The Constitution of India

James Bryce defines a constitution as a frame of political society, organized through and by law that is to say one in which law has established permanent institutions with recognized functions and definite rights. Again a constitution may be said to be a collection of principles according to which the powers of the Government, the rights of the governed, and the relations between the two are adjusted. A constitution means the system or body of fundamental principles according to which the Nation, State and body politic is constituted and governed. These are general definitions but what applies to the Indian Constitution is the one given by Justice Miller. A constitution in the American sense of the word is a written instrument by which the fundamental powers of the government are established, limited and defined; and by which these powers are distributed among several departments for their more safe and useful exercise for the benefit of the body politic. In this definition, a constitution is seen as an organic instrument, under which governmental powers are both conferred and circumscribed. The Constitution is in other words the basic source from which the government must derive its authority. In its wider sense the term Constitution means the whole scheme whereby a country is governed.

Constitution An Introduction
Every constitution represents the vision and values of its affairs. It is based on the social, political, and economic ethos and faith and the aspirations of the people the country. In the modern democracy like India, people exercise their inalienable right to decide how and by whom they should be governed. The very first and the most fundamental application of their sovereignty by the people are in giving to themselves a constitution, which outlines the basic rules. Under these rules certain powers are transformed to different organs of the state. It was adopted by the Constituent Assembly on 26 November 1949. It came in to full operation with The Constitution of India Page 1

effect on 26 January 1950.Besides the indigenous sources some of the features have been adopted from other constitutions such as Parliamentary form of government adopted from British Constitution, Fundamental Rights from U.S Constitution, and Directive Principles of State Policy from Irish Constitution. Our Constitution is unique, apart from being longest in the world. It is meant for second largest population with diverse people speaking different languages and professing various religions. It was shaped by great political leaders and legal luminaries, most of whom had taken an active part in the struggle for freedom from the British yoke. No other Constitution in the world is like ours The Constitution being supreme all the organs and bodies owe their existence to it. All the functionaries, be they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their authority and jurisdictions from the provisions. The Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental provisions.

The Nature of our Constitution

The Constitution is a political document. The creation of a government is a political act. The Constitution specifies the structure, organization, and many of the processes of the various branches of the government and it sets forth the powers of both Central and State Government. The Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the socio-economic revolution or attempt to promote the growth of this revolution by establishing the conditions necessary for its achievement.1

The Importance of the Constitution

No authority created under the Constitution is supreme; the Constitution is supreme and all the authorities function under the supreme Law of the Land2. The basic structure may be said to consist of the following features such as Supremacy of the Constitution, Republic and Democratic form of Government, Secular character of The Constitution, Separation of powers
1 2

Minerva Mills Ltd. V. Union of India (1980) 3 SCC 625 Golak Nath v. State of Punjab (1967) 2 SCR 762

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between the legislature, the executives and the judiciary, and federal character of the Constitution. Our Constitution aims at being a social document in which the relationship of society to the individual and of Government to both and the rights of the minorities and the backward classes are clearly laid down. This social document is headed by a Preamble which epitomizes the principles on which the Government is intended to function and these principles are later expanded into fundamental rights in Part III and the Directive Principles of State Policy in Part IV. The former are protected but the latter are not. The former represent the limits of state action and the latter are the obligations and the duties of the Government as a good and social Government3. The Constitution brings into existence different constitutional entities, namely, the Union, the State and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the sphere allotted to them. In short, the scope of the power and the manner of its exercise are regulated by law. It regulates the relationship between the different organs and between the government and the people. The Constitution is superior to all other laws of the country. Every law enacted by the government has to be in conformity with the Constitution. The Constitution lays down the national goals of India - Democracy, Socialism, Secularism and National Integration. It also spells out the rights and duties of citizens.

Golak Nath v. State of Punjab (1967) 2 SCR 762

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Preamble of the Constitution of India

The Preamble of India reads as follows: 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; LIBERTY of thought, expression, belief, faith and worship; 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 twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. The wording of the Preamble highlights some of the fundamental values and guiding principles on which the Constitution of India is based. The Preamble serves as a guiding light for the Constitution and judges interpret the Constitution in its light. In a majority of decisions, the Supreme Court of India has held that the objectives specified in the Preamble constitute the basic structure of the Indian Constitution, which cannot be amended. Though the Preamble is a part of the constitution still neither the Preamble nor any of its content is legally enforceable. The Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and the noble vision expressed in the Preamble. The Preamble was meant to embody in a very few and well defined words the key to the understanding of the Constitution. Our court has consistently looked to the Preamble for guidance and given it an important position while interpreting the Constitution or other laws. The true function of the Preamble is to expound the nature and extent and application of the powers actually conferred by the Constitution and not substantially to create them.

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The first three words of the Preamble - "We, the people" - signify that power is ultimately vested in the hands of the people of India. The Preamble lays down the most important national goals which every citizen and the government must try to achieve, such as socialism, secularism and national integration. Lastly, it lays down the date for the adoption of the Constitution - 26 November 1949.

