Constitution Of india

UNIT - 1

TOPIC-1

Meaning of the constitution law and constitutionalism

Formal sense:

 Constitution consists of laws, rules (conventions) and other practices that deal with
 The institutions of government
 The nature, extent and distribution of powers within those institutions
 The forms and procedures through which such powers should be exercised
 The relationship between the institutions of government and the individual citizen

Introduction to Indian Constitution

The framing of the Constitution was completed on November 26, 1949 when the
Constituent Assembly formally adopted the new Constitution. The Constitution came into force with
effect from January 26, 1950.

The Constitution contains the fundamental law of the land. It is the source of all powers of,
and limitations on, the three organs of State, viz. the executive, legislature and judiciary. No action of
the state would be valid unless it is permissible under the Constitution. Therefore, it is imperative to
have a clear understanding of the nature and working of the Constitution.

Objectives of The Constitution

The Constitution of Independent India was framed in the background of about 200 years
of colonial rule, mass-based freedom struggle, the national movement, partition of the country
and spread of communal violence. Therefore, the framers of the Constitution were concerned about
the aspirations of the people, integrity and unity of the country and establishment of a democratic
society. Their main was to give India a ‘Constitution’ which will fulfill the cherished ideas and ideals
of the people of this country.
The Constitution begins with a Preamble which declares India to be a Sovereign,
Socialist, Secular, Democratic, Republic. The Preamble also mentions the goals of securing
justice, liberty and equality for all its citizens and promotion of national unity and integrity on the
basis of fraternity among the people assuring dignity ofthe

individual.

Salient Features of the Indian Constitution

The main features of Indian Constitution are the following:

• A written Constitution: The Indian Constitution is mainly a written constitution. A
written constitution is framed at a given time and comes into force or is adopted on a fixed
date as a document. As you have already read that our constitution was framed over a
period of 2 years, 11 months and 18 days, it was adopted on 26th November, 1949 and
enforced on January 26, 1950. Certain conventions have gradually evolved over a period of
time which have proved useful in the working of the constitution.
• Federal Policy: The Constitution of India does not use the term ‘federal state’. It says that
India is a ‘Union of States’. There is a distribution of powers between the Union/Central
Government and the State Governments. Since India is a federation, such distribution of
functions becomes necessary. There are three lists of powers such as Union List, State List
and the Concurrent List.
• Parliamentary Democracy: India has a parliamentary form of democracy. This has been
adopted from the British system. In a parliamentary democracy there is a close relationship
between the legislature and the executive. The Cabinet is selected from among the members
of legislature. The cabinet is responsible to the latter. In fact the Cabinet holds office so long
as it enjoys the confidence of the legislature. In this form of democracy, the Head of the
State is nominal. In India, the President is the Head of the State. Constitutionally the
President enjoys numerous powers but in practice the Council of Ministers headed by the
Prime Minister, which really exercises these powers. The President acts on the advice of the
Prime Minister and the Council of Ministers.
• Fundamental Rights and Duties: Fundamental Rights are one of the important features of
the Indian Constitution. The Constitution provides for six Fundamental Rights about which
you will read in the following lesson. Fundamental Rights are justiciable and are protected
 by the judiciary. In case of violation of any of these rights one can move to the court of law
for their protection.Fundamental Duties were added to our Constitution by the 42nd
Amendment. It lays down a list of ten Fundamental Duties for all citizens of

• India. While the rights are given as guarantees to the people, the duties are obligations which
every citizen is expected to perform.
• Directive Principles of State Policy: The Directive Principles of State Policy which have
been adopted from the Irish Constitution, is another unique feature of the Constitution of
India. The Directive Principles were included in our Constitution in order to provide social
and economic justice to our people. Directive Principles aim at establishing a welfare state in
India where there will be no concentration of wealth in the hands of a few.
• Partly rigid and Partly flexible:A constitution may be called rigid orflexible on the basis of its
amending procedure. The Constitution of India provides for three categories of
amendments. In the first category, amendment can be done by the two houses of Parliament
simple majority of the members present and voting of before sending it for the President’s
assent. In the second category amendments require a special majority. Such an amendment
can be passed by each House of Parliament by a majority of the total members of that House
as well as by the 2/3rd majority of the members present and voting in each house of Parliament
and send to the President for his assent which cannot be denied. In the third category besides
the special majority mentioned in the second category, the same has to be approved also by at
least 50% of the State legislatures.
• Language Policy: India is a country where different languages are spoken in various parts
of the country. Hindi and English have been made official languages of the central
government. A state can adopt the language spoken by its people in that state also as its
official language.
• Special Provisions for Scheduled Castes and Scheduled Tribes : The Constitution
provides for giving certain special concessions and privileges to the members of these
castes. Seats have been reserved for them in Parliament, State legislature and local
bodies, all government services and in all professional colleges.
• A Constitution Derived from Many Sources: The framers of our constitution borrowed
many things from the constitutions of various other countries and included them in our
constitution. That is why; some
writers call Indian Constitution a ‘bag of borrowings’.
• Independent Judiciary: Indian judiciary is independent an impartial. The Indian judiciary is
free from the influence of the executive and the legislature. The judges are appointed on the
basis of their qualifications and cannot be removed easily.
• Single Citizenship: In India there is only single citizenship. It means that every Indian is a
citizen of India, irrespective of the place of his/her residence or place of birth. He/she is not
a citizen of the Constituent State like

• Jharkhand, Uttaranchal or Chattisgarh to which he/she may belong to but remains a citizen
of India. All the citizens of India can secure employment anywhere in the country and enjoy
all the rights equally in all the parts of India.
• Universal Adult Franchise: Indian democracy functions on the basis of ‘one person one
vote’. Every citizen of India who is 18 years of age or above is entitled to vote in the elections
irrespective of caste, sex, race, religion or status. The Indian Constitution establishes political
equality in India through the method of universal adult franchise.
• Emergency Provisions: The Constitution makers also foresaw that there could be
situations when the government could not be run as in ordinary times. To cope with
such situations, the Constitution elaborates on emergency provisions. There are three
types of emergency; a) emergency caused by war, external aggression or armed rebellion; b)
emergency arising out of the failure of constitutional machinery in states; and c) financial
emergency.

