of Article 368)
 New states, alteration of boundaries/names
 Conferment of more jurisdictions on the SC.
 Citizenship -- acquisition and termination.
 Election to the Parliament and State legislatures.
 5th Schedule (administration of scheduled areas and scheduled tribes)
 6th Schedule (administration of tribal areas)
o Special Majority: FR/DPSP
o Special Majority + ratification of half SL: When Federal structure in impacted
 Election of President (Art 54)
 SCs and HCs
 Distribution of powers (legislative/exec) between Union and states
 7th Schedule
 Representation of states in Parliament (delimitation by simple majority)
 Power of Parliament to amend theConstitution and its procedure (Article
368 itself)
 Amendments
o 38: Prez can declare emergency, Ordinance byPresident/Guv/
Administrators of UT final and could not be challenged
o Schedules:
 39 (1975): Added 9th Schedule.
 Election inparliament (PM/ Speaker, President and VP) cannot be
questioned: Struck down in Indira Gandhi v. Raj Narain, 1975
 52 (1985): Added the Tenth Schedule (regardinganti-defection)
 91: Amended the Anti-Defection Law, Max ministers15%
 73 (1992): PRI
 74 (1992): Municipality
o 24:
o 25:
o 42: Supremacy to Parliament, DPSP>FR, Added10 FDs
 New words: Socialist, Secular and Unity andIntegrity of the Nation
 Art. 74 amended: President shall act in accordance with the advice of CoM
 President can proclaim emergency in any part of the country (Earlier:Entire
country)
o 44 (1978): Right to Property deleted as FR, 300Aadded.
 352 amended: Armed Rebellion
 Art. 74(1) modified: President could require theCouncil of ministers to
reconsider > must act after reconsideration
o 86 (2002): RTE an FR
o 93: Reservation (27%) for OBC in government aswell as private educational
institutions.
o 99 (2014): NJAC, struck down (Advocate Council VsUoI, 2015)
o 100 (2015): Exchange of enclaves (LBA)
o 101: GST
o States
 7 (1956): Reorganization of states on linguisticbasis
 10 (1961): Dadra & Nagar Haveli as a UT
 12 (1961): Goa, Daman & Diu as a UT
 13: Nagaland State
 14: Pondicherry, Karaikal, Mahe and Yanam asPondicherry
 17 (1967): inserted certain state acts in 9thSchedule > GolakNath v. State of
Punjab (1967)
 18: Re-organised Punjab (PN, HR, Chandigarh)
 27 (1971): Manipur and Tripura as States, Mizoramand Arunachal as UTs.
 36 (19750: Sikkim as State
 53: Mizoram State
 55 (1986): Arunachal Statehood
o Languages:
 21 (1967): Sindhi
 71 (1992): Konkani, Manipuri and Nepali (KlMN)
 92 (2003): Bodo, Maithili, Santhali and Dogri(BDSM): 21+71=92

basic structure
 Originated in Keshavanand Bharati vs State of Kerala, 1973:
o SC: basic structure/features cannot be altered
o Tussle between Judiciary (protect FR) and State (pursuing social welfare)
 Case Laws: KIMBasic
o Keshvananda Bharti V. State of Kerala, 1973
o Indira Gandhi v. Raj Narain, 1975
 39th CAA was declared unconstitutional by SC (JR as Basic Str)
 39th CAA: introduced Article 392A (appointment of PM and Speaker cannot
be challenged in court)
o Minerva Mill v. UoI, 1980: JR, FR-DPSP Harmony
o Bommai v. UoI, 1994: SECULARISM, Preamble indicates the basic structure
of the constitution
 Power of President under 356 is not absolute.
 ‘Secularism’ was part of IC before the word ‘Secular’ was added to preamble.
 Transgressions
o Ex-CJI appointed as Governor (P. Sathasivam)
 Though IC doesn't specifically prohibits, it hinders
separation/independence of Judiciary (Basic structure)

significant provisions

Basic
 123 and 213: Ordinance making power
 110: Money Bill

 123 and 213: Ordinance making power


o Misuse:
 Reluctance to face legislature, political interests
 To nullify courtorder Eg: NEET ordinance.
 Fear of defeat in RS Eg. Ordinance on Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement after it
suffered a defeat in Rajya Sabha
 Overcome disruption
 Recent cases of misuse: Ordinance for Motor vehicles act; Citizenship
Amendment
 Proper use: Criminal law amendment ordinance
o Opinion of SC on frequent use of ordinance power
 Cooper case (1970): President’s satisfaction can be questioned on the
grounds of malafied
 DC Wadhwa case (1987): successive repromulgation > violation of IC (liable
to be struck down)
 Krishna Kumar Singh v. State of Bihar, 2017: Failure to place ordinance
before legislature > abuse of power, fraud on IC, Widens the scope of JR of
ordinances
o Conclusion: Unusual power (not found in most democracies), Legislative
deliberations basis of democracy
 Ambedkar: Ordinance to enable Executive to deal with emergent situation
 Money bill (Art 110)
o Bicameralism basic Str
o Sol: Speaker must exercise utmost propriety, JR

PREAMBLE
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into
a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC
and to secure to all its citizens:
JUSTICE, social, economic and political; (PSE)
LIBERTY of thought, expression, belief, faith and worship; (TEBFaW)
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and
integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this 26th day of November, 1949,
do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.
Preamble
 reflects the ideals, aspirations and expectations
 Aims and objectives of the Indian Republic
 Soul/Philosophy of the Constitution
 Terms
o ‘We, the people of India……’: sovereignty with the
people, government power flows from people
o Sovereign: independent
o Socialistic: ownership & control of material resources to serve the
common good (DPSP: )
o Secular: freedom of conscience & free profession, practice & propagation
of religion
o Democratic: Government of, by and for the people
o Republic: Elected head for government

 Aspects of Constitutional democracy: Majority Rule,Counter-majoritarian


role of judiciary (ensure minority rights)

Fundamental rights
 History:
o Magna Carta (1214 CE): From King John by the people of England
o Bill of Rights (1689): Englishmen given certain civil and political rights that
could not be taken away
o 1789: "Declaration of the rights of Man and of the Citizen" after French Revol
o Need for FR: Rule of Law, First fruits, Quantification of Freedom
 Amendability of FRs: See above
 Fundamental Rights in India
o A K Gopalan vs State of Madras 1950: FR not absolute
o Romesh Thaper vs State of Madras, 1950:
 Freedom of speech and Freedom of press lay the foundation of a democratic
society
o Menaka Gandhi v UoI, 1978 (Art. 21): widest possible interpretation
 not jist life but a life of dignity.
 not just physical, but mental+spiritual
 FRs are not mutually exclusive, form an integrated theme of IC
 Test of reasonableness (14): for any law that takes away FR
 J. Bhagvati: FR represent the values that are cherished by the people of this
country since Vedic ages
 Necessary for a human being for attaining full social, intellectual, and
spiritual status.
o Sunil Batra vs Delhi Admin AIR 1980
 tremendous power to Habeas Corpus, people not directly involved can
move the court (objective: remove injustice wherever it is found in the
society)
 Enforce FR in a prison > Prisoners are humans > dignity
 Menial/forced work without pay, solitary confinement, degrading
punishment not allowed.
o Olga Tellis v. BMC, 1986: Right to Life had to be a life with dignity (not
animal existence)
 Union of India vs Association for Democratic Reforms 2002: Right to know
abt candidate before voting
o

