COMPARATIVE LAW

UNIT 3
Nature of distribution of Powers comparative study

Nature of distribution of powers comparative study

Federal & Unitary form of state - characteristics, differences & advantages

Distribution of powers - legislative, administrative and financial - Legislative process

The executive law-making

The amendment processes

THE DIFFERENCE BETWEEN UNITARY AND FEDRAL GOVERNMNET

UNITARY AND FEDERAL GOVERNMENT
On the basis of relationship between the centre and the units, the governments may be classified
as unitary and federal. In a unitary government, all the powers of government are vested in the
central government whereas in a federal government, the powers of government are divided
between the centre and the units. Their distinctive feature and comparative merits and demerits
are given as follows. UNITARY GOVERNMENT A Unitary government is a kind of
government system in which a single power, which is known as the central government,
controls the whole government. In fact, all powers and administrative divisions authorities lies
at the central place. Today most of the government systems in the world are based on unitary
system of government. It is slightly different from federal model of government. In unitary
government, central government has the power to increase or curtail the power of subnational
units. It can create and abolished the same. UK, Afghanistan, Italy, China, Saudi Arabia, Spain,
etc., are the important examples of unitary government.

The unitary government system is based on the concept of consistency, unity, and identity that’s
why the centralization of power and authority system remains at the top priority. The decision-
making power rests with the central government that are shared by the government with the
lower level government when needed. There are not so many options for change and new
innovation as the people have a very limited voice in this government system. There are many
merits and demerits of unitary government. It is useful in the term that rules and regulations in
this government systems remain consist and equal throughout the country. Moreover, it is less
expensive as compared to the federal government because the number of powerful people
remains very low. In a time of emergency, it makes timely decisions as compared to the federal
government system. But at the same time, the concept of freedom of speech and expression
always remains at a low priority that’s why most of the principles of unitary government are
much similar to that of dictatorship system of government. Its distinctive feature is given as
follows;

1. Concentration of Powers: A unitary government is one in which all the powers of

administration are vested in a single centre. The centre is omnipotent. A unitary state may be
divided into small units for the sake of administrative convenience but the units do not have
any constitutional status of their own. In other words, the constitution does not confer any
powers on the units. It is the central government which dele gates certain powers to the units
on its own accord. The units are, therefore, subordinate agents of centre. The powers enjoyed
by them are the gifts of the centre and as such these can be taken back at any moment. The
units are thus not autonomous and independent in any way.

2. Single Government: In a unitary government, there is a single set of governmental apparatus.

There is a single supreme legislature, single executive body and one supreme judiciary.
England, for example, is a unitary state. She has one parliament as her legislature, the King-in-
Council as the executive and the judicial committee of the House of Lords as her supreme
judiciary.

3. Written or unwritten Constitution: A unitary government may or may not have a writ ten
constitution. As for example, England and France are unitary states. France has a written
constitution but England has none

4. Rigid or Flexible Constitution: Unlike a federation, a unitary state may or may not have a
rigid constitution, e.g., the constitution of England is flexible but that of France is slightly rigid.

5. No Special Judiciary: There is no need of having a special judiciary with wide powers of
judicial veto in a unitary government. Even the highest court of U.K., for example, cannot sit
in judgment over the law passed by Parliament.

FEDERAL GOVERNMENT

Federal government is a type of national government in which government have powers to

delegates the power to other elected member of the states. There can be two level of federal
government in a country either it is performing through common institutions or through powers
as prescribed by a constitution of the state. It is totally opposite to the unitary government. In
federation or federal government, provinces or territories enjoys some rights as are available
to the independent states. However international diplomacy, national security, foreign affairs
and other kinds of international dealings are solely made by the federal government. Pakistan,
India, Brazil, Switzerland, Australia, Belgium, Canada, etc., are the significant examples of
federal government. Mostly the federal government system is referred to the United States
government. This government is based on the republicanism and federalism. In the federal
system, power is jointly shared between the state and federal governments. In the federal
government system, the powers never rest with one national government. However, there can
be certain powers and authorities that remain totally with the federal government like policies
on defence, budget, international diplomacy, etc. The hierarchy of power in federal government
system starts from the federal level and then flows to the state and then local level. Its
distinctive feature is given as follows;

1. Division of Powers: In a federal government the powers of administration are divided

between the centre and the units. The powers may be distributed in two different ways. Either
the constitution states what powers the federal authority shall have, and leaves the remainder
to the federating units, or it states what powers the federating units shall possess and leaves the
remainder to the federal authority. The remainder is generally known as residuary powers. The
first method was employed in America and the second in Canada. The federal government in
U.S.A., for example, is weak in relation to the states whereas the federal government in Canada
is more powerful. In a federation both the federal and state governments are independent and
autonomous in the spheres of their powers. 'One is not subordinate to the other. Both derive
their powers from the constitution which is the supreme law of the land. The powers enjoyed
by the units are, therefore, original and not delegated by the centre.

2. Separate Government: In a federal form of government both the centre and the units have
their separate set of governmental apparatus. America is a federation of states. States have
therefore separate legislatures and Separate executives.

3. Written Constitution: A federal government must have a written constitution. As a federation

is a political partnership of various states and consequently there must be a written agreement
in the form of a written constitution.

4. Rigid Constitution: The constitution of a federation should be more or less rigid. It is

regarded as a sacred agreement, the spirit of which should not be easily violated. A flexible
constitution allows a scope to the central government to curtail the autonomy of the federating
states.

5. Special Judiciary: In a federation, there are possibilities of constitutional disputes arising

between the federal centre and the units or between one unit and another. All these disputes are
to be adjudicated in the light of the constitution. For this purpose a special judiciary with wide
powers must be established. It should act as the custodian and guardian of the constitution. It
should be vested with powers of declaring any law, national or local, ultra vires if it is at
variance with the articles of the constitution. The constitution is thus the supreme law in a
federation to which both the centric and the state must adhere to.

Recasting of Federal Structure of the Indian Constitution

While framing the Indian Constitution, the Constituent Assembly had many models to draw
upon, it wisely chose to take the Government of India Act, 1935 as the basis on which the new
Constitution was to be framed.[1] The adoption of the Government of India Act, 1935, as the
basis of the new Constitution had the great advantage of smoothly making the transition from
British rule to the new Republic of India without any break with the past.

It ensured that the old laws and the constitutional provisions continued without a break; and
thereby secured for India, the advantage which an evolutionary change has over a revolutionary
break with the past. The most important political feature of a Federal Constitution is the
distribution of legislative power between the Centre and the States. At the time of drafting the
Government of India Act, 1935, the British Parliament had to solve the problem posed by the
demand of the Muslim minority that residuary power of legislation should be conferred on the
Provinces, and the demand of the Hindu majority that residuary power should be conferred on
the Federation. The Government of India Act, 1935, solved this problem and avoided the
allocation of residuary power either to the Provinces or to the Federation by adopting the device
of exhaustively enumerating every conceivable subject of legislative power and putting it in
one or the other of the three Lists of the Seventh Schedule to the Act. Our Constitution had
bodily adopted the scheme of the aforementioned Act with small verbal changes.[2]

I. Federalism and the Indian Constitution

The Constitution of India came into force on 26-1-1950. For many decades thereafter,
the Supreme Court of India was called upon to grapple the issue about the nature of federalism
under the Indian Constitution. After the Supreme Court’s decision in State of W.B. v. Union of
India[3], it was understood that the unitary features in the Constitution are so many that the
federal features almost disappear. In State of Rajasthan v. Union of India[4], Beg, C.J. observed
that the extent of federalism in the Indian Constitution is largely watered down by the means
of progress and development of a country which has to be nationally integrated, politically and
economically coordinated and socially, intellectually and spiritually uplifted. H.M. Seervai in
his treatise on the Indian Constitution observes that the aforementioned view of the Supreme
Court “ … is based on an imperfect study of our own and other Federal Constitutions.”[5]

Certain landmark pronouncements of the Supreme Court may conveniently be

considered at this point. In Powers, Privileges and Immunity of State Legislatures, In re[6] the
Supreme Court of India discussed the essential characteristics of federalism in juxtaposition to
British Parliament:

In dealing with this question, it is necessary to bear in mind one fundamental feature of
a Federal Constitution. In England, Parliament is sovereign; and in the words of Dicey, the
three distinguishing features the principle of parliamentary sovereignty are that Parliament
has the right to make or unmake any law whatever; that no person or body is recognised by
law of England as having a right to override or set aside the legislation of Parliament; and
that the right or power of Parliament extends to every part of the Queen’s dominions. On the
other hand, the essential characteristic of federalism is “the distribution of limited executive,
legislative and judicial authority among bodies which are coordinate with and independent of
each other”. The supremacy of the Constitution is fundamental to the existence of a federal
State in order to prevent either the legislature of the federal unit or those of the member States
from destroying or impairing that delicate balance of power which satisfies the particular
requirements of States which are desirous of union, but not prepared to merge their
individuality in a unity. This supremacy of the Constitution is protected by the authority of an
independent judicial body to act as the interpreted of a scheme of distribution of powers. Nor
is any change possible in the Constitution by the ordinary process of federal or State
legislation.

It must therefore be borne in mind that one of the important features of federalism has
to be the existence of an independent judiciary which, in the face of growing ‘unitarism’, would
not be afraid to exercise its power of judicial review to examine whether any action of the
Centre adversely affects the federal balance between the Centre and the States.
 The aforementioned decision of the Supreme Court of India in State of W.B. v. Union
of India[8] was one of the important pronouncements where the concept of federalism was
discussed. A six-Judge Bench was called upon to decide a suit filed by the State of West Bengal
against the Union of India in relation to the Coal Bearing Areas (Acquisition and Development)
Act, 1957[9]. In the aforesaid context, the majority decision inter alia observed as under:

In some respects, a greater degree of economic unity was sought to be secured by

transferring subjects having impact on matters of common interest into the Union List. A
comparison of the Lists in Schedule 7 to the Constitution with Schedule 7 to the Government
of India Act, 1935 discloses that the powers of the Union have been enlarged particularly in the
field of economic unity, and this was done as it was felt that there should be centralised control
and administration in certain fields if rapid economic and industrial progress had to be achieved
by the nation. The result was a Constitution which was not true to any traditional pattern of
federation.

Furthermore, the Court also observed that a truly Federal Constitution has four essential
characteristics viz.:

(a) an agreement between independent and sovereign units to surrender partially their
authority in their common interest and vesting it in a Union, and retaining the residue of the
authority in the constituent units;

(b) supremacy of the Constitution which cannot be altered except by the component
units;

(c) distribution of powers between the Union and the regional units each in its sphere
coordinate and independent of each other; and

(d) supreme authority of the courts to interpret the Constitution and to invalidate action
violative of the Constitution.

