COGITO ERGO SUM

MAGNA CARTA
MAINS 2023
PAPER II CRASH COURSE

LEC 1A : THEME 1 : TOPICS 1-5

OFFICIAL SYLLABUS POLITY LECTURE PLAN

Lecture 1A : Historical Constitutions,

Preamble, Fundamental Rights, Directive
Principles of State Policy, Fundamental Duties

Lecture 1B + 2 : Executive

Lecture 3 : Legislature

Lecture 4 : Judiciary

Lecture 5 : Federalism & Local Self

Government, Separation of Powers & Other
Constitutional Principles, Features, &
Doctrines

Lecture 6 : Bodies & Associated Sectors

Theme 1 Lecture 1A : Historical Constitutions, Preamble, Fundamental Rights, Directive Principles of State Policy,
Fundamental Duties

Historical Constitutions
Topic 2
Basic Structure & Harmonious Construction Contributions of Various Acts
Theory of Implied Limitation
Art 13 & Art 368 : The Conflict Preamble
Timeline Status & Role
Doctrine of Basic Structure Keywords
Relationship between FR & DPSP Topic 3
Meaning & Relevance
Evaluation Reflections in the Constitution
Topic 1 Cost Benefit Analysis of Basic Structure Brief Comparison with the US Constitution
Impact on further developments
Parliamentary Democracy
Art 368 v. Basic Structure Fundamental Rights (State - Art 12)
Topic 4
Judicial Review Meaning & Evolution
Rights
Constitutional Rigidity Fundamental Rights (Equality)
Future of Basic Structure Equality before law v. Equal Protection of Law
Difference, Application, Implementation
Topic 5
Affirmative Action & Reservation
Comparative Analysis
Exceptions
Theme 2: Lecture 1B : Historical Constitutions, Preamble, Fundamental Rights, Directive Principles of State
Policy, Fundamental Duties

Fundamental Rights (Freedoms - Art 19) Fundamental Rights (Criminal Justice - Art 20-22)
Meaning, Context, Aspects Topic 9 Overview
Dissent Preventive Detention & Bail
Protest & Strike
Hate Speech, Sedition, UAPA Fundamental Rights (Religion & Minority Institutions - Art 25-30)
Topic
Censorship The Indian version of Secularism
6 Topic 10
Films Uniform Civil Code
Press & Print Media State Intervention & Minority Institutions
Digital Media, OTT & Internet (IT Rules)
Contempt of Court, Privileges, Fundamental Rights (Writs - Art 32 - 226)
Defamation Topic 11 SC HC Comparative Review
Purpose & Maintainability

Fundamental Rights (Life & Liberty - Art 21)

Topic Directive Principles of State Policy
Evolution of Art 21
7 Topic 12 Rationale, Impact, Enforceability
Privacy
Reforms

The Golden Triangle (Art 14, 19, 21)

Fundamental Duties
Relationship between 14, 19, 21
Topic 13 Relevance, Rationale, Impact
Topic Procedure Established by Law v. Due Reforms
8 Process of Law
Principles of Natural Justice
Same Sex Marriages
Lecture 1 : Historical Constitutions, Preamble, Fundamental Rights, Directive Principles of State Policy,
Fundamental Duties
Lecture 1 : Historical Constitutions, Preamble, Fundamental Rights, Directive Principles of State Policy,
Fundamental Duties
Lec 1 : Topic 1 : Basic Structure & Harmonious Construction

Basic Structure & Harmonious Construction

Theory of Implied Limitation
Art 13 & Art 368 : The Conflict
Timeline
Doctrine of Basic Structure
Relationship between FR & DPSP
Evaluation
Topic 1 Cost Benefit Analysis of Basic Structure
Impact on further developments
Parliamentary Democracy
Art 368 v. Basic Structure
Judicial Review
Rights
Constitutional Rigidity
Future of Basic Structure
Context
Conflict between Art 13 and Art 368
Art 13(2) invalidates any "law" that attempts to violate any Fundamental Right while Art 368 empowers the Parliament to amend the Constitution
Art 368 confers "Constituent power" to the Parliament
Can only be introduced in Central Legislatures
Cannot be returned or rejected by the President
Land Reforms under Art 39(b) and (c) : ceiling on land ownership
Fundamental Right to Property via Art 31 and Art 19(1)(f)
The courts struck down the land reforms laws saying that they transgressed the fundamental right to property (Sir Kameshwar Singh Darbhanga v. The
Province of Bihar 1950 Patna)
A.K. Gopalan v. The State of Madras (1950) dealt with the constitutionality of preventive detention laws. The Supreme Court upheld the constitutionality
of such laws, holding that the fundamental rights guaranteed under the Indian Constitution, including the right to life and personal liberty, were not
absolute and could be curtailed by the state for reasons of national security.
Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar (1951) dealt with the power of the Parliament to amend the Constitution. The Supreme
Court held that the power to amend the Constitution under Article 368 was absolute and unfettered, and that the validity of a constitutional
amendment could not be questioned on the ground that it violated any fundamental rights guaranteed under the Constitution.
1 CA, 1951 challenged, SC held that the Parliament enjoys absolute constituent power to amend the any part of the Constitution including
fundamental rights as constitutional amendments were not considered ‘law’ as the restrictions under Art. 13(2). Constitutional scheme gave
demarcation between ordinary law (exercise of legislative power) and constitutional law (exercise of constituent power)
Sajjan Singh v. State of Rajasthan (1965) dealt with the Constitutional validity of the 17th Constitutional Amendment. The Supreme Court upholding the
validity of the 17th Amendment held that the Parliament has the authority to amend any part of the Constitution including any Fundamental Rights. The
Supreme Court in the Judgement even stated that if the Constitution makers intended to exclude the fundamental Right from the scope of amending
power they would have made a clear provision in that behalf.
I.C. Golak Nath & Ors. v. State of Punjab & Anrs. (1967) dealt with the power of the Parliament to amend the Constitution. The Supreme Court, in a
landmark judgment, held that the power to amend the Constitution under Article 368 was not unlimited and that the fundamental rights guaranteed
under the Constitution could not be abrogated or abridged by a constitutional amendment
1, 4, 17 CA Challenged
The Kesavananda Bharati case : Key legal issues The Kesavananda Bharati case : Outcome