Explanation to some of the important words in the Preamble

SOVEREIGN: The word sovereign means supreme or independent. India is internally and externally sovereign externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people. SOCIALIST4: The word socialist was added to the Preamble by the 42nd amendment act of 1976. It implies social and economic equality. Social equality in this context means the absence of discrimination on the grounds of caste, colour, creed, sex, religion, language, etc. Under social equality, everyone has equal status and opportunities. Economic equality in this context means that the government will endeavour to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasizing a commitment towards the formation of a welfare state. SECULAR5: The word secular was inserted into the Preamble by the 42nd amendment act of 1976. It implies equality of all religions and religious tolerance. India therefore does not have an official state religion. Every person has the right to preach, practice and propagate any religion they choose. The government must not favour or discriminate against any religion. It must treat all religions with equal respect. All citizens, irrespective of their religious beliefs are equal in the eyes of law.

4 5

added to the Preamble by the 42nd amendment act of 1976 added to the Preamble by the 42nd amendment act of 1976

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No religious instruction is imparted in government or government-aided schools. The Supreme Court in S.R Bommai v. Union of India6 held that secularism was an integral part of the basic structure of the Constitution7. DEMOCRATIC: India is a democracy. The people of India elect their governments at all levels (Union, State and local). Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education. REPUBLIC: As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The Post of the President of India is not hereditary. Every citizen of India is eligible to become the President of the country.

The purpose and the objective of Preamble

The Preamble serves several important purposes. Firstly, it indicates the source from which the Constitution comes that is the people if India. Next, it contains the enacting clause which brings into force the Constitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all its citizens and the basic type of government and policy which was to be established. Indeed the Preamble to the Constitution embodies the philosophy of the Constitution. Preamble relates to the basic structure or framework of the Constitution. From the Preamble it is quite clear that the two primary objectives that were before the constituent assembly were (1) to

6 7

S.R.Bommai v. Union of India (1994) 3 SCC 1 S.R Bommai v. Union of India (1994) 3 SCC 1

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constitute India into a Sovereign Democratic Republic; and (2) to secure to its citizen the rights mentioned therein.

Whether Preamble is a part of the Constitution or not?

The question whether the Preamble is a part of the Constitution or not was dealt with in two leading cases on the subject: 1. Berubari case8 2. Kesavananda Bharti case9 Berubari case was the Presidential Reference Under Art. 143(1) of the Constitution of India, here the court held that the Preamble to the Constitution containing the declaration made by the people of India in exercise of their sovereign will, no doubt is a key to open the minds of framers of the Constitution which may show the general purposes for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution. The view taken by the Supreme Court in Berubari case that the Preamble was not a part of the Constitution was not accepted in Keshavanand Bharati case. Kesavanada Bharati Case10 has created a history. For the first time, a bench of 13 Judges assembled and sat in its original jurisdiction hearing the writ petition. 13 Judges placed on record 11 separate opinions. It is not an easy task to find out the ratio of the holding of the court in the same case. It was held in this case: a. that the Preamble to the Constitution of India is a part of Constitution.

b. that the Preamble is not a source of power nor a source of limitations. c. the Preamble has a significant role to play in the interpretation of statues, also in the interpretation of provisions of the Constitution.

8 9

In Re:Berubari Union(1) (1960) 3 SCR 250 Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225 10 Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225

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Moreover in Bommai case11 the majority of nine Judges laid down a new application of the Preamble under the Constitution that the Preamble indicates the basic Structure of the Constitution. A discussion on Preamble cannot be complete without making a reference of Mandal Commission case12, which was decided by a larger bench of nine Judges. B.P. Jeevan, J. held that the four folding objective of securing to its citizens justice, liberty, equality and fraternity displays statesmanship of the highest order Constitution of India. They also pointed out the goal as spelled out in the Preamble and the methodology for reaching that goal is elaborated in parts of the Constitution of India. In the opinion of R.M. Sahai, J. the Preamble to the constitution is a turning point in history. The Preamble of the constitution has the sentiments and it is the key to the minds of the framers of the Constitution. As the Preamble forms part of the Constitution, it can be amended except in so far where it relates to matters which constitute the basic structure of the Constitution. By the Constitution (Forty-second Amendment) Act, 1976, the Preamble was amended. For the words Sovereign Democratic Republic the words Sovereign, Socialist, Secular, Democratic Republic was substituted. For the words Unity of the Nation the words Unity and integrity of the Nation were substituted.

11 12

S.R.Bommai v. Union of India (1994) 3 SCC 1 Indra Sawhney v. Union of India AIR 1993 SC 477

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Right to Constitutional Remedy

The maxim that there is no wrong without a remedy does not mean that that there is a legal remedy even for every moral or political wrong. The maxim means only that legal wrong and legal remedy are correlative terms. Thus when there is no legal remedy there is no legal wrong. Articles 32 and 226 provide effective and speedy remedies for asserting fundamental rights against laws which violate them. Article 32 confers a fundamental right and it runs as follows: Article 32: Remedies for enforcement of rights conferred by this Part. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1)&(2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. Again Article 226 conferred on the High Courts similar powers to issue appropriate writs for the enforcement of fundamental rights, and for any other purpose. Article 32 of the Constitution of India confers power on the Supreme Court to issue direction or order or writ, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III of the Constitution. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is "guaranteed", that is to say, the right to move the Supreme Court under Article 32 for the enforcement of any of the rights conferred by Part III of the Constitution is itself a fundamental right.

