UNIT 1

THE CONSTITUTION OF INDIA

1) The Basic Concept of a 'Constitution' and
the Scope of the Constitution of India

2) Fundamental Rights and Writs

3) Directive Principles of State Policy

4) Supreme court decisions and its binding

effect (Article 141)

5) Ordinance Power of the President of India

Basic concept and scope of the Constitution of India
 Basic Concept of a Constitution: Introduction
• India has one of the oldest legal systems in the world. Its law and jurisprudence stretches
back into the centuries, forming a living tradition which has grown and evolved with the lives of
its diverse people.
• India's commitment to law is created in the Constitution which constituted India into a
Sovereign Socialist, Secular, Democratic Republic, containing a Federal system with a
Parliamentary form of Government in the Union and the States, an Independent Judiciary,
guaranteed Fundamental Rights and the Directive Principles of State Policy containing
objectives which though not enforceable in law are fundamental to the governance of the
nation.
• The Constitution is the document that acts as the 'Bed rock', the 'Foundation' for the Laws,
Regulations, Legislations and Rules made in a State. A Constitution sets out the fundamental
principles by which the state is governed and describes the main institutions of the state, and
defines the relationship between these institutions (for example, between the executive,
legislature and judiciary) in form of ‘Articles’ and ‘Schedules’.
• A Constitution places limits on the exercise of the power by the State and the Government,
defining the limits to which they can operate to ensure that the Fundamental Rights of the
Citizens are guaranteed and safeguarded, ensuring that they will be able to lead a dignified and
fulfilling life.
• The Constitution of India charges the Supreme Court of India to protect the Fundamental
Rights of the Citizens. The Supreme Court, under Article 32 of the Constitution, charges itself
responsible for ensuring the sanctity of the Fundamental Rights and the Constitution by issuing
‘Writs’ to the Governments (the State Govts & the Central Govt), the Institutions of the State –
The Officers and Offices of the Govt (For example, the Police) and to the lower Judiciary – (High
Courts, District Courts, Tribunals, etc.)
• The Scope of the Constitution of India, extends throughout the territory of India and under
the Authority of the Constitution of India, the Judiciary can declare any law or legislation which
goes against the Constitution (that is, is in violation of the Articles and Schedules mentioned in
the Constitution) as Unconstitutional and can order it to be expunged (removed) or modified.
Historic background of the Constitution of India
• The origin and growth of the Indian Constitution have its roots in Indian history during the
British period. From 1773 onwards, various Acts were passed by the British Government for the
governance of India. None of them, however, satisfied Indian aspirations mainly because they
were imposed by the alien rulers, for their own benefit, not for the welfare of the people in
India

• The period of historical British Constitutional experiments in India can be divided into two
phases:

• Phase 1- Constitutional experiment during the rule of the East India Company (1773-1857)

• Phase 2 – Constitutional experiments under the British Crown (1857-1947)

(1) Regulating Act of 1773: The process of Centralization in India was initiated through the
Regulating Act of 1773.

This is the first Act passed by the British Parliament to control and regulate the affairs of the
East India Company in India.

• As per this Act, the Governor of Bengal was made the Governor-General.
• Warren Hastings was the first Governor-General of India.
• This Act made Governors of Bombay and Madras subordinate to the Governor of Bengal.
• The Governor-General was given the power to make rules and regulations.
• The Governor-General was assisted by a Council of 4 members.
• The number of Directors in the Company was fixed at 4.
• The Governor-General had to follow the orders of the Directors of the Company.
• Revenue of the company should be reported by The Court of Directors, who were the
governing body of the company
• A Supreme Court was established at Calcutta in 1774, as per the provisions of Regulating Act
1773.
• The Supreme Court had a Chief Justice and 3 Assistant Judges.
(2) Pitts India Act of 1784: In the Constitutional history of India, this Act brought in many
significant changes.

As per this Act of 1784, the territories of East India Company was called as the “British
Possessions in India”

• As per this Act, a joint Government of British India run by the Crown and Company was
established. The government had the ultimate power and authority.
• A Court of Directors was formed for Commercial Operations and 6 member Board of Control
were appointed for Political affairs as per provisions of Pitts India Act 1784.
• Governor General’s Council was reduced from 4 members to 3 members.
• Governors Councils were established in Bombay and Madras.
(3) Charter Act of 1813

• It brought an end to the monopoly of East India Company, over trade with India.
• Trade with India was opened for all British Citizens with the exception of Tea Trade.

(4) Charter Act of 1833

• Governor-General of Bengal became the Governor-General of India.

• Lord William Bentick was the 1st Governor-General of India.
• East India Company ended as a mere administrative body, it was no longer a commercial body.
• The Governor-General was given full control over revenue, civil and military.
• Charter Act of 1833 was the final step in the Process of Centralization in India, a process that
began with the Regulating Act of 1773.
(5) Charter Act of 1853

• Civil Service Examination was introduced. It was a competitive examination for recruitment
into the civil services.
• Executive and Legislative functions of the Governor-General were separated.
• This Act provided for the addition of 6 new members to the Legislative Council, 4 members
were appointed by Provisional Governments of Bengal, Bombay, Madras and Agra.
• As per provisions of Charter Act of 1853 Governor General’s Legislative Council came to be
known as the Central Legislative Council.
• The Central Legislative Council started functioning as a Mini-Parliament. It adopted the same
procedures of the British Parliament.
Constitutional Development – Rule under the British Crown (1857-1947)

This begins the 2nd phase of the Constitutional development under the British Crown.

(1) Government of India Act of 1858

• Government of India Act of 1858 passed by British Parliament, brought an end to the rule of
East India Company. The powers were transferred to the British Crown.
• The Secretary of State for India was given the powers and duties of the former Court of
Directors. He Controlled the Indian Administration through the Viceroy of India.
• The Secretary of State for India was assisted by the Council of India. This Council had 15
members. The Council was an advisory body.
• Governor-General of India was made the Viceroy of India.
• Lord Canning was the 1st Viceroy of India.
(2) Indian Council Act of 1861

• Indians were nominated as non-official members for the 1st time in the Legislative Council of
Viceroy.
• Legislative Councils were established in Provinces and Centre.
• Legislative powers of the Provinces of Bombay and Madras were restored.
• Legislative Councils were started in the Provinces of Punjab, North-Western Frontier Province
(NWFP), Bengal.

(3) Indian Council Act of 1892

• The size of the Legislative Council was increased.