 MouthShut.com v. Union of India:


o Writ petition in the SC to protect freedom of speech and expression on
Internet (against Sec. 66A of Information Technology Act of India)
o SC repealed Sec. 66A, declaring it as unconstitutional and ordered reading
down of various other sections of the IT Act.
o Internet users are free to post anything: publishers can't be forced to take
down content w/o court order
Functions and responsibilities of the Union and the States,

issues and challenges pertaining to the federal structure,


Federal
 powers sharing between center and the states
 Ambedkar in Constituent Assembly: Notwithstanding certain provisions
that centralize the powers, Indian Constitution is essentially federal
 Wheare and others: "quasi-federal" or "federal with strong centralizing
tendency".
 The following are the defining features of federalism.
o Distribution of Powers between center and states.
o Supremacy of the Constitution.
o Written Constitution.
o Rigidity of the Constitution
o Independent Judiciary
 Provisions that affect federal character:
o Appointment of Governor (Art 155 and 156)
o appointed by President, until the pleasure of the President
o Governor can send laws for assent from the President, who can veto
 only one case (re Kerala Education Bill) where amendments to a state law
were asked by the center and that too after the opinion of the SC
o Power of the parliament to make laws on subjects in the State list (Art 249)
 not unlimited (matters of national importance and RS agrees with 2/3
majority)
o Power to form new states and to change existing boundaries (Art 3)
 at the time of independence, provinces formed for administrative
convenience
o Emergency Provisions: 3 situations
 Foreign aggression or internal armed rebellion (Art 352)
 Failure of constitutional machinery in a state (art 356)
 Financial Emergency (art 360)

Controversy over Article 35A


J&K
 January 26, 1950: Article 370 came into force
o provided that only two articles will apply to J&K
o Article 1: defines India
o Article 370: will applyto J&K
o also mandated that otherprovisions of the Constitution can apply to J&K,
“subject to suchexceptions and modifications as the President may by order
specify”,with the concurrence of the SG and the endorsement of the J&K
ConstituentAssembly.
 1954 Presidential order: Part-IIIapplied, introduced Article 35A (protected
laws passed by the state legislatureregarding Permanent Residents from any
challenge on the ground that they werein violation of the FRs)
o 35A: empowers the state legislative assembly tospecify permanent residents
o Permanent residents: eligible to vote, work for SG, own land, public
employment andcollege admissions etc. Non-permanent residents are
denied all these rights.
o A woman from outside the state shall became a permanent residenton
marrying a male permanent resident of the state but a daughter who is
bornstate subject will lose the right on marrying an outsider.
o Interpretedas discriminatory against J&K women.(disqualification if
married non-permanent residents)
 1969: SC: President canissue an Order under Article 370 only with the
concurrence of SG
 Challenge to 35A: not byCAA under Article 368, and not through a
Presidential Order under Article 370: argumentrejected by SC multiple times
o 1961: Puranlal Lakhanpal vs The President of India: term “modification”
must be considered in its “widest possibleamplitude”
o 1969: Sampat Prakash vs State of Jammu & Kashmir: Art 368 doesn’t directly
apply to J&K, is meant for rest ofIndia
o 2016: SBI vs Santosh Gupta
o Petition filed in SC by a Kashmiri woman, who has been denied theright to
property in the state by virtue of Article 35A > SC sent notices toCG and SG
to address her plea > CG responded saying 35A demands a"larger debate"
 The constitutionalvalidity of Article 35A is well established
o Added as an extension ofFR
o If 35A repealed, FR extension would also cease
o Any CAA under Article 368 will apply to J&K only if suchamendment is
extended to the state by a Presidential Order under Article 370
 Apprehensions
o Legal pro-activism by Govt: morealienation in the Valley
o Government’s reply on 35A seen by Kashmiris as move to do away with
Article 370
 Article 370
o “Temporary, Transitional and Special provisions”
o grantsspecial autonomous status to Jammu and Kashmir
o Except for Defence, Foreign Affairs, Finance and Communications the
Indian Parliament needs theState Government’s concurrence for applying all
other laws
o Jurisdiction of the Parliament confinedto Union List and concurrent list (no
State list for J&K)
o residuary powers belong to theLegislature of the State
o No preventive detention law made in Indiaextends to Jammu & Kashmir.
 Unrest > Affects economic activity and credit growth > rise in NPA
 High credit growth shows that individuals have a
higher propensity to borrow and spend, and reflects the tendency of
businesses to borrow and invest
 Killing of Hizbul Mujahideen ‘commander’ Burhan Wani
 disrupting schools: signal that administration is not in full control,
insecurity in parents, reinforces popular disaffection and alienation
 Govt not in favour of completely withdrawing pellet guns in Kashmir valley,
will be regulated
 Expert committee was constituted to look into the alternatives to pellet guns,
submitted report
 J&K Resettlement Act: a brief background- II
 Envisages grant of permit for resettlement of Pakistani nationals who had
migrated to Pakistan from J&K between 1947 and 1954 after India’s partition
 Criticisms: People of Jammu and Kashmir who migrated to Pakistan from
1947 could be considered for their return but their descendants could not be.
 The law is considered draconian, unconstitutional, threat to security of the
State
 Validity challenged: In 1982, the Act was first challenged before SC and then
Governor B.K. Nehru had refused to sign the Bill and sent it back to the
Assembly
 2001: Presidential reference to SC: returned back with a three-word
pronouncement- ‘Returned, respectfully, unanswered’
 SC on dissent in Kashmir
 space for legitimate dissent: distinguishing feature of any democracy
 Cherished and valuable aspect of political life in India
 Organised, non-violent protest marches were key weapon in struggle for
Independence