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Article 32 and Article 226

The jurisdictions of Supreme Court Article 32 of the Constitution of India and of different High Courts in India under Article 226 of the Constitution are original in nature and Writ Petition directly lies to Supreme Court or the High Court, according to relief sought, under Article 32 or 226 of the Constitution of India. The difference between the jurisdiction of Supreme Court under Article 32 and that of a High Court under Article 226 of the Constitution is that a Writ Petition before Supreme Court under Article 32 lies only for enforcement of a fundamental right, while a Writ Petition before a High Court has a wider scope and a fundamental as well as ordinary legal right can be enforced by means of a Writ Petition before a High Court under Article 226 of the Constitution of India. Thus as regard to the enforcement of fundamental rights, the jurisdictions of the Supreme Court under Article 32 and that of a High Court under Article 226 are concurrent. The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation of fundamental rights guaranteed under Part III of the Constitution. Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such provisions. The scope of the power to enforce fundamental right (under article 32 or 226) is both protective and remedial. Since the remedy under article 32(1) is itself a fundamental right, the Supreme Court is under duty to grant relief for violation of substantive fundamental right. Hence to reject such petition on the simple ground that it cannot be entertained because of a rule of a practice of the court cannot be justified.13 The Supreme Court in some decisions has stated that where relief through High Court is available under Article 226, the party should first approach the High Court. In 1981 Justice P. N. Bhagwati in S. P. Gupta v. Union of India14, said that Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to
13 14

Kiran v. State of Andhra Pradesh (1990) 1 SCJ 282 S.P. Gupta v. Union Of India1981 (Supp) SCC 87

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approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons. Article 32 provides, in some respects, for a more effective remedy through Supreme Court than article 226 does through the High Courts. But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental rights conferred by part III of the Constitution.15 Thus the scope of Article 226 is wider than that of article 32.

15

Nain Sukh Das v. State of U.P. 1953 SCR 1184

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Writs under Indian Legal System

Writs are extra ordinary remedies in cases where there is either no remedy available under the ordinary law or the remedy available is inadequate. 'Writ' is eminently designed by the makers of the Constitution, and in the same way it is developed very widely and efficiently by the courts in India. Articles 32 and 226 of our Constitution empower anyone, whose rights are violated, to seek writs, Under Article 32; a person can move to the Supreme Court for enforcement of fundamental right only. However, under Article 226, a person can move to the High Court for enforcement of any right including fundamental right. The Constitution broadly provides for five kinds of "prerogative" writs, namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition. Basic details of which are as follows:

1. Writ of Habeas Corpus

The writ of habeas corpus is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free. The words habeas corpus literally means to have body. It is a remedy available to a person who is confined without legal justification. Through this writ, the court let it know the reasons for detention of the person and if there is no justification, order the authority concerned to set the person free. The writ of habeas corpus, thus, entails the authority to produce the person before the court. The applicant of this writ may be the prisoner or any person on his behalf to safeguard his liberty. It seeks immediate relief from unlawful detention whether in prison or private custody. The writ of Habeas corpus is the only writ which can be issued against a private person as well as a public authority.

2. Writ of Mandamus
Mandamus literally means a command. This writ of command is issued by the Supreme Court of The Constitution of India Page 12

High court when any government, court, corporation or any public authority has to do a public duty but fail to do so. By the writ of mandamus, such public authority is forced to perform his official duty. To invoke the performance of such duty this writ of mandamus is issued, It should be noted that it should not be discretionary duty of the authority which is challenged. It should be a compulsory one; the applicant too should have a legal right to enforce such performance. The writ of mandamus is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties. It may further be noted that this writ cannot be issued against President or the Governor.

3. Writ of Prohibition
The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself. Writ of Prohibition is issued by a superior court to subordinate court preventing latter from usurping the jurisdiction which is legally not vested in it. The writ lies in both for access of jurisdiction or absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of the proceeding but before the order is made. It may be noted that this writ is available against judicial and quasi-judicial body.

4. Writ of Certiorari
The writ of certiorari is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, usually with the intention of overruling the judgement of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld. If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the effected party can move this writ for a direction against such lower court or tribunal to ignore such decisions based on wrong jurisdiction. The writ of certiorari issued to subordinate judicial or The Constitution of India Page 13

quasi- judicial body when they act: Without or in excess of jurisdiction; In violation of the prescribed procedure; In contravention of principles of natural justice; Resulting in an error of law apparent on the face of record.

The writs of prohibition and certiorari are of the same nature, the only difference being that the writ of prohibition is issued at an earlier stage, before the order is made and the writ of certiorari is available on a later stage i.e. after the order has been passed. The similarity between the writs of prohibition and certiorari is that both are issued by the Supreme Court against a subordinate court or Quasi-judicial authority on the ground of violation of its jurisdiction. However, the major difference between the two is that the writ of prohibition is issued when the subordinate authority has not passed any order and matter is still pending before such authority, whereas the writ of certiorari is passed when the final order has been passed by the subordinate authority to quash such final order. In both situations, the matter is referred to the authority which has the legal jurisdiction in such case.