Basic Principles of the Constitution

All constitutions are a reflection of the ideas and ideals of the people who framed it. Though it is intended
to be a document of permanent value, it is bound to reflect the prevailing conditions and circumstances of
the period in which it is framed. Indian constitution is no exception to this.
A careful study of the constitution of India shows that it has at least 8 such basic principles which are:-
1. PopularSovereignty
2. Fundamental Rights
3. Directive Principles
4. Cabinet Government
5. Secularism
6. Socialism
7. Federalism
8. Judicial Independence.
 TOPIC-2

Background of the Constituent Assembly of India

ConstituentAssembly:Abody, responsible fordraftingtheConstitution of a country.

In 1934, M N Roy first proposed the idea of a constituent assembly. The

demand was taken up by the Congress Party in 1935 as an officialdemand.

In 1946, the British decided to examine the possibility of granting

independence to India. As a result, a British cabinet mission was despatched to
India to

(1) hold discussions with the representatives of British India and the Indian States in
order to agree on the framework for writing a constitution, and

(2) Set up a constituent body and an executive council.

Under the Cabinet Mission Plan of 1946, elections were held for the first time for the
Constituent Assembly. The Constitution of India was drafted by the Constituent
Assembly, and it was implemented under the Cabinet Mission Plan on 16 May
1946.

The elections for the 296 seats assigned to the British Indian provinces
were completed by August 1946.

The first meeting of the Constituent Assembly took place on December 9, 1946
at New Delhi with Dr. Sachidanand being elected as the interim President of the
Assembly. However, on December 11, 1946, Dr. Rajendra Prasad was elected as
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the President and H.C. Mukherjee as the Vice-President of the

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 Constituent Assembly.

The Objective Resolution was moved on December 13, 1946 by Pandit Jawaharlal
Nehru, which provided the philosophy and guiding principles for framing the
Constitution and later took the form of Preamble of the Constitution of India. This
Resolution was unanimously adopted by the Constituent Assembly on 22 January
1947.

The Resolution stated that the Constituent Assembly would firstly proclaim India
as an Independent Sovereign Republic which includes all the territories, retaining as

Assembly

Framing the Constitution.

Enacting laws and involved in the decision making process.

It adopted the National flag on July 22, 1947.

It accepted and approved India's membership of the British Commonwealth in May

1949.

It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950.

It adopted the National anthem on January 24, 1950.

It adopted the National song on January 24, 1950.

autonomous units
and possess residuary powers.

The Constituent Assembly appointed eight major committees. Among these eight
major committees, the most significant was the Drafting Committee. On 29th
August 1947, the Constituent Assembly set up a Drafting Committee under the
chairmanship of Dr. B.R. Ambedkar to prepare a Draft Constitution for India.

Criticism of the Constituent Assembly

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It was not a representative body since the members were not directly elected by
adult franchise.

It is said that the makers took a long time in framing the constitution. However,
keeping in mind the complexity and the peculiarities of the diverse and large Indian
nation, this can be understood.

The constituent assembly was not a sovereign body since it was created by the
British. However, it worked as a fully independent and sovereign body.

The language of the constitution was criticised for being literary and complicated.

The assembly was dominated by the Congress Party. But the party dominated the
provincial assemblies and this was natural. Moreover, it was a heterogeneous party
with members from almost all sections of Indian society.

It was alleged that the assembly had Hindu dominance. This was again because
of proportional representation from communities.

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 TOPIC-3

GOVERNMENT OF INDIA ACT OF 1935

The Government of India Act, 1935 was passed by British Parliament in August 1935. With 321
sections and 10 schedules, this was the longest act passed by British Parliament so far and was later
split into two parts viz.
Government of India Act, 1935 and Government of Burma Act, 1935.The demand for constitutional
reforms in india has been quite old.

It was the last constitution of British India which split Burma from it. It lasted until 1947, when
British territory was split into Pakistan and India.

HOW DID THE ACT COME INTO FORCE?

 The Government Act of 1919, was not satisfactory at all and was too short in its provisions
for the self-government form to be imposed in the country. The provisions of the act were
not enough to fulfill the National Aspirations that the people of the country aspected.
After which, a lot of discussions took place which also led to the Rowlatt Act in
the same year. When the Simon Commission Report came out it was seen that the report
was not satisfactory which would lead to the consultation with the then Indian Community
Representatives at the Round Table conference, held in London.

 The matter was important and was discussed in the round tables of 1930, 1931, and 1932
respectively.

 On the basis of the report generated by the the government, it constituted a committee

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consisting of 20 representatives from the British India (which consisted of 7 members
from Indian states which included 5 Muslims) afterwards, which discussed in the
session which started in 1933 and after a lot of debate upon the topic and white papers,
gave its report at the end

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  of 1934 stating to pass the act.

 After which the matter went to the parliament and the parliament gave its assent to pass the act
and which was passed in the year 1935 and came to be known as the Government of India
Act, 1935.

FEATURES OF THE ACT

It provided for the establishment of an All-India Federation consisting of provinces and princely
states as units. The Act divided the powers between the Centre and units in terms of three lists—
Federal List (for Centre, with 59 items), Provincial List (for provinces, with 54 items) and the
Concurrent List (for both, with 36 items).