The Court observed that characteristic (d) is to be found in full force in the Indian
Constitution, but characteristics (a) and (b) are absent. Insofar as characteristic (c) is concerned,
there is undoubtedly distribution of powers between the Union and the States in matters
legislative and executive, but the distribution is not always an index of political sovereignty.
The exercise of legislative and executive powers in the allotted fields is hedged in by numerous
restrictions, so that the power of the States is not coordinated with the Union and is, in many
respects, independent of the Union.[11]
 In the context of the distribution of legislative power, the majority judgment observed
that:

(T)he basis of distribution of powers between the Union and States is that only those
powers and authorities which are concerned with the regulation of local problems are vested in
the States, and the residue especially those, which tend to maintain the economic, industrial
and commercial unity of the nation are left with the Union….[12]

The majority also observed that the power of taxation is severely restricted vis-à-vis the
States,[13] and that the States depend largely upon financial assistance from the Union.[14] As
mentioned, pursuant to the aforesaid decision, it was usually understood that India has a Federal
Constitution, which leans towards a strong centre.

A similar conclusion was also reached by a seven-Judge Constitution Bench of the

Supreme Court of India in State of Rajasthan v. Union of India. In the aforementioned case, the
letter issued by the Union Home Minister to the nine Congress-ruled States asking them to
advise their respective Governors to dissolve the State Assemblies and seek a fresh mandate
from the people was challenged by way of a suit before the Supreme Court of India. In the
aforesaid context, the Court observed as under:

A conspectus of the provisions of our Constitution will indicate that, whatever

appearance of federal structure our Constitution may have, its operations are certainly, judged
both by the contents of power which a number of its provisions carry with them and the use
that has been made of them, more unitary than federal.

The Court further added that in a sense, the Indian Union is federal. But the extent of
federalism in it is largely watered down by the need of progress and development of a country
which has to be nationally integrated, politically and economically coordinated, and socially,
intellectually and spiritually uplifted. The Court observed that in such a system, the States
cannot stand in the way of legitimate and comprehensively planned development of the country
in the manner directed by the Central Government.

In State of Karnataka v. Union of India the Supreme Court of India observed that
strictly speaking, the Indian Constitution is not of a federal character where separate,
independent and sovereign States could be said to have joined to form a nation as in the United
States of America or as may be the position in some other countries of the world. In this case,
the Supreme Court reiterated that for the aforesaid reason, the Indian Constitution has been
characterised as quasi-federal.

Perhaps the authority on Indian Federalism is the nine-Judge Bench judgment of the
Supreme Court of India in S.R. Bommai v. Union of India. In S.R. Bommai the incumbent
Chief Minister of the State of Karnataka had questioned the proclamation of emergency
declared under Article 356 of the Constitution of India. It was in the aforesaid context that the
Constitution Bench was called upon to review the Proclamation under Article 356. The Bench
expressed itself through six opinions. The authors of all six opinions principally referred to the
aforementioned decisions in State of West Bengal and State of Rajasthan in the course of their
judgments.

But for the present discussion, it may be sufficient to say that there was a clear majority
to support the findings concerning federal characteristics of the Constitution of India. The Court
observed that the Indian Constitution has in it, not only features of pragmatic federalism which,
while distributing legislative powers and indicating spheres of governmental powers of State
and Central Governments, is overlaid by strong “unitary” features, particularly exhibited by
lodging in Parliament the residuary legislative powers, and in the Central Government, the
executive power of appointing certain constitutional functionaries and issuing appropriate
directions to the State Governments, and even displacing the State Legislatures and the
Governments in emergency situations. More significantly, the Court observed that democracy
and federalism are the essential features of our Constitution and are part of its basic structure.
The federal principle was observed to be dominant in the Constitution and the principle of
federalism has not been watered down. Notwithstanding that there are many provisions in the
Constitution where under the Centre has been given powers to override the States, the Indian
Constitution is federal in nature. The States have an independent constitutional existence and
they have an important role to play in the life of the people of the Union.

The majority concluded that the Constitution of India creates a federation but with a
bias in favour of the Centre. The Centre has been made far more powerful vis-à-vis the States.
Correspondingly, several obligations too, are placed upon the Centre. That does not make the
States mere appendages of the Centre. Within the spheres allotted to them, the States are
supreme. Most importantly, the Court observed that the Centre cannot tamper with the powers
of the States.
 In ITC Ltd. v. Agricultural Produce Market Committee the Supreme Court ruled that
the Constitution of India deserves to be interpreted, language permitting, in a manner that does
not whittle down the powers of the State Legislature and preserves the federalism while also
upholding supremacy as contemplated by some of its articles.

Another Constitution Bench consisting of five Judges was called upon to examine
federalism under the Indian Constitution in Kuldip Nayarv. Union of India. The aforesaid case
came up before the Supreme Court of India in the form of a writ petition challenging the
amendments made in the Representation of the People Act, 1951, whereby the requirement of
“domicile” in the State concerned for getting elected to the Rajya Sabha was deleted. The
fundamental basis of the petitioner’s challenge was that the impugned amendment violated the
principle of federalism, a basic feature of the Constitution. While adjudicating upon the
aforementioned issue, the Supreme Court observed that the nature of federalism in the Indian
Constitution is no longer res integra.

After referring to a catena of judgments (which have been referred to hereinabove), and
the facts of the case before it, the Supreme Court observed that India is not a federal State in
the traditional sense of the term. In India, the context of federalism is not territory related. This
is evident from the fact that India is not a true federation formed by agreement between various
States and that territorially it is open to the Central Government, not only to change the
boundaries, but even to extinguish a State.

The aforementioned decision in Kuldip Nayar was reaffirmed by a nine-Judge Bench

of the Supreme Court of India in Jindal Stainless Ltd. v. State of Haryana. The issue before the
Supreme Court was the validity of the laws enacted by different States in India providing for
levy of tax on the entry of goods into local areas comprising the States. The majority opinion
identified that the issue was of great concern not only because it dealt with the powers of the
State Legislatures to levy taxes but also because any pronouncement would impact the federal
character of polity and the Centre-State relationship in legislative and fiscal matters. The Court
observed that the legal position is fairly well settled that the Constitution provides for quasi-
federal character with a strong bias towards the Centre. A reference was made to the judgments
which have been referred to hereinabove.

The latest decision on the issue is the five-Judge Bench decision of the Supreme Court
in State (NCT of Delhi) v. Union of India. The issue in the aforesaid matter related to the scope,
ambit and interpretation of Article 239-AA of the Constitution of India which makes certain
special provisions with respect to Delhi. Relying upon S.R. Bommai and ITC Ltd., the Court
reiterated that democracy and federalism are firmly imbibed in constitutional ethos. Whatever
be the nature of federalism present in the Indian Constitution, whether absolutely federal or
quasi-federal, the fact of the matter is that federalism is a part of the basic structure of the
Constitution. The Court also discussed a novel concept of collaborative federalism. It observed
that in a welfare State, there is a great necessity of collaborative federalism. The idea behind
the concept of collaborative federalism is negotiation and coordination so as to iron out the
differences which may arise between the Union and the State Governments in their respective
pursuits of development. Lastly, insofar as the federal structure under the Indian Constitution
is concerned, the Court reiterated that the Constitution prescribes a federal structure which
provides for division of powers between the States and the Centre, but with a slight tilt towards
the Centre. However, it also provides for a federal balance between the powers of the Centre
and the States so that there is no unwarranted or uncalled for interference by the Centre which
would entail encroachment by the Centre into the powers of the States. The need is for federal
balance which requires mutual respect and deference to actualise the workability of a
constitutional provision.

II. Relations between the Union and the States in the Indian Constitution

The Constitution of India incorporates the concept of federalism in various provisions.

There are several such provisions to be found throughout the Constitution which relate to the
idea of federalism, and particularly those which concern the relationship between States and
Centre. These include inter aliadivision of legislative functions between them with sanction of
the Constitution inter alia include Lists I, II and III of the Seventh Schedule; the authority to
Parliament to legislate in a field covered by the State under Article 252 only with the consent
of two or more States, with provision for adoption of such legislation by any other State;
competence of Parliament to legislate in matters pertaining to the State List in the national
interest, for a limited period, under Article 249 and under Article 250 during “emergency”;
vesting the President with the power under Article 258(1) to entrust to a State Government,
with consent of the Governor, functions in relation to matters to which executive power of the
Union extends; etc.

Part XI of the Indian Constitution is titled “Relations between the Union and the States”.
Chapter I thereof relates to legislative relations. An important provision in the aforesaid chapter
is Article 246 which provides for subject-matter of laws made by Parliament and by the State
Legislatures. This article deals with distribution of legislative powers as between the Union
and the State Legislatures, with reference to the different Lists in Schedule VII. The gist of the
article is that Parliament has complete and exclusive power to legislate with respect to matters
in List I, and also has the power to legislate with respect to matters in List III. The State
Legislature, on the other hand, has complete and exclusive power to legislate with respect to
List II and has concurrent power with respect to matters included in List III. This provision
provides for the distribution between the Union and the States, of the legislative power
conferred by Article 245. The provisions of Article 246 are to be read with the entries in the
Union List, State List and the Concurrent List in Schedule VII.

The distribution of legislative powers is an important aspect of the Constitution. By

now, it is well-settled position of law that amongst the grounds available to test the
constitutional validity of a statute, the two principal grounds are violation of a fundamental
right guarantee under Part III of the Constitution, and legislative competence of the legislature
which has enacted the statute. For the present purpose, it is not necessary to consider other
grounds available to raise an ultra vireschallenge. Of the two aforementioned principal grounds
of challenge, only the ground of legislative competence is of relevance while discussing the
federal versus unitary nature of the Constitution.

It is contended in this paper that there has been a steady encroachment by the Centre
over matters that would normally fall within the jurisdiction of the States leading to an erosion
of the sphere of control that otherwise vested in the States. While this may be examined under
different heads,three such heads have been considered below:

Encroachment by the Centre over the States’ Legislative area;

Part XIII – Interstate Trade and Commerce; and

Effect of change in taxation and revenue sharing.

Each of these may now be considered.

III. Encroachment upon the States’ legislative arena by the Union

Over the past three decades, it is being observed that Parliament appears to have
encroached upon the legislative powers of the States.

The Constitution (73rd Amendment) Act, 1992 inserted Part IX titled “The
Panchayats”. The 73rd Amendment was brought into force under the garb of giving effect to a
directive principle of State policy viz. Article 40 of the Constitution[56]. Article 40 provides
that the State shall take steps to organise village panchayats and endow them with such powers
and authority as may be necessary to enable them to function as units of self-
government.

The introduction of Part IX to the Constitution was by way of the aforementioned

Amendment under Article 368 of the Constitution. It sought to grant a constitutional status to
local self-government institutions. The Supreme Court of India in Gujarat Pradesh Panchayat
Parishad v. State of Gujarat observed that in the light of the constitutional provisions in Part
IX, a State Legislature cannot do away with the democratic bodies at the local level, nor can
their normal tenure be curtailed otherwise than in accordance with law.