Constitutional Validity of the Kerala Land Reforms Act: The Basic Structure Doctrine: The Supreme Court established
primary legal issue in the case was the constitutional validity of the the doctrine of basic structure, holding that there are
Kerala Land Reforms Act, which placed a limit on the amount of certain fundamental features or essential elements of the
land that a person could hold and provided for the acquisition of Constitution that are beyond the amending power of the
excess land from landowners. Kesavananda Bharati argued that the Parliament. The court declared that any constitutional
Act violated his fundamental right to property, which was amendment that destroys or abrogates the basic structure
guaranteed by the Constitution of India. would be deemed unconstitutional.
Limits on Amending Power: The court ruled that while the
The extent of the Parliament's power to amend the Constitution: Parliament has the power to amend the Constitution, this
Another key legal issue in the case was the extent of the
power is not unlimited. The court held that there are
Parliament's power to amend the Constitution. The question before
inherent limitations on the amending power and that the
the Supreme Court was whether the Parliament's power to amend
Parliament cannot alter the basic structure of the
the Constitution was unlimited or whether there were limits to this
Constitution.
power.
Essential Features of the Constitution: The court did not
provide an exhaustive list of what constitutes the basic
The doctrine of basic structure of the Constitution: The Supreme
structure, but it did identify certain features that are part
Court, in its judgment, established the doctrine of basic structure
of the basic structure. These features include the
of the Constitution, which holds that certain fundamental features
of the Constitution, such as the supremacy of the Constitution, the supremacy of the Constitution, the rule of law, judicial
rule of law, and the independence of the judiciary, cannot be review, separation of powers, federalism, secularism, and
amended or abrogated by the Parliament through a constitutional protection of fundamental rights.
amendment. The question before the court was whether this Doctrine of Prospective Overruling: The court applied the
doctrine was a part of the Constitution and whether the doctrine of prospective overruling, which means that the
Parliament's power to amend the Constitution extended to this declaration of the basic structure doctrine would only
doctrine. apply to future amendments. The court stated that past
constitutional amendments would be valid unless they
affected the basic structure.
 Impact of Basic Structure

1. Judicial Review and Constitutional Supremacy: The doctrine reinforces the principle of judicial review, granting the Indian judiciary the power to review

and strike down laws that violate the basic structure of the Constitution. This ensures the supremacy of the Constitution and prevents the arbitrary exercise

of power by the legislature.

2. Protecting Fundamental Rights: The doctrine of basic structure acts as a safeguard for fundamental rights enshrined in the Indian Constitution. It ensures

that no constitutional amendment can dilute or abrogate these rights, such as the right to equality, freedom of speech, or protection against discrimination.

3. Maintaining Federalism: The doctrine protects the basic structure of federalism in India. It prevents the Parliament from altering the essential features of

the federal structure, such as the distribution of powers between the Union and the states. This has helped maintain the balance between the central

government and state governments.

4. Secularism and Separation of Powers: The doctrine of basic structure upholds the principle of secularism and the separation of powers. It prevents any

amendment that undermines the secular character of the Indian state or disturbs the delicate balance between the executive, legislative, and judicial

branches of government.

5. Consistency and Stability: The doctrine provides stability and consistency to the Indian Constitution. It ensures that the core principles and values of the

Constitution remain intact over time and are not subject to frequent changes by the ruling party or the majority in Parliament. This contributes to the

stability and predictability of the legal system.

6. Limiting Constitutional Amendments: The doctrine imposes limitations on the amending power of the Parliament. While the Indian Constitution allows for

amendments, the doctrine sets a boundary by prohibiting amendments that violate the basic structure. This prevents the Parliament from altering the

Constitution in a manner that fundamentally transforms its character.

7. Evolution of the Constitution: The doctrine of basic structure allows for the evolution of the Indian Constitution in response to changing societal needs and

aspirations. While the basic structure remains protected, the interpretation and application of the Constitution by the judiciary have allowed for progressive

developments in areas such as expanding fundamental rights and inclusivity.