CentreState Relations (245-255)
 Legislative: 4 aspects
 Territorial extent
 Parliamenthas extra-territorial jurisdiction
 Limitations
 A&N, Lakshadweep, D&NH: Prez ordershave precedence over
parliamentary acts
 an act of parliament has no effect /effective with modifications
 Scheduled areas: Governor
 Tribal areas (Autonomous dist):
 Meghalaya,Mizoram, Tripura: President
 Assam: Governor
 Distribution of subjects
 Concurrent:In case of a clash, state law prevailsif presidential assent>
Parliament can subsequently legislates and override(Art 254)
 Union: Labour and safetyin mines and oilfields, industrial disputes
concerning Union Employees
 Concurrent: Issuesof Labour and Labour Reforms, Environment
 State: Law and Order, Police, Land, Agriculture,Rivers, Alcohol, Disaster
Management, Education,Land Acquisition, Power, Water Supply, Rural
Sanitation, PDS (Distribution)
 Parliamentary legislation on state subjects:5 conditions
 249,253 (+4), 352, 356 (+4)
 RSpasses a resolution:
 in national interest (Art 249), 2/3rd of members present and voting.
 6 months from the expiry of 1 year from resolution
 Renewal of Resolution: 1 year at a time
 Toimplement international treaties (Art 253)
 NationalEmergency (352): cease after 6 months
 President Rule (356): continues afteremergency, can be repealed
 Statesmake a request:
 SL cannot make laws anymore, amend/repealby Parliament
 Centre control over state legislation
 Guvcan reserve certain types of bills for Prez > ABSOLUTE VETO
 Billson certain State List subjects: Need prior sanction of Prez
 Prezcan direct the states to reserve Money/financial bills during emergency
 Other ways to control SL
 31(A): If SL takes away private property inviolation of Art 14 and Art 19, it
has to receive presidential consent.
 Art 31(B): If a state law has to come in 9thschedule, it must be accepted by
the parliament because placing anything in aschedule amounts to ©
amendment and only parliament has the power to do so.
 Art 31(C): Acts implementing DPSP butviolating Art 14 and Art 19 have to
get presidential assent.
 Art 288: State legislature can taxelectricity generated, transmitted and sold
by an authority established underthe © but has to get presidential assent.
 Administrative
 Executive Powers Distribution: on lines oflegislative power (with
exceptions)
 SL:State, UL/Treaty: Union has executive power.
 ConcurrentList: Executive power ordinarily with the states except when
 Parliament by law specifically vests suchpower in the union.
 IC itself vests such powers in the union.
 Obligation of States and Centre
 2restrictions on executive power of State
 256: Ensurecompliance with Central laws & any other applicable law
 257: Not impede/prejudice centralexecutive power
 Centre can give directions u. 256/257 >Noncompliance > 365 > 356
 Centre’s directions to States
 257:proper functioning of railways, military, communications etc.
 262:Parliament can setup a tribunal to resolve interstate water disputes. But
theterms of reference of such a tribunal and the question of final authority
onaccepting or rejecting its award are all decided by center.
 339:Drawing and executing schemes of ST welfare.
 350:Ensuring delivery of education in mothertongue @ primary stage for
linguistic minorities.
 351:Development of Hindi language
 355: Ensure governanceof the state in accordance with IC
 Art365: If state fails to comply with any direction in exercise of
its executivepower > president may hold it a breach of IC > impose Art 356
 258: Mutual delegation of Executive power:possible (not for legislative
powers)
 Tomitigate rigidity
 Conditionalor Unconditional
 Nolegislative sanction needed
 Centreto State:
 Art 258(1): Prez with the consent of SG,entrust to CG
 258 (2): WITHOUT CONSENT > law byparliament can empower CG to give
powers/duties on SG
 Stateto Centre
 Art 258(A): Guv with the consent of CG,entrust to SG
 Cooperation:
 Financial
 Tax Distribution
 268(Levied by union but collected and kept by states): Stamp duties on bills
ofexchange
 268A(Levied by union, collected and kept by Centre and states)
 269:Levied and collected by union but assigned to states: Tax on stock
exchanges,succession tax, terminal tax @ railway stations and ports, freight
tax, tax onsales of newspapers, tax on inter state trade.
 Onlyunion: Customs, corporate tax, capital gains tax, wealth tax, surcharge
andcesses.
 Onlystates: Land revenue, income tax on agriculture, tax on mineral rights,
landtax, profession tax (ceiling of Rs. 2,500), stamp duties except on
documents inunion list.
 Finance Commission (280)
 Chairman(experience in public affairs) + HC judge (or one qualified to be so)
+ Personhaving knowledge of finance and accounts of government + a
person withexperience in financial and administrative matters + an
economist
 Functions(Recommend..)
 Distribution of taxes between centre andstates.
 principles which govern grants in aids.
 Measures to augment consolidated fund ofstates for supplementing the
resources of PRIs
 Any other matter as asked by president.
 Borrowing power of States
 can'tborrow outside India.
 borrowingpower may be limited by state legislature.
 Ifany union loan or guarantee is outstanding then the state can't borrow
withoutunion consent. (Art 293)
 Mutual Immunity from Taxation
 Unionproperty: immune from state tax (Except as per law made by parlia)
 Stateproperty:
 Immune from property taxes (not customs orexcise duties).
 Except as per law made by parliament, stateincome from any commercial
activity shall be immune from union income tax.
 Parliament may exempt any income of statefrom any tax.
 Emergency Provisions
 While 352: Prez can modify theconstitutional distribution of revenues (Art
354)
 360: Union can direct the state to
 observefinancial austerity
 reducesalaries
 reservefor presidential consideration all money and financial bills.
 Commissions
 Administrative Reforms Commission
 Rajamannar Committee
 Sarkaria Commission
 Punchhi Commission
 DisputeResolution Mechanism (BUILD ON IT)
 If a law deals substantially with thematter in its own domain and only
incidentally encroaches > not invalid.
 Cooperative Federalism
 Recognizes that distribution of power between center and states is notan end
in itself but just a means of public welfare. Both must behaveharmoniously
instead of conflict.
 National Integration Council:
 Extra-© body created to deal with welfare measures for the minorities.
 Union ministers, CMs, representatives from political parties, labor,women,
media representatives as well
 Zonal Councils
 Extra-© but statutory bodies (introduced along with Sate
ReorganizationAct, 1956).
 Consists of CMs and 2 other ministers from the states and theadministrators
of UTs in the zone.
 Union home minister is the common chairman of all zonal councils.

devolution of powers and finances up to local levels and challenges therein.

Separation of powers between various organs, dispute redressal


mechanisms and institutions.

DPSP: 50. The State shall take steps to separate the judiciary from the
executive in the public services of the State.
JudicialAppointments:
 Problems
o Too many vacancies > pendency and delay
o Opaque
o Canvassing for other criteria rather than meritocracy
 Collegium
o As long as the process of judicial appointments remains opaque, selection of
judges on considerations other than merit will continue
o Incompetent, inefficient, ethically compromised individuals being
appointed
o secrecy shrouding the appointments
 The real issue is not whoappoints judges but how they are appointed.
o If opaque > favouritism, nepotism and appointments on criteria other than
merit
 Another issue- While “who” shouldappoint judges can be debated
endlessly, the need is to broaden the debate onthe appointment of judges by
focusing on other relevant issues likehaving jurists as judges of the
Supreme Court. There has never been muchdebate on this issue.
o 124 (3): three categories of persons who are “eligible” to be appointed to the
Supreme Court —
 HC judge with five years’ experience
 Advocate in the HC with 10 years’ experience
 a “distinguished jurist.”
o A “distinguished jurist” refers to academic lawyers or law professors: people
who have challenged and expanded the existing frontiers of legal knowledge
through cutting edge research and teaching > potential of raising the bar of
legal reasoning
o Regrettably, never ever has a “distinguished jurist,” i.e. a law professor, been
appointed as a judge of the Supreme Court
 UK: The JAC assesses candidates againstfive merit criteria:
 Intellectual capacity
 Personal qualities
 An ability to understand and dealfairly
 Authority and communication skills
 Efficiency
 US
 The ‘public’ senate hearings forappointments of judges: transparency,
accountability and citizen participation
 Other reforms
o Only some cases can be put for repeal in higher courts
o Time alloted for oral argument (30 minutes in USA)
o Conduct legal audit- why cases took so long
o Repeal/modify archaic laws