Part IX of the Constitution confers certain powers on local self-government. It promises

duration of five years, free and fair elections, representation of Scheduled Castes and Scheduled
Tribes in the administration of institutions of local self-government, “no interference” by other
organs of the State, including judiciary, etc. To illustrate, Article 243-B provides that there shall
be constituted in every State, panchayats at the village, intermediate and district levels in
accordance with the provisions of this Part. Further, Article 243-C provides for composition of
panchayats. Clause (1) thereof provides that subject to the provisions of Part IX, the legislature
of a State may, by law, make provisions with respect to the composition of panchayats. The
particulars of the composition have also been prescribed by Article 243-C. Article 243-D
provides that seats shall be reserved for the Scheduled Castes (SC) and the Scheduled Tribes
(ST) in every panchayat. Furthermore, it provides that the number of seats so reserved shall
bare, as nearly as maybe, the same proportion to the total number of seats to be filled by direct
election in the Panchayat as the population of the SC/ST in that panchayat area bares to the
total population of that area. Not less than one-third of the seats reserved, are to be reserved for
women belonging to SC/ST.

Furthermore, not less than one-third of the total number of seats to be filled in by direct
election in every Panchayat, shall be reserved for women. The provision also mandates
reservation in the offices of the Chairpersons in the Panchayat. Article 243-E provides that
every panchayat shall continue for five years from the date appointed for its first meeting and
no longer. Article 243-F provides for disqualifications that a person may incur, for being a
member of a Panchayat. The powers, authority and responsibilities of the Panchayats are
provided for in Article 243-G. Much like many of the aforementioned clauses, Article 243-G
also provides that subject to the provisions of the Constitution, the legislature of a State may
endow the Panchayats with such power and authority as may be necessary to enable them to
function as institutions of self-government. The law framed by a State Legislature pursuant to
Article 243-G is subject to the condition as may be specified therein, with respect to
implementation of schemes for economic development and social justice as may be entrusted
to them including those in relation to matters listed in the Eleventh Schedule. Article 243-H
enables the legislature of a State to authorise a Panchayat to levy, collect and appropriate such
taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as the
law may prescribe. Article 243-K provides for the elections to the Panchayat. Clause (1) thereof
provides that the superintendence and control of preparation of electoral rolls for, and the
conduct of, all elections to the Panchayats shall be vested in a State Election Commission.

Furthermore, clause (4) provides that the legislature of a State may, by law, make
provision with respect to all matters relating to elections to the Panchayat. An important
provision introduced by the 73rd Amendment is Article 243-N which provides for continuance
of existing laws and Panchayats. It starts with a non obstante clause, and provides that
notwithstanding anything in Part IX, any provision of law relating to Panchayats in force in a
State immediately before the commencement of the 73rd Amendment Act, which is
inconsistent with the provisions of Part IX, shall continue to be in force until amended or
repealed by a competent legislature or until the expiration of one year from such
commencement, whichever is earlier. The 73rd Amendment was brought into force on 24-4-
1993. Therefore, in terms of the aforementioned article, any law relating to Panchayats in force
in a State would continue to be in force only up to 24-4-1993, unless it was amended or repealed
before that.

Similar to Part IX, is Part IX-A, comprising of Articles 243-P to 243-ZG. Part IX-A was
inserted into the Constitution by Constitution (74th Amendment) Act, 1992. Part IX-A is titled
“The Municipalities”. The object of introducing Part IX-A was that in many States the local
bodies were not working properly, and timely elections were not being held and nominated
bodies were continuing for long periods. Elections had been irregular and many times
unnecessarily delayed or postponed and the elected bodies had been superseded or suspended
without adequate justification at the whims and fancies of the State authorities. The provisions
introduced vide Part IX-A were intended to restore the local bodies to their rightful place in
political governance. It was considered necessary to provide a constitutional status to such
bodies and to ensure regular and fair conduct of elections. Much like Part IX, Part IX-A also
provides for constitution of Municipalities (Article 243-Q), composition of Municipalities
(Article 243-R), reservation of seats (Article 243-T), duration of Municipalities (Article 243-
U), powers, authority and responsibilities of Municipalities (Article 243-W), powers to impose
taxes by, and funds of the Municipalities (Article 243-X), audit of accounts of Municipalities
(Article 243-Z). Further, the aforesaid part also introduces provisions relating to election
(Article 243-ZA). The provisions of Article 243-ZF are pari materia to the provisions of Article
243-N, insofar as it provides that any provision of a law relating to Municipalities in a State
immediately before the commencement of the 74th Amendment, which is inconsistent with the
provisions of Part IX-A shall continue to be in force until amended, repealed or until expiration
of one year from the date of commencement of the Amending Act.

But for the introduction of Parts IX and IX-A, the State Legislature had complete power
to legislate upon matters relating to Panchayats and Municipalities. This power could be traced
to Article 246 read with Entry 5 of List II of Schedule VII. Entry 5[81] provides for “Local
Government that is to say the constitution and powers of Municipal Corporations, Improvement
Trusts, District Boards, Mining Settlement Authorities, and other local authorities for the
purpose of local self-government or village administration”. Pursuant to the introduction of
Parts IX and Part IX-A, it can be contended that Parliament has enacted provisions relating to
a matter which clearly fell within the exclusive legislative domain of the States. As mentioned,
the introduction of Parts IX and IX-A, make provisions in relation to certain aspects of the
functioning of the Panchayats and the Municipalities respectively. By virtue of Articles 243-N
and 243-ZF, the State Legislatures cannot make any statutes which are inconsistent with the
provisions of Parts IX and IX-A. Perhaps, even in the absence of the aforementioned two
articles, the States would have lost their power to make any statute which is inconsistent with
the provisions of the aforementioned Parts by virtue of them being constitutional provisions. It
is clear that the introduction of Parts IX and IX-A were made by using the power under Article
368 of the Constitution viz. the power of Parliament to amend the Constitution. It may be said
that but for Article 368, Parliament could not have made any statute in relation to institutions
of local self-governance by virtue of them being within the exclusive domain of the State
Legislature. An attempt to usurp some domain from that which lies exclusively with the State
Legislature will amount to be a colourable exercise of power by Parliament. In other words,
using the power to amend the Constitution to enact provisions relating to local self-
governments, Parliament has sought to do something indirectly, which it could not do directly.
 This exercise was repeated by Parliament by introducing Part IX-B by the Constitution
(97th Amendment) Act, 2011[82]. This Part was titled “Cooperative Societies”. Part IX-B
provided for incorporation of cooperative societies (Article 243-ZI[83]), constitution of the
board of cooperative societies (Article 243-ZJ[84]), election of members of the board (Article
243-ZK[85]), supersession and suspension of board (Article 243-ZL[86]), etc. The 97th
Amendment Act was challenged before various High Courts in the country. The Gujarat High
Court was pleased to declare the aforementioned Act as unconstitutional in Rajendra N. Shah
v. Union of India.[87] The petitioner in the aforementioned matter, inter alia challenged the
validity of the 97th Amendment on the ground that the subject-matter “cooperative societies”
is exclusively within the legislative competence of the State Legislatures. In other words, the
State Legislature is the only competent legislature to enact laws for cooperative societies. The
petitioner relied upon Entry 32 in List II of Schedule VII[88] to support his contention. Entry
32 reads as follows: “incorporation, regulation and winding up of corporations other than those
specified in List I, and universities; unincorporated trading, literary, scientific, religious and
other societies and associations; cooperative societies.” It was contended by the petitioner that
Parliament had exercised its power to amend the Constitution in a colourable
manner. Parliament could not have done something indirectly which it was not permitted to
do directly.

The learned Division Bench of the Gujarat High Court observed:

12. If this Part IX-B was not incorporated, the State Legislatures would have the
absolute right to enact on the above subjects according to the decision of such legislatures
whereas, after the amendment, no option is given to the State Legislature to deviate from or
ignore those provisions. Thus, by incorporation of Part IX-B, various restrictions have been
imposed relating to laws of cooperative societies which have constrained the jurisdiction of the
State Legislatures to enact any law relating to the cooperative societies on those aspects. In
other words, in spite of the fact that the law relating to cooperative societies is still in List II of
the 7th Schedule without bringing the subject of cooperative societies either into List I or List
III, by way of this amendment, Parliament has controlled the said power without complying
with the provisions of Article 368(2) of the Constitution by taking ratification of the majority
of the State Legislature….

13. In other words, what could not be achieved except by complying with the provision
of Article 368(2) of the Constitution, the selfsame(sic) purpose has been sought to be achieved
by the amendment impugned in this writ application without complying with the provisions of
Article 368(2) of the Constitution.[89]

After referring to the decision of the Supreme Court in S.R. Bommai[90], the learned
Division Bench observed that the impugned amendment also affected one of the basic
structures of the Constitution viz. federalism. It held that the amendment was violating the
basic structure of the Constitution so long as the subject of cooperative societies was in the
State List of the 7th Schedule and at the same time the provisions of Article 368(2) were not
complied with.[91] Thus, the Gujarat High Court declared the Constitution (97th Amendment)
Act, 2011 to be unconstitutional. The aforementioned decision of the Gujarat High Court was
challenged before the Supreme Court of India vide SLPNo. 25266-25267 of 2013. The
Supreme Court was pleased to issue notice vide its order dated 23-8-2013. The matter is
pending before the Supreme Court.

What is true in case of the 97th Amendment is equally true in case of the 73rd and 74th
Amendments. All the aforesaid amendments were in relation to matters which were exclusively
within the legislative competence of the State Governments. Parliament exercised its powers
under Article 368 to encroach upon the legislative arena of the State Legislatures. It is not as if
the distribution of matters in the context of legislative competence is set in stone. If Parliament
so deems it appropriate, it can in certain situations, make laws in relation to matters enlisted in
the State List as well. Such provisions are found in Chapter I of Part XI itself. Furthermore, in
case a need is felt to shift a matter from one List to another, the procedure prescribed under
Article 368(2) can be followed. A Bill for amending the Constitution to make any amendments
of the Lists in the 7th Schedule can be introduced in either House of Parliament and once it
received the assent of both the Houses, it may be forwarded to the States for ratification by the
legislatures of not less than one-half of the States by resolution to that effect passed by those
legislatures. Thereafter, such a Bill may be presented to the President for his assent.