5. Writ of Quo Warranto

The term Quo Warranto means What is your authority. Whenever any public office is held by any one not qualified to hold it, it can be challenged by this writ by any person. The writ of Quo warranto is issued by the Supreme Court against persons who holds a public office to know the legal entitlement of such person to such public office. An order issued by the court to such an authority to explain under what valid grounds he is holding such a post. If the person is not legally entitled to hold such a public office, he is removed from such office by the final of this writ. If it is found on investigation that he is not entitled to be office; the court may restrain him from acting in the office and declare the office to be Vacant. However, certain conditions must be satisfied before the issue of this writ that is firstly, the office is public and of substantive nature; Secondly, The office is created by the State or by the Constitution itself; and Thirdly, the respondent must have asserted his claim to the office. The Constitution of India Page 14

Supreme Court of India

The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal. Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India. The Supreme Court of India comprises the Chief Justice of India and not more than 30 other Judges appointed by the President of India. However, the President must appoint judges in consultation with the Supreme Court and appointments are generally made on the basis of seniority and not political preference. Supreme Court Judges retire upon attaining the age of 65 years. In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years, or the person must be, in the opinion of the President, a distinguished jurist.

Jurisdiction of Supreme Court of India

The Supreme Court has original, appellate and advisory jurisdiction.

Original jurisdiction
It has exclusive original jurisdiction over any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends. In addition, Article 32 of the Constitution grants an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Constitution of India Page 15

 Appellate jurisdiction
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Articles 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. The Supreme Court can also grant special leave to appeal from a judgement or order of any non-military Indian court. Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies: (a) that the case involves a substantial question of law of general importance, and (b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorized to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.

Advisory jurisdiction
The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution. This power implies Courts right to give advice, if sought. Under advisory jurisdiction, the President of India may refer any question of law or public importance to Supreme Court for its advice. But the Supreme Court is not bound to give advice. In case, the advice or the opinion of the Court is sent to the President, he may or may not accept it. The advice of the Court is not binding on the President. So far, whenever the Court has given its advice, the President has always accepted it. The Court refused to give its advice on the question whether a temple existed at the spot, where Babri Masjid was built at Ayodhya.

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Article 143(1) of the Constitution, provides that if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President, its opinion thereon.

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High Courts
India's judicial system is made up of the Supreme Court of India at the apex of the hierarchy for the entire country. These courts have jurisdiction over a state, a union territory or a group of states and union territories. The High Courts are a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts and various other district courts. High Courts are instituted as constitutional under Part VI, Chapter V, Article 214 of the Indian Constitution. The High Courts are the principal civil courts of original jurisdiction in the state along with District Courts which are subordinate to the High courts. However, High courts exercise their original civil and criminal jurisdiction only if the courts subordinate to the High court in the state are not competent (not authorized by law)to try such matters for lack of pecuniary, territorial jurisdiction. High courts may also enjoy original jurisdiction in certain matters if so designated specifically in a state or Federal law. e.g.: Company law cases are instituted only in a High court. However, primarily the work of most High Courts consists of Appeals from lower courts and writ petitions in terms of Article 226 of the Constitution of India. Writ Jurisdiction is also original jurisdiction of High Court. The precise territorial jurisdiction of each High Court varies. Each state is divided into judicial districts presided over by a 'District and Sessions Judge'. He is known as a District Judge when he presides over a civil case and a Sessions Judge when he presides over a criminal case. He is the highest judicial authority below a High Court judge. Below him, there are courts of civil jurisdiction, known by different names in different states. Under Article 141 of the Constitution of India all courts in India which includes High courts are bound by the judgments and orders of the Supreme Court of India by precedence. Judges in a High Court are appointed by the President of India in consultation with the Chief Justice of India and the governor of the state. High Courts are headed by a Chief Justice.

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Fundamental Rights, Directive Principles of State Policy and Fundamental Duties under the Constitution of India Fundamental Rights
Part III - Fundamental Rights is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, color or sex. The seven fundamental rights recognized by the Constitution are16 1. The right to equality 2. The right to freedom 3. The right to freedom from exploitation 4. The right to freedom of religion 5. Cultural and educational rights 6. The right to constitutional remedies Right to Equality Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the Constitution. It is the principal foundation of all other rights and liberties, and guarantees the following:

16

Constitution of India- Part III Fundamental Rights

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Equality before law: Article 14 of the Constitution guarantees that all citizens shall be equally protected by the laws of the country. It means that the State cannot discriminate against a citizen on the basis of caste, creed, colour, sex, religion or place of birth.17

Social equality and equal access to public areas: Article 15 of the Constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes.18

Equality in matters of public employment: Article 16 of the Constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed which requires that the holder of an office of any religious institution shall also be a person professing that particular religion.19

Abolition of untouchability: Article 17 of the Constitution abolishes the practice of untouchability. Practice of untouchability is an offence and anyone doing so is punishable by law.20 The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well.

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Constitution of India- Part III Fundamental Rights Article 14 Constitution of India- Part III Fundamental Rights Article 15 19 Constitution of India- Part III Fundamental Rights Article 16 20 Constitution of India- Part III Fundamental Rights Article 17

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Abolition of Titles: Article 18 of the Constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State.21 The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India these titles were also abolished. However, Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition".