 Basic Structure : Critical Analysis

Components of Basic Structure :

Missing from the text of the Constitution : Invisible Amendment
Kesavananda Bharti : Judges gave
Gives the judiciary the power to impose itself over a democratically formed their separate lists
government. Justice Y.V. Chandrachud :
Lack of consensus sovereign democratic republic
11 separate opinions were issued; first time in history, judges gave a status
summary of their decision (4 judges refused to sign that summary) Justice H.R. Khanna : democracy is
thin majority of just one judge a basic feature of the Constitution
and includes free and fair
Lengthy
elections.
(800 pages, 420,000 words long)
Indira Gandhi v Raj Narain (1975) :
Anxious Political Circumstances Free & Fair Elections, Rule of Law,
Impacted neighbouring jurisdictions Separation of Powers
No reference in Constituent Assembly debates SR Bommai v. Union of India (1994) :
Source of power of the Courts : violate traditional notions of Judicial Review Federalism, Democracy, Secularism
Creates intra Constitutional hierarchy L Chandra Kumar v. Union of India
(1997) : Judicial Review

Basic Structure : Way Forward

German Scholar Conrad in 1965 in India gave a lecture on 'Implied Limitations of Amending
Power'
If Parliament can't amend, then no one can; Germany codified Basic Structure; Why can't India?
The foundation of Constitutionalism is the creation of State limited by the Constitution.
Relationship between FR and DPSP
Minerva Mills Case : Analysis
The case involved a constitutional challenge to certain provisions of the 42nd Amendment Act,
1976, which sought to curtail judicial review and expand the amending power of the Parliament.

1. Basic Structure Doctrine: The Supreme Court reaffirmed and elaborated on the basic structure doctrine, which was first
articulated in the Kesavananda Bharati case. It held that the power of Parliament to amend the Constitution is not absolute and
that there are certain basic features or essential elements of the Constitution that are beyond the amending power of the
Parliament.
2. Judicial Review: The court upheld the importance of judicial review as an essential part of the basic structure of the
Constitution. It held that the Parliament cannot completely abrogate or destroy the power of judicial review, as it is necessary
for upholding the rule of law and preserving the constitutional balance.
3. Limitations on Amending Power: The court clarified that while the Parliament has the power to amend the Constitution, it
cannot exercise that power in a manner that destroys or abrogates the basic structure. The court emphasized that there are
inherent limitations on the amending power, and any amendment that violates the basic structure would be unconstitutional.
4. Doctrine of Harmonious Construction: The court held that in case of a conflict between two provisions of the Constitution, the
doctrine of harmonious construction should be applied to interpret them in a manner that preserves and upholds the basic
structure.
5. Doctrine of Severability: The court recognized the doctrine of severability, which means that if a constitutional provision is
found to be invalid or unconstitutional, it can be severed from the rest of the statute or amendment, as long as the remaining
part is capable of functioning independently.
Waman Rao - IR Coelho : Case Analysis
Waman Rao (1981):
Constitutionality of Articles 31A, 31B as well as the unamended Article 31C of the Constitution
SC in Waman Rao : First Constitutional Amendment Act of 1951, that introduced Articles 31A, 31B, as well as
the Twenty-Fifth Amendment Act that introduced Article 31C were constitutional, and did not damage any
basic or essential features or the basic structure of the Constitution. This judgement was taken into
consideration later in the landmark case I.R. Coehlo vs State of Tamil Nadu.

I.R. Coehlo vs State of Tamil Nadu (2007) :

31B does not provide unlimited protection to laws added in the Ninth Schedule, and they could not violate
basic structure, it also tried to arrive at a method for determining whether the basic structure had been
violated or not.
The ‘effect and impact’ test should be considered while determining if any law is damaging or destroying
the basic structure. Effect and Impact test means that what part of the Constitution is being amended
will not be considered for checking its validity, rather the consequences of the amendment on the
Constitution will be a determinative factor.
I.R. Coehlo case added to what the judges in Waman Rao said, was its assertion that the doctrine of basic
structure applies to both amendments by which laws are included in the Ninth Schedule, as well as into the
statutes that are added through those amendments. Both would have to pass the basic structure test in
order to be valid.
 Lec 1 : Topic 2 : Historical Constitutions

Our Constitution drew on a longer history of antecedents documents drafted either as legislation governing British India
or aspirational political documents.
 Timeline of Major Milestones in the history of Indian Constitutionalism

Poorna Swaraj, Irwin

Declaration Constituent Assembly (1946)
(Cabinet Mission Plan)

Nehru Karachi M.N. Roy, Manipur,

Swaraj Bill, Lucknow
Report, Resolution, SCF, Sapru Socialist Party,
1985 Pact, 1916 BN Rau
1928 1931 Report

CoI Act, 1950

Indian Indian
GoI Act, GoI Act,
Councils Independence
1919 1935
Act, 1909 Act, 1947
Indian Councils Act, 1909
It is also referred to as the Morley-Minto reforms
The Act was a relatively short document, consisted of eight articles and two schedules, and was written in a legal style.
Its core feature was the recognition of the principle of elections of members to the central and provincial legislative councils
The Articles of the Act did the following:
Increased the size of various provincial legislative councils,
Created executive councils in the provinces of Bombay, Madras and West-Bengal, and
Introduced the office of a ‘Vice-President’ at both at the centre and the provinces.
The Act itself was skeletal; it was operationalised by a set of rules and regulations that fleshed out details
The extent of (limited) franchise,
Qualifications for members of legislative councils and strikingly,
The introduction of separate electorates for Muslims.
R. Coupland in The Constitutional Problem of India (1944) argues that while the Act could be seen as introducing
representative government – British state officials did not think so and underplayed this.
Lord Morley himself told the House of Lords: ‘ if it could be said that this chapter of reforms led directly or necessarily to the
establishment of a parliamentary system in India, I for one, would have nothing at all to do with it’.
GoI Act, 1919
Codified version of the Montague-Chelmsford reforms

The Act consisted of 47 sections and 5 schedules and was written in a legal style.