 Part XIII of the Constitution of India

Part XIII of the Constitution is titled “Trade, commerce and intercourse within the
territory of India”. Article 301[92] provides that subject to the other provisions of Part XIII,
trade, commerce and intercourse throughout the territory of India shall be free. Article 301 is
inspired by Section 92 of the Australian Constitution when it refers to freedom of trade and
commerce. However, it is subject to the limitations and conditions in Articles 302[93], 303[94]
and 304[95] which are borrowed from the commerce clause under Article I of the US
Constitution[96]. Part XIII of the Indian Constitution is an amalgam of the United States’ and
Australia’s Constitutions. It brings out the difference between regulatory and taxing powers.
Article 302 of the Constitution provides that Parliament may by law impose such restrictions
on the freedom of trade, commerce or intercourse between one State and another, or within any
part of India as maybe required in the public interest.

This provision is another instance of the Centre having wider powers as compared to
States. Article 303 provides for restrictions on the legislative powers of the Union and of the
States with regards to trade and commerce. Clause (1) thereof, provides that notwithstanding
anything in Article 302, neither Parliament nor the legislature of a State shall have power to
make any law giving, or authorising the giving of any preference to one State over another, or
making, or authorising the making of any discrimination between one State and another, by
virtue of any entry relating to trade and commerce in any of the Lists in the 7th Schedule.
Discrimination means an intentional and purposeful differentiation creating economic barriers
with an element of unfavourable bias.[97] Furthermore, Clause (2) thereof carves out an
exception to Clause (1) by providing that nothing therein shall prevent Parliament from making
any law giving, or authorising the giving of, any preference or making, or authorising the
making of, any discrimination if it is declared by such law that it is necessary to do so for the
purpose of dealing with a situation arising from scarcity of goods in any part of the territory of
India. This exception carved out by Article 303(2), is another instance where a wider discretion
has been given to Parliament to make certain laws for the benefit of the Union, albeit in a
specific situation. Article 304 provides for restrictions on trade, commerce and intercourse
among States. It inter alia provides that notwithstanding anything in Article 301 or Article 303,
the legislature of a State may, by law, impose a tax on goods imported from other States which
are similar to goods manufactured or produced in that State.

Further, it also provides that the legislature of a State, may by law, impose such
reasonable restrictions on the freedom of trade, commerce and intercourse with or within that
State as may be required in public interest. The proviso to Article 304 requires the previous
sanction of the President for introduction of any Bill or amendment for the purposes of Article
304 clause (b).

 Federalism as reflected in the Temporary, Transitional and Special

Provisions
 Part XXI of the Constitution is entitled Temporary, Transitional and Special Provisions.
The provisions contained in Part XXI again indicate the unitary leaning of the Indian
Constitution. For instance, under Article 371 of the Constitution[98], the President may by
order made with respect to the State of Maharashtra or Gujarat, provide for any special
responsibility of the Governor for –

 The establishment of separate development boards for Vidarbha, Marathwada,

and the rest of Maharashtra or, as the case may be, Saurashtra, Kutch and the
rest of Gujarat with the provision that a report on the working of each of these
boards will be placed each year before the State Legislative Assembly;
 The equitable allocation of funds for developmental expenditure over the said
areas, subject to the requirements of the State as a whole; and
 An equitable arrangement providing adequate facilities for technical education
and vocational training, and adequate opportunities for employment in services
under the control of the State Government in respect of all the said areas, subject
to the requirements of the State as a whole.[99]

A provision akin to Article 371 is an inroad for the Central Executive viz. the President
into certain affairs of the State. The scope of the power is clearly spelt out and has to be
exercised in the manner specified therein. A similar provision is made in Article 371-D[100]
for the State of Andhra Pradesh or the State of Telangana where under the President may by
order, for either of the States, provide, having regard to the requirement of each State, for
equitable opportunities and facilities for the people belonging to different parts of such State,
in the matter of public employment and in the matter of education, and different provisions
may be made for various parts of the States.

The provisions of Part XXI make special provisions in relation to certain States in the
country. The President has been granted the power to make orders in respect of the subjects
mentioned therein, or appoint development boards in accordance with the provisions to ensure
a comprehensive development of the State. Much like the aforementioned provisions, these
provisions are an inroad for the Centre into the arena – legislative or executive, which otherwise
would have legitimately been within the purview of the State.

 Goods and Services Tax: A New Era of Federalism

The introduction of the Goods and Services Tax (GST) regime vide the Constitution
(101st Amendment) Act, 2016[101], was a major step in revamping the tax structure. The 101st
Amendment introduced Article 246-A in the Constitution making special provisions with
respect to goods and services tax. Article 246-A(1) provides that notwithstanding anything
contained in Articles 246 and 254, Parliament and subject to clause (2), the legislature of every
State shall have power to make laws with respect to goods and services tax imposed by the
Union or by such State. Clause (2) provides that Parliament has exclusive power to make laws
with respect to goods and services tax where the supply of goods, or of services, or both takes
place in the course of inter-State trade or commerce.

The aforementioned Constitutional Amendment also amended the 7th Schedule to the
Constitution. It substituted Entry 84 in List I. The substituted Entry 84 reads as under:

Duties of excise on the following goods manufactured or produced in India, namely:

petroleum crude;

high speed diesel;

motor spirit (commonly known as petrol);

natural gas;

aviation turbine fuel; and

tobacco and tobacco products.[102]

Further, it also deleted Entries 92 and 92-C from the Union List. Insofar as the State
List is concerned, the 101st Amendment deleted Entry 52 viz. taxes on the entry of goods into
a local area for consumption, use or sale therein, and Entry 55 viz. taxes on advertisements
other than advertisements published in the newspapers and advertisements broadcast by radio
or television. Entry 54 of the State List was substituted and so was Entry 62. Introduction of
Article 246-A[103] meant that the power of levying GST was given to the Union and the States.
Prior to the aforementioned constitutional amendment, the power to legislate upon matters
relating to taxation was distributed between the Union and the States on the basis of the nature
of transaction. With the introduction of Article 246-A, the classification based on the nature of
transaction has been done away with. The Union and the States now share the revenue on all
transactions.

The Amendment also introduced Article 269-A[104] which provides for levy and
collection of GST in course of inter-State trade or commerce. Article 269-A(1) provides that
GST on supplies in the course of inter-State trade and commerce shall be levied and collected
by the Government of India and such tax shall be apportioned between the Union and the States
in the manner as may be provided by Parliament by law on the recommendation of the GST
Council. Introduction of this article is also a blow to the concept of federalism under the
Constitution. It may be rational to grant the power to levy and collect the GST to the
Government of India, but to determine the apportionment between the Union and the States by
a law made by Parliament on the recommendation of the GST Council leans in favour of the
Centre. Not only is the amount being collected by the Centre, but the manner in which it is to
be distributed between the Union and the States is also to be decided by the Central Legislature
viz. Parliament. The structure and functioning of the GST Council also favours the Centre than
the States.

The aforementioned Amendment also introduced Article 279-A[105] which provides

for constitution of a GST Council. Clause (4) thereof, inter alia provides that the Council shall
make recommendations to the Union and the States on the taxes, cesses and surcharges levied
by the Union, the States and the local bodies which may be subsumed in the Goods and Services
Tax, and any other matter relating to GST. It is true that the GST Council consists of members
from the Union as well as the States. However, a bare reading of the aforementioned article
makes it abundantly clear that the voting power of the members from the Union is higher than
that of the members from the States. This itself is a severe blow to the nature of Indian
Federalism. Under Article 279-A, the GST Council has been given wide powers to make
recommendations to the Union and States on the taxes, cesses and surcharges to be levied by
the Union and States, the goods and services that may be subjected to or exempted from the
GST, the model GST law, the rates of GST and many other issues.

The Council consists of the Union Finance Minister, the Union Minister of State in
charge of Revenue or Finance, the Minister in charge of Finance or Taxation or any other
minister nominated by each State Government. Clause (9) of Article 279-A provides that every
decision of the GST Council shall be taken at a meeting, by a majority of not less than three-
fourths of the weighted votes of the members present and voting, in accordance with the
following principles viz.:

 The vote of the Central Government shall have a weightage of one-third of the
total votes cast; and
 The votes of the State Governments taken together shall have weightage of
two-thirds of the total votes cast in that meeting.
 Prior to the introduction of the GST regime, the taxation power was distributed between
the Centre and the States. Now with GST being a part of the constitutional framework, and the
GST Council playing a very important role in the operation of that regime, the bias that Indian
Federalism had towards the Centre appears to have magnified further.

 Federalism and the Union Parliament

Part V of the Constitution is entitled “The Union”. Chapter II thereof includes the
provisions relating to Parliament. Article 79[106] provides that there shall be a Parliament for
the Union which shall consist of the President and two Houses to be known respectively as the
Council of States and the House of the People.[107] The Council of States consists of twelve
members to be nominated by the President, and not more than two hundred and thirty-eight
representatives of the States and of the Union Territories.[108] The House of the People on the
other hand shall consist of not more than five hundred and thirty members chosen by direct
election from the territorial constituencies in the States, and not more than twenty members to
represent the Union Territories, chosen in such a manner as Parliament may by law
provide.

In Kuldip Nayyar[109] the Supreme Court discussed the role of a bicameral legislature
as under:

The growth of “bicameralism” in parliamentary forms of Government has been

functionally associated with the need for effective federal structures. This nexus between the
role of “Second Chambers” or Upper Houses of Parliament and better coordinated between the
Central Government and those of the constituent units, was perhaps first laid down in definite
terms with the Constitution of the United States of America, which was ratified by the thirteen
original States of the Union in the year 1787. The Upper House of the Congress of USA, known
as the Senate, was theoretically modelled on the House of Lords in the British Parliament, by
was totally different from the latter with respect to its composition and powers.