Right to Freedom
The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution. The right to freedom in Article 19 guarantees the following six freedoms:22 All citizens shall have the right

To freedom of speech and expression; To assemble peaceably and without arms; To form associations or unions; To move freely throughout the territory of India; To reside and settle in any part of the territory of India; to practice any profession, or to carry on any occupation, trade or business.

Article 20 provides protection from conviction for offences in certain respects, including the rights against ex post facto laws, double jeopardy and freedom from self-incrimination. Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law. 23 This means

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Constitution of India- Part III Fundamental Rights Article 18 Constitution of India- Part III Fundamental Rights Article 19

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that a person's life and personal liberty can only be disputed if that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.24 However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India25 extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living". Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, clean environment, good health, speedy trial and humanitarian treatment while imprisoned. In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to primary education part of the right to freedom, stating that the State would provide free and compulsory education to children from six to fourteen years of age.26 Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate. The Constitution also authorizes the State to make laws providing for preventive detention, subject to certain other safeguards present in Article 22.

Right against Exploitation

The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely

23 24

Constitution of India- Part III Fundamental Rights Article 21 Maneka Gandhi v. Union of India AIR 1978 SC 597 25 Maneka Gandhi v. Union of India AIR 1978 SC 597 26 86th Amendment Act, 2002

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the abolition of trafficking in human beings and Begar (forced labor),27 and abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the Constitution.28 Begar, practiced in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution is also prohibited by law.

Right to freedom of religion

Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health.29 No person shall be compelled to pay taxes for the promotion of a particular religion.30 A State run institution cannot impart education that is pro-religion.31 Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform. 32

Cultural and educational rights

As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community which has a language and a script of its own has the right to conserve and develop it. No citizen can be
27 28

Constitution of India- Part III Fundamental Rights Article 23 Constitution of India- Part III Fundamental Rights Article 24 29 Constitution of India- Part III Fundamental Rights Article 26 30 Constitution of India- Part III Fundamental Rights Article 27 31 Constitution of India- Part III Fundamental Rights Article 28 32 Constitution of India- Part III Fundamental Rights Article 25

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discriminated against for admission in State or State aided institutions.33 All minorities, religious or linguistic, can set up their own educational institutions in order to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution.34 But the right to administer does not mean that the State cannot interfere in case of maladministration.

Right to Constitutional remedies

Right to Constitutional remedies empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government.35

Directive Principles of State Policy

The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws. The Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions given to the State to guide the establishment of an economic and social democracy, as proposed by the Preamble. The State is expected to keep these principles in mind while framing laws and policies, even though they are non-justiciable in nature.

33 34

Constitution of India- Part III Fundamental Rights Article 29 Constitution of India- Part III Fundamental Rights Article 30 35 Constitution of India- Part III Fundamental Rights Article 32

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Article 37, while stating that the Directive Principles are not enforceable in any court of law, declares them to be "fundamental to the governance of the country" and imposes an obligation on the State to apply them in matters of legislation. Thus, they serve to emphasize the welfare state model of the Constitution and emphasize the positive duty of the State to promote the welfare of the people by affirming social, economic and political justice, as well as to fight income inequality and ensure individual dignity, as mandated by Article 38. Article 39 lays down certain principles of policy to be followed by the State, including providing an adequate means of livelihood for all citizens, equal pay for equal work for men and women, proper working conditions, reduction of the concentration of wealth and means of production from the hands of a few, and distribution of community resources to "subserve the common good". Articles 4143 mandate the State to endeavour to secure to all citizens the right to work, a living wage, social security, maternity relief, and a decent standard of living. These provisions aim at establishing a socialist state as envisaged in the Preamble. Article 43 also places upon the State the responsibility of promoting cottage industries, and the federal government has, in furtherance of this, established several Boards for the promotion of khadi, handlooms etc., in coordination with the state governments. Article 39A requires the State to provide free legal aid to ensure that opportunities for securing justice are available to all citizens irrespective of economic or other disabilities. Article 43A mandates the State to work towards securing the participation of workers in the management of industries. The State, under Article 46, is also mandated to promote the interests of and work for the economic uplift of the scheduled castes and scheduled tribes and protect them from discrimination and exploitation. Article 44 encourages the State to secure a uniform civil code for all citizens, by eliminating discrepancies between various personal laws currently in force in the country. Article 45 originally mandated the State to provide free and compulsory education to children between the ages of six and fourteen years, but after the 86th Amendment in 2002, this has been converted into a Fundamental Right and replaced by an obligation upon the State to secure childhood care to all children below the age of six. Article 47 commits the State to raise the standard of living and improve public health, and prohibit the consumption of intoxicating drinks and drugs injurious to health. As a consequence, partial or total prohibition has been introduced in several The Constitution of India Page 25

states, but financial constraints have prevented its full-fledged application. The State is also mandated by Article 48 to organize agriculture and animal husbandry on modern and scientific lines by improving breeds and prohibiting slaughter of cattle. Article 48A mandates the State to protect the environment and safeguard the forests and wildlife of the country, while Article 49 places an obligation upon the State to ensure the preservation of monuments and objects of national importance. Article 50 requires the State to ensure the separation of judiciary from executive in public services, in order to ensure judicial independence, and federal legislation has been enacted to achieve this objective. The State, according to Article 51, must also strive for the promotion of international peace and security, and Parliament has been empowered under Article 253 to make laws giving effect to international treaties.