It introduced a number of administrative changes, the most important being diarchy.

It put forth a federal structure for India by creating the institutions of the Governor and provincial legislatures

Eleven provinces were created and some portfolios like public health and education were kept for Indian legislators

A notable feature of the document was a clause that called for a review of the Act’s working after a period of 10 years.

Ambedkar in a lecture to his students in 1923 referred to the Government of India Act as the ‘British Constitution of India’.

Walter Reid in Keeping the Jewel in the Crown: The British Betrayal of India suggests that the ambiguity of self-government in

the Act was a reflection of the unique position of India as a colony of the British Empire.

The British divided its empire into two: dominions which were bound for self-government and dominions which were

‘occupations of use’. The latter would be ‘disposed of when they no longer served their purpose’.

India, Reid argues, for the British ‘fitted into neither category. It would neither be abandoned nor would it move towards

self-government’.
GoI Act, 1935
Passed by the British parliament in 1935 and came into effect in 1937.
The Act was written in a legal style, organised around 11 ‘Parts’ and 10 ‘Schedules’.
Some of the key features of the Act were:
The creation of a ‘Federation of India’ that consisted of two levels: a central executive and parliament, and below it,
provinces and princely states.
It discarded the ‘dyarchy’ system at the provincial level and allowed for the emergence of popularly elected provincial
legislatures.
Dyarchy was introduced at the central level, key subjects like defence and foreign affairs were under the direct control of
the Governor General.
A federal court was established.
The franchise was expanded to 14% of the population from 3%.
Separate electorates were provided for Muslims, Sikhs and others, but not to Depressed Classes.
Governor enjoyed critical emergency powers.
The Act played a key role in the drafting of the Constitution of India, 1950. A significant chunk of the Constitution, particularly
the administrative provisions, are borrowed from the Act.
Scholars like Andrew Muldoon have argued that the Act ‘was arguably the most significant turning point in the history of the
British administration in India’.
Indian Independence Act, 1947
The Indian Independence Act 1947 was legislation passed by the British Parliament that legally set up the two independent dominions of India and Pakistan.
The Act codified British withdrawal from and the partition of India.
In 1950, the Constitution of India came into effect and India transformed from an independent dominion to an independent constitutional republic.
In February 1947, the British, through its Prime Minister Clement Atlee made it clear that they would leave India. The two major political parties at the time
the Indian National Congress and the Muslim League welcomed the move but in different forms.
The British government sent Lord Mountbatten, the last Viceroy, to India to resolve the political crisis to facilitate British withdrawal.
It was decided that the partition question would be put to the Provincial Legislative Assemblies of Bengal, Punjab and Sindh. These Assemblies decided that
their Muslim majority areas be partitioned. In light of this, the British decided to leave behind a partitioned India and this was done through the Indian
Independence Act 1947.
The Act was written in a legal style, was 22 pages long and organised around 20 sections and three schedules. It set 15 August 1947 as the date when the two
independent dominions of India and Pakistan would come into effect. It partitioned the provinces of Bengal, Punjab and Sindh, made necessary changes to
Government of India Act 1935, transferred legislative authority to the Constituent Assemblies of India and Pakistan.
Importantly, while the Act did substantively cut the link between India and Britain, India was still a dominion under the Governor-General who was the
representative of the British Crown.
Also, Constituent Assembly members were not happy with the fact that India’s independence could be traced to the Act. So they did two things: first,
the Assembly did not put the final Constitution it drafted to British parliament to approve as was provided for in the Act. Second, it repealed the Act
itself through Article 395 of the Constitution.
It is after the Constitution came into effect on 26 January 1950, that India severed all links with Britain.
 Document Contribution

Right to free speech, right to property, in-violation of one’s home, equality before the law, structures of government
Swaraj Bill, 1895
and separation of powers.

Composition and functioning of the legislature and executive at the provincial and federal levels, separate
electorates and proportional representation for minorities, especially Muslims, at the provincial and federal
Lucknow Pact, 1916 legislatures, calls for equality with other British dominions, the abolishing of the Council of the Secretary of State
and the ban on members of the Indian Civil Service from occupying political positions in government, no
articulations of rights.