Independence of judiciary
 Fixed Tenure
o C Ramachandran Iyer vs A N Bhattacharjee 1995 SC: only the CJI can be the
prime mover of the action against erring judges. Thus, after this case, action
against judges was allowed only through in-house procedures of the
judiciary.
 Salary
 Jurisdiction of the courts can’t be decreased
 Art 121: No discussion about the judges in the parliament is permitted except
for the discussion about his removal
 Art 129 and 215: Power to punish for its contempt.
 Art 50 Separation of judiciary from executive
 Appointment of the judges only after consultation with legal experts.
 Art 124(7) Prohibition on practicing before any court
 Judges Transfer Case 1 (S P Gupta vs Union of India, 1982)
o SC: only ground on which the decision of the govt. can be challenged is that
it is based on mala fide and irrelevant consideration.
o substantially reduced its own power in appointing the judges and gave
control to the executive.
 Judges Transfer Case 2 (SC Advocates on Record Association vs Union of
India, AIR 1982.)
o SC overruled the decision of the S P Gupta case and held that in the matter
of appointment of judges of high courts and supreme court, the CJ should
have the primacy and the appointment of the CJ should be based on
seniority.
o CJ must consult his two senior most judges and the recommendation must
be made only if there is a consensus among them
 Judges Transfer Case 3
o CJ recommended without consulting
o advice without proper consultation with other judges is not binding on
govt

Art 143 Advisory Jurisdiction


Kerala Education Bill, 1953, SC has interpreted the word "may" in clause 1
as it is not bound to give its opinion. If it has a good reason, it may refuse to
express its opinion.
Ayodhya Dispute and Advisory opinion 1994, the SC refused to express its
opinion on whether a temple existed on the disputed location because it was
superfluous, unnecessary, and favors a particular religion.

Judicial Review

 Art 13: JUDICIAL REVIEW


o L Chandra Kumar vs Union of India SC AIR 1997 held that the power
vested in SC by art 32 and High Court by art 226 over legislative action is a
basic feature.
 Article 13: the state shall not make any law that takes away or abridges the
rights given to the citizens in Part III and any such law made in
contravention of this article shall be deemed void to the extent of
contravention. Thus, it seemed that parliament cannot amend the
constitution in a way that takes away the fundamental rights of the citizens.
Enforcement of Fundamental Rights Art 32
L Chandra Kumar vs Union of India AIR 1997 - Power of judicial review
vested in HC by art 226 and in SC by art 32 is a basic feature on the
constitution and cannot be amended
Ramakant Rai vs Madan Rai AIR 2004 - Private party can appeal against
the acquittal even if the state govt. hasn't. SC cannot refrain from doing its
duty just because a private party and not the state has appealed against the
order.
Important cases:

Indra Sawhney vs Union of India 1993: SC: inclusion of creamy layer


violates the FR of equality, which is a basic feature of the constitution and so
its inclusion cannot be permitted even by constitutional amendment

All India JudicialServices


 Governmenthad recently suggested to the Supreme Court a NEET-like
examination, to recruitjudges to the lower judiciary.fkes
o Presently, the appointments of judges to lower courts are made by the
governor in consultation with the SPSC and the HC
 AIJS
 first proposed in 1960s: appointed at the district level
 SC recommended in two of its judgmentsin 1991 and 1993.
 Afterthe Swaran Singh Committee’s recommendations in 1976, Article
312 was modifiedto include the judicial services, but it excluded anyone
below the rank ofdistrict judge.
 Facts
o Article 312: empowers RS to declare by a resolution of 2/3 rd majority to
create All India Services in the national interest.
o Presently 3: IAS, IPS and IFoS
 Advantages
o Accountability, transparency and consistency in the lower judiciary.
o Attract talent: Merit based recruitment, right incentives of pay,
promotion and career progression
o vacancies can be filled by streamlining the recruitment (40% vacant)
o Uniformity in selection criteria
o The bottoms-up approach in recruitment would also address issues
like corruption and nepotism in the lower judiciary
 Concerns
o Lack of knowledge of regional languages (efficiency)
o Might curtail promotion of current judges
o Erosion of control of the High Courts over the subordinate judiciary (may
affect independence)
o May increase the financial burden of the state
JUDICIARY
Objective Stuff: (For every topic)
 Aspects (ADD MORE): Judicial reforms, Activism/Overreach
(EXAMPLES)
 Constitutional Provision:
 Legal Protection:
 Schemes:
 Committees and Reco:
 Stats:
 International Obligations (SDG/MDG etc):
 SPECIFIC ASPECTS of syllabus:
 Stripped down definition/catchy one-liners:
 Concepts (Pro/Con/Why/What/Solution etc)
 Current snippets
o Judge transferred by CJI Dipak Mishra from KR HCto Allahabad HC days
before he was to become CJ > no reason cited, nonotings!
 Unorganized stuff (try to incorporate a brief to snippets)
o SC sentenced J Karnan 6-months imprisonment,stripped of job (for contempt
of court)
 Statements/ Order passed against his seniors areunlawful
 Flaws:
 Art 124(4): HC/SC judge can only be removed by amajority vote in
Parliament
 Contempt of Courts Act was given precedence overIC
 SC order: removes from judicial duties, not as ajudge? (Judicial overreach)
 Judicial duties taken away before guilty (no legalauthority under IC)
 Power to take cognisance of matters suo Motu: tobe used reasonably,
sparingly and with discretion + suo motu power cannotoverride rule of law
(chance to defend)
 Order states: No further statements made by himshould be published
hereafter (Media was not on trial, violates freedom ofspeech and expression)
o Alternative: Could have used in-house correctionmechanisms (u. Judges
(Inquiry) Act)

Judicial Activism:
 HC initiated a suo motu PIL (basedon a news report) to free an elephant in
MH zoo
 Law ministry paper on strengthening the criminal justice system:
 Pending serious criminal cases: 21L (2009) > 28L (2014)
 In 58% cases tried in 2014, the accused was either discharged or acquitted.
 Adversarial system of criminal justice system

JUDICIAL OVERREACH Vs Guardian of FR (Judicial Activism)


 FR was safeguarded by the founding fathers (two layers)
o Restrictions on FR could be imposed only by lawmade by the legislature
o the courts could be called upon to test itsconstitutionality
 Debatable degree of success:
o upholding the law of sedition while strikingdown Section 66A of the IT Act
o upholding the law of obscenity while gradually liberalizingit over the years
 SC is supposed to be the guardian of civilrights AND NOT an overarching
moral and political censor. Judicial Overreach isNOT desirable.
 Three instances of overreach (All three via PIL:Shortcoming of PIL)
o Jolly LLB scene cut after censor approval
o Mandated Anthem:
 all cinema halls to play the anthem.
 Is it legal? It is constitutional?
 Is this kind of compelled performance ofpatriotism something India’s
Supreme Court can impose upon India’s free andindependent citizens?
o Sex-determination tests: advertisements ofpre-natal sex determination
prohibited (under Pre-Conception and Pre-NatalDiagnostic Techniques Act
of 1994)
 SC directed search engines such as Google toconstitute in-house committees
to “block” access to such websites, and (incontinuation of previous orders)
to do so by blocking search “keywords”
 vested vast censorship powers in unaccountableprivate committees
 no matter what the purpose: research,investigation, or even simple curiosity
 Intent of PIL
o discarded traditional rules of evidence, andvested vast powers in courts to
“do justice”
o movement to democratise access to courts
 Madras HC ordered teaching of the Tamil epicThirukkural be made
compulsory in all schools

Inefficiency of Judiciary:
 Abhiram Singh case (Election dispute of 1990 wasresolved in 2017)
 1993 Mumbai blasts got punished in 2017

Judicial reforms
 Suggestions
o Role of CJI: should sit down with other Judges (who would be CJI
anyway) and create and then monitor the implementation of one,
two and five year plans for the entire judiciary (CJI has 1-2
yeartenure, too short for reforms)
o establish a flow chart for Judicial appointments (uniform,
unchangeable and institutional): Expedite appointment
Comparison of the Indian constitutional scheme with that of other countries

Parliament and State Legislatures - structure, functioning, conduct of


business, powers & privileges and issues arising out of these.