Difference between Fundamental rights and Directive Principles of State Policy

Fundamental Rights and Directive Principles of State Policy play an important role in the establishment of the political and socio-economic society in India, it is important for you to learn about the distinction between the two. The Fundamental Rights are claims of the citizens recognized by the state. They are in the nature of denial of certain authority to the government. They are, therefore, negative in nature. The Directive Principles are like positive directions that the government at all levels must follow to contribute to the establishment social and economic democracy in India. Another point of difference is that while the Fundamental Rights are justiciable and are enforceable by the court of law, the Directive Principles are non justiciable. In other words, the Supreme Court and the High Courts have the powers to issue orders or writs for enforcement of Fundamental Rights. The Directive Principles of State Policy, on the other hand, confer no legal rights and create no legal remedies. This doesnt mean that the Directive Principles are inferior or subordinate to the Fundamental Rights. Inspite of these differences, there is a close relationship between the two. Fundamental Rights and Directive Principles are complementary and supplementary to each other. Whereas the Fundamental Rights establish political democracy, the Directive Principles establish economic and social democracy. No government can afford to ignore them while formulating its plans and policies as it is responsible The Constitution of India Page 26

for all its actions to the people in general. Although there is no legal sanction behind these principles, the ultimate sanction lies with the people. The people with their opinion will never let the ruling party to acquire power again if it fails to adhere to these guiding principles. Thus, our Constitution aims at bringing about a synthesis between Fundamental Rights and Directive Principles of state policy. Together, they form the core of the Constitution.

Fundamental Duties (Article 51 A)36

The Fundamental Duties enshrined in the Constitution are intended to obligate all the citizens to strive for the common benefit of all. They are expected to accord respect to the Constitution, the National Tri-colour and the Anthem. They are called upon to strive for upholding the unity and integrity of the country and work for a harmonious society setting aside all divisive tendencies. The citizens of the country have a duty to protect its resources both natural and material and work towards higher levels of achievement. The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years. The other Fundamental Duties obligate all citizens to respect the national symbols of India, including the Constitution, to cherish its heritage, preserve its composite culture and assist in its defence. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life. Citizens are morally obligated by the Constitution to perform these duties. However, like the Directive Principles, these are non-justiciable, without any legal sanction in case of their violation or non-compliance.

Article 51A {Fundamental duties}

It shall be the duty of every citizen of India -

36

Added by 42nd amendment in 1976

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a. to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; b. to cherish and follow the noble ideals which inspired our national struggle for freedom; c. to uphold and protect the sovereignty, unity and integrity of India; d. to defend the country and render national service when called upon to do so; e. to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; f. to value and preserve the rich heritage of our composite culture; g. to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; h. to develop the scientific temper, humanism and the spirit of inquiry and reform; i. to safeguard public property and to abjure violence; j. to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. k. who is a parent or guardian, to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.37

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86th Amendment Act, 2002

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Amendment Provision in the Constitution of India

Amendments of the Indian Constitution have been done for the purpose of variation, addition or cancellation of any provision made in the constitution. It is made with a view to overcome the difficulties which may be encountered in the future in the working of the Constitution. Since the enactment of the Constitution of India on 26 November 1949, there have been 94 amendments made to it till 2006. Numbers of Bills are introduced before Lok Sabha and Rajya Sabha for further improving the Constitution. Parliament has been bestowed with the constituent power, using which changes in the Indian Constitution can be made. However, the basic structure of the Indian Constitution cannot be changed under any circumstances. In case any amendment violates the basic structure of Constitution, it should be revised and changed.

Nature of Amending Process

The nature of amending "amending process" envisaged by the framers of our Constitution can best be understood by referring the following observation of the late Prime Minister Pt. Nehru, "while we want this Constitution be as solid and permanent as we can make it, there is no permanence in the Constitution. There should be certain flexibility. If you make anything rigid and permanent you stop the nation's growth, of a living vital, organic people. In any event, we could not make this Constitution so rigid that it cannot be adopted to changing conditions. When the world is in a period of transition what we may do today may not be wholly applicable tomorrow" practically every Constitution has some formal provisions for amendment of the Constitution. In a rigid Constitution amendment is more elaborate and difficult then enactment of ordinary legislation. In a flexible Constitution, amendment can be effected rather easily, as easily as enacting an ordinary law.

Constitutional Provision for Amendment of the Indian Constitution

Part XX of the Constitution of India deals with the Amendment of the Constitution. The Article 368 specifies the power of Parliament to amend the Constitution and the procedure of it. It is also mentioned in the Article that there will be no limitation on the constituent power of the The Constitution of India Page 29

Parliament for amending it by adding, removing or improving the provisions made in it.

Procedure for the Amendment of the Constitution of India

The method of an amendment to the Constitution is considered to be a highly complicated procedure. Amendment can be made by various methods, which have been modeled based on the South African Constitution. The initial step of an amendment of the Constitution is the introduction of Bills regarding it in any one of the houses of the Parliament. The Bills can be passed by simple majority of the Parliament. Before sending the Bills for President's assent, there can be a voting among the members of Parliament present. If majority of them votes in favor of the amendments, it is accepted. An amendment can also be finalized if two-thirds of the members of Parliament present vote in its favor. However, the number of voters should be more than half of the total number of members of the house. This method is known as 'special majority of the Parliament'. In some cases, Bills for amendments to the Indian Constitution, finalized in this method, may also require the ratification of the Legislatures of at least half of the Indian States.