• The Legislative Council was given more power, they had the power to deliberate on the Budget
and could pose questions to the Executive.
• Indirect elections were introduced for the 1st time.
• The Principal of Representation was introduced as per provisions given in the Indian Council
Act of 1892.
(4) Indian Councils Act, 1909 or the Morley Minto Reforms

• Indian Councils Act of 1909 is commonly known as Morley Minto Reforms.

• For the 1st time, Direct elections were introduced for the Legislative Councils.
• The Central Legislative Council was renamed as the Imperial Legislative Council.
• The Communal representation system was introduced by giving separate electorate. It was a
system where seats were reserved only for Muslims and only Muslims would be polled.
• For the first time, Indians were appointed to the Executive Council of Viceroy. Satyendra Sinha
was the law member.
(5) Government of India Act, 1919 – Montagu Chelmsford Reforms

• Government of India Act, 1919 was also known as the Montagu Chelmsford reforms.
• Bicameralism was introduced for the 1st time.
• Provincial and Central Subjects were separated.
• Dyarchy, a scheme of Dual Governance was introduced in the Provincial Subjects, it was
divided into Reserved and Transferred. The transferred list included agriculture, health,
education, and supervision of the local government. The Transferred list was given to the
Government of Ministers answerable to Provincial Council. The reserved list included
communications, foreign affairs, defence; this transferred list was under the control of Viceroy.
(5) Government of India Act, 1919 – Montagu Chelmsford Reforms

• Out of 6 members in Viceroy’s Executive Council, 3 of them were Indians.

• The Act provided provisions for the establishment of the Public Service Commission in India
for the first time.
• Communal Representation extended to Christians, Anglo-Indians, Sikhs.
• The franchise was given to a limited population which was based on people who had taxable
income, had property and paid land revenue of Rs 3000.
• Montagu Chelmsford Reforms made provision for setting up a statutory commission at the end
of 10 years to look into the working of the Government.
(6) Government of India Act, 1935

This was the longest and last constitutional measure introduced by British India. It was the
result of multiple round table conferences and a report by the Simon Commission.

• Bicameralism was introduced in 6 Provinces (Bengal, Bombay, Madras, Assam, Bihar, United
Provinces) out of 11 provinces.
• The Legislature in the provinces were enlarged.
• As per the Act, the powers were divided into Federal List, Provincial List and Concurrent List.
• Provincial autonomy was introduced in the Provinces by abolishing the Dyarchy.
• There was provision for the adoption of Dyarchy at the Centre.
• Provided provisions for establishing Federal Court, Reserve Bank of India (RBI).
• There was provision for the establishment of All India Federation consisting of Provinces and
the Princely States as units.
• Due to the length of Government of India Act 1935, it was divided into 2 separate Acts.
(7) Cripps Mission – 1942

In 1942 Cripps Mission was sent to India under the leadership of Sir Stafford Cripps. Some of
the proposals given by the Cripps Mission are given below.

• Dominion status would be given to India, after the 2nd World War.
• Once the Second World War ends, an elected body would be set up in India for framing of
Indian Constitution.
• The even the Indian States would participate in the Constitution-making body.
• Almost all the Parties and sections in India rejected the proposals given by the Cripps Mission.

(8) Mountbatten Plan – Indian Independence Act – 1947

• British India was partitioned into India and Pakistan with effect from 15th August 1947.
• Conferred complete legislative authority to the Constituent Assembly.
• Established Governments in both Provinces and States.
(9) Cabinet Mission – 1946

Some of the main proposals of the Cabinet Mission plan was

• The Indian States and British Provinces would combine to form Union of India
• A Constituent Assembly would be established consisting of 389 members.
• 14 members from Major political parties would form an interim government
• A representative body would be formed named as the Constituent Assembly.
• Until the Constitution was framed, the Constituent Assembly would act as the Dominion
Legislature.
• Until the Constitution was framed, India would be administered as per the Government of
India Act, 1935.
• Between 1947 - 1950:
• Post 1947 – 1950, India was formally known as the ‘Dominion of India’. A ‘Dominion’ is a
country which is less dependent, compared to countries known as ‘Dependencies’ on the
mother country (Empire of Britain) governed under Indian Independence Act 1947 and
Government of India Act 1935.
• The Head of the State was the Last Viceroy of India, Lord Albert Victor Nicholas Louis Francis
Mountbatten, the 1st Earl Mountbatten of Burma who served during (21 February 1947 — 15
August 1947) and following him the first and last Indian ‘Governor General of the Dominion
India’ - C. Rajagopalachari (21 June 1948 – 26 January 1950).
• Following independence, a need for a new Constitution for India was needed, as its existence
signified as the ultimate proof of independence of the country, for which the Constituent
Assembly of India was elected which enforced the existing laws (created before 1947) and
created new legislations, such as the Factories Act, 1948, etc. and handled the responsibilities
of the governance of the Dominion.
• The enactation of the Constitution of India transformed the country from a Dominion into a
Independent, ‘Sovereign’ Republic.
• The Constitution of India was created by the Constituent Assembly of India, which also
served as the ‘Parliament’ (Legislative, Law making body) for the Dominion of India in the
interim period between 1947 – 1950, following which it was dissolved.
• Dr. Rajendra Prasad was elected as the Chairman of the Constituent Assembly of India and
the members of the Constituent Assembly, elected to the Assembly via Provincial elections
held in the year, 1946 discussed and debated on the question of what was to be included or
incorporated into the Constitution of India.
• Bharatratna. Dr. Bhimrao Ambedkar, was appointed as the Chairman of the Drafting
Committee by the Constituent Assembly of India and he was charged with the responsibility
of drafting the Constitution of India incorporating the gist of all the debates, discussions and
resolutions held by the Assembly on its formation.
• Dr. Ambedkar formally introduced the 'Draft Constitution of India' on date 4th November
1948 in the Constituent Assembly of India. The Constitution of India was formally adopted, on
date 26 November 1949 and it was brought in force on date 26 January, 1950 marking the
transition of India from a ‘Dominion’ to an ‘Independent Republic’.
• The Constitution of India was formally adopted, on date 26 November 1949 and it was
brought in force on date 26 January, 1950 marking the transition of India from a ‘Dominion’ to
an ‘Independent Republic’.
• To preserve the solemnity and the sanctity of the Constitution of India, it was decided that
the final version of the document copy, be made into a work of art by means of calligraphy.
The edge of the pages within the constitution were illuminated, beautiful illustrations
describing various national and cultural symbols of the Republic were included in it and was
accomplished by a team of Nandalal Bose, known as the artist laureate of India, and his
students, from Kala Bhavan (Institute of Fine Arts), Visvabharati University. The Calligraphy was
done by the calliagrapher, Prem Behari Narain Raizada over the period of 6 months.
• The version thus produced was lithographed at the Survey of India Office at Dehradun and
1000 original copies were produced and were distributed across the country and to other
prominent countries in the world. An original document copy of the Constitution of India so
produced above is preserved in a temperature and environment controlled enclosure in the
Library of the Parliament of India.
• The Constitution of India is a ‘semi-rigid’ document, which permits amendments to the
Constitution and it has been amended 106 times, since it came into force in 1950 with the
latest amendment taking place on date 18 September 2023. While certain amendments only
require a simple majority in the Parliament, others require more complicated procedures, like a
special majority, and ratification from state legislatures.