SALIENT FEATURES OF THE ACT

 End of old diarchy (Double Administrative) and introduction of dyarchy at centre.

 End of Indian Council and introduction of an advisory body in its place.

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 Provision foran AllIndia Federation with British India territories and excellent states.

 Elaborate safeguards and protective instruments for minorities.

 Supremacy of British Parliament.

 Increase in size of legislatures, extension of franchise, division of subjects

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 into three lists and retention of communal electorate.

 Separation of Burma from India

IMPORTANCE OF THE ACT

1. The introduction of the act ended the dyarchy (system of double government)
system by giving more freedom to british India for better governance in the form
of Provincial Autonomy and established at dyarchy at the center.
2. There was a division of the federal Subjects between the Centre and the provinces,
as the division made in the act of 1919 was revised.
3. An important provision of the act was the protection of minorities such as women
etc. and safeguarding their rights.

DIFFERENCE BETWEEN THE GOVERNMENT ACT OF 1935 AND 1919:

GOVERNMENT OF INDIA ACT 1935 GOVERNMENT OF INDIA ACT 1919

1)The act did not talk about the 1)The act provided for a preamble(Early
preamble(Early Information) Information).
2)The Act was passed by the British 2)The Act was passed by the U.K
government. government in 1919.
3)It was the last constitution of the British 3)It was not the last constitution of the British
era. government.
4)The concept of Bicameralism(Two 4)The concept of Bicameralism(Two parliament) was
parliament) was introduced in some not there at the time of such provinces.
provinces of British India.
5)There was the distribution of power among 5)There was almost no distribution of powers as the head
various people to accomplish their goal of a had the power to take all the decisions on
federal India his own.

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 TOPIC - 4

INDIAN INDEPENDENCE ACT OF 1947

The 1947 Indian Independence Act (1947 c. 30 (10 & 11. Geo. 6.)) is an Act of the Parliament of
the United Kingdom that partitioned British India into the two new independent dominions of India
and Pakistan . The Act received the Royal Assent on 18 July 1947.

i. On 20 February 1947, Clement Attlee, the Prime Minister of the United

Kingdom, announced that The British Government would grant full self-
government to British India by 30 June
1948 .
ii. This announcement was followed by the agitation by the
Muslim League demanding partition of the country
Background
iii. AgainonJune3,1947theBritishGovernmentmadeit clear that any constitution
framed by the Cobstituent Assembly of
India (formed in 1947)

iv. On the same day (June 3, 1947), Lord Mountbatten, the

viceroy of India , put forth the partition plan, known as the Mountbatten
Plan.
v. The Plan was accepted by the Congress and the Muslim League.
Immediateeffectwasgiventotheplan by enacting
the Indian Independence Act(1947).

Provisions

The Act's most important provisions were:

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 i. Division of British India into the two new dominions of India and Pakistan, with
effect from 15 August 1947.
ii. Partition of the provinces of Bengal and Punjab between the two new countries.

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 iii. Establishment of the office of Governor-General in each of the two new countries, as
representatives of the Crown.
iv. Conferral of complete legislative authority upon the respective Constituent
Assemblies of the two new countries.
v. Termination of British suzerainty over the princely states, with effect from 15 August
1947, and recognised the right of states to remain independent or accede to either
dominion.
vi. Abolition of the use of the title "Emperor of India" by the British monarch (this was
subsequently executed by King George VI by royal proclamation on 22 June 1948).

The Act also made provision for the division of joint property, etc. between the two new countries,
including in particular the division of the armed forces.

Salient features of the Indian Independence Act of 1947:–

i. The Indian Independence Act, 1947 provided for the creation of two Independent
DominionsofIndiaandPakistanfromAugust15, 1947.
ii. It defined the territories of the two new Dominions and made possible the adjustment
ofexistingboundariesandtheaccessionof other boundaries byconsent.
iii. The Legislature of each of the Dominions is free to make laws for that Dominion,
including the laws having extraterritorial operation
iv. No Act of British Parliament passed on or after August 15, 1947 was to extend to
either of the Dominions.
v. The powers of the Legislature of the Dominion would be exercisable in the first instance by
the Constituent Assembly of that Dominion.
vi. It abolished the office of the secretary of state for India.

vii. It proclaimed the lapse of British paramountcy over the Indian princely states and
treaty relationships with tribal areas from August 15, 1947.

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viii. It granted freedom to the Indian princely states either to join the dominions of Pakistan
or to remain independent.

Thus the two independent and sovereign states –India and Pakistan come into existence and the long
British rule came to an end.

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 TOPIC - 5

Enforcement of the Constitution:

• The Constitution of India came into force on 26 January, 1950. On that day, the Assembly ceased to
exist, transforming itself into the Provisional Parliament of India until a new Parliament was constituted in
1952.

• The date of 26th January was chosen to commemorate the historical day as on this day in 1930 that
Purna Swaraj day was celebrated and the tricolour flag of Indian independence was unfurled following
the resolution of the Lahore Session (December 1929) of the Indian National Congress .

• Some provisions of the Constitution pertaining to citizenship, elections, provisional parliament,

temporary and transitional provisions, and short title contained in Articles 5, 6, 7, 8, 9, 60, 324, 366, 367,
379, 380, 388, 391, 392 and 393 came into force on November 26, 1949 itself.

• The remaining provisions (the major part) of the Constitution came into force on January 26, 1950. This
day is referred to in the Constitution as the ‘date of its commencement’ and celebrated as the Republic Day.

• With the commencement of the Constitution, the Indian Independence Act of 1947 and the Government
of India Act of 1935, with all enactments amending or supplementing the latter Act, were repealed. The
Abolition of Privy Council Jurisdiction Act (1949) was however continued.