Since then, many nations have adopted a bicameral form of Central Legislature, even
though some of them are not federations…. Likewise, Parliament of the Union of India consists
of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States, which is the
Upper House). In terms of their functions as agencies of representative democracies, the Lowe
Houses in the legislatures of India, USA and Canada, namely, the Lok Sabha, the House of
Representatives and the House of Commons broadly follow the same system of composition.
As of now, Members of the Lower Houses are elected from pre-designated constituencies,
through universal adult suffrage. The demarcation of these constituencies is in accordance with
distribution of population, so as to accord equity in the value of each vote throughout the
territory of the country. However, with the existence of constituent States of varying areas and
populations, the representation accorded to these States in the Lower House becomes highly
unequal. Hence, the composition of the Upper House has become an indicator of federalism,
so as to more adequately reflect the interests of the constituent States and ensure a mechanism
of checks and balances against the exercise of power by Central authorities that might affect
the interests of the constituent States.”[110]

Article 107 of the Constitution makes provisions as to introduction and passing of bills.
It inter alia provides that subject to the provisions of Articles 109 and 117 with respect to Money
Bills and other financial Bills, a Bill may originate in either House of Parliament.[111] Article
109 provides for a special procedure in respect of Money Bills. It provides that a Money Bill
shall not be introduced in the Council of States.[112] After a Money Bill has been passed by
the House of the People it shall be transmitted to the Council of States for its recommendation.
The Council of States is mandated to return the Money Bill along with its recommendations
within the stipulated time period. The House of the People has the option to either accept or
reject all or any of the recommendations of the Council of States.[113] If the Money Bill passed
by the House of the People and transmitted to the Council of States for its recommendations is
not returned to the House of the People within the stipulated time period, it is deemed to have
been passed by both Houses at the expiration of the stipulated time period in the form in which
it was passed by the House of the People.[114]

Article 110 provides for the definition of “Money Bills”. A Bill shall be deemed to be
a Money Bill if it contains only provisions dealing with all or any of the following matters,
namely –

The imposition, abolition, remission, alteration or regulation of any tax;

The regulation of the borrowing of money or the giving of any guarantee by the
Government of India, or the amendment of the law with respect to any financial obligations
undertaken or to be undertaken by the Government of India;

The custody of the Consolidated Fund or the Contingency Fund of India, the payment
of monies into or the withdrawal of monies from any such Fund;
 The appropriation of monies out of the Consolidated Fund of India; the declaring of
any expenditure to be expenditure on the Consolidated Fund of India or the increasing of the
amount of any such expenditure;

The receipt of money on account of the Consolidated Fund of India or the public
account of India or the custody or issue of such money or the audit of the accounts of the Union
or of a State; or

Any matter incidental to any of the matters specified in sub-clauses (a) to (f).[115]

A Bill shall not be deemed to be a Money Bill by reason only that it provides for the
imposition of fines or other pecuniary penalties, or for the demand or payment of fees for
licences or fees for services rendered, or by reason that it provides for the imposition, abolition,
remission, alteration or regulation of any tax by any local authority or body for local
purposes.[116] If any question arises whether a Bill is a Money Bill or not, the decision of the
Speaker of the House of the People thereon shall be final.[117]

The aforementioned articles of the Constitution clearly indicate that the Council of the
States and the House of People are two equal components of the Union Parliament. Except for
the MoneyBill, there is constitutionally no distinction in the legislative functioning, powers
and authorities of both the Houses. However, the Council of States is unfairly looked down
upon as an “indirectly elected House”, juxtaposed to the House of the People being the directly
elected house.

In the recent past the ruling dispensation has used the provisions relating to Money Bill
in the Constitution of India to carry out amendments to the Foreign Contribution (Regulation)
Act, 2010[118], the Securities Contracts (Regulation) Act, 1956[119], the Prevention of
Money-Laundering Act, 2002[120] and the Foreign Exchange Management Act, 1999[121]
through the provisions of the Finance Act, 2015[122]. Had the aforementioned statutes been
amended in the usual manner viz. by introducing an ordinary amendment Bill, they would
require the approval of both the Houses. However, incorporating the amendments in the
Finance Bill, which is a Money Bill, ensured that the Council of the States’ role was reduced
to that of an advisor, whose advice was not even binding upon the House of the People.

The role of the Upper House viz. the Rajya Sabha was discussed by the Supreme Court
in Kuldip Nayar[123]as under:
 79. The genesis of the Indian Rajya Sabha on the other hand benefited from the
constitutional history of several nations which allowed the Constituent Assembly to examine
the federal functions of an Upper House. However, “bicameralism” had been introduced to the
provincial legislatures under the British rule in 1921. The Government of India Act, 1935 also
created an Upper House in the federal legislature, whose members were to be elected by the
members of provincial legislatures and in case of Princely States to be nominated by the rulers
of such territories. However, on account of the realities faced by the young Indian Union, a
Council of States (the Rajya Sabha) in the Union Parliament was seen as an essential
requirement for a federal order. Besides the former British provinces, there were vast areas of
Princely States that had to be administered under the Union. Furthermore, the diversity in
economic and cultural factors between regions also posed a challenge for the newly-
independent country.

Hence, the Upper House was instituted by the Constitution-Framers which would
substantially consist of members elected by the State Legislatures and have a fixed number of
nominated members representing non-political fields. However, the distribution of
representation between the States in the Rajya Sabha is neither equal not relatively more
weightage to smaller States but larger States are accorded weightage regressively for additional
population. Hence the Rajya Sabha incorporates unequal representation for States but with
proportionally more representation given to smaller States. The theory behind such allocation
of seats is to safeguard the interests of smaller States but at the same time giving adequate
representation to the larger States so that the will of the representatives of a minority of the
electorate does not prevail over that of a majority.

80. In India, Article 80 of the Constitution of India prescribes the composition of the
Rajya Sabha. The maximum strength of the House is 250 Members, out of which up to 238
members are the elected representatives of the States and the Union Territories [Article
80(1)(b)], of non-political fields like literature, science, arty and social services [Articles
80(1)(a) and (3)]. The members from the States are elected as per the system of proportional
representation by means of the single transferable vote [Article 80(4)]. The manner of election
for representatives from the Union Territories has been left to prescription by Parliament
[Article 80(5)]. The allocation of seats for the various States and Union Territories of the Indian
Union is enumerated in the Fourth Schedule to the Constitution, which is read with Articles
4(1) and 80(2). This allocation has obviously varied with the admission and reorganisation of
States.
 In K.S. Puttaswamy v. Union of India[124] the Supreme Court of India was examining
a wide array of arguments questioning the validity of the Aadhar (Targeted Delivery of
Financial and Other Subsidies, Benefits and Services) Act, 2016[125]. One of the contentions
raised before the Supreme Court of India was that the introduction of the Bill which culminated
into Aadhar Act as a Money Bill was in contravention of the provisions of Article 110 of the
Constitution. It was contended on behalf of the respondent Union that Section 7 of the
aforementioned Act, which was the heart and soul of the Act fulfilled the requirements of a
Money Bill as the expenditure of the subsidies, benefits and services is incurred from the
Consolidated Fund of India.[126]

In the course of its judgment, the Court expressed its opinion through three views. The
majority view observed that the Rajya Sabha is an important institution signifying
constitutional federalism. It is precisely for this reason that to enact any statute, the Bill has to
be passed by both the Houses. It is the constitutional mandate. The only exception to the
aforesaid parliamentary norm is Article 110 of the Constitution of India. Having regard to this
overall scheme of bicameralism enshrined in the Indian Constitution, strict interpretation has
to be accorded to Article 110.[127]

Ultimately, after examining the provisions of the aforementioned Act, the Supreme
Court held that the Bill was rightly introduced as Money Bill.[128] However, the dissenting
judgment of Dr D.Y. Chandrachud, J. is also required to be considered for the present purposes.
The dissenting Judge observed: 1103.

Bicameralism, when entrenched as a principle in a constitutional democracy, acts as a

check against the abuse of power by constitutional means or its use in an oppressive manner.
As a subset of the constitutional principle of division of power, bicameralism is mainly a
safeguard against the abuse of the constitutional and political process. A bicameral national
Parliament can hold the Government accountable and can check or restrain the misuse of
government power. Among its other roles is that of representing local State units, acting as a
body of expert review, and providing representation for diverse socio-economic interests or
ethno-cultural minorities. * * * 1106.

The institutional structure of the Rajya Sabha has been developed to reflect the
pluralism of the nation and its diversity of language, culture, perception and interest. The Rajya
Sabha was envisaged by the Makers of the Constitution to ensure a wider scrutiny of legislative
proposals. As a second chamber of Parliament, it acts as a check on hasty and ill-conceived
legislation, providing an opportunity for scrutiny of legislative business. The role of the Rajya
Sabha is intrinsic to ensuring executive accountability and to preserving a balance of power.
The Upper Chamber complements the working of the Lower Chamber in many ways. The
Rajya Sabha acts as an institution in relation to the Lok Sabha and represents the federal
structure of India. Both the existence and the role of the Rajya Sabha constitute a part of the
basic structure of the Constitution. The architecture of our Constitution envisions the Rajya
Sabha as an institution of federal bicameralism and not just as a part of a simple bicameral
legislature. Its nomenclature as the “Council of States” rather than the “Senate” appropriately
justifies its federal importance….[129]

The aforementioned decisions of the Supreme Court, as well as the constitutional

provisions themselves indicate the important role of the Council of the States in the federal set
up of India. The only way to exclude the Upper House from taking part in the law-making
process is to enact a law by way of a Money Bill. The Constitution defines what a Money Bill
is. Such a definition, ought to be interpreted in the narrowest possible manner and in its strictest
possible sense to ensure that the federal nature of the Union Parliament, as contemplated by
the Constitution, is not defeated by way of clever drafting.

Conclusion

The above discussion demonstrates that the framers of the Constitution always
intended for India to have a federal system with a relatively strong Union. Perhaps, at the time
of framing of the Constitution, a need was felt to ensure that the autonomy of the States is
marginally weaker than that of the Union so as to ensure that the integrity of the nation is
maintained. Over the years, the Supreme Court of India has recognised this feature of the Indian
federal structure. Various constitutional scholars have also recognised that India has evolved
an indigenous federal structure.

The decision of the Supreme Court in S.R. Bommai case[130] has further strengthened
federalism by recognising it to be a part of the basic structure of the Constitution. By virtue of
the same, the federal nature of the Constitution cannot be disturbed by a strong Central
Executive. However, it appears that the States have not been diligent enough to protect their
own autonomy under this structure. The introduction of Parts IX and IX-A is a clear indication
that the States have willingly seceded a portion of their legislative authority to the Centre. Even
in case of Part IX-B, it was not the States, but other stakeholders in the cooperative movement,
who challenged the validity of the constitutional amendment. The decision of the Gujarat High
Court, which is now before the Supreme Court, may culminate into another declaration of
federal principles in contemporary Indian political system. Unfortunately, Parliament which is
a responsible constitutional organisation has used hitherto before unprecedented methods to
encroach upon the powers of other authorities. If this practice is not checked, then it may lay
down dangerous precedents and enable a powerful Centre to change the very nature of the
special form of federalism in India by making itself the sole repository of executive and
legislative powers.

The introduction of the GST regime by way of a constitutional amendment reinforces

the argument that Parliament, and in turn, the Central Executive, is taking steps to reduce the
autonomy of the States under the constitutional mechanism. These may seem like small steps
at present, but if it continues unchecked, over the years the authority of the States may be
severely eroded so as to make federalism under the Indian Constitution a mere illusion. If this
is to be stopped, then States must be vigilant about any encroachment by the Centre, upon the
fields which are exclusively protected for them by the Indian Constitution. The political
affiliations of the executive, or for that matter, the legislature of a State, should not result in it
becoming subservient to the Centre. The very idea of a federal structure, and more particularly,
its application to the peculiar situation in India, is to ensure that local issues are addressed by
a local legislature, considering local factors.

https://www.scconline.com/blog/post/2021/04/02/indian-constitution/

WHETHER INDIA A FEDERAL OR QUASI-FEDERAL COUNTRY?