• The Constituent Assembly of India studied the Constitutions, Formation Documents and
other important founding enactments made by 11 countries in the world for consideration
and inclusion into the body of the Constitution of India.

• The United States of America, The United Kingdom, Canada, Republic of Ireland, France,
Australia, USSR, South America, Germany, Russia, Japan were the countries whose
Constitutions were studied by the Members of the Constituent Assembly of India
Major sources of the Constitution of India
Draft Copy Version of the Constitution of India
 Final Version of the Constitution of India

Cover page of the final version that Preamble to the Constitution of

was adopted by the Constituent India, as adopted by the
Assembly of India Constituent Assembly of India
Amended Preamble following the 42nd Amendment to the Constitution of India
THE PREAMBLE, PARTS AND SCHEDULES OF THE
CONSTITUTION OF INDIA
 Components of the Constitution of India: PREAMBLE
• WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens:
• JUSTICE, social, economic and political;
• 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.
 Components of the Constitution of India: PREAMBLE
• The Preamble indicates that the validity behind the constitution is from the
people of the country itself.

• The Preamble uses the words - SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC,

AND REPUBLIC concepts to describe the State (that is India). The word
SOVEREIGN means that India is an independent country, free to make its own
laws without fear or influence from any other country in the world.

• The word 'REPUBLIC' means that the Head of the State (and the Government) is
elected by and from the people of India by means of election. The term
‘DEMOCRATIC’ in the Preamble states that India is a democracy, governed by its
people who are accountable to the citizens and to the country.
 Components of the Constitution of India: PREAMBLE
• The Preamble was amended in the 42nd Amendment to the Constitution on 18
December 1976 and was brought in force on date 3 January 1977. Two new
words ‘SOCIALIST’ and ‘SECULAR’ were added to it vide the amendment.

• The word ‘Socialist’ was included in the Preamble to provide recognition of the
responsibility of the State for ensuring the welfare of the citizens of India. The
word ‘Secular’ was included to represent Indian society’s secular nature.
The Parts of the Constitution of India
Components of the Constitution of India: PARTS
Components of the Constitution of India: PARTS
 Components of the Constitution of India: PARTS
• Part I of Indian Constitution is titled The Union and its Territory. It includes articles from 1- 4.
Part I is a compilation of laws pertaining to the Constitution of India as a country and the
union of states that it is made of.

• Part II of the Constitution of India (Articles 5-11) deals with the Citizenship of India and
describes the Rights of Citizenship of persons born in India, migrating from Pakistan, persons of
Indian origin and also speaks about the persons who renounce their citizenship of India and
charges the Parliament to make laws on these articles.

• Part III describes the Fundamental Rights of the Citizens of India (Articles 12 - 35) and were
included to safeguard the citizens from the coercive power of the State and to ensure the
development of the personality of every individual and to preserve human dignity. There are
seven categories of Fundamental Rights (FR) which are covered from Articles 12-35. The
Fundamental Rights are available for all the Citizens of the country and the Constitution of
India holds the Supreme Court of India responsible for safeguarding the sanctity of the
Fundamental Rights.
 Components of the Constitution of India: PARTS
• Part IV (Articles. 36 to 51) of the Constitution of India deals with the Directive Principles of
State Policy (DPSP). DPSP are ideals which are meant to be kept in mind by the state when it
formulates policies and enacts laws. Unlike the Fundamental Rights, the Directive Principles of
State Policy cannot be enforced by the Judiciary and are considered as necessary and essential
for enactation of legislations within the country.
 Components of the Constitution of India: PARTS
• Part IV (A) (Article 51 (A)) describes the Fundamental Duties of the Citizens of India and were
added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the
Swaran Singh Committee that was constituted by the government earlier that year.

• Similar to the Directive Principles, these cannot be enforced by the law, but Clauses (b), (d), (f),
(h), (j) and (k) require the citizens to perform these Fundamental Duties actively. There are six
positive duties which are expected to be done by the citizens of our country and there are five
negative duties which are not expected to be carried out by the citizens.

• It is to be noted that violation of certain duties within Article 51 A is a punishable offence, for
example a person can be prosecuted under Section 3 of the Prevention of Insults to National
Honor Act, 1971 if he is found to have disrespected the National Flag of India, whose respect is
to be ensured by the Citizens under this Article.
 Components of the Constitution of India: PARTS
• Part V (Articles. 52 to 151 ) of the Constitution of India deals with the Union (Comprising of
the Legislature, the Executive, the Judiciary and the Comptroller & Auditor General of India).
This part deals with the President of India, the Vice President of India, the Prime Minister and
the Union Council of Ministers, the Parliament of India and the Union Judiciary of India (The
Supreme Court of India) and describes their respective powers, duties and responsibilities to
the country and its people.

• Part VI (Articles. 152 to 237 ) of the Constitution of India deals with the States (Comprising of
the Executive, the State Legislatures and the Judiciary). This part describes the State
Governors, the Chief Ministers and the State Council of Ministers, the State Legislatures and
Legislative Councils and the Judiciary (High Courts and the Sub-Ordinate Judiciary)
 Components of the Constitution of India: PARTS
• Part VII (Article 238) (REPEALED) The Seventh part of the Indian Constitution was known as
“The States in Part B of the First Schedule”. It had only one article – that is, Article 238. It was
repealed by the Constitution (Seventh Amendment) Act, 1956. This Article dealt with the
governing structures of the States of India, prior to the enactation of the States Reorganization
Act, 1956 and the Seventh Amendment Act, through which this article was removed.
• This removal was necessitated as the alteration of the States following the States
Reorganization Act, 1956 had changed the map of the country as the ‘Part B’ States mentioned
in this Article had been eliminated, following the passage of the Act.
• Prior to the enactation of this Act, the States were organized in India on basis of Governance–
Part A (Governed by the Governor & State Legislatures), Part B (Governed by the
‘Rajyapramukhs [Former Kings of the provincial kingdoms which came into the Union of India
and were appointed by the President of India ] and the State Legislatures, Part C (Governed by
the Chief Commissioners appointed by the President of India due to their miniscule size and
Part D (Governed by the Lieutenant Governor appointed by the President of India).
• To prevent a possible constitutional crisis, this Part was removed.
 Components of the Constitution of India: PARTS
• Part VIII (Articles. 239 to 242 ) of the Constitution of India deals with the Union Territories of
India and Charges the President of India with the responsibility of their administration for the
country. This part makes a special mention about the National Capital of Delhi, noting its
unique position in the country and has made special provisions for it.