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 TOPIC –6

The Preamble of the Constitution, Fundamental Rights, Fundamental Duties, Directive

Principles of State Policy,Parliamentary System

The Preamble of the Constitution

The Preamble to the Constitution of India is a brief introductory statement that sets out
guidelines, which guide the people of the nation, and to present the principles of the Constitution,
and to indicate the source from which the document derives its authority, and meaning.It
highlights the goals and aspirations of the Indian people.[1]. It reflects the hopes and aspirations of
the people. The preamble can be referred to as the preface which highlights the entire
Constitution. It was adopted on 26 November 1949 by the Constituent Assembly and came into
effect on 26 January 1950, celebrated as the Republic day in India. Preamble was made in 1947
but adopted in 1949.

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 Fundamental Rights

The Constitution of India thus stands as an embodiment of democracy, fundamental rights, and
decentralization of power to the lowest or to the grass-root level. In order to protect against any
possible dilution of these powers and rights, it has set up the Supreme Court to function as the
guardian of the Constitution with the power to invalidate any legislation or executive act if it
violates the Constitution and thus affirms and enforce the supremacy of the Constitution.

FUNDAMENTAL RIGHTS

Right to Equality
Right to freedom
Right against exploitation
Right to freedom of religion
Cultural and Educational Rights

Right to Constitutional Remedies

Fundamental Duties

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To abide by the Constitution and respect its ideals and institutions, the National Flag and the
National Anthem.
To cherish and follow the noble ideals which inspired our national struggle for
freedom.
To uphold and protect the sovereignty, unity, and integrity of India.
To defend the country and render national service for the nation’s security when called
upon
to do so.

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 To promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic, social and regional or sectional diversities; to
renounce practices derogatory to the dignity of women.
To value and preserve the rich heritage of our composite culture.
To protect and improve the natural environment including forests, lakes, rivers, wildlife and
to have compassion for living creatures.
To develop the scientific temper, humanism and the spirit of inquiry and reform.
To safeguard public property and to abjure violence.
To strive towards excellence in all spheres of individual and collective activity, so that the
nation constantly rises to higher levels of endeavor and achievement.
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 to fourteen years.
According to the 86th constitutional amendment in 2002, it is the duty of the people of
India to adapt to make India a safer place to live, to be clean and make the
surrounding clean and not to hurt anybody physically and mentally.
Directive Principles of State Policy,Parliamentary System

Directive Principles of State Policy aim to create social and

economic conditions under which the citizens can lead a good life. They
also aim to establish social and economic democracy through a welfare state. Though the
Directive Principles are non-justiciable rights of the people but fundamental in the governance
of the country, it shall be the duty of the State to apply these principles in making laws per
Article 37. Besides, all executive agencies of union and states should also be guided by these
principles. Even the judiciary has to keep them in mind in deciding cases.

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 Socialist Principles

There are certain principles that are very important for realizing the goals
of social and economic democracy in India. So, these principles reflect the ideology of socialism.
They lay down the framework of a democratic socialist state and set the path towards the welfare
state.

Gandhian Principles

Gandhian thinking promotes a non-violent social order. Swaraj (Self-

rule), Sarvodaya (welfare for all ) and Swavlamban (self-reliance) are the basic principles
of Gandhian thought.

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 Liberal–Intellectual Principles

The principles in this category represent the ideology of liberalism.

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Difference between Fundamental Rights and Directive Principles is given in the table below:-

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S.N. Fundamental Rights Directive Principles

1. These are negative as they These are positive as they

prohibit the state from doing requires the state to do certain
certain things. things

2. These are justifiable, that is These are non justifiable i.e. they
they are legally enforceable by are not enforceable by the courts
the courts in the case of their for their violation.
violation.

3. They aim at establishing They aim at establishing social and

political democracy in the economic democracy in the country.
country.

4. These have legal sanctions These have legal and political

sanctions.

5. They promote the welfare of They promote the welfare of the

the individual. Hence they community. Hence they are
are personal and societarian and socialistic.
individualistic.

6. They do not require any They require legislation for their

legislation for their implementation. They are not
implementation. They are automatically enforced.
automatically enforced.

7. The courts are bound to The court can not declare a law
declare a law violative of violative of any of the directive
any of the fundamental principles as unconstitutional and
rights as unconstitutional invalid. However, they can uphold
and invalid. the validity of a law on the ground
that it was enacted to give effect to
adirective.

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 TOPIC - 7

Federal System & Centre - State Relationship

Federal systems:

Governments have been classified into Unitary and Federal based on distribution of power
between national and regional governments. In a federal set up there is a two tier of Government
with well assigned powers and functions. In this system the central government and the governments
of the region act within a well defined sphere, co- ordinate and at the same time act independently.

The federal polity, in other words, provides a constitutional device for bringing unity in diversity and
for the achievement of common national goals. Hence, India was made a Federal system of
government.