BASED ON THE GOVERNMENT OF INDIA ACT 1935

Introduction

The passage of the Government of India Bill in 1935 was based on the recommendations of
the Joint Committee, which resulted in various important changes. It received royal assent on
2nd August 1935 and was passed as law. On the basis of a report on Indian finances by Sir O.
Niemeyer, the Government decided to inaugurate provincial autonomy under the Act on 1st
April 1937 and then the federation. The Act was divided into 451 clauses and 15 schedules,
making it the most complicated document ever passed by the British Parliament. It is said to
be the longest Act passed by the British Parliament and includes within it the Government of
Burma Act, 1935.

Objective of the Government of India Act, 1935

The Act of 1919 established ‘dyarchy’ in the provinces but the Act of 1935 was enacted with
the aim to establish ‘dyarchy’ at the centre. The object was to meet the needs of Indians to have
a responsible government in the country. It was for the first through this Act, that an attempt
was made to bring the Indian princely states together and associate them with the constitutional
set-up and centre in India. However, there was no preamble in the Act. As stated by Sir Hoare,
there was no need for any new preamble for the Act because there is no new pronouncement
of policy in the Act nor the intention to pass such an Act was required.

Features of the Government of India Act, 1935

 Under the Act, accession was made compulsory for the British Indian provinces but
kept optional for the Indian states. Indian states, on the other hand, if they wanted
to accede to the federation, had to execute the instrument of accession by delegating
the powers to the federal government.

 The Act provided complete autonomy to the states in their internal affairs.

 Dyarchy was introduced at the centre, and central subjects were divided into 2
categories i.e., reserved subjects and transferred subjects.

o Reserved subjects: defence, external affairs, tribal areas, etc.

o Transferred subjects – remaining subjects are transferred to the

ministers.

o The governor-general used his discretion in the reserved subjects while

in transferred subjects, he had to act with the help and advice of the
Council of Ministers.
 The legislatures consisted of two houses namely, the Council of State and the
legislative assembly having 260 and 375 members, respectively.

 Bicameral legislature was established in 6 different provinces, namely: Madras,

Bengal, Bombay, Bihar, Assam and United province.
  The Council of State had 150 members from British India who were directly elected
except for those who were appointed by Governor-General and 104 from Indian
states nominated by the rulers.

 The Act divided the subjects into 3 categories:

o Federal list – 59 subjects,

o Provincial list – 54 subjects,

o Concurrent list – 36 subjects.

 Provincial autonomy was introduced by the Act, which means that an autonomous
government was established in the provinces. It was headed by the governor, who
acted on behalf of the Queen and was vested with executive powers. The Council
also advised him of ministers on any matters concerning the provinces.

 It provided various provisions to safeguard the interests of the minority communities

in the country.

 The Act abolished the Indian Council and provided for the appointment of a new
team of advisors by the Secretary with a minimum of 3 members and a maximum
of 6.

 It extended the communal electorate and gave more representation.

 It also established a Federal Court in the country.

 The British Parliament was vested with the power to amend the provisions, making
them much more rigid.

 It established a federal system of government, as a result, a federal court was also

established for hearing the disputes between centres and states.

An overview of the Government of India Act, 1935

The Act led to the reorganization of some provinces partially like Sindh was separated from
Bombay and Bihar and Orissa were split into two distinct provinces. Burma and Aden were
separated completely from the territory of India in 1937. The Act also established various
commissions at the central level and provincial levels. These are:

 Reserve Bank of India,

  Federal Public Service Commission (FPSC) at the central level,

 Provincial Public Service Commission (PPSC) at the provincial level.

Powers of Governor-General under the Government of India Act, 1935

The Governor-General represented the crown as the constitutional head and acted on her
behalf. He exercised his powers in 3 different capacities:

 Individual capacity,

 Discretionary powers,

 On the advice of the Council of Ministers.

Individual capacity

The matters in which he acts in an individual capacity are known as ‘special responsibilities.’
The Governor-General acted in an individual capacity:

 To prevent a menace to the peace and harmony in the country.

 Safeguard the financial situation of the government.

 Imposition of discriminatory taxes on the goods originating in Britain.

 Preserve the rights and dignity of Indian rulers.

 Protect the interest of public servants.

Discretionary powers

The powers are laid down as:

1. Executive powers

 He had the power to use his discretion in matters of defence, ecclesiastical affairs,
tribunal affairs, and foreign relations.

 He had to appoint ministers from the majority party to the central legislature.
  Preside over meetings of the Council of Ministers.

 Frame rules for easy and convenient transactions in central business.

2. Legislative powers

 Summon, prorogue, and dissolve the lower house.

 Summon joint sessions of the houses.

 Disallow certain bills from being introduced.

 Refuse to assent to the bills.

 Issue ordinances.

 Issue emergency proclamation.

 Suspend the Constitution.

3. Financial power

 Use discretion in non-votable heads of expenditure.

 Constitute 80% of the budget.

 Recommend proposals for taxation and expenditure.

On the advice of the Council of Ministers

 Ministers advise him in administrative matters of transferred subjects and they are
answerable to the legislature.

 They hold office at his pleasure.

 He can remove them from the office.

Provincial autonomy

The Act replaced dyarchy in the provinces with autonomy. It also abolished the division of
provincial subjects into reserved and transferred lists. However, the provinces received a
dignified status under the new Act, and the control of the centre was restricted. Under the Act
of 1919, they were at the mercy of the central government and exercised only those powers
which were delegated to them by the centre. But now they derive their authority from the
constitution and not the centre. The government was both responsible and representative, which
means that the Council of Ministers aided the Governor-General in the exercise of his powers,
but there were certain matters where he could use his discretionary powers without consulting
the ministers. Thus, the Government was not fully responsible.

Provincial government

The administration of provinces was handed to the governors on behalf of the crown under the
Act. The governors of major provinces like Bombay, Madras, and Bengal were appointed by
the crown seeking the advice of the Secretary of state, while the remaining were appointed by
the king on the advice of the Governor-General. The tenure of all the governors was fixed as 5
years.

Provincial executive

The Governor was the head of the provincial government and his powers resemble the powers
of the Governor-General. The three capacities in which he exercised power were:

 Discretion,

 Individual capacity,

 On the advice of the Council of Ministers.

Discretionary powers

 Safeguard the interest of the minority groups.

 Protection of rights and privileges given to kings and princes.

 Prevent the government from being overthrown by any.

 Frame rules for the efficient transaction of the business in the country.

 Appoint the chairman and members of the Provincial Public Services Commission
and decide their salaries.
  Issue acts, ordinances and laws to maintain peace and harmony.

 Summon, adjourn, and dissolve the lower house.

 Appoint and dismiss Advocate General.

Special responsibility

The powers in the individual capacity were to be exercised in matters of special responsibility.
These were:

 Protect peace and harmony.

 Protect the interest of minorities.

 Protect the rights of civil servants.

 Protect people against any kind of discrimination.

 Secure the execution of orders.

On the advice of the Council of Ministers

 Collective responsibility was introduced under the Act in provincial autonomy.

 The matters on which the power had to be exercised on the basis of the advice of
ministers were limited.

Provincial legislature

There were 11 Provinces in a total of which 6 had bicameral legislatures consisting of

legislative councils and legislative assemblies. The constituencies were recognised on the basis
of religion, like Muslims, Sikhs, Anglo Indians, Christians, and Europeans. The seats for
scheduled castes, depressed classes, and women were reserved. The people paying any land
revenue or house rent were eligible to vote, and the rest were not allowed to vote. Another
qualification of a voter was to have a particular minimum education. The members were
directly elected for a period of 5 years.

The provincial legislature had the power to pass legislation on all the matters listed in the
provincial list, but there were 2 limitations. These were:
  When the provinces, by way of resolution, authorize the federal government to pass
the legislature,

 The legislation was in conflict with federal law.

Powers of Governor

1. Legislative powers

 Summon, prorogue, and dissolve the legislature.

 Address both the houses, either jointly or separately.

 Call upon the joint sessions of the houses, if necessary.

 A bill, in order to become a law, had to be signed by him. He had the power to return
the bill for reconsideration or reserve it for approval by the crown.

 He also had the power to stop any bill if it is a threat to the peace and harmony of
the society.

 It was necessary to take prior sanction in the following matters:

o Any Act which extends to British India.

o Any matter where he had to exercise his discretion.

o Any Act passed by Governor-General or any ordinance issued by him.

o The procedure of proceedings in criminal matters is concerned with

European subjects.

2. Power to make ordinances

 The power to issue ordinances can be exercised when the legislature is not in session
or in case of emergency.

 The effectiveness of such an ordinance ceases to exist at the end of 6 weeks after the
legislature is reassembled.

 He can also issue ordinances when the assembly is in session if it is necessary or to

discharge his special responsibilities.
  Such ordinances were effective for 6 months and could be extended for another 6
months by way of a notification.

3. Suspending powers

 Section 93 of the Act authorized him to proclaim an emergency when he is satisfied

that the work is not done as per the provisions of the Act.

 He could also suspend the working of the Constitution at any time.

4. Financial powers

 No bill which is related to financial matters could be introduced without his

recommendations.

 He could decide whether a particular item falls into the ‘charged item’ category.

 He had the power to lay down a supplementary budget before the house if required.

Relation between the centre and provinces

The Act gave provinces a separate and partly autonomous status, unlike the Act of 1919, which
gave them no distinct rights and they were controlled by the centre. The relations between the
two were governed by the provisions of the Act of 1937. It can be classified as:

Legislative relations

The Act laid down the various subjects in 3 different lists so that there is clear demarcation as
to who has to exercise the powers, the centre or the provinces. The lists consisting of various
subject matters are: federal list, the provincial list, and the concurrent list. The federal and
provincial governments had exclusive power to act when the subject matter falls in the category
of the federal and provincial list respectively. While in the case of the concurrent list, the law
made by the federal government prevails.

The subjects in different lists are:

1. Federal list

 External affairs,
 Ecclesiastical affairs,

 Federal public services,

 Maritime shipping and navigation,

 Posts and telegraph services,

 Currency,

 Development of industries,

 Duties of customs, etc.

2. Provincial list

 Prisons,

 Courts,

 Police,

 Provincial public services,

 Trade and commerce,

 Acquisition of land,

 Local government,

 Public health and sanitation,

 Regulation of mines,

 Protection of wildlife,

 Elections to provincial legislatures, etc.

3. Concurrent list

 Criminal law,

 Evidence and oath,

 Jurisdiction of the subordinate courts in the country,

 Electricity,
  Bankruptcy,

 Newspapers, etc.

Executive relations

In executive matters, the federal government was given more power than the provinces. The
Governor-General could ask the governors to act in a particular manner or do something which
is necessary for the subjects in the reserved category. He can also impose duties on the officers
in a province for federal matters. He was empowered to act as an arbitrator in a dispute related
to the supply of water from water resources. The federation can ask the province to acquire any
land and transfer it to the federal government for federal purposes. The Governor-General was
also vested with the power to recommend the British Government to set up an Inter-Provincial
Council to deal with any kind of dispute between the provinces.