• Part IX [Articles. 243 (A) to 243 (O)] of the Constitution of India deals with the Panchayats
(the Administrative Bodies for the Villages in India) and describes how the Panchayats are to
be formed and how they are to carryout their duties and responsibilities to the areas under
their jurisdiction.

• Part IX (A) [Articles. 243 (P) to 243 (ZG)] of the Constitution of India deals with the system of
Municipalities or Urban Local Governments for the towns and cities in India and was
constitutionalized through the 74th Constitutional Amendment Act of 1992. This part describes
the Urban Local Governments (Municipalities, Municipal Corporations, etc.) of the towns and
cities in India and their duties, powers and responsibilities in the areas under their
jurisdictions.
 Components of the Constitution of India: PARTS
• Part IX (B) [Articles. 243 (H) to 243 (ZT)] of the Constitution of India deals with the co-
operative societies and contains provisions for their democratic functioning. It was inserted by
the Constitution (Ninety-seventh Amendment) Act, 2011. This part applies to Multi State Co-
Operative Societies and Societies within the Union territories in the country.

• Part X [Articles. 244 to 244 (A)] of the Constitution of India deals with the administration of
Scheduled Area and Tribal Areas mentioned in the fifth and sixth schedules of the
Constitution. Article 244(1) of the Indian Constitution has mentioned scheduled areas and
special provision for the administration of such areas are mentioned in the 5th schedule of the
Constitution and includes certain areas in States other than Assam, Meghalaya, Tripura, and
Mizoram. Tribal areas are mentioned under 244(2) and provision regarding their administration
is found in the 6th schedule. It deals with the tribal areas in Assam, Meghalaya, Tripura, and
Mizoram. Responsibility for the governance of these areas is vested with the State Governors
and the President of India.
 Components of the Constitution of India: PARTS
• Part XI (Articles. 245 to 263] of the Constitution of India describe the three types of relations
between the Union and the States i.e. Legislative (Related to formation and applicability of
laws and legislations by the Union, the States and by the Union on the States), Administrative
(Related to (Related to administration and jurisdiction of laws and legislations by the Union,
the States and by the Union on the States), and Financial (Related to collection of monies by
way of taxes and duties by the Union, the States and shared by the Union with the states).

• Part XII [(Articles. 264 to 300 (A)] of the Constitution of India describes the financial
provisions within the territory of India including those related to taxation, definition of various
Funds, the right to hold property, and borrowing by Union and State governments.

• Part XIII (Articles. 301 to 307) of the Constitution of India describe the freedom of the citizens
of india to engage in trade and commerce activities within the country subject to reasonable
restrictions imposed by the Union and the States in public interest and to prevent unfair
activities such as illegal restrictions in trade, artificial scarcity, etc.
 Components of the Constitution of India: PARTS
• Part XIV (Articles. 308 to 323) of the Constitution of India describe the Civil Services of the
Union and the States and the Recruitment and conditions of service, Tenure and
Dismissal/Removal/Reduction in Rank of the persons serving the Union or the States and the
persons employed in civil capacities under the Union or the States. This part also speaks about
the All-India Services, the initiation for the creation of any new All-India Services to be done
from the Council of States of India (Rajya Sabha).

• Part XIV (A) [(Articles. 323 (A) to 323 (B)] of the Constitution of India describe the Tribunals,
which are institutions established for discharging judicial or quasi-judicial duties for reducing
the case load of the judiciary or to bring in subject expertise for technical matters, for which
special knowledge or experience may be required to ensure proper disposal of the cases.
 Components of the Constitution of India: PARTS
• Part XV [(Articles. 324 to 329 (A)] of the Constitution of India describe the process and
procedure for elections to be held within the country for the Houses of Parliament (the Lok
Sabha and the Rajya Sabha), the Legislatures (and Legislative Councils) of the States and special
provisions regarding the election of the Prime Minister and the Speaker of the Lok Sabha. This
part also describes the Election Commission of India.

• Part XVI [(Articles. 330 to 342 (A)] of the Constitution of India describe the Special Provisions
relating to the Scheduled Castes, Scheduled Tribes, the Backward Classes and the Anglo
Indian Community of India

• Part XVII (Articles. 343 to 351) of the Constitution of India describe the provisions made
regarding the official language of the Union and the States in India for all communication,
administrative and other purposes regarding the usage of the official languages within the
States and the Union of India.
 Components of the Constitution of India: PARTS
• Part XVIII (Articles. 352 to 360) of the Constitution of India describe the provisions made
regarding emergency or emergency situations within the territory of India. and provides for
the Proclamation of a State of Emergency within the Union by the President of India.
• Three types of Emergencies are described –
• 1) National Emergency (War, and or External Aggression) and Internal Emergency (Armed
rebellion). (Article 352)
• 2) Financial Emergency (A situation wherein the financial stability or credit of India or any part
of its territory is threatened) (Article 360)
• 3) Constitutional Emergency, wherein the President can issue a proclamation if he is satisfied
that a situation has arisen in which the government of a state cannot be carried on in
accordance with the provisions of the constitution. (Article 356).
• Post declaration of a state of Emergency (National) Fundamental Rights (Except for Articles
20 and 21) can be suspended under Article 359 of this Part of the Constitution of India until
the period of Emergency persists within the Country. (Not applicable for Constitutional
Emergency under Article 356)
 Components of the Constitution of India: PARTS
• Part XIX (Articles. 361 to 367) of the Constitution of India describe the miscellaneous
provisions in the Constitution of India relating to the protection of the President and the
Governors, proceedings related to the Parliament and the State Legislatures, Special provisions
as to major ports and aerodromes, etc.

• Part XX (Article. 368) of the Constitution of India describe the process and procedure
regarding making of Amendments or Modifications to the Constitution of India by the
Parliament of India.