Political reforms:
 Report by the Association for DemocraticReforms: <2000 donations
withoutPAN during 2012-16 totaling 384 crores to the National political
Parties
 makes a case for mandating all fields be filled in form 24A

Parliament Pay
 Facts:
 2015: 2.7L/month (salaries and expenses) to MPs, other perks
excluded
 1,250% rise over last two decades
 Past:
 The first cabinet: collective decision not to avail of their
salaries for six months, owing to the economic suffering
 Biswanath Das (Odisha): chose to draw only Rs. 25 a day
instead of Rs. 45 a day that he was entitled to, by saying that he did not
need
 Madras Assembly: successful motion in 1949 to impose a
voluntary cut of Rs. 5 per diem, in recognition of the suffering of
farmers
 Current method:
 decided by a JPC consisting of members of both Houses
 approved without delay
 no external scrutiny
 Issues with hike:
 No timeline
 no justification
 no objectivity/transparency
 Need: external, independent body, Self-regulation not enough
 institutionalised process, transparent and accountable
 Autonomous body to decide salary in mature democracies such
as the U.K. and Australia
 linked to the civil service (France, Japan)
 Incentive based: Attendance etc
 Should be?
 High: Attract talent, discourage corruption, difficult to link with
performance (subjective)
 Remunerative: Service of Nation, rampant poverty, level of
corruption depends on morality and level of law enforcement (not on
salary), Incentivize lawmakers (people respond to incentives): partly
link to attendance/other incentives


Structure, organization and functioning of the Executive and the Judiciary

Ministries and Departments of the Government;

pressure groups and formal/informal associations and their role in the


Polity.
Pressure Groups
 Types:
o Level: Local, regional, national,International (IPCC)
o Business Groups – FICCI, CII, ASSOCHAM
o Trade Unions – AITUC, INTUC, HMS, CITU, BMS
o Agrarian Groups- All India Kisan Sabha, Bharatiya Kisan Union
o Student’s Organisations- ABVP, AISF, NSUI
o Religious Groups – RSS, VHP, Bajrang Dal, Jamaat-e-Islami etc.
o Caste Groups – Harijan Sevak Sangh, Nadar Caste Association etc
o Linguistic Groups – Tamil Sangh, Andhra Maha Sabha
o NGOs
 Characteristics:
o Desire to affect government policy to benefittheir cause
o non-aligned withany political party
 Classification
o Promotional: Open membership from the public, and promote a specific
cause, eg Friends of the Earth
o Interest/Sectional: Open only to certain individuals (E.g.: Members of a
trade union, NationalUnion of Journalists)
o Insider: Have close links with the government. E.g.: RBI, SEBI,
MedicalCouncil of India, UGC etc
o Outsider: These groups often take action ofwhich the government
disapproves, E.g.: NGO, Media, Civil Society
 PGs might be seen asa threat to democracy: a small, unelected group of
individuals can forcea change in the law.
 Pressure groups employ a variety of methods topromote their cause.
o direct action e.g.: Demonstrations
o Petitions: raise awareness among politicians ofpublic
o Media advertising
 Pressure groups and Parliament
o may have influence inside Parliament if an MPwho is a member of the group
or is sympathetic to it.
o MPs with affiliations to pressure groups mustdeclare an interest when
speaking on behalf of the group.
o Criticism: undue influence by MNCs/Corporates/wealthygroups
In a welfare State driven by directive principles of statepolicy, the role of
pressure groups becomes indispensable. Elucidate
 Intro: Background/definition of DPSP and PG
o DPSP (articles 36-51 in part IV), an effort to make India awelfare state,
made non justiciabledue to lack of resources and which would come into
force vide alegislation.
o Pressure groups: which try to influence public policy in theinterest of
a particular cause withoutbeing part of a political party or process
 DIRECTIVE PRINCIPLES AND PRESSURE GROUPS:
o Art 38 (just socio-economic order): Trade unions such as CITU,AITUC
affiliated to various political parties influence policies like
minimumwage(art 43) , workers participation in management(43A) etc.
o Organizations such as legal aid, NALSA group offer free legalaid to poor
thus fulfilling objectives of article 39.
o Environment protection groups like Narmada bachao andolan, greenpeace,
blue cross etc fulfill the objective of a Art 48A.
o Organisations such as IDSA, ORF help in track II diplomacy inensuring a
peaceful and cooperative international order (art 51).
o Organisations such as FTO (fair trade organization) help inpromotion of
cottage industries(ART 43).
o Organisations like SEWA, Mahila sashaktikaran andolan, etc havehelped
formulate various legislations like new maternity benefit, criminal
lawamendment, IPC 498A (domestic violence), similarly bachpan bachao
andolan(BBA)have made changes in national child policy, new labour
reforms , POSCO etcfulfilling objectives of ART 46
o Organisations such as NCLP have formulated new bonded
labourrehabilitation bill 2016 thus fulfilling objectives of protection of
weakersections.
o Many organizations like akshaya patra, , navjyoti organizationensure
nutrition via mid day meal scheme, fight substance abuse etc(ART 47)
o Various organizations like bhartiya kisan sangh, RKSS, shetkarisangathan,
AOFG help in sustainable organic farming, fight for farmers rightsand also
in technology dissemination to fulfill objective of scientific farmingand
animal husbandry (Art 48).
o Many organizations liken NFIW, sadbhavana trust have stoodagainst
regressive personal laws like triple talaq, polygamy to ensureuniformity in
personal laws in order to enforce a uniform civil code which borefruit when
SC ruled triple talaq as unconstitutional (art 44).
o However the negative influence of pressure groups can be feltwhen some
vigilante groups like gau rakshana samitis become anonymous empiresto
prevent cow slaughter as seen in recent lynching cases(art 48), try
toinfluence policy for narrow gains help in concentration of wealth( FICCI,
CII)etc.
 Conclusion: Thus pressure groups act both as carriers of democracy or
influencers ofpublic policy in a representative multifarious democracy like
India.
 Pressure Groups:
o Examples: NGO, Trade Unions, Media, Civil Society,
ResearchOrganizations
o Classification:

Anti-Defection Law
 Anti-defectionlaw: CAA 52, 1985 (added Tenth Schedule)
o deemedto have defected if he either
o voluntarilyresigned from his party
o disobeyedthe directives of the party leadership on a vote
o Independentmembers disqualified if they joined a political party
o Nominatedmembers could choose to join a party within six months
 Exceptions
o .Any person elected as speaker or chairman could resign from his party,
andrejoin the party if he demitted that post.
o Aparty could be merged into another if at least two-thirds of its
partylegislators voted for the merger.
o Initiallypermitted splitting of parties, now deleted
 Issues/questionswrt anti-defection laws
o Doesit affect right of free speech of the legislators?
 KihotoHollohan vs Zachilhu and others, 1992: Constitution Bench said that
“theanti-defection law seeks to recognise the practical need to place
theproprieties of political and personal conduct…above certain
theoreticalassumptions.”
 Heldthat the law does not violate any rights or freedoms, or the basic
structure ofparliamentary democracy.
o Whatconstitutes “voluntarily” resignation?
 Variousjudgements: a member who publicly opposes the party or states his
supportfor another party would be deemed to have resigned
 Newsreports may be used as evidence
o Canthe decision of the presiding officer be challenged in the courts?
 Finaldecision is subject to appeal in HC/SC
 Issues
o Shouldthe law be valid for all votes or only for those that determine the
stabilityof the government (such as the confidence and no-confidence
motions)?
 Intentof the law was to deter defections motivated by lure of office or other
similar considerations.
 Lossof membership is hardly a penalty (esp when elections are due/govt is
likely tofall)
 Votingbehaviour may be affected even on issues not related to the stability
of thegovernment. A member may be unable to express his actual belief or
theinterests of his constituents.
 Therefore,a case may be made for restricting thelaw to confidence and no-
confidence motions. (recommended by Dinesh Goswami Committee on
electoralreforms (1990))
 LawCommission, 1999 suggested that political parties issue whips only
when thegovernment was in danger
o Shouldthe law apply only to pre-poll alliances?
 Rationalethat a representative is elected on the basis of the party’s program
can beextended to pre-poll alliances only
o Shouldthe judgement be made by the presiding officers?
 Goswami Committee, EC and VenkatachaliahCommission to Review the
Constitution (2002) have recommended that the decision should be made by
thepresident or the governor on the advice of EC (similar to the process
fordisqualification on grounds of office of profit)
o Additionalpenalties on defectors?
 TheVenkatachaliah Commission: defectors should be barred from holding
anyministerial or remunerative political office for the remaining term of
theHouse
 Conclusion:No ambiguity in the legality of current provisions. There is,
however, need forpublic debate on the working of the anti-defection law.

Salient features of the Representation of People's Act.


Refraining from voting is a kind of Implied Anarchy

 RP Act, 1950 and 1951: enacted under Art 327 ofIC


o To ensure free and fair elections
o RPA 1950: Preparation of election
 Qualification of voters, preparation of electoralrolls, delimitation of
constituencies, Allocation of seats in Parliament/SL etc
o RPA 1951: Actual election is conducted underthis
 Qualifications and disqualifications forlegislators
 corrupt practices/other offences
 Administrative machinery for election
 Election offences and disputes
 Registration of political parties
 Important Sections of RPA, 1951
o 8(1): Disqualification on conviction (wrt IPC,Protection of Civil Rights Act,
1955 etc)
o 8(2): Disqualification for contravention of anylaw regarding prevention of
hoarding or profiteering, adulteration offood/drugs, Dowry Prohibition
Act, 1961 and sentenced for not less than 6months
o 8(3): Person convicted for any offence (exceptones in 8(1) and 8(2)) and
sentenced for not less than 2 years will be disqualifiedfor 6 years from
release.
o 123: Corrupt electoral practices
 The following practices by any candidate (oreven someone else through his
consent) are termed corrupt:
o 123(3): The appealto vote or refrain from voting on the ground
of his religion/race/caste/community/languageor appeal to
religious/national symbols to impact election
o 123(3A): Promotionof hatred on the ground of religion/race/caste/
community/language orappeal to religious/national symbols to impact
election
o 123(3B): Glorificationof Sati
 Issue of Abhiram Singh v/s C.D. Comachen
o 123(3): His includes the candidate alone or thevoters as well?
o SC: broader interpretation of ‘His’: extended tosocial/linguistic/religious
identity of the voter also
o Earlier practice: I am Hindu. You are Hindu. Votefor me > Disqualified
o Now (Broader): You are hindu, I can protect yourinterest > Disqualified
 Shortcomings/Open ends:
o Must the violation be systematic, or even onereference attract
disqualification?
o What amounts to religious appeal?
o All the questions must be clear for the judgementto be effective
Merge with RPA SC Order (JAN Secure)
 Abhiram Singh v/s C.D. Comachen
o Issue: interpretation of Section 123(3) of RP Act
o Appeals to religion, caste etc have always been prohibited. Butthe core issue
has been the nature and scope of that prohibition
 Judgement:
o Prohibition does not apply just to caste, religion, race etc >applies to any
appeal to the electors
 Pro:
o The moral commitment to secularism
 Issues:
o Expanded scope of Article (123) of the RPA, but no clarity on whatkinds of
appeals will count as religious (Beef ban can be portrayed as
animalhusbandry, Ram temple as historical and not religious etc)
 “Hindutva” case, 1995: SC declared Hindutva to be a way of life not
areligious appeal
 Jamuna PrasadMukhariya v/s Lachi Ram

 Current:
o EC disqualified former JH CM MadhuKoda from contesting polls for 3 years
for improper filing of electionexpenses. (RPA)
 wrt 2009 LS elections, Takingcognizance of media reports
 Uses: slow judiciary, Role of Media
Appointment to various Constitutional posts, powers, functions and
responsibilities of various Constitutional Bodies.
Presidential Election:
 Test for new Prez:
o office of President was not conceived as a ceremonial post
o Use and abuse of Article 356
o discretionary powers: balance between unthinking rubber
stamp and overzealous interventionist
o On contentious legislation
o Use of moral authority and the weight of his public office
o Dalit
 signals a socially inclusive agenda
o As President, he will have to rise above political and social identities

Appointment of EC
 Appointment of ECs solely by political masters doesn’taugur well for a
democracy.
 Article 324(2): the President (on the advice ofthe council of ministers headed
by the PM) will appoint ECs, the process ofappointment would remain
subject to the law made by Parliament.
 Constitution says it will be subject to any lawenacted by Parliament. But
Parliament till date has not enacted any law. Insuch a scenario, in the absence
of a law and till Parliament legislates
 There is anexpectation in the Constitution that Parliament will frame the
law. ButParliament has not framed it. In such a situation, is it not of
significantimportance that norms are fixed and neutral persons are
appointed in atransparent manner to ensure free and fair elections which are
so vital todemocracy?
 Art 324(2): The EC shall consistof the chief election commissioner and such
number of other electioncommissioners, if any, as the President may from
time to time fix and theappointment of the chief election commissioner and
other election commissionersshall, subject to the provisions of any law made
in that behalf by Parliament,be made by the President.