Financial relations

It was clearly laid down in the Act that the federal government will provide financial help to
deficit provinces that are not able to maintain their funds. The important sources to generate
revenue for the federal as per the Act are:

 Custom duties,

 Excise duties,

 Tax on corporations,

 Taxes on income,

 Sale tax,

 Stamp duty,

 Terminal tax on goods carried by railway, sea or air route,

 Taxes on fares.
Sources of revenue for provinces are:

 Land revenues,
  Registration fees,

 Charges on irrigation facilities,

 Court fees,

 Income from the forest,

 Entertainment tax,

 Taxes on vehicles,

 Share in excise duty,

 Share in fares by railways.

Secretary of state

The powers of the Secretary of State are:

 The powers of the Secretary of State under the Act of 1935 were confined to the
matters in which the Governor-General had to apply his discretionary powers or act
in his individual capacity.

 He was also empowered to issue directions and control the reserved departments
like defence, foreign affairs, tribal areas and the Reserve Bank of India.

 He administered the work of all other departments and worked as a constitutional

advisor for the crown in matters relating to Indian affairs.

 His position is similar to that of an agent of the British Parliament.

 The Act abolished the Indian Council and replaced it with some advisors to the
Secretary of state to help him in his work.

Civil services under the Government of India Act, 1935

The civil servants hold office during the pleasure of the crown. The Act provided that no civil
servant could be dismissed by an authority which is subordinate to the authority appointing
him. While dismissing him, he should be given an opportunity to present his case and defence.
But where he is dismissed due to any criminal charge on him or conviction and the authority is
satisfied with the reasons, the opportunity of defence is not necessary. The Act also gives
detailed rules and conditions pertaining to their appointment and conditions of service. The
Secretary of the state had been given the power under the Act to make rules regarding pensions,
pay, leave and medical attention to the civil servants. The civil servants also had a right to
appeal against any order which affected them or the conditions of service adversely.

Establishment of courts under the Government of India Act, 1935

Federal court

A federal court was to be established under the Act to deal with cases of disputes between the
centre and the provinces. The court consisted of 3 judges which included the Chief Justice.
They were appointed by the crown and served until the age of 65 years. The qualifications for
a judge were:

 He must have been a judge of a high court for 5 years or,

 A lawyer who has an experience of 10 years in a high court of India or Britain.

The court had original, appellate and advisory jurisdiction as:

 It was vested with jurisdiction to hear cases of disputes between the federal
government and provincial government on any question of law.

 Its appellate jurisdiction extended to every case that involved a substantial question
of law on the issue of interpretation of the Act or any order passed by the legislature.

 It was vested with advisory jurisdiction to render advice to the Governor-General

on any point of law.

High courts

Every high court under the Act was recognised and had to function as the court of records.
They have to keep a check on all other courts in their jurisdiction and could call for a return of
a case, entitled to frame rules to regulate the working of all other courts and could determine
the table for the fees to be taken by attorneys and advocates. It consisted of a Chief Justice and
other judges as the crown may appoint. The qualifications for a judge of a High court are:
  He must have been a barrister or advocate for at least 10 years, or

 He was a member of Indian civil services for at least 10 years, or

 He held a judicial office which is not inferior to a subordinate judge or a judge of a

small cause court, or

 He had been a pleader of one high court or more for at least 10 years.

Other provisions

The other provisions in the Act deal with discrimination, finance, audits, property and
contracts, liabilities and suits and railway authorities. The second part of the Act deals with
laws relating to Burma and Aden.

Analysis of the Government of India Act, 1935

The Act is often termed to be the longest Act and provided rules and provisions for almost
every sphere and field. It replaced the dyarchy from provinces to the centre and gave provinces
a dignified status where they derived their authority from the constitution itself unlike the Act
of 1919 where they exercised only those powers which were delegated to them by the Central
Government. However, even with these features, there were many lacunas in the Act and it
suffered from various flaws.

Shortcomings of the Government of India Act, 1935

 The scheme of the federation was unsatisfactory. The Act tried to establish a federal
system of government but failed. It made an attempt to bring the British provinces
and Indian provinces together to which they had to accede. But they were not under
an obligation to do so. Many provinces refused to join and demanded independence.

 The federal legislatures consisted of nominees of rulers and were not chosen by the
citizens.

 The dyarchy was introduced at the centre but the government was not fully
responsible as the major subjects were put under the authority of the Governor-
General and his council and there was no system to keep a check on his powers.
  There were various limitations and restrictions on the provincial autonomy which
ensured the dominance of the centre over the provinces.

 The discretionary powers of the governors and Governor-General covered the entire
administration making it difficult for the people to seek remedy in case of any
harassment and misconduct.

 The country’s constitutional status as a dependency was not improved because of

the power to amend the Constitution and bring any changes vested with the British
Parliament.

 There were communal riots in the country because of the determination of

electorates on the basis of religion rather than population. This paved the way for
the partition of the country.
With these shortcomings, people were criticizing the Act. But after the elections in 1937,
Congress was firm in its decision to demand independence for the country and the people. They
asked the provinces to resign after the Second World War where India was forcefully made a
part of the war without the consent of the people. The British Parliament also made such laws
which curtailed the powers of provinces and did not adhere to the provisions of the Act.
However, the Act continued to exist till independence due to its major advantageous features
and was then adopted with various changes and modifications.

Conclusion

It can be concluded that the Act gave various provisions to enhance the rights and powers of
the Indian provinces and also paved the way for the changes in the condition of the people
which was miserable before the passing of the Act. It also laid the foundation of what a
Constitution or an Act should look like for the Indian leaders so that they could make their own
legislations after the independence. The major fault in the Act was that it gave amending power
to the British Parliament which was a foreign Parliament. This outraged the people and
Congress and they demanded independence. As a result of all the struggle, India successfully
became an independent nation.

Frequently asked questions (FAQs)

1. What is the difference between the position and status of provinces under the
Act of 1919 and the Act of 1935?
The provinces received a dignified status under the Act of 1935 and the control of the centre
was restricted. Under the Act of 1919, they were at the mercy of the Central Government and
exercised only those powers which were delegated to them by the centre. But now they derive
their authority from the Constitution and not the centre. The government was both responsible
and representative, which means that the Council of Ministers aided the Governor-General in
the exercise of his powers. However, there were certain matters where he could use his
discretionary powers without consulting the ministers.

2. What were the qualifications of a judge of the federal court established under
the Act?
The qualifications for a judge were:

 He must have been a judge of a High Court for 5 years, or

 A lawyer who has an experience of 10 years in a high court of India or Britain.

The judges were appointed by the Crown and remained in office until 65 years of age. There
were no other grounds for their removal which means that they were at the pleasure of the
Crown. The court consisted of 3 judges including the Chief justice.

3. What is the court of records under the Act and what is its jurisdiction?

Every high court under the Act was recognised as the court of records. They have to keep a
check on all other courts in their jurisdiction and could call for a return of a case, entitled to
frame rules to regulate the working of all other courts.

Its jurisdiction included:

 It was to have control over all the Indian courts.

 It could call for returns.

 Make rules and regulations for regulating the practice and procedure in the courts.

 It has to prescribe the manner in which the documents and books were to be kept in
the court.
  Another important function of the court was to set the fees an attorney or lawyer
could demand from the parties to a case.
4. What kind of administrative and legislative relations exist between the centre and
provinces as per the Act of 1935?

Administrative relations – In administrative/executive matters, the federal government was

given more power than the provinces. The Governor-General could ask the governors to act in
a particular manner or do something which is necessary for the subjects in the reserved
category. He can also impose duties on the officers in a province for federal matters. He was
empowered to act as arbitrator in a dispute related to the supply of water from water resources.
The federation can ask the province to acquire any land and transfer it to the federal government
for federal purposes. The Governor-General was also vested with the power to recommend the
British Government to set up an inter-provincial Council to deal with any kind of dispute
between the provinces.

Legislative relations – The Act laid down the various subjects in 3 different lists so that there
is clear demarcation as to who has to exercise the powers, centre or the provinces in order to
avoid any confusion and dispute and to have good relations of the provinces with the centre.
The lists consisting of various subjects are:

 Federal list (59 subjects),

 Provincial list (54 subjects) and

 Concurrent list (36 subjects).

The federal and provincial governments had exclusive power to act when the subject matter
falls in the category of the federal and provincial list respectively. While in the case of the
concurrent list, the law made by the federal government prevails.

5. Did the Government of India Act, 1935 lay down a federal Constitution?

The powers of the federal government mentioned in the Act and the subject list reveals that the
federal government was more powerful than the provinces. Also, in the case of any conflict
between the subjects in the concurrent list, the decision of the federal government prevailed.
The establishment of a federal court is another example of the federal Constitution, but the Act
had also established communal electorates on the basis of religion which made it difficult to
fully establish a federal Constitution in its real sense.

The Articles of Confederation

INTRODUCTION

In 1789, thirteen years after the signing of the Declaration of Independence and eight years
after ratification of the Articles of Confederation, which established a league of sovereign
states, the nation repealed the Articles of Confederation and ratified a new Constitution creating
the United States. Since its ratification the Constitution, which established a union of states
under a federal system of governance, two questions have generated considerable debate: What
is the nature of the union? What powers, privileges, duties, and responsibilities does the
Constitution grant to the national government and reserve to the states and to the people?
During the 208-year history of the Constitution the answers to these questions have been
debated time and again and have shaped and been shaped by the nation's political, social and
economic history.

What is federalism? According to James Q. Wilson and John DiIulio, Jr., it is a system of
government "in which sovereignty is shared [between two or more levels of government] so
that on some matters the national government is supreme and on others the states, regions, or
provincial governments are supreme.1 There are three essential features that characterize a
federal system of governance. First, there must be a provision for more than one level of
government to act simultaneously on the same territory and on the same citizens. The American
federal system is composed of a national government and the 50 states, both recognized by the
Constitution. Local governments, creations of states, while not mentioned in the Constitution,
are nevertheless key players in American federalism. Their power to regulate and legislate is
derived from state Constitutions.

Second, each government must have its own authority and sphere of power, though they may
overlap. When state and federal authority conflict, federal law is supreme under the
Constitution. Article I, Sec. 8 of the Constitution delegates certain enumerated powers to the
national government that includes the exclusive power to mint currency, establish and maintain
an army and navy, declare war, regulate interstate commerce, establish post offices, establish
the seat of national government, and enter into treaties. The Constitution reserves powers not
granted to the national government to states, or the people, and it establishes certain concurrent
powers to be shared between state and national governments including the power to tax. In
addition, the Constitution prohibits the exercise of certain powers or actions by both state and
national governments including taking private land withoutjust compensation; establishing a
national religion; or prohibiting the free exercise of religion.