• Part XXI (Article. 369 - 392) of the Constitution of India describe the temporary, transitional
and special provisions made regarding the Parliament and to the States of India
 Components of the Constitution of India: PARTS
• Part XXII (Article. 393 - 395) of the Constitution of India describe the details regarding the
titling of the Constitution of India, the date of commencement, the authoritative Hindi text
and other legislations which were repealed by it.
The Schedules in the Constitution of India
Components of the Constitution of India: SCHEDULES
Components of the Constitution of India: SCHEDULES
Components of the Constitution of India: SCHEDULES
Components of the Constitution of India: SCHEDULES
Components of the Constitution of India: SCHEDULES
The Fundamental Rights under the Constitution of India
 The Fundamental Rights
• Part II of the Constitution of India describes the Fundamental Rights of the Citizens of India.
The reason why they are called FUNDAMENTAL because they protect the liberties and
freedom of the citizens against any invasion by the state, and prevent the establishment of
authoritarian and dictatorial rule in the country. They are very essential for the all-around
development of individuals and the country.

• Fundamental rights are essentially human rights but are regulated by the Constitution in
India. They integrate the Citizen with the society and at the same time they incorporate
educational value also, a citizen is able to understand the importance of all the members of the
society. The Constitution provides for enforcement of these rights hence they have legal value
also which empower a citizen to protect, respect and fulfil the rule of law. They uphold the
equality of all individuals, the dignity of the individual and the nation’s unity.
 The Fundamental Rights
• Nature of the Fundamental Rights

• 1) They are not absolute and are subject to reasonable restrictions subject to the conditions
of state security, public morality and decency and friendly relations with foreign countries.

• 2) Fundamental Rights are guaranteed by the Constitution of India which holds the Supreme
Court of India responsible to guarantee their sanctity, security and availability to the people of
India

• 3) Fundamental Rights can be restricted or suspended (Except for Articles 20 and 21) during
the period of Emergency.

• 4) It is through the Fundamental Rights that a Citizen of India can lead a dignified and
fulfilling life.
 The Fundamental Rights
• 5) They protect the citizens from the excessive or coercive power of the State and it is
through them that 'a rule of law' is ensured wherein the Government or the State is
answerable if it takes steps for curtailing, restricting or preventing any citizens from enjoying
their rights thereby preventing the formation of a dictatorship in the country.

• 6) They are the fruits of the freedom struggle - The fundamental rights are the ultimate proof
of the freedom and independence of the country and is the end result of the long fought
freedom struggle against the colonial oppressors.

• 7) They act as a 'yardstick' for measurment of extent of freedom. A citizen can 'measure' how
free he is by comparing the freedoms available to him under the Fundamental Rights with
other countries.

• 8) They represent the values that are cherished by the people since ancient times and are
calculated to protect the dignity of individual and to create conditions in which every human
being is able to develop his personality to the fullest. These rights are necessary for a human
being for attaining full social, intellectual, and spiritual status.
 The Fundamental Rights
• The Scope of the Fundamental Rights is very wide. The Supreme Court (SC) in the A K Gopalan
v State of Madras AIR 1950 had held that the various rights given under part III talk about
different things and are not be interlinked. This view, however, has been rightly rejected by the
SC in the Maneka Gandhi v Union of India AIR 1978 case. In this case, J Bhagvati said that the
role of SC should be to interpret these rights in the widest possible manner and it should not
attenuate these rights by being confined to their narrow definition.
• All these rights are not mutually exclusive and form an integrated theme of the constitution. J
Beg said that their waters must mix to form a grand flow of unimpeded and impartial justice.
Thus, any law that takes away the life or liberty of a person, must also satisfy the test of
reasonableness under art. 14
• In Maneka Gandhi’s case, SC has held that any law that takes away the life or liberty of a
person under art. 21, must be just, fair, and reasonable. It must satisfy the principle of natural
justice, which is a basic component of fair procedure under Art. 21. While Art 21 does not
contain the “due process” clause of the American Constitution, the effect is the same because
natural justice is a distillate of due process i.e. natural justices can only be delivered through
due process.
Challenges to the Fundamental Rights
 The Fundamental Rights
• As previously mentioned, the Fundamental Rights are NOT ABSOLUTE and when it comes to
their actual usage or enjoyment, certain challenges and questions arise regarding the usage
or enjoyment of the Fundamental Rights.

• The extent of the power granted by the Fundamental Rights can be put to a stern test in the
name of National Security, Nationalism, and exercise of private and political agenda even
during pandemic and medical emergency situations. Fulfilling the responsibilities given to it by
the Constitution, the Judiciary often delivers landmark verdicts from time to time whenever
there is any infringement of fundamental rights to any citizens.
 The Fundamental Rights
• As charged by the Constitution, the Supreme Court of India performs its role as the Guardian of
Fundamental Rights, by examining the constitutionality of any statute or law passed besides
promulgate orders for waiver and interpreter of Fundamental Rights all under the stipulated
Basic structure of our Constitution.
• However, often these fundamental Rights are subject to challenges and legal scrutiny to give
birth to new definitions and perspectives suited to changing needs of our society. We shall now
view the challenges or questions arising before the usage of these Rights in general
 The Fundamental Rights
• Fundamental Rights are vital for development of the personality of every individual and to
preserve human dignity. Challenges in the exercise of these Rights often threaten the
democratic values embedded in our Constitution.

• The basic structure doctrine found as our judicial principle reiterating the essence of our
constitutional concepts should never be subjected to any alteration or destruction by any
legislative process as the fundamental rights granted to each and every citizen of this country is
paramount to stay in its true spirits.
 The Fundamental Rights
• The Right to Life with Human Dignity forms part of every brick constructed in the huge
monument of our Sovereign Socialist Secular Democratic Republic country studded with the
concepts of social, economic and political Justice in tune with Liberty of thought, expression,
belief, faith and worship and Equality of status and of opportunity to promote Fraternity
assuring the dignity of each and every citizen in order to preserve and protect the unity and
integrity of our Great Nation.

• Challenges in the exercise of fundamental rights often calibrates or rejuvenates the spirit of
democracy and makes us unique amongst the top democratic countries in the world.
The Power of ‘Writs’ of the Judiciary of India
 The Power of ‘Writs’ of the Judiciary of India
• Writs are a written order from the Supreme Court or High Court that commands
constitutional remedies for Indian Citizens against the violation of their fundamental rights.

• Article 32 in the Indian Constitution deals with constitutional remedies that an Indian citizen
can seek from the Supreme Court of India and the High Courts against the violation of his/her
fundamental rights.