Important Case Laws related to Amendments

In order to remove difficulties created by the decision of Supreme Court in Golaknaths Case38 parliament enacted the 24th amendment Act39. The amendment has made the following amendments: 1. It has added a new clause (4) to article 13 which provides that 'nothing in this article shall apply to any amendment of this Constitution made under article 368. 2. It substituted a new marginal heading to article 368 in place of the old heading "procedure for amendment of the Constitution". The new heading is "power of parliament to amend the Constitution and procedure thereof." 3. It inserted a sub clause (1) in article 368 which provides that "notwithstanding anything in this Constitution, parliament may, in exercise of its constituent power may amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the

38 39

Golak Nath v. State of Punjab (1967) 2 SCR 762 24th Amendment Act, 1971

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procedure laid down in article" 4. It substituted the words it shall be presented to the president who shall give his assent to the bill and thereupon for the words it shall be presented to the president for his assent and upon such assent being given to the Bill. Thus it is obligatory for the president to give his assent to the bill amending the Constitution. 5. It has added a new clause (3) to article 368 which provides that "nothing in article 13 shall apply to any amendment made under this article." The validity of Constitution (24th amendment) Act 1971, was challenged in Kesavananda Bharti vs. state of Kerala40, the court recognized that there is a distinction between ordinary law and Constitutional law. This could impliedly mean that Art.368 confers power to even abridge a fundamental right and to this extent, Golaknath case was overruled. It was held that power of amendment under article 368 is subject to certain implied and inherent limitations and that in the exercise of amending the basic structure or frame-work of the Constitution. Thus the amending power under article 368 is subject to the qualification that this amending power cannot be exercised to alter the basic structure of the framework of the Constitution. Such as (1) Supremacy of the Constitution. (2) Republican and democratic form of govt. (3) Secular character of Constitution. (4) Separation of power. (5) Federal character of Constitution. In Indira Gandhi vs. Raj Narain41, the sc referred to Kesavananda Bharti case and accepted the doctrine of basic structure of frame work of Constitution. The validity of thirty ninth amendment (1975) of the Constitution was in question. This amendment excluded judicial review of election and law relating to elections. This amendment was held to be invalid by the SC as it altered a basic feature of the Constitution that is the judicial review in election disputes.

40 41

Kesavananda Bharti vs. State of Kerala AIR 1973 SC 1461 Indira Gandhi vs. Raj Narain AIR 1975 SC 2299

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Emergency Provisions
Emergency is a unique feature of Indian Constitution that allows the center to assume wide powers so as to handle special situations. In emergency, the center can take full legislative and executive control of any state. It also allows the center to curtail or suspend freedom of the citizens. Existence of emergency is a big reason why academicians are hesitant to call Indian Constitution as fully federal. Emergency can be of three types - Due to war, external aggression or armed rebellion, failure of Constitutional machinery in a state, or financial emergency. Provisions have been made in the Constitution for dealing with extraordinary situations that may threaten the peace, security, stability and governance of the country or a part thereof. There are three types of extraordinary or crisis situations that are envisaged. First, when there is a war or external aggression has been committed or there is threat of the same, or if internal disturbances amounting to armed rebellion take place; second, when it becomes impossible for the government of a State to be carried on in accordance with the Constitution; and third, if the credit or financial stability of the country is threatened. However, technically, Proclamation of Emergency is only done upon external aggression or armed rebellion. In the second case, it is called Presidential Rule, and in the third case it is called "Proclamation of Financial Emergency.

Proclamation of National Emergency (Article 352)

The Constitution of India has provided for imposition of emergency caused by war, external aggression or internal rebellion. This is described as the National Emergency. This type of emergency can be declared by the President of India if he is satisfied that the situation is very grave and the security of India or any part thereof is threatened or is likely to be threatened either (i) by war or external aggression or (ii) by armed rebellion within the country. The President can issue such a proclamation even on the ground of threat of war or aggression. National Emergency has been declared in our country three times so far. For the first time, emergency was declared on 26 October 1962 after China attacked our borders in the North East. This National Emergency lasted till 10 January 1968, long after the hostilities ceased. For the second time, it was declared on 3 December 1971 in the wake of the second India-Pakistan War and was lifted on 21 March 1977. While the second emergency, on the basis of external The Constitution of India Page 32

aggression, was in operation, third National Emergency (called internal emergency) was imposed on 25 June 1975. This emergency was declared on the ground of internal disturbances. An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has actually happened to proclaim emergency. It can be proclaimed even if there is a possibility of such thing happening.

In the case of Minerva Mills v. Union of India42, SC held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under 352(1). However, court's power is limited only to examining whether the limitations conferred by the Constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.

Prior to 44th amendment, duration of emergency was two months initially and then after approval by the houses, it would continue indefinitely until ended by another proclamation. However after 44th amendment, the period is reduced to 1 month and then 6 months after approval.