Dominion status for India, the right to free expression and opinion, equality before the law, right to bear arms,
Nehru Report (Motilal freedom of conscience, free profession and propagation of religion, right to free and elementary education,
Nehru,1928) parliamentary system of government along with universal adult suffrage, reservation for Muslims in legislatures,

however, these were restricted to only those constituencies where Muslims were in a minority (no mention of
separate electorates)

Karachi Resolution For the first time put forward a list of socio-economic principles/rights that the Indian state had to adhere to.
(1931) Protections for industrial workers, abolishing of child labour, free primary education and protections for agricultural

labour. Gandhian influence, prohibited intoxicating drinks and drugs.
 Lec 1 : Topic 3 : Preamble

Based on Objectives Resolution

Moved by Pandit Jawaharlal Nehru in
the Constituent Assembly on 17
Preamble December, 1946
Status & Role Unanimously adopted on January22,
Keywords Basic 1949.
Topic 2 Meaning & Relevance Facts In the light of these ‘Objectives’ the
Reflections in the Constitution Constituent Assembly completed its
Brief Comparison with the US task by November 26, 1949.
Constitution Amended once via 42nd CA, 1976
Socialist, Secularism, and Integrity
added
Purpose
It contains the enacting clause which brings the Constitution into force.
It declares the great rights and freedoms which the people of India intended to secure to all its citizens.
It declares the basic type of government and polity which is sought to be established in the country.
It throws light on the source of the Constitution, viz. the People of India.

Status
Was the last piece of drafting adopted by the Constituent Assembly at the end of the first reading of the Constitution and then
mentioned in the beginning of the Constitution.
Part of the Constitution but has no legal effect independent of any other part of the Constitution

In Re: Berubari Union (1960) (unanimous

opinion by 8 Judge Bench)
Main Reference under Article 143(1) of the
Constitution of India on the

In Kesavananda Bharti v. State of Kerala
implementation of the Indo-Pakistan (1973) : 13 Judge Bench - Majority
I.C. Golak Nath v. State of Punjab
Agreement relating to Berubari Union and Overruled Golak Nath case
Exchange of Enclaves Preamble to the Constitution of India is a
A Preamble to the Constitution serves as a (1967) part of the Constitution;
key to open the minds of the makers, and Preamble is not a source of power nor a
show the general purpose for which they source of limitations or prohibitions
made several provisions in the The Preamble has a significant role to play
Constitution in the interpretation of statutes also in the
The Preamble is not a part of our Preamble does not impose interpretation of provisions of the
Constitution any implied limitation on the Constitution.
It is not a source of the several powers power to amend the
conferred on government under the Constitution under Art 368
provisions of the Constitution
What is true about the powers is equally
true about the prohibitions and limitations
Preamble & Basic Structure

1. Kesavananda's Case : 7/13 Judges held that objectives specified in the Preamble contain Basic

Structure which cannot be amended in exercise of power under Art 368 of the Constitution

2. Preamble was amended to add "socialist' and "secular' primarily via the 42nd Constitutional

Amendment, 1976.

a. Secularism (Sri Adi Visheshwar of Kashi Vishwanath Temple, Varanasi v. State of Uttar

Pradesh, 1997)

b. Rule of Law (Bombay High Court v. Shirish Patil, 1997)

c. Rule of Equality (Indira Sawhney v. Union of India, 2000)

d. Republican & Democratic form of Government (UoI v. ADR, 2000)

3. Any legislation or executive action violative of the basic structure would be unconstitutional

and invalid
 Comparative Analysis

English cases show that the

The American concept is Preamble can be resorted to as a
that the Preamble may means to discover the legislative
not be resorted to as a intent of which one may be cited.
source of federal The gist of the English view is that:
authority but the value India has taken a (a) the Preamble cannot enable
middle path
and use of the Preamble going further than what the enacting
is to ascertain the words indicate;
essential concepts (b) the Preamble cannot be pressed
underlying the into service for finding out the
Constitution. meaning of the enacting words
when the meaning of the Preamble
itself is in doubt.
Role Source of Interpretation of other
statutes framed under the Constitution
The validity of the Kerala Fisherman
Welfare Fund Act, 1985 was upheld in International
Interpreter of the Constitution ‘Kolutbara Exports Ltd. v. State of Kerala’ Documents/Conventions
on the grounds that the aim of law was to
provide social security and welfare to the / Declarations as Aid to
Kerala fisherman and that this was justified Interpretation
The majority Judges in as it was in accordance with the objectives
‘Kesavananda and Minera Madhu Kishwar v. State of Bihar
contained in the Preamble.
Mills’strongly relied on the the Court made use of CEDAW to
Preamble in reaching the uphold the right of succession for
In ‘Sri Srinivasa Theatre v. Govt. of T.N.’ the
conclusion that power of tribal women
Court said that Parliament has been given
amendment conferred by more freedom in the case of taxing statutes
Article 368 was limited and did Vishaka v. State of Rajasthan the
in order to decide who should pay more
not enable Parliament to alter Supreme Court laid down
taxes, to remove the inequalities that
the basic structure or guidelines on sexual harassment
prevail in this country, as per the goal of
frameworks of the of woman in the work place on the
equality as envisaged in the Preamble.
Constitution. basis of CEDAW in search of
‘AIIMS Students’ Union V. gender justice flowing from
P.Ramachandra Rao v. State of Karnataka,
AIIMS’ while striking down a “justice” and “equality” as
the Court has reiterated the right to speedy
reservation within reservation, employed in the Preamble
trial as a fundamental right under Article
the Court pressed into service 21, and has used the concept of justice as
the Preamble to the In ‘Kirloskar Brotbers Ltd. v. ESI
found in the Preamble to the Constitution
Constitution. Corpn.’ , the Court used the
Universal Declaration of Human
‘Sanjit Roy v. State of Rajasthan’, the Court
Rights, 1948 and the International
held that when a person is forced to work
Covenant on Civil and Political
on wages less than what is prescribed as
Rights to reaffirm the duty of the
minimum is “forced labour” under Article
State as regards its welfare role.
23 and basically contrary to the principle
laid down in the Preamble.
 Key Terms