Statutory, regulatory and various quasi-judicial bodies

--------------------------------------------------------------Yet to be Organized------------
----------------------------------------------
General electionsand assembly elections at the same time
 Introduction:
o India until 1967 had the practice ofconducting simultaneous elections
 Pros ofsimultaneous elections:
o Expenditure: can be utilised in strengtheningpublic investment
o Policy paralysis: results from theimposition of the Model Code of Conduct
o impact on delivery of essentialservices and
o Burden on crucial manpower that isdeployed during election time
o Maximum governance
 Cons:
o Hamper the federal nature of Indian democracy
o Can create confusion among voters
o Implementation constraints and administrativeconstraints – constitutional
amendments, capacity of EC to provide logisticalsupport, deployment of
huge number of security personnel etc
o Problems like hung parliaments, untimely dissolutionquestion feasibility of
such actions.
 Road Ahead:
o would require delebration andconfidence building measures among all the
stakeholders
o govt can follow various other ways toensure governance: amending MCC
etc.
o Immediate needs: opacity in political funding, exploitation of socialgroups
as votebanks etc

Important Case Laws (Can be used in Paper 2/3,4 and essays): ADD YEAR

TOPIC WISE IMPORTANT SC JUDGEMENTS

 FR
o Nandini Satpathi v. P.L. Dani, 1978: Police must inform the accused that he
has a right to call a lawyer before answering to any of their questions.
o Hussainara khatoon v. Home Secretary, State of Bihar, 1979
 SC recognized the right to speedy trial and the right to legal aid
o Sheela barse v. Union of India, 1986: Right to legal aid FR under article 14
and Article 21
o ADM Jabalpur v. Shiv Kant Shukla, 1975 (HABEAS CORPUS case)
 The right to move court under Article 14, 21 and 22 can be suspended during
the emergency
 Order issued by the President under Article 359, suspending the right of
access to the courts for the enforcement of right under Article 14, 21 and
22 was held valid
 Background
 State of UP vs Raj Narain:Allahabad high court held Indira Gandhi guilty
of election malpractices andinvalidated her election and further barred her
for 6 years from contestingelections
 The judgment was appealed to SC, Indira Gandhi, faced
byan unprecedented protest from an opposition united under J PNarayan,
invoked article 352 declaring National emergency onthe grounds of threat
from Internal disturbance
 extensive use of preventive detention > Cases filed, 9 HCs gave judgment
that evenduring emergency the courts could entertain a writ of habeas
corpus filedby a person challenging his/her detention > Government (read
Indira Gandhi) appealed, SC declared Article 32 remains suspended under
emergency
o Maneka Gandhi v. Union of India, 1978
 While explaining the expression ‘Procedure Established by Law’ under
Article 21, held that the procedure in Article 21 has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary.
 The ‘Procedure established by law’ is same as the ‘due process of law’ as
interpreted by the American Constitution
o Rajagopal v. State of Tamilnadu
 The right to life and liberty (Article 21) includes right to privacy
 It is a ‘right to be left alone’
o Justice Puttaswamy vs UoI, 2017: Privacy is a FR!! VERY IMPORTANT
 S377 of IPC becomes ultra vires (though pendingbefore a larger bench)
 consensual sexual acts of adults in private
 Problems with 377: public health, criminals for being themselves,privacy a
pre-requisite for self-development, constitutional values of
dignity,fraternity and inclusiveness, encourages anti-gay violence
(harassment,blackmail, exploitation)
o Shreya Singhal v. Union of India
 SC struck down Section 66A of the IT Act (which violated Freedom of
Speech and Expression), declaring it to be unconstitutional
o Subramanian Swamy vs. Union of India: right to reputation
 Criminal Defamation law not unconstitutional
 SC upheld the Constitutional Validity of Sections 499 to 502 of IPC relating
to Criminal Defamation
 held that the right to Life under Article 21 includes right to reputation
 UCC
o Sarla Mudgal v. Union of India, 1995
 The case is related to the offence of Bigamy, conflict between the personal
laws and a strong need for the uniform civil code in the country.
 Second marriage of a Hindu man after being converted to Islam, will be
invalid if the first marriage has not been dissolved.
o Ahmed Khan v. Shah Bano Begum
 Muslim Women has the right to claim maintenance under Section 125 of
Cr.PC.
 Remedy under Section 125 is available to wife (including a divorced wife),
irrespective of the religion to which they belong
 J&K
o Anita Kushwaha vs. Pushpa Sudan
 SC can transfer cases from J&K Courts to courts outside it and vice versa
(by invoking Article 32, 136 and 142 of the Constitution)
 Access to Justice is guaranteed to citizens by Article 14 and Article 21 of the
Constitution
o SBI Vs. Santosh Gupta and Anr Etc.
 J&K Has No Vestige Of Sovereignty Outside The Constitution of India
 SC set aside the J&K High Court’s judgment which had held that various
key provisions of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 were outside the legislative
competence of Parliament, as they collided with Section 140 of the Transfer
of Property Act of Jammu & Kashmir, 1920
 Also rejected the J&K High Court’s view that the J&K Constitution was
equal to the Constitution of India
 Homosexuality/ LGBT
o NALSA v. Union of India
 SC affirmed the Constitutional rights and freedom of the Transgender and
recognized them as the ‘Third Gender’
o Naz Foundation v. Govt of NCT of Delhi
 The Delhi High Court declared Section 377 of IPC, which criminalizes
Homosexuality in India, as unconstitutional and violative of FRs guaranteed
under Article 14, 15 and 21 of the Constitution.
 Later on in Suresh Kumar Kaushal & Anr. V. NAZ Foundation & Others,
the Supreme Court of India struck down the decision of Delhi High Court
and held the Section 377 of IPC does not suffer from any constitutional
infirmity and
 SC left on the legislature to deal with the legality of the Section
 PIL
 Reservation
o Chanpakam Dorairajan V State of Madras:
 The Supreme Court had struck down the Communal Government Order,
which provided Caste based reservation in the Government Jobs and
Colleges. The Supreme Court has held that the order violates Article 16 (2)
of the Constitution.
 The verdict led to the first amendment of the constitution.
o Indra Sawhney v. union of India
 also known as Mandal Commission Case.
 SC held that barring any extraordinary situations reservation should not
exceed 50%
 SOCIETY
o Vishaka v. State of Rajasthan
 Court defined Sexual Harassment at work place
 laid down the guidelines that has to be followed at the work place against
sexual harassment.
o Hiral P Harsora and ors Vs. Kusum Narottamdas Harsora
 Relief Possible Against Minors, Women under Domestic violence Act
 SC struck down the words “adult male” before the word “person” in Section
2(q) of Domestic Violence Act holding that these words discriminate
between persons similarly situated, and is contrary to the object sought to be
achieved by the DV Act
o [Youth Bar Association of India vs. Union of India: Upload FIRs in Police
Websites
 the copies of the FIRs, unless the offence is sensitive in nature, should be
uploaded on the police website, and if there is no such website, on the official
website of the State Government, within twenty-four hours of the
registration of the FIR
o Jeeja Ghosh vs. UoI
 People with disabilities also have the Right to Live with Dignity
 SC asked SpiceJet Ltd to pay Rupees Ten Lakhs to Jeeja Ghosh, an eminent
activist involved in disability rights, for forcibly de-boarding her
 IPC/CRPC
o Bachan Singh v. State of Punjab
 SC upheld the Constitutional validity of death penalty under Section 302 of
the Indian Penal Code read with Section 354 of CrPc
o Mithu v. State of Punjab
 SC invalidated Section 303 of IPC, which provided for mandatory death
sentence for murder committed by a life convict.
 Judiciary
o Supreme Court Advocate on-Record Association v. UOI (Third judge Case)
 The concept of Collegium System for the appointment of Judges in the
higher judiciary was laid down.
 Union Govt
o C. Mehta v. Kamal Nath
 The Concept of Public Trust Doctrine
 State is the trustee of all the natural resources, which are meant by nature for
public use and enjoyment. These resources cannot be converted into private
property.
 The State being the trustee of natural resources is under legal obligation to
protect such natural resources
 Others
o C. Mehta v. Union of India, 1987
 The Supreme Court evolved the concept of ‘Absolute Liability’
 Where an enterprise is engaged in a hazardous or inherently dangerous
activity and harm results to anyone on account of an accident in the
operation of such hazardous or inherently dangerous activity resulting, for
example, in escape of toxic gas the enterprise is strictly and absolutely liable
to compensate all those who are affected by the accident
 Education:
o Unnikrishnan v. State of AP, 1993: children under 14 have FR to freeeducation
Important Case Laws:
 Narendra vs. K.Meena
o Forcing Husband to Get Separated from His Parents, Amounts to ’Cruelty’,
to grant divorce.
 Cardamom Marketing Corporation & Anr. Vs. State Of Kerala & Ors
o Social Security to the Legal Profession Becomes an Essential Part of Legal
System
o SC observed that providing social security to the legal profession becomes
an essential part of any legal system which has to be effective, efficient and
robust to enable it to provide necessary service to the consumers of justice.
The Court upheld levy of additional court fee
 Swaraj Abhiyan vs. UoI (SC, 2016)
o SC issued Landmark guidelines for disaster /drought managemen
 No liquor shops near National Highways [State of Tamil Nadu vs. K. Balu]
o Supreme Court ordered closure of all liqour shops along National and state
highways stressing on the need to improve road safety and curb menace of
drunken driving.
o should not be any liquor shops within 500 metres of such highways and they
should also be not visible from such roads
 Union of India Vs. Rajasthan High Court and Ors
o High Court Judges Not Exempt From Airport Frisking
o SC set aside a Rajasthan High Court order which had directed the Union
Government to exempt judges of the high court from pre-embarkation
security checks
o Observed that the order of HC transgressed the ‘wise and self-imposed’
restraints on the power of judicial review
 SC orders Floor test in Uttarakhand : [Union of India vs. Harish Rawat] The
Supreme Court today ordered a floor test monitored by it in Uttarakhand
assembly to end the constitutional impasse.
 State of Karnataka vs. State of Tamil Nadu
o Cauvery Dispute
o SC ordered Karnataka to release 15000 cusecs of water to Tamil Nadu, Later
on a plea by state of Karnataka, it was modified to 12000 cusecs.
o SC also held that t had the jurisdiction to hear appeals filed by Karnataka,
Tamil Nadu and Kerala against the 2007 award of the Cauvery Water
Dispute Tribunal (CWDT).
 Common Cause vs Union of India
o Sedition: Direction to authorities [] Supreme Court of India issued a
direction to all the concerned authorities to follow the Constitutional bench
judgment in Kedar Nath v State of Bihar (1962) which limited the scope of
Sedition Law (Section 124A) in India
 Shyam Narayan Chouski vs. Union of India
o National anthem must in Theatres
o SC made it mandatory for all cinema theatres to play the national anthem
before a movie begins during which the national flag is to be shown on the
screen
 http://www.theweek.in/news/india/significant-supreme-court-rulings-
of-2016.html
Important Case Laws (2017): COMPLETE THIS
 Abhiram Singh Vs CD Commachen: With respect to Communalization of
elections
o S 123 of RP Act, 1951: Corrupt Practices
 Includes Bribery, Any gratification, undue influence, threaten any
candidate/ elector (including social ostracism), or APPEAL to vote on
ground of religion, race, caste or language
o SC said:
 Elections are a secular exercise, function of an elected rep should be secular
 Relationship betn Man and God is an individual choice, State is forbidden
 Won’t reconsider Ramesh Prabhu Vs Prabhakar case (Famously Hindutva
Judgement)
 SC (Hindutva Judgement, 1995): Hindutva is a way of life and not a religion
 https://unacademy.com/lesson/abhiram-singh-vs-cd-commachen-shyam-
narayan-chouksey-vs-union-of-india-and-more/YL0VS8MO
 Constitutional Morality and Judicial Values
o IC is an evolving document whose meaning is so dynamic that new
dimensions unfold themselves with time
o Pre and Post Keshavandha Bharathi Case Analysis