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Features of Indian Federalism

Features of Indian constitution that makes it federal are listed in the following points:

i. Written Constitution: The most important feature of a federation is that it should have a
written constitution, so that both the Union Government as well as the State can refer to that
whenever conflict arises. The Constitution of India is a written and most elaborate
Constitution of the world.
ii. Supremacy of Constitution: The constitution is the supreme because both the union and
the states are given powers by the Constitution as to be independent in their spheres
of governance. Both make laws conforming to the
provisions of constitution otherwise they can be declared invalid by the supreme court
through its power of judicial review.
iii. Rigid Constitution: The procedure of amending the Constitution in a federal system is
normally rigid. Indian Constitution provides that provisions regarding the federal
attributes can be amended by a special majority,i.e. such an amendment has to be
passed by majority of total members of each house of the Parliament as well as, by two-
thirds majority of the members present and voting there. Also, in addition to this process,
such amendments must be approved by at least 50% of the states. After this procedure
the amendment is signed by the President.
iv. Division of Powers : In our Constitution, there is a clear division of powers so that none
violates its limits and tries to encroach upon the functions of the other and functions
within own sphere of responsibilties. There are three lists enumerated in the Seventh
Schedule of constitution, – the Union list, the State list and the Concurrent List. The
Union List consists of 100 subjects of national importance such as Defence, Railways,
Post and Telegraph, etc.
v. Supremacy and Independence of the Judiciary: A very important feature of a federation
is an independent judiciary to interpret the Constitution and to maintain its sanctity . The
Supreme Court of India has the original jurisdiction to settle disputes between the Union

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and the States. It can declare a law
as unconstitutional, if it contravenes any provision of the Constitution.

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Nature of Indian federation

In spite of the fact that the Indian Constitution establishes a federal structure, it is indeed very
different then a true federation. The framers of the Constitution have modified the true nature of
Indian federation by incorporating certain unitary features in it. These are :.

i. The Centre appoints the Governors of the States who enjoys extensive powers in special
circumstances. Governor is the agent of the Centre in the States. In the past he Governor
has acted more as Centre’s representative than as the head of the State. This enables the
Union government to exercise control over the State administration.
ii. Unequal representation in upper house: The equality of units in a federation is best
guaranteed by their equal representation in the Upper House of the federal legislature
(Parliament). However, this does not happens in case of Indian States. They have unequal
representation in the Rajya Sabha.
iii. Appointment of important organisation heads: All important appointments such as the
Chief Election Commissioner ,the Comptroller and Auditor General are made by the
Union Government.
iv. Single citizenship: There is no provision for separate Constitutions for the states.
The States cannot propose amendments to, the Constitution. Amendments can
only be made by the Union Parliament.
v. All India Services: In order to ensure uniformity of the administrative system and to
maintain minimum common administrative standards without impairing the federal
system, All India Services such as IAS and IPS have been created which are kept under
the control of the Union.
vi. Emergency Provisions: During Financial Emergency, the Center exercises full control
over the State’s finances. In case of disturbances in any State or part thereof, the Union
Government is empowered to depute Central Force in the State or to the disturbed part of
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 the State.In all three types of emergencies, Centre is empowered to excercise full
control over the state machinery.
vii. Parliament control over state: It can make laws to increase or decrease the area of any State
and may alter its name and boundaries. It may alter subjects n the state list also.
viii. Unified Judiciary: Contray to the federal principle which has a dual system of Courts,
India has unified Judiciary with the Supreme Court at the apex

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Centre State Relations

Articles 245 to 263 of Part XI and Articles 268 to 293 of Part XII describe three types of Center-
State relations i.e. Legislative, Administrative, and Financial.

Legislative Relations

i. Articles 245 to 255 describe Legislative relations.

ii. Article 245 (1) states that Subject to the provisions of this Constitution, Parliament may
make laws for the whole or any part of the territory of India, and the Legislature of a State
may make laws for the whole or any part of the State.
iii. Article 245 (2) states that no law made by Parliament shall be deemed to be invalid
on the ground that it would have extra-territorial operation.
iv. Article 246 states that the Parliament has exclusive power to make laws with respect to
any of the matters enumerated in List I (i.e. Union List) and List III (i.e. Concurrent List) of
the Seventh Schedule.
v. Article 248 states that the Parliament has exclusive power to make any law with
respect to any matter not enumerated in the Concurrent List or State List.
vi. Further, Article 250 states that notwithstanding anything in this Chapter, Parliament shall,
while a Proclamation of Emergency is in operation, have power to make laws for the whole

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or any part of the territory of India with respect to any of the matters enumerated in the
State List.

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Administrative Relations

i. Articles 255 to 263 describe Legislative relations.

ii. Article 256 states that the executive power of every State shall be so exercised as to ensure
compliance with the laws made by Parliament and any existing laws which apply in that
State, and the executive power of the Union shall extend to the giving of such directions to a
State as may appear to the Government of India to be necessary for that purpose.
iii. Article 257 (1) states that the executive power of every State shall be so exercised as
not to impede or prejudice the exercise of the executive power of the Union, and the
executive power of the Union shall extend to the giving of such directions to a State as
may appear to the Government of India to be necessary for that purpose.
iv. Article 258 (2) states that a law made by Parliament which applies in any State may,
notwithstanding that it relates to a matter with respect to which the Legislature of the
State has no power to make laws, confer powers and impose duties, or authorize the
conferring of powers and the imposition of duties, upon the State or officers and
authorities thereof.
v. Article 261 (3) states that final judgments or orders delivered or passed by civil courts in
any part of the territory of India shall be capable of execution anywhere within that
territory according to law.
vi. Article 262 (1) states that Parliament may by law provide for the adjudication of any
dispute or complaint with respect to the use, distribution or control of the waters of, or in,
any inter-State river or river valley.
vii. Article 262 (2) states that notwithstanding anything in this Constitution, Parliament may
be law provide that neither the Supreme Court nor any other court shall exercise
jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).

Financial Relations

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i. Articles 268 to 293 describe Financial relations.

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 ii. .Article 268 describes the Duties levied by the Union but collected and
appropriated by the States.
iii. Article 269 describes the Taxes levied and collected by the Union but assigned to the States.
iv. Article 270 describes the Taxes levied and distributed between the Union and the States.

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 Thehistorical perspectiveoftheconstitutional amendments in India

 Like any other written Constitution in the world, the Constitution of India also provides
for its amendment in order to adjust itself according to the changing conditions and
needs.

 Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend
the Constitution and its procedure. It states that the Parliament may amend the
Constitution by way of addition, variation or repeal any provision in accordance with the
procedure laid down for the purpose.

First Amendment Act, 1951

 Empowered the state to make special provisions for the advancement of socially
and economically backwardclasses.
 Provided for the saving of laws providing for the acquisition of estates, etc.
 Added Ninth Schedule to protect the land reforms and other laws included in it from the
judicial review. After Article 31, Articles 31A and 31B were inserted.

The Constitution (Seventh Amendment) Act, 1956

 The Seventh Amendment brought about the most comprehensive changes so far in the
Constitution. This amendment was designed to implement the State Reorganisation Act.
 The Second and Seventh schedules were substantially amended for the purpose of the States
Reorganization Act.

Constitutional (10th Amendment) Act, 1961

 The Tenth Amendment integrates the areas of Free Dadra and Nagar Haveli with the Union
of India and provides for their administration under the regulation of making powers of the
President.
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 Constitutional (13th Amendment) Act,1963

 Gave the status of a state to Nagaland and made special provisions for it.

The Constitution (24th Amendment) Act, 1971

 It amended Article 13 and 368 with a view to removing all possible doubts regarding
the power of Parliament to amend the Constitution and procedure thereof.
 It gets over the Golak Nath ruling and asserts the power of Parliament, denied to in

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the Golak Nath, to amend Fundamental Rights.

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 The Constitution (Twenty-fifth) Amendment Act, 1971

 The 25th amendment of the Constitution in 1971 added a new clause, Article 31C to the
Constitution. Up to 1971, the position was that Fundamental Rights prevailed over the
Directive Principles of State Policy and that a law enacted to implement a Directive Principle
could not be valid if it conflicted with a Fundamental Right.
 Article 31C sought to change this relationship to some extent by conferring primacy
on Articles 39(b) and 39(c) over Articles 14, 19 and 31.

Twenty-Sixth Amendment Act, 1971

 Abolished the privy purses and privileges of the former rulers of princely states.

The Constitution (Thirty-fourth Amendment) Act, 1974

 By this amendment twenty State Acts concerning land ceiling and land tenure reforms
were added to the Ninth Schedule to the Constitution.

The Constitution (Thirty-eight Amendment) Act, 1975

 Made the declaration of emergency by the President non-justiciable.

 Made the promulgation of ordinances by the President, governors and
administrators of Union territories non-justiciable.
 Empowered the President to declare different proclamations of national
emergency on different grounds simultaneously

The Constitution (42nd Amendment) Act, 1976

 The Amendment was meant to enhance enormously the strength of the Government. The major
Amendments made in the Constitution by the 42nd Amendment Act are: Preamble The
characterization of India as ‘Sovereign Democratic Republic’ has been changed to ‘Sovereign
Socialist Secular Democratic Republic’.
 The words ‘Unity of the nation’ have been changed to ‘Unity and integrity of the nation’.
 Parliament and State Legislatures: The life of the Lok Sabha and State
Legislative Assemblies was extended from 5 to 6 years.
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 Executive: It amended Article 74 to State explicitly that the President shall act in accordance
with the advice of the Council of Ministers in the discharge of his functions.
 Judiciary: The 42nd Amendment Act inserted Article 32A in order to deny the Supreme
Court the power to consider the Constitutional validity of the State law. Another new
provision, Article 131A, gave the Supreme Court an exclusive jurisdiction to determine
question relating to the Constitutional validity of a central laws. Article 144A and Article
128A, the creatures
of the Constitutional Amendment Act made further innovation in the area of judicial review of
the Constitutionality of legislation. Under Article 144A, the minimum number of judges of
the Supreme Court to decide a question of Constitutional validity of a Central or State law was
fixed as at least seven and further, this required two-thirds majority of the judges sitting declare
law as unconstitutional. While the power of the High Court to enforce Fundamental Rights
remained untouched, several restrictions were imposed on its power to issue writs ‘for any other
purpose’.

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 Federalism: The Act added Article 257A in the Constitution to enable the Centre to deploy any
armed force of the Union, or any other force under its control for dealing with any grave
situation of law and order in any State.
 Fundamental Rights and Directive Principles: A major change that was made by42nd
Constitutional Amendment was to give primacy to all Directive Principles over the
Fundamental Rights contained in Articles 14, 19 or 31.
 The 42nd Constitutional Amendment added a few more Directive Principles – free legal aid,
participations of workers in the management of industries, protection for environment and
protection of forests and wildlife of the country.
 Fundamental Duties: The 42nd Amendment Act inserted Article 51-A to create a new part
called IV-A in the Constitution, which prescribed the Fundamental Duties to the citizens.
 Emergency: Prior to the 42nd Amendment Act, the President could declare an
emergency under Article 352 throughout the country and not in a part of the country
alone. The Act authorized the President to proclaim emergency in any part of the
country.

The Constitution (44th Amendment) Act, 1978

 It reduced the life of Lok Sabha and State Legislative Assemblies again to five years and thus
restore the status quo ante.
 It cancelled 39th Amendment which had deprived the Supreme Court of its jurisdiction
to decide disputes concerning election of the President and the Vice- President
 A new provision was added to Article 74(1) saying that the President could require the
council of ministers to reconsider its advice to him, either generally or otherwise and the
President should Act in accordance with the advice tendered after such re-
consideration. Article 257A was Omitted
 It has been provided that an Emergency can be proclaimed only on the basis of written
advice tendered to the President by the Cabinet.
 Right to Property has been taken out from the list of Fundamental Rights and has been
declared a legal right.