Term Meaning Impact

"We the people of 1. Right to recall or vote of no confidence not violative of the
Source of the Constitution, republican & democratic character
India" Constitution (Usha Bharti v. State of Uttar Pradesh, 2014)

External : No control of foreign power, acquire/cede any part of

Indian Territory (Maganbhai v UoI, 1969)
Internal : Legislate on any subject subject to federal division of
1. Membership to International Organisations
legislative powers and fundamental rights , promote health,
2. National Interest in the new sovereignty
education, morals (Synthetics & Chemicals Limited v. State of UP,
a. India's stand on the Russia Ukraine Conflict
1990)
3. Data Localisation Proposals in Data Protection
Sovereign Power & Obligation of the State to protect citizen rights
4. Galwan Valley, Kashmir
domestically and internationally (parens partiae) (Charan Lal Sahu
5. UNHCR intervention in CAA, 2019
v. UoI, 1990)
6. Indo Bangladesh Land Boundary Agreement
Power can only originate from the Constitution (Maganbhai v UoI,
1969)
Right to engage in contract or public employment is restricted by
Art 14, 16, and 311(2) (DTC v Mazdoor Union, 1991)

1. Nationalisation of Private Property (Excel Wear v UoI, 1979)

2. Equal Pay for Equal Work (Randhir Singh v UoI, 1982)
Eliminate inequality (income, status, standards of life) (GB Pant Argi 3. MGNREGA, Ayushmann Bharat, RTE (SSA), Poshan
Socialist
University v. State of UP, 2000) Abhiyaan
4. ONDC.
5. Regulatory Oversight - TRAI, SEBI, Censor Board, RBI
 Key Terms

Term Meaning Impact

Representation of the People

1. First Past the Post System
Responsible Government
Democratic 2. Parliamentary Committee
Accountability of the CoM to the Legislature
3. Parliamentary Control over the Executive
(Samantha v. State of AP, 1997)

Social Justice 1. Art 46 : Protecting Weaker Sections against 'social

Greater good to a larger number of people without deprivation injustice"
Justice of rights to anyone 2. Art 39 A : Includes legal justice as well
Is also a FR (Ashok Gupta v State of UP, 1997) 3. Universal Adult Franchise
Social & Economic Justice : Distributive Justice 4. Affirmative Action & Reservation

Fraternity Spirit of brotherhood and belonging (Indira Sawhney v. UoI, 1993) 1. Single Citizenship
 Lec 1 : Topic 4: State - Art 12

Same for FRs (Art 12) and DPSP (Art 36) : Depends on ownership, degree of control, and function (Test laid down in the RSEB Case (1967)
Not is it applicable to other parts such as Part XIV
Other definitions in other laws
Section 2 (b) Explanation of the Prevention of Corruption Act - Governmental Corporations
General Clauses Act -
"Government" or "the Government" shall include both the Central Government and any State Government
local authority" shall mean a municipal committee, district board, body of port commissioners or other authority legally
entitled to, or entrusted by the Government with, the control or management of a municipal or local fund;
Largely driven by specific SC Judgements
Doctrine of State Action - (American Constitution - 14th Amendment)
Only to state and local governments, not to private entities, Private parties outside of government do not have to comply with
procedural or substantive due process unless engaged in a public function
US Courts have expanded this liberally to also include excesses of power, instrumentalities of state
India is little more conservation on this front.
Major difference is that entire Judiciary is not interpreted in India as a part of Art. 12
Primary Issues
Local Authorities
Rashid Ahmed Vs. Municipal Board 1950 : Municipality is a state
Ajit Singh Vs. State of Punjab 1967 : Panchayat is a state
Other Authorities
Instrumentalities & Agencies- Government Companies, PSUs
Corporations & Societies created by State for trading functions under Art 298
Public Authorities carrying statutory functions - Board, University, CJ - HC, Admin of HC,
Admin Authorities set up under a Statute to administer a law enacted by the Legislature - State Cooperative Land Development
Banks
Public Function (Zee Telefilms v. UoI, 2005 - BCCI Case - Not "State"; also laid down test)
Judiciary
Under Art.12, though no doubt judiciary is not specifically mentioned, but it is not specifically excluded either
Rupa Ashok Hurra’s case (2002) case and Supreme Court Bar Association case (1998)
the court continues to opine that no final order of the court can be challenged under Art.32
SC overruled its earlier verdict in Antulay's Case
Riju Prasad Sharma v. State of Assam (2015)
Only Judicial orders of the Courts cant be included under Art 12 while actions done in their admin capacity can be.
 Lec 1 : Topic 5 : Equality

Fundamental Rights (Equality)

Equality before law v. Equal Protection of Law Art 14,17 : Citizens & Foreigners both
Difference, Application, Implementation Basic Art 15,16,18 : Clause by Clause
Topic 4
Affirmative Action & Reservation Facts Pillar of Rule of Law
Comparative Analysis Similar to Art 7 of UDHR
Exceptions
 Right to Equality