http://www.legalserviceindia.com/article/l186-Constitutional-Morality-
And-Judicial-Values.html

2. Important Articles and Case laws


Constitution
Article 35A: relates to Kashmir
Art 341: deals with procedure of Identification of a particular group as a
scheduled caste

IPC Important Sections


 IPC: continues long after theyhave been discarded by the
British.

 377: Criminalizes Homosexuality/LGBT rights


 S. 497 (Adultery): Treats woman as property
 S.498A: domestic violence
 354 - Assault or criminal force to woman with intent to outrage her
modesty
 354A - Sexual Harassment and punishment for sexual harassment
 354B - Assault or use of Criminal force to woman with intent to
disrobe
 354C – Voyeurism
 354D - Stalking
 97 - Right of private defence of the body and of property
 107 - Abetting a crime is equally punishable
 124A: Sedition:
o Sedition: Whoever, by words, either spoken or written, or by
signs, or by visible representation, or otherwise, brings or attempts to
bring into hatred or contempt, or excites or attempts to
excite disaffection towards the Government established by law in
India shall be punished with imprisonment for life+fine / impris-
onment up to three years+fine / fine
o Explanation 1.— “disaffection” includes disloyalty and all
feelings of enmity.
o Explanation 2.—Comments expressing dissatisfaction on action
of the Government with a view to obtain their alteration by lawful
means, without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.

 264 - Fraudulent use of false instrument for weighing


 268 - Public nuisance
 300 – Murder
 304A - Causing death by negligence
 304B - Dowry death
 339 - Wrongful restraint
 351 – Assault
 378 – Theft
 415 – Cheating
 443 - House-trespass
 499 – Defamation
 503 - Criminal intimidation
 504 - Intentional insult with intent to provoke breach of the peace
 509 - Word, gesture or act intended to insult the modesty of a woman
 510 - Misconduct in public by a drunken person
CrPc (Criminal Procedure Code, 1973)
 S.41-60 of the CrPC: Rights of Arrested Person
o 41: when police may arrest without warrant
o 50: person arrested to be informed of grounds of arrest and of
right to bail
o 57: person arrested not to be detained more than twenty-four
hours
 S.438: Provision for anticipatory bail.
 S.265A: provision for plea bargaining. A person who knows he/she
is guilty of an offence can plead guilty to the offence and get the
punishment reduced
 S. 125: Divorced wife to claim alimony for her maintenance after
divorce, until she remarries
 125 - maintenance of wives, children and parents
 436: in what cases bail can be taken
Important Bills
Whistle Blower Protection (Amendment) Bill that exempts 10 categories of
information including cabinet proceedings
Prevention of Corruption (Amendment) Bill that makes giving a bribe an
offence

MUST KNOW Cases:

KesavanandaBharati v State of Kerala, 1973


 Core question
o Was the power of Parliament to amend theConstitution unlimited? In other
words, could Parliament alter, amend, abrogateany part of the Constitution
even to the extent of taking away all fundamentalrights?
 Article 368: did not contain any limitationon the power of Parliament to
amend Constitution.
 Judgement:
o Parliament could amend as long as it didnot alter or amend “the basic
structure or essential features of theConstitution.”
 Golak Nath case, 1967: Parliament could notamend any FR

 The tragedy with our politicians is that 'where they stand depends on
where they sit!'. Gone are the days when politicians used to resign based
on principles (foremost example: Ambedkar)