The Constitution (Fifty-first Amendment) Act, 1984

 The Amendment effectuates some changes in Articles 330 and 332 with a view to provide for

29
 reservation of seats in the Lok Sabha for Scheduled Tribes in Meghalaya, Aruncahal Pradesh
and Mizoram, as well as in the Legislative Assemblies of Nagaland and Meghalaya.

The Constitution (52nd Amendment) Act, 1985

 The amendment is designed to prevent the scourge of defection of Members of

Parliament and State Legislatures from one political party to another.

The Constitution (61st Amendment) Act, 1989

 The 61st Amendment reduces the voting age from 21 years to 18 years for the Lok Sabha and
Assembly election.

The Constitution (Sixty-fifth Amendment) Act, 1990

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 Article 338 of the Constitution has been amended for the Constitution of a National
Commission for Scheduled Castes and Scheduled Tribes consisting of a chairperson, vice-

31
 chairperson and five other members who shall be appointed by the President by warrant
under his hand and seal.

The Constitution (Sixty-ninth Amendment) Act, 1991

 The Amendment Act was to grant Statehood to Delhi as ‘National Capital Territory of Delhi’. It
also provides a 70 member assembly and a 7 member Council of Ministers for Delhi.

The Constitution (73rd Amendment) Act, 1992

 April 20,1993 as it got rectification by the State legislatures and was assented to by the
President of India. After notification, the Panchayati Raj Institutions have now got
Constitutional legitimacy.
 After part VIII of the Constitution, a separate part IX has been added to the Constitution
with the addition in Article 243A and fresh Schedule called Eleventh Schedule enumerating
the powers and functions of Panchayti Raj Institutions.
 The Act provides for Gram Sabha, a three-tier model of Panchayati Raj, reservation of seats for
SCs and STs in proportion to their population and one-third reservation of seats for women.

The Constitution (74th Amendment) Act, 1992

 The Act provides constitutional status to Urban Local Bodies. After part VIII of the
Constitution, a separate part IXA has been added to the Constitution with the addition in
Article 243A and a fresh schedule called Twelfth schedule enumerating the powers
and functions of urban local bodies has been incorporated.
 The Act provides Municipal Panchayat, Municipal Council and Municipal
Corporation, reservation of seats for SCs and STs in proportion to their
population and one-third reservation of seats for women

The Constitution (76th Amendment) Act, 1994

 This Amendment Act raises the reservation quota of government jobs and seats for admission
in the educational institutions in favor of socially and educationally backward classes to 69
per cent in Tamil Nadu.

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 Further, the Amendment Act has been included in the Ninth Schedule of the
Constitution to exempt it from the purview of judicial scrutiny

The Constitution (Seventy-seventh Amendment) Act, 1995

 This Amendment has added a new clause (4-a) to Article 16 of the Constitution which
empowers the State to make any provisions for reservation in promotions in Government jobs
in favour of SCs and STs, if it is of opinion that they are inadequately represented in the
services under the State.
 This has been done to nullify the effect of the Supreme Court Judgment in the Mandal
Commission Case (Indra Sawhney vs. Union of India) in which the Court has held that
reservation in promotions cannot be made.

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 The Constitution (80th Amendment) Act, 2000

 Based on the recommendations of the Tenth Finance Commission, an alternative scheme for
sharing taxes between the Union and the State has been enacted by the Constitution (Eightieth
Amendment) Act, 2000.
 Under the new scheme of devolution of revenue between Union and the States, 26 per cent
out of gross proceeds of Union taxes and duties is to be assigned to the States in lieu of their
existing share in the income-tax, excise duties special excise duties and grants in lieu of tax
on railway passenger fares.

The Constitution (85 th Amendment) Act, 2001

 This Act amended Article 16 (4A) of the Constitution to provide for consequential seniority
in the case of promotion by virtue of rule of reservation for Government servants belonging
to the Scheduled Castes and the Scheduled Tribes.

The Constitution (86 th Amendment) Act, 2002

 With a view to making right to free and compulsory education a fundamental right, the Act
inserts a new Article, namely, Article 21A conferring on all children in the age group of 6 to 14
years the right to free and compulsory education.
 The Act amends in Part-III, Part –IV and Part-IV(A) of the Constitution.

The Constitution (89 th Amendment) Act, 2003

 The Act adds Article 338A and provides for the creation of National
Commission for Scheduled Tribes.

The Constitution (90 th Amendment) Act, 2003

 The Act amends Article 332 and adds section (6) regarding representation in the Bodo
Territorial Areas District in the State of Assam.

The Constitution (Ninety-one Amendment) Act,2003

 The Act makes provisions for limiting the size of the Council of Ministers at the Center
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 and in the States and gives teeth to debar a defector from holding any remunerative
political post for the remaining tenure of the legislature unless reelected.

The Constitution (Ninety- third Amendment) Act, 2005

 Providing reservation for the socially and educationally backward classes, besides
the Schedules Castes and the Scheduled Tribes, in private unaided educational
institutions.

The Constitution (97th Amendment) Act, 2012

 In Part IIIof the constitution, after the words “or unions” the words “Cooperative Societies”
was added.

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 In Part IVa new Article 43Bwas inserted, which says: The state shall endeavour to promote
voluntary formation, autonomous functioning, democratic control and professional
management of the co-operative societies”.
 After Part IXAof the constitution, a Part IXBwas inserted to accommodate state vs centre
roles.

The Constitution (99th Amendment) Act, 2014

 The National Judicial Appointments Commission (NJAC) was established by the Union
government of India by amending the constitution of India through the 99th Constitutional
Amendment Act, 201

The Constitution (100th Amendment) Act, 2015

 Constitution (100th Amendment) Act 2015 ratified the land boundary agreement between
India and Bangladesh.
 The act amended the 1st schedule of the constitution to exchange the disputed territories
occupied by both the nations in accordance with the 1974 bilateral Land Boundary
Agreement.
 India received 51 Bangladeshi enclaves (covering 7,110 acres) in the Indian mainland, while
Bangladesh received 111 Indian enclaves (covering 17,160 acres) in the Bangladeshi
mainland

The Constitution (101st Amendment) Act, 2017

 Introduced the Goods and Services Tax.