Equality before law (English Common Law)

Equal Protection of Law (American Constitution)
Among equals the law
All individuals should have the right to equal
should be equal, and
treatment in similar circumstances both in
equally administered,
privileges conferred and liabilities imposed
like should be treated alike;
Positive context
Absence of any special privileges

Dimensions

Permits Reasonable Strikes Arbitrariness Provides positive and not Implicit Rules of Natural
Classification just negative equality Justice

Principles determined in Maneka Gandhi Case Maneka Gandhi Case

Screening Committees for
the cases of State of West Doctrine of Justice,
Promotions
Bengal Vs. Anwar Ali Sarkar Equity, Fairness &
(1952) & Dalmia (1962) Reservation
Reasonableness in State
Case, elaborated in Re: No fee for women to
Action
Special Courts, 1978 apply for government
2G Allocation
Differentia exams
Juvenile Age
Nexus Special Scholarships
Adultery
Sec 12(1) RTE - 25% EWS
Transgender (NALSA Case)
 Right to Equality - Exceptions

Constitutional
Immunities enjoyed by the President of India and the Governor of a state are given under Article 361 of the
constitution.
Immunity from any civil or criminal proceedings in any court for publication in any newspaper or television or
radio of a substantially true report of proceedings in either house of parliament or legislature of a state (Article
361-A).
Immunity for members of parliament from any proceedings in any court concerning anything they said or any
vote they cast in the parliament or any parliamentary committee (Article 105).
Immunity for members of legislatures of state from any proceedings in any court with regard to anything they
said or any vote they cast in the legislature or any legislative committee (Article 194).
Immunity enjoyed by diplomats, sovereigns, and ambassadors from criminal and civil proceedings.
Immunity enjoyed by UNO and its agencies.
Laws made for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be
challenged for being violative of Article 14 (Article 31-C).
 Reservations - WHO?

STs EWS
SC
GoI Act, 1935 Consist of 701 tribes and
Arts (15, 16, 46, 164, 330, constitute 8.6 per cent of 103 CA
332, 334, 335, 338, 341, 342, India’s population. Land holding, Monthly
and 366.) STs can be of any religion. Income or Size of Dwelling
Census is used to identify Adivasi’ and ‘girijans’, and Excludes all other
the population share are present mainly in reservations
Power to the President to central, southern, and
define castes and tribes as north-eastern India
SC or ST STs can be of any religion.
not subject to judicial
review {Shree Surat
Valsad Jilla KMG
Women
Parishad v Union of OBCs
India (2007)} Article 15(3)
Not a distinct social group
16.6 % of the population, Women’s Reservation
They have different
and include 1,206 main Bill, which mandates
meanings in different
castes 33 per cent
sections of the
Legal category of reservations for
Constitution.
reservation beneficiaries, women in the Lok
Different States and the
and only those Dalits who Sabha and in State
Centre identify different
are Hindu, Sikh, or neo- legislative assemblies
caste groups as ‘backward’
Buddhist are considered (with a sub-quota for
Debate on empirical data
Scheduled Caste women within the
on the nature and number
SC/ST quota)
of caste groups considered
LSG - 73/74rd
OBCs
 Reservations - WHERE?

Public (State) Education

Article 46 of the Indian Constitution directs the State to promote with ‘special care the educational and economic interests of the weaker sections of
the people’, including SCs and STs.
A non-enforceable directive principle, and the constitutional provision from which the State has derived the power to mandate reservations in
education is Article 15
The clause does not explicitly mention public education, this has been interpreted to constitutionally protect reservations in public education from
the equality clauses of Articles 15(1) and 29(2)
Clause (4) of Article 15 was not part of the original Constitution, but was inserted as part of the First Amendment to the Indian Constitution in 1951.
This amendment was in response to the Supreme Court judgment in State of Madras v Champakam Dorairajan - Supreme Court invalidated the
‘communal order’ of the Madras State, reserving seats for various caste groups in State educational institutions.
The principle of reservations in education has been judicially accepted subject to
Reservations do not apply to minority educational institutions.
The Court has sought to limit reservations in superspecialty education
The extension of reservations in public education has been gradual: from the States to the Centre, from SC/STs to OBCs, and from higher
education to school
Minority Institutions
Parliament has chosen not to apply reservations to educational institutions established by linguistic or religious minorities.
These minority educational institutions enjoy special autonomy under Article 30 of the Indian Constitution.
Various Supreme Court decisions have interpreted this autonomy to include administration, fees, curriculum, and internal quotas
While amending the Constitution to permit reservations in aided and unaided educational institutions, Parliament has exempted minority
educational institutions from reservations [93rd CA, 2005]
Super-specialty Posts
The Court has opposed reservations in super-specialty posts (higher medical degrees, for example)
The reason for this is that super-specialty posts are more vital for the requirements of ‘efficiency’ under Article 335 (Faculty Association of AIIMS v
Union of India)
However, this has now been changed to an extent where OBC and EWS are applicable to AIQ in PG Medical.
 Reservations - WHERE?