Effects of Proclamation of emergency

The following are the effects arising out of proclamation of emergency in art 352. Art 353 1. executive power of the Union shall extend to giving directions to any state. 2. parliament will get power to make laws on subjects that are not in Union list. 3. if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part if that is also threatened. Article 354 It says that provisions of Article 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by the president. Every law such made shall be laid before each house of the Parliament.
42

Minerva Mills v. Union of India42 AIR 1980

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Art 355 It says that it is the duty of the Union to protect States against external aggression. Art 358 It lays down that While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, the government may make laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art 19. It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the end of emergency.

In the case of M M Pathak v. Union of India43, SC held that the rights granted by 14 to 19 are not suspended during emergency but only their operation is suspended. That is as soon as emergency is over; rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the operation of the existing laws. It cannot completely wash away the liabilities that pre existed the emergency. Art 359 This article provides additional power to the president while proclamation of emergency is in operation, using which the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.

43

M M Pathak v. Union of India AIR 1978

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In the case of Makhan Singh v. State of Punjab44, SC distinguished between art 358 and 359 as shown below: Art 358 Art 359 Fundamental rights are not suspended. Only the Freedoms given by art 19 are suspended. courts cannot be moved to enforce fundamental rights. Any actions done or omitted to be done cannot be challenged even after emergency. Art 19 is suspended for the period of emergency. Effective all over the country. Any action done by the legislature or executive can be challenged after the suspension is over. Right to move courts is suspended for the period of emergency or until the proclamation of the president to remove suspension. May be confined to an area.

Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok Sabha by one year each time up to a period not exceeding beyond 6 months after proclamation ceases to expire. From the above discussion, it becomes quite clear that emergency not only suspends the autonomy of the States but also converts the federal structure of India into a unitary one. Still it is considered necessary as it equips the Union Government with vast powers to cope up with the abnormal situations.

Emergency due to failure of Constitutional Machinery in a State(Article 356)

It is the duty of the Union Government to ensure that governance of a State is carried on in
44

Makhan Singh v. State of Punjab44 AIR 1964

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accordance with the provisions of the Constitution. Under Article 356, the President may issue a proclamation to impose emergency in a state if he is satisfied on receipt of a report from the Governor of the State, or otherwise, that a situation has arisen under which the Government of the State cannot be carried on smoothly. In such a situation, proclamation of emergency by the President is called proclamation on account of the failure (or breakdown) of constitutional machinery. In popular language it is called the Presidents Rule.

Effect of Imposition of Presidents Rule in a State

The declaration of emergency due to the breakdown of Constitutional machinery in a State has the following effects: (i) The President can assume to himself all or any of the functions of the State Government or he may vest all or any of those functions with the Governor or any other executive authority.

(ii) The President may dissolve the State Legislative Assembly or put it under suspension. He may authorize the Parliament to make laws on behalf of the State Legislature.

(iii) The President can make any other incidental or consequential.

Financial Emergency (Article 360)

The third type of Emergency is Financial Emergency provided under Article 360. It provides that if the President is satisfied that the financial stability or credit of India or any of its part is in danger; he may declare a state of Financial Emergency. Like the other two types of emergencies, it has also to be approved by the Parliament. It must be approved by both Houses of Parliament within two months. Financial Emergency can operate as long as the situation demands and may be revoked by a subsequent proclamation. During this type of emergency, the President of India may give directions to the Union as well as State Governments to reduce the salaries and allowances of their employees including the judges. The purpose of declaring this type of emergency is to solve the financial crises.

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Effects of Financial Emergency

The proclamation of Financial Emergency may have the following consequences: (a) The Union Government may give direction to any of the States regarding financial matters. (b) The President may ask the States to reduce the salaries and allowances of all or any class of persons in government service. (c) The President may ask the States to reserve all the money bills for the consideration of the Parliament after they have been passed by the State Legislature. (d) The President may also give directions for the reduction of salaries and allowances of the Central Government employees including the Judges of the Supreme Court and the High Courts. So far, fortunately, financial emergency has never been proclaimed.

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Bibliography
List of Books D. D Basu, Shorter Constitution of India, (Wadhwa & Company Law Publishers,
Nagpur, 13th edn., 2004)

P.M. Bakshi., The Constitution of India, (Universal Law Publishing Co., New D, 9th
edition, 2009)

H.M. Seervai, Constitutional Law of India, (Universal Publishing Pvt. Ltd., 4th edn.,
Vol. I)

List of Cases Golak Nath v. State of Punjab (1967)2 SCR 762 In Re: Berubari Union(1)(1960) 3 SCR 250 Indira Gandhi v. Raj Narain AIR 1975 SC 2299 Indra Sawhney v. Union of India AIR 1975 SC477 Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461 Kiran v. State of Andhra Pradesh(1990) 1 SCJ 282 M M Pathak v. Union of India AIR 1978 Makhan Singh v. State of Punjab AIR 1964 Maneka Gandhi v. Union of India AIR 1978 SC597 Minerva Mills Ltd. v. Union of India (2980) 3 SCC 625 Nain Sukh Das v. State of Uttar Pradesh 1953 SCR 1184 S.P. Gupta v. Union of India 1981 (Supp) SCC 87 S.R. Bommai v. Union of India (1994) 3 SCC 1

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