The Constitution (102nd Amendment) Act, 2018

 Constitutional status to National Commission for Backward Classes

The Constitution (103rd Amendment) Act, 2019

 A maximum of 10% Reservation for Economically Weaker Sections (EWSs) of citizens of

36
 classes other than the classes mentioned in clauses (4) and (5) of Article 15, i.e. Classes other
than socially and educationally backward classes of citizens or the Scheduled Castes and the
Scheduled Tribes.
 Inserted Clause [6] under Article 15 as well as Inserted Clause [6] under Article 16.

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 Meaning of National Emergency

A state of emergency is a situation in which a government is empowered to be able to put

through policies that it would normally not be permitted to do, for the safety and protection of
their citizens. A government can declare such a state during a natural disaster, civil unrest,
armed conflict, medical pandemic or epidemic or other bio security risk.

A national emergency modifies the federal system of government to a unitary one by granting
Parliament the power to make laws on the 66 subjects of the State List (which contains
subjects on which the state governments can make laws). Also, all state money bills are
referred to the Parliament for its approval.

Three Types of Emergency under the Indian Constitution

There are three types of emergencies under the Indian Constitution namely-
· National Emergency
· Failure of constitutional machinery in states
· Financial Emergency

1. National Emergency

Article 352 of the Indian Constitution talks about the national emergency. National
emergency is imposed whereby there is a grave threat to the security of India or any
of its territory due to war, external aggression or armed rebellion. Such emergency
shall be imposed by the president on the basis of written request by the council of
ministers headed by the Prime Minister. When they are satisfied that they are
satisfied that there is an eminent danger there of.

Every proclamation is required to be laid before each House of Parliament, it will cease to
operate after one month from the date of its issue unless in the meantime it is approved by the
parliament, the proclamation may continue for a period of 6 months unless revoked by the
president. For further continuance of emergency the resolution has to be passed by either
house of parliament by a majority of not less than two-third members of the houses.

National emergency has been imposed thrice in the country- in 1962 at time of Chinese
aggression, in 1971 during the indo-pak war, in 1975 on the grounds of internal
disturbances.

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2. Failure of Constitutional Machinery in State

Article 256 talks about the failure of constitutional machinery in state also known as
the President’s rule. If the president on Governor’s report or otherwise is satisfied
that the situation has arisen that the government can’t be carried in accordance with
the constitutional provisions then, he may issue State emergency.
President can declare emergency either by the report of Governor or he himself is
satisfied that the situation is such that the emergency has to be imposed. But at
times, President may declare emergency when a report is not received from the

39
3. Financial Emergency

The president under Article 360 of the constitution has the power to declare financial
emergency if he is satisfied that the financial stability or the credit of India or any
part of its territory is threatened. It has to be laid before both the Houses of
Parliament and ceases to operate at the expiration of two months unless meanwhile
approved by the resolution of Houses.

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 Local Self- Governments

Local Self- Governments are those bodies that look after the administration of an area or a
small community such as a village, a town or a city.2 Local Self- Government operates
at the lowest level of society. It works at the grass-root level, close to the people, touching their
everyday life. Local Self-Government is the management of local affairs by such local bodies
who have been elected by the local people. These local bodies provide services to the local
community as well as acts as an instrument of democratic self government.

Characteristics of Local Government

There are certain characteristics on which the system of Local Government is based. Some of its
important characteristics are:

(a) Local Area: - Local Government unit, as far as its jurisdiction is concerned, has a well
defined area which is fixed by the concerned state government. This area can be termed as a city,
a town or a village,

(b) Local Authority: - The administration of a particular locality is run by an authority or by a

body of persons who are elected directly by the people residing in that particular area.

(c) Civic Amenities for Local Inhabitants: - The primary objective of Local Government is
to provide certain civic amenities to the people at their door-steps. The provision of these civic
amenities ensures the healthy living of local community,

(d) Local Autonomy: - Local autonomy means the freedom of the Local Government to
decide and act in the sphere of activities and functions allotted to them by the statutes under
which they are created,

(e) Local Finance: - In order to perform its functions effectively, it is necessary that every
local government unit is provided with adequate finances. The services provided to the local
inhabitants are largely financed out of finance raised locally.

Local self government - constitutional scheme in India

Local Governance in India has been formalized under the Panchayati Raj System since 1992.
The Panchayati Raj system is a three-tier system with elected bodies at the village, taluk and
district levels. The modern system is based in part on traditional panchayat governance, in part
on the vision of Mahatma Gandhi and in part by the work of various committees to harmonize

41
the highly centralized Indian governmental ad

The result was intended to create greater participation in local government by people and more
effective implementation of rural development programmes. Although, as of 2015,
implementation in all of India is not complete the intention is for there to be a gram panchayat
for each village or group of villages, a tehsil level council, and a

42
zilla panchayat at the district level.

43
India has a chequered history of panchayati raj starting from the self-sufficient and self-
governing village communities that endured the rise and fall of empires in the past, to the
current highly structured system administration with a degree of local autonomy.

The 73rd Amendment is about Rural Local Governments (which are also known as
Panchayati Raj Institutions or PRIs) and

The 74th amendment made the provisions relating to Urban Local Governments
(Nagarpalikas).

The 73rd and 74th amendments have created uniformity in the structures of Panchayati
Raj and Nagarpalika institutions across the country. The 73rd and 74th Amendments
came into force in 1993.

1
2