• Article 32 gives the Supreme Court power to issue writs for the enforcement of rights
whereas the High Court has the same power under Article 226.

• Five kinds of Writes can be issued by the High Courts and the Supreme Court of India
• Five kind of Writs which can be issued:

1. HABEAS CORPUS

2. MANDAMUS

3. PROHIBITION

4. CERTIORARI

5. QUO WARRANTO
 1) HABEAS CORPUS
• Literal meaning of Habeas Corpus is 'to have the body of'. This type of writ is used when
unlawful detention has occurred to enforce the fundamental right of individual liberty. When
this writ is issued, a person or a authority who has arrested a another person has to bring that
another person before the court.

• Rules for Habeas Corpus:

1. The applicant should be in a custody of other,

2. Family members can file an application or stranger can also file application in public interest,
3. Formal or Informal application can be filed,
4. Same application cannot be made successively to different judges of same court,
5. All or part of formalities and procedures should not be followed by police while making the
arrest, etc.
 1) HABEAS CORPUS
• An Example: (From the Movie Gangajaal): SP Amit Kumar detains two thugs, Munna and Kesari
who were working for Sunder Yadav, the son of the strongman of Tezpur, Sadhu Yadav, after
they had hurled a petrol bomb at him. He orders Sub Inspector Baccha Yadav and the other
policemen to keep them in the police cell. Baccha Yadav asks SP Amit Kumar, whether an F.I.R
was to be filed, but SP Amit Kumar says no and asks him to watch over the detainees in the cell.

• Later, a major fight occurs where the detainees are grievously beaten and harmed by Sub
Inspector Baccha Yadav and his colleagues, which causes major attention in the media. Being
that SP Amit Kumar had asked Baccha Yadav not to file an F.I.R, this results in an departmental
enquiry against the police officers for letting such an incident happen.

• The reason why this could have happened is because of this writ.
 2) MANDAMUS
• Literal meaning of Mandamus is 'we command.' This type of writ is used when a public
official or public body or corporation or lower court or tribunal or even the government has
not done the needed duty or refused to do. After this writ is issued, the duty needs to be
resumed.

• Rules for Mandamus:

1. Petitioner must have a right recognized by law

2. Infringement of the right must be done,
3. Petitioner must demand the authority to perform the duty and non-performance of the duty
must be present,
4. Other remedy must be absent,
5. Petitioner must prove that a duty is owed to him and authority has not performed the duty,
6. The non-performed duty must be mandatory duty, etc.
 2) MANDAMUS
• An Example: Apeksha is living in Mumbai. Her husband, Gopal has a rivalry with one of his
former friends, Mohan who is working in the electricity board (MSEB) and had often tried to
convince Apeksha to divorce Gopal and marry him. One day, Mohan drinks a lot of alcohol and
misbehaves with Apeksha as she had refused his advances following which Gopal slapped him.
Mohan swore revenge and decided to cut the electric supply of Apeksha and Gopal's house.

• Since Gopal was unable to find a reason why the electric supply was cut, as Mohan was
manipulating things behind the scene to prevent disclosure of information, Apeksha suggests
him to file a suit in the Mumbai High Court as the police were refusing to file an FIR regarding
this matter. The Court hears the matter and orders the matter to be investigated.

• It is revealed in the investigation that Mohan had illegally ordered the electricity supply to be
cut and the Court orders that the supply be resumed under the writ of Mandamus and orders
Mohan to be prosecuted for illegally cutting the power supply.
 3) PROHIBITION
• Literal meaning of Prohibition is 'to forbid.' This type of writ is used when a court which is in
lower position i.e., the lower court exceeds its jurisdiction or un pursue a jurisdiction which
is not possessed by it.

• Rules for Prohibition:

1. If the Lower court or tribunal is overstepping its jurisdiction, or If the Lower court or tribunal
is going against the law, or If the Lower court or the Tribunal is partly acting in jurisdiction
and is partly outside the jurisdiction, Prohibition will be issued against the act which is partly
outside the jurisdiction,
2. Proceeding must be pending in the lower court or tribunal,
3. Application should be made against judicial or quasi-judicial body only, etc.
 3) PROHIBITION
• An Example: Gopal and Lakshman made a contract in which Gopal decided to sell his land to
Lakshman for 2 cr. Rupees. Lakshman failed to pay the amount to Gopal, for which he decided
to bring a suit against Lakshman for not paying the money in the Pune District Court.
• But, the contract was made in Thane, both lived in Mumbai and the land was in Gadchiroli. The
Court accepted the case and started the proceedings.
• Lakshman filed a writ of Prohibition in the Mumbai High Court stating that the Pune District
Court did not have the jurisdiction to file the case which was accepted by the High Court.
• However, the High Court ordered the matter to be investigated and found that Lakshman had
not paid the money and ordered him to pay the money to Gopal.
 4) CERTIORARI
• Literal meaning of Certiorari is 'to be certified' or 'to be informed.' This type of writ is used
when a transfer of case which is pending in the lower courts or the order given by lower
courts in a case needs to be quashed. This writ is issued on the basis of an excess of
jurisdiction or lack of jurisdiction or error of law. After this writ is issued, mistakes in the
judiciary are cured.
• Rules for Certiorari:
1. Overstepping or abuse or absence of jurisdiction should be present by lower courts,
2. Violation of principles of natural justice can be present,
3. Some error of law can be present, etc.

Conditions for Certiorari:

1. The body or person should have legal authority.
2. Authority should be related questions affecting the rights of people,
3. Body or person has a duty to act judicial while functioning,
4. Person or body has acted in excess of their jurisdiction or legal authority, etc.
 4) CERTIORARI
• An Example: There is a case in District Court, and the court lacks jurisdiction to hear such
matters. But the District Court Judge hears the case and renders his ruling, and Mahadev who
was affected by the order passed, makes a petition in the High Court.
• As a result of the power to issue Writs, the High Court will issue a writ of Certiorari on the
District Court's order, and the District Court's order will be quashed.
 5) QUO WARRANTO
• Literal meaning of Quo Warranto is 'by what authority or warrant.' This type of writ is used
when an illegal usurpation of a public office by a person is done. After this writ is issued, the
legality of a claim of a person to office is enquired.