Public (State) Employment

The constitutional provisions allowing for reservations in public employment
Articles 16(4) for SCs, STs, and ‘Backward Classes’
Art 16(6) for EWS
Art 335 for only SCs and STs.
Article 16(4) was part of the original Constitution of India. These are enabling provisions, conferring discretionary power on the State
Clause (4) of Article 15 was not part of the original Constitution, but was inserted as part of the First Amendment to the Indian Constitution in 1951.
This amendment was in response to the Supreme Court judgment in State of Madras v Champakam Dorairajan - Supreme Court invalidated the
‘communal order’ of the Madras State, reserving seats for various caste groups in State educational institutions.
Studies have shown that reservations in entry-level government jobs have been well implemented, especially in recent times
A survey of class 1 officers found that 12.4 per cent of all posts were occupied by SC candidates— close to the quota mandate of 15 per cent
Even today, government salaries—especially at the lower end— are much higher than their private equivalent. For much of the time since Indian
Independence, a small private sector and diminishing returns on land made public employment one of the few ways of social mobility.
The principle of reservations in public employment is subject to the following caveats.
The courts have used the limitations of ‘efficiency of administration’ contemplated in Articles 335 to prohibit reservations in public services that
require the ‘highest level of intelligence, skill, and excellence’
The courts have prohibited reservations for single-post jobs
The courts have limited reservations in the judiciary - Regarding the lower judiciary, the Supreme Court has held that this must be done in
consultation with the High Court, and the power of the government to mandate reservations in the higher judiciary is limited by various
provisions and case law that safeguard the independence of the judiciary.

Private Employment
No constitutional provision that allows for it, no Supreme Court judgment on the subject, and no government Bill pending
Studies suggesting that private sector employers discriminate on the basis of caste while selecting employees
In November 2020, the Haryana Assembly passed The Haryana State Employment of Local Candidates Bill, 2020, which provided for 75 per cent
reservation for local people in private sector jobs offering a monthly salary of less than Rs 30,000 (originally Rs 50,000).

 Reservations - HOW?

Entry-level Reservations - 50 PERCENT LIMIT

Articles 15(4) and (5) have been interpreted to permit entry-level quotas in public and private educational institutions (CARRY FORWARD)
Article 16(4) permits entry- level quotas in public employment
There are currently no national entry-level quotas in private employment.
These constitutional provisions do not use the phrase ‘quotas’ or ‘reservations’.
The phrase used in the Constitution is ‘special provision’
But the executive and legislature have defined this phrase almost solely in terms of numerically mandated quotas, and the Supreme Court has
validated this interpretation.
This general allowance of entry-level quotas in public employment and education is subject to a few caveats.
the Court has resisted entry-level quotas in certain specialised posts (such as in the defence services).
the Court has banned entry-level quotas in single posts.
the Court has permitted unfilled quota seats from one year to be filled in the next year.
the Court has permitted the executive not only to prescribe a general percentage to be filled in each form of employment (say, a percentage of
all university faculty), but to prescribe for specific positions (say, a post meant for an administrative law teacher). This is known as the ‘roster’
system, and has led to particularly anomalous consequences.
While the principle of entry-level quotas is by now judicially uncontroversial, the two controversies are
on quota limits and
relaxation of minimum standards.
Promotion - CONSEQUENTIAL SENIORITY
While in the Rangachari case, the Court held that the Constitution permitted reservations not only in entry- level posts but also in promotions, the
matter was conclusively decided in Indra Sawhney
Here, the Court unambiguously held that reservations in promotions were unconstitutional. The Court gave a five-year deadline to the State to
phase out existing policies of promotions in reservation
Three years later (in 1995), Parliament invalidated this judicial decision by inserting clause (4A) to Article 16, in order to permit reservations in
promotion
the Supreme Court, in Nagaraj, held these promotion amendments to be valid. But it also held that every particular policy of the State with
respect to reservations in promotions would have to pass individual constitutional muster, with each policy requiring the demonstration of
backwardness, inadequacy of representation, and maintenance of efficiency.
 Reservations - WHERE & WHY?

Legislatures
Articles 330, 332, and 334 enable reservations of seats in the Union and State legislatures for
SCs and STs
This has happened in the Lok Sabha and in legislative assemblies in direct proportion to the
population of SCs and STs.
This is in addition to non- reserved seats, which SCs and STs can also contest Constituencies
are chosen as reserved if they have a relatively large proportion of SCs or STs.
73 CA : Balancing Equality, Social
• reservations in local representative bodies such as panchayats and municipalities for Justice, Efficiency
SCs, STs, women, and OBC Substantive Equality
• SC and ST candidates also enjoy other benefits, for instance lower election deposits
Democracy by Majority Rule
Conditions
Extensively debated in the Constituent Assembly, and it was agreed—and stated in Article
334—that these reservations would be phased out after twenty years. In practice, Article 334
has been repeatedly amended to extend these reservations, and it is unlikely to be
discontinued.
Reservations in legislature have helped create a consolidated political block for laws that are
perceived to be in the interests of SCs and STs—such as reservations in promotion.
OBCs do not have reservations in the Union and State legislature, despite demands for it.
Articles 243- D(6) and 243- T(6) of the Constitution enable reservations for ‘backward
classes’ in local representative bodies
While reservations for women do exist in local bodies, there is a move to introduce 33 per
cent reservation for women in the national and State legislatures