• Conditions for Certiorari:

1. Office which is wrongfully assumed by private person should be a public office,
2. Office should be created by constitution or other statute,
3. Duties of office should be public duties,
4. Office should be permanent,
5. Application should be made against a person who is in possession of office and uses the
office,
6. Office should not be of private nature, etc.
 5) QUO WARRANTO
• An Example: (From the movie Gangajaal): Daroga Mangni Ram had set up a check post on a
State road, near the entrance to the town of Tezpur and was collecting money from the
vehicles which he had ordered to be stopped in the name of checking. SP Amit Kumar observed
that this was illegal on the part of Daroga Mangni Ram and suffered temporary detention by
him, who assuming that SP Amit Kumar was an ordinary citizen and threatened to disappear
him.

• SP Amit Kumar revealed his identity to Daroga Mangni Ram and ordered him to reveal under
what authority was he doing the illegal collection of money (QUO WARRANTO) and since
Daroga Mangni Ram did not give a satisfactory answer, SP Amit Kumar ordered his suspension
for his actions.
 IMPORTANCE OF THE WRITS
• Article 226 of the constitution, confers the High Courts wide powers to issue orders and writs
to any person or authority. Before a writ or an order is passed, the party approaching the
court has to establish that he has a right and that right is illegally invaded or threatened.
High court can issue writ and directions, to any Government, authority or person even beyond
its territorial jurisdiction, if the cause of action partly arises within its territorial jurisdiction.
• Unlike the Supreme Court of India, the High Courts are not legally required to be bound to
the responsibilities under the Writs. Wherever questions of facts are involved normally High
Court does not exercise its power under article 226. Similarly, when an alternative remedy is
available to the Petitioner, the Courts do not entertain petitions under Article 226. Also, when
there is an inordinate delay in approaching the court, the court may not give relief acting under
this article.
• The basic idea in conferring powers under Article 226 upon High Court is to see that the rule
of law is maintained in the society. The executive Authorities are to be corrected whenever
they transgress the limits of their power and encroach upon the rights of the citizen. Violations
of human rights, natural rights etc., are instances where the High Courts interfere using this
powerful article of the constitution.
The Directive Principles of State Policy
 IMPORTANCE
• The Directive Principles of State Policy are the 'Guidelines', which are to be incorporated in
form of legislations by the Union or the States for the greater benefit of the people and the
State. The Constitution of India aims to establish not only political democracy but also
socioeconomic justice for the people to establish a welfare state. With this purpose in mind,
our Constitution lays down desirable principles and guidelines in Part IV. These provisions are
known as the Directive Principle of State Policy. Directive Principles of State Policy (DPSP) aim
at ensuring socio-economic justice to the people and establishing India as a Welfare State.

• Directive Principles of State Policy are in the form of instructions/guidelines to the

governments at the center as well as states. Though these principles are non-justiciable, they
are fundamental in the governance of the country. The idea of Directive Principles of State
Policy has been taken from the Irish Republic. They were incorporated in our Constitution in
order to provide economic justice and to avoid the concentration of wealth in the hands of a
few people.
 IMPORTANCE
• A new DPSP under Article 38 was added by the 44th Amendment Act of 1978, which requires
the State to minimize inequalities in income, status, facilities and opportunities. The 86th
Amendment Act of 2002 changed the subject-matter of Article 45 and made elementary
education a fundamental right under Article 21A. The amended directive requires the State to
provide early childhood care and education for all children until they complete the age of 14
years.
• A new DPSP under Article 43B was added by the 97th Amendment Act of 2011 relating to co-
operative societies. It requires the state to promote voluntary formation, autonomous
functioning, democratic control and professional management of co-operative societies. The
Indian Constitution under Article 37 makes it clear that ‘DPSPs are fundamental in the
governance of the country and it shall be the duty of the state to apply these principles in
making laws.’
 CRITICISM OF THE DIRECTIVE PRINCIPLES OF STATE POLICY
• As a point of debate, the following reasons are stated for the criticism of Directive Principles of
State Policy:
1. It has no legal force
2. It is illogically arranged
3. It is conservative in nature
4. It may produce constitutional conflict between centre and state
• The Directive Principles of State Policy can be classified into three different types, based on
their content, intent and direction. They are

• 1) SOCIALISTIC PRINCIPLES

• 2) GANDHIAN PRINCIPLES

• 3) LIBERAL - INTELLECTUAL PRINCIPLES

• New Directive Principles added to this Part following the 42nd Amendment to the Constitution
of India.

1 Article To secure opportunities for the healthy development of children

39

2 Article To promote equal justice and to provide free legal aid to the poor
39A

3 Article To take steps to secure the participation of workers in the

43A management of industries

4 Article To protect and improve the environment and to safeguard forests

48A and wildlife
 Conflict between DPSP and Fundamental Rights
• What is the conflict between Fundamental Rights and DPSPs?
• With the help of four court cases given below, we can understand the relationship between
Fundamental Rights and Directive Principles of State Policy:
• 1) Champakam Dorairajan Case (1951)
• Supreme Court ruled that in any case of conflict between Fundamental Rights and DPSPs, the
provisions of the former would prevail. DPSPs were regarded to run as a subsidiary to
Fundamental Rights. SC also ruled that Parliament can amend Fundamental Rights through
constitutional amendment act to implement DPSPs.
• Result: Parliament made the First Amendment Act (1951), the Fourth Amendment Act (1955)
and the Seventeenth Amendment Act (1964) to implement some of the Directives.
 Conflict between DPSP and Fundamental Rights
• 2) Golaknath Case (1967)
• Supreme Court ruled that Parliament cannot amend Fundamental Rights to implement Directive
Principles of State Policy.
• Result: Parliament enacted the 24th Amendment Act 1971 & 25th Amendment Act 1971
declaring that it has the power to abridge or take away any of the Fundamental Rights by
enacting Constitutional Amendment Acts. 25th Amendment Act inserted a new Article 31C
containing two provisions:
• No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b)22
and (c)23 shall be void on the ground of contravention of the Fundamental Rights conferred by
Article 14 (equality before law and equal protection of laws), Article 19 (protection of six rights
in respect of speech, assembly, movement, etc) or Article 31 (right to property).
• No law containing a declaration for giving effect to such policy shall be questioned in any court
on the ground that it does not give effect to such a policy.
 Conflict between DPSP and Fundamental Rights
• 3) Kesavananda Bharti Case (1973)
• Supreme Court ruled out the second provision of Article 31C added by the 25th Amendment Act
during Golaknath Case of 1967. It termed the provision ‘unconstitutional.’ However, it held the
first provision of Article 31C constitutional and valid.
• Result: Through the 42nd amendment act, Parliament extended the scope of the first provision
of Article 31C. It accorded the position of legal primacy and supremacy to the Directive
Principles over the Fundamental Rights conferred by Articles 14, 19 and 31.
 Conflict between DPSP and Fundamental Rights
• 4) Minerva Mills Case (1980)
• Supreme Court held the extension of Article 31C made by the 42nd amendment act
unconstitutional and invalid. It made DPSP subordinate to Fundamental Rights. Supreme Court
also held that ‘the Indian Constitution is founded on the bedrock of the balance between the
Fundamental Rights and the Directive Principles.’
• Supreme Court’s rulings following the case were:
• Fundamental Rights and DPSPs constitute the core of the commitment to social revolution.
• The harmony and balance between Fundamental Rights and Directive Principles of State Policy is
an essential feature of the basic structure of the Constitution.
• The goals set out by the Directive Principles have to be achieved without the abrogation of the
means provided by the Fundamental Rights.
 Conflict between DPSP and Fundamental Rights
• Conclusion: Today, Fundamental Rights enjoy supremacy over the Directive Principles. Yet,
Directive Principles can be implemented. The Parliament can amend the Fundamental Rights for
implementing the Directive Principles, so long as the amendment does not damage or destroy
the basic structure of the Constitution.
Supreme Court Decisions and its binding effect under Article 141
• Law has its origin mainly from four sources, i.e., Customs, Precedent, Legislation and
Conventional Law. The Precedents established by the Supreme Court are the leading sources of
declared law. Precedent is an earlier event or action that is regarded as an example or guide to
be considered in subsequent similar circumstances. Precedent signifies a judgement or decision
of a superior court of law cited as an authority for deciding a similar set of facts.

• A precedent which creates and applies a new rule is called an original precedent and when the
precedent does not create a new rule that merely apply on existing rule of law then it is termed as
Declaratory precedent. In India the Supreme Court is the highest court in hierarchy and decisions
of the Supreme Court are binding on all courts of India.
• Article 141 of the Constitution of India stipulates that the law declared by the Supreme Court shall
be binding on all Courts within the territory of India. Thus, the general principles laid down, by
the Supreme Court are binding on each individual including those who are not a party to an
order.

• In a number of judgements the Supreme Court has emphasized the importance and validity of
Article 141 of the Constitution within the ambit of following certain general rules, i.e. Obiter-
Dictum', Ratio-Decidendi', Stare decisis', Per incuriam' Prospective Overruling and Legislative
provisions etc.
• Obiter-Dictum: The phrase Obiter dictum' has been derived from Latin words obiter' and dictum'.
Obiter means in passing' and Dictum denotes something that is said'. Thus, in the legal parlance
the obiter-dictum' connotes a judge's expression of opinion uttered in court or giving
judgement, but not essential to the decision and therefore without binding authority. Therefore,
the obiter dictum may be termed as a casual remark of the court while deciding the actual issues,
which is considered as beyond the ambit of the operative part of the judgement.

• Ratio Decidendi' is a Latin phrase meaning "the reason" or "the rationale for the decision".
Ratio-Decidendi' is the determining point which becomes the base for a judgement. Thus,
Ratio-Decidendi is an essential precedent requires to be followed by subordinate courts in
similar type of cases
• Stare decisis: Stare Decisis is a Latin term which signifies To stand by decided cases or to uphold
precedents or to maintain former adjudications. In India, the doctrine of stare decisis has been
adopted through Article 141 of the Constitution, which declares that decisions of higher court
are binding on subordinate courts. The doctrine of Stare decisis; is not applicable in the
Supreme Court, thus, the Supreme Court is not bound by its own decisions, hence, it may depart
from its own previous rulings in extra ordinary or special cases or in larger public interest.

• Per incuriam: Per incuriam is a Latin terms which means "through lack of care". A court decision
made per incuriam is one which ignores a contradictory statute or binding authority, and is
therefore wrongly decided and of no force. A decision rendered in ignorance of a previous
binding decision of its own or of a court of higher jurisdiction or ignorance of the terms of a
statute or of a rule having the force of law locks precedent value, is one such exception and is
described as per incuriam judgement and therefore has no binding force.
• Prospective Overruling: To avoid superfluous litigations in larger public interest, the Apex Court
may avoid reopening of issues which are already settled and entertaining the same would
increase unnecessary multiplicity of proceedings. The overruling curtails the binding force for the
earlier decisions. The prospective overruling may be done by the higher court or of similar court
of larger bench but overruling cannot be done by obiter dictum.

• Legislative Provisions: The parliament is the supreme legislative authority, thus, it can destroy the
effects of precedents, established by the Supreme Court, by passing a statutory law. Legislation
can abrogate the precedent impliedly or expressly
Ordnance making power of the President of India
• Under Article 123 of the Constitution of India, the President of India has the power to promulgate
(create or introduce) ‘Ordinances’ which are legislation like laws issued by the President (and not
the Parliament) that are on par, with the legislations and laws created by the Parliament of India.

• An Ordinance is promulgated if the President is satisfied that If at any time, EXCEPT WHEN BOTH
HOUSES OF PARLIAMENT ARE IN SESSION, that an extraordinary situation or circumstances have
been created or are existing, which render it necessary for immediate action to be taken by the
President for remedying the situation via the Ordinance.

• An Ordinance once promulgated has a maximum lifespan of 7 (1/2) months and must be
approved by the Parliament of India in its next session immediately after the Ordinance is
promulgated. An Ordinance can be re-promulgated maximum 3 times by the President.
• The President can issue the Ordinance only after the recommendation by the Prime Minister &
the Union Council of Ministers that such an Ordinance is needed and the President can withdraw
the Ordinance at any day, after it has been promulgated.

• An Ordinance is not a ‘legislative jugaad’ and is to be used very sparingly. An Ordinance once
promulgated, can be struck down by the Supreme Court of India if it was found that the
Ordinance was issued without just cause and was only issued to bypass the Parliament or some
other reason which does not justify the promulgation of the Ordinance.

• An Ordinance can be retrospective in nature but it cannot be use as a way for amending the
Constitution of India, nor can it go against its letter and spirit.
How an ‘Ordinance’ promulgated by the President looks like. This Ordinance - The Essential Defense Services Ordinance, 2021
was promulgated on June 30, 2021
(https://www.ddpmod.gov.in/sites/default/files/The%20Essential%20Defence%20Services%20Ordinance,%202021.pdf).

The Ordinance allows the central government to prohibit strikes, lock-outs, and lay-offs in units engaged in essential defense
services. (Context - https://www.nextias.com/current-affairs/04-08-2021/essential-defence-services-bill-2021)