Third, neither level of government (federal or state governments) can abolish the other. The
Civil War was fought not only on the question of slavery but also central to the conflict were
questions of states' sovereignty including the power to nullify federal laws or dissolve the
Union.

This report identifies several significant eras and events in the evolution of American
federalism and provides a capsule description or discussion of each. It should be noted that
among experts in the fleld of federalism there may be a general consensus concerning the
evolution of American federalism; however, the choice of events and scholarly interpretations
of such events may vary and are by nature subjective.

PRE-FEDERALISM PERIOD: 1775 TO 1789

During this period, the former colonists successfully fought the War of Independence
and established a national government under the Articles of Confederation. Disenchanted with
the functioning of the national government, the states called a Constitutional Convention with
the aim of addressing the deficiencies in the Articles of Confederation. Instead, the delegates
drafted and the states ratified, a new Constitution that created a federal system of government.

1776 -- Declaration of Independence. In the midst of the Revolutionary War, which lasted from
1775 to 1783, delegates to the Continental Congress convened in Philadelphia and on July 4,
1776 adopted the Declaration of Independence. Each of the former colonies also established
state governments to replace the colonial charters. The Continental Congress was given the
power to carry on the war effort.

1777 -- Drafting Articles of Confederation. The Continental Congress drafted the Articles of
Confederation, which defined the powers of the Congress. Leery of a strong central
government, the former colonists created a Confederation or "League of States" that was state-
centered rather than nation-centered.

1781 -- Articles of Confederation approved by the States. Under the Articles of Confederation
legislative, judicial, and executive powers rested with Congress. The Articles of Confederation
established a Congress comprised of one representative from each state, it limited the power of
the central government, and it delegated to the states the power to levy taxes and regulate
commerce. The Confederation Congress was given the power to declare war, make treaties,
and maintain an army and navy. The Articles of Confederation had several noteworthy flaws
that made it ineffective: 1) it did not provide for an executive to administer the government, 2)
the national government lacked the power to tax, and 3) it lacked the power to regulate
commerce.

1786 -- Articles of Confederation Reconsidered. Demand for re- examination of the Articles of
Confederation was prompted by a post- Revolutionary War economic depression; rebellion in
Massachusetts among debt ridden former soldiers, led by Daniel Shays (Shays Rebellion);
concerns about the ability of the Confederation to support its currency or meet domestic and
foreign debt incurred during the war; issues surrounding westward expansion; and state tariff
conflicts. A group later known as Federalists and including James Madison and Alexander
Hamilton, sought support for a strong central government that could deal with internal
insurrections, arbitrate state tariff conflicts and other conflicts among states, and manage
westward expansion. Members of the group called for a Constitutional Convention in 1787 to
reconsider the Articles of Confederation.

1787 -- Drafting a New Constitution. A Constitutional Convention met in Philadelphia from

May until September and drafted a new Constitution. Under the new Constitution the central
government, It... in order to form a more perfect union," was given additional powers that
included the power to levy taxes and control commerce among states and with foreign
countries. In addition, the Convention created three co-equal branches of government --
executive, judicial, and legislative.- In a compromise (Connecticut Compromise) between rival
plans offered by Virginia and New Jersey delegates, the Constitution called for the creation of
a legislative branch composed of two chambers. Members of the House of Representative from
each state were to be elected by the people of that state based on state population. The Senate
would be comprised of two Senators from each state elected by their respective state
legislatures. The Constitution included provisions that ensured the supremacy of federal laws
(Article VI), but also recognized state powers and the power of the people. (Amendment X).

1787 & 1788 -- Campaigning for a New Constitution. The Federalist, a series of 85 essays by
James Madison, John Jay, and Alexander Hamilton writing under the pen name Publius, was
published during this period. The papers provided the philosophical underpinning in support
of the new Constitution. Those opposed to the new Constitution (labeled Anti-Federalists but
calling themselves Federal Republicans) also published articles under the pen
names Brutus and Cato, arguing for support of a federal system of governance that would
protect the state governments from the tyranny of the national government. The Anti-
Federalists or Federal Republicans would eventually evolve into the Democratic Republican
party that ascended to power with the election of Thomas Jefferson in 1801.

The Articles of Confederation

The Articles of Confederation served as the written document that established the functions of
the national government of the United States after it declared independence from Great Britain.
It established a weak central government that mostly, but not entirely, prevented the individual
states from conducting their own foreign diplomacy.

The Albany Plan an earlier, pre-independence attempt at joining the colonies into a larger
union, had failed in part because the individual colonies were concerned about losing power to
another central institution. As the American Revolution gained momentum, however, many
political leaders saw the advantages of a centralized government that could coordinate the
Revolutionary War. In June of 1775, the New York Provincial Congress sent a plan of union to
the Continental Congress, which, like the Albany Plan, continued to recognize the authority of
the British Crown.

Some Continental Congress delegates had also informally discussed plans for a more
permanent union than the Continental Congress, whose status was temporary. Benjamin
Franklin had drawn up a plan for “Articles of Confederation and Perpetual Union.” While some
delegates, such as Thomas Jefferson, supported Franklin’s proposal, many others were strongly
opposed. Franklin introduced his plan before Congress on July 21, but stated that it should be
viewed as a draft for when Congress was interested in reaching a more formal proposal.
Congress tabled the plan.

Following the Declaration of Independence, the members of the Continental Congress realized
it would be necessary to set up a national government. Congress began to discuss the form this
government would take on July 22, disagreeing on a number of issues, including whether
representation and voting would be proportional or state-by-state. The disagreements delayed
final discussions of confederation until October of 1777. By then, the British capture of
Philadelphia had made the issue more urgent. Delegates finally formulated the Articles of
Confederation, in which they agreed to state-by-state voting and proportional state tax burdens
based on land values, though they left the issue of state claims to western lands unresolved.
Congress sent the Articles to the states for ratification at the end of November. Most delegates
realized that the Articles were a flawed compromise, but believed that it was better than an
absence of formal national government.

On December 16, 1777, Virginia was the first state to ratify. Other states ratified during the
early months of 1778. When Congress reconvened in June of 1778, the delegates learned that
Maryland, Delaware and New Jersey refused to ratify the Articles. The Articles required
unanimous approval from the states. These smaller states wanted other states to relinquish their
western land claims before they would ratify the Articles. New Jersey and Delaware eventually
agreed to the conditions of the Articles, with New Jersey ratifying on Nov 20, 1778, and
Delaware on Feb 1, 1779. This left Maryland as the last remaining holdout.

Irked by Maryland’s recalcitrance, several other state governments passed resolutions

endorsing the formation of a national government without the state of Maryland, but other
politicians such as Congressman Thomas Burke of North Carolina persuaded their
governments to refrain from doing so, arguing that without unanimous approval of the new
Confederation, the new country would remain weak, divided, and open to future foreign
intervention and manipulation.

Meanwhile, in 1780, British forces began to conduct raids on Maryland communities in the
Chesapeake Bay. Alarmed, the state government wrote to the French minister Anne-César De
la Luzerne asking for French naval assistance. Luzerne wrote back, urging the government of
Maryland to ratify the Articles of Confederation. Marylanders were given further incentive to
ratify when Virginia agreed to relinquish its western land claims, and so the Maryland
legislature ratified the Articles of Confederation on March 1, 1781.

French minister Anne-César De la Luzerne

The Continental Congress voted on Jan 10, 1781, to establish a Department of Foreign Affairs;
on Aug 10 of that year, it elected Robert R. Livingston as Secretary of Foreign Affairs. The
Secretary’s duties involved corresponding with U.S. representatives abroad and with ministers
of foreign powers. The Secretary was also charged with transmitting Congress’ instructions to
U.S. agents abroad and was authorized to attend sessions of Congress. A further Act of Feb 22,
1782, allowed the Secretary to ask and respond to questions during sessions of the Continental
Congress.

The Articles created a sovereign, national government, and, as such, limited the rights of the
states to conduct their own diplomacy and foreign policy. However, this proved difficult to
enforce, as the national government could not prevent the state of Georgia from pursuing its
own independent policy regarding Spanish Florida, attempting to occupy disputed territories
and threatening war if Spanish officials did not work to curb Indian attacks or refrain from
harboring escaped slaves. Nor could the Confederation government prevent the landing of
convicts that the British Government continued to export to its former colonies. In addition,
the Articles did not allow Congress sufficient authority to enforce provisions of the 1783 Treaty
of Paris that allowed British creditors to sue debtors for pre-Revolutionary debts, an unpopular
clause that many state governments chose to ignore. Consequently, British forces continued to
occupy forts in the Great Lakes region. These problems, combined with the Confederation
government’s ineffectual response to Shays’ Rebellion in Massachusetts, convinced national
leaders that a more powerful central government was necessary. This led to the Constitutional
Convention that formulated the current Constitution of the United States.

INDIA

Federalism is a judicial concept or political concept

To uphold federal Constitution

Doctrine of Harmonious Construction

Introduction

A legal doctrine is a principle, a theory, or a position that is commonly applied and upheld by
the courts. Different judicial doctrines have developed over time in the Indian constitutional
law based on different judicial interpretations by the judiciary. These legal concepts did not
form or take place at once but they are a result of disagreements, unrest, debates, and legislative
solutions, and require improvement. These situations arise when the statutes and their
provisions have more than one interpretation because of an ambiguity in the law. After the
statute has been enacted, the legislature becomes functus officio (no longer has jurisdiction).
The interpreters of the law are then unable to question or get back to the legislature to request
the exact interpretation of the legislation while they were making it. Sometimes the lawmakers
may not have considered such a broad range of circumstances when drafting any given statute.
The thumb rule for interpreting any statute is then the rule of harmonious construction.

The doctrine of harmonious construction is followed when there arises an inconsistency

between two or more statutes or sections of a particular statute. The fundamental principle
behind this doctrine is, a statute has a legal purpose and should be read in its totality and after
that, the interpretation that is consistent with all the provisions of that statute should be used.
In a situation where harmonizing all clauses is unlikely the court’s decision on the provision
then takes precedence.

The history behind the doctrine of Harmonious Construction

The doctrine of harmonious construction came into existence as a result of many varied court
interpretations of different statutes in a variety of cases. From time to time, the judiciary
decided matters that involved opposition between two distinct provisions. This doctrine came
cloaked as the rule of conciliation first in the case of C. P. and Berar Act (1939), where the
involved court resolved the inconsistency between an entry of List I, and an entry of List II in
the Indian Constitution and interpreted them harmoniously.

In the aforesaid case, the question was whether a tax imposed by a provincial legislature on the
sale of oil by a person who manufactured it, based on the ground that it was actually an excise
duty. Then, a sales tax could be imposed by a provincial legislature, and excise duty could be
imposed only by the union legislature. The Apex Court, in this case, remarked that it would be
peculiar if the Union had exclusive power to tax retail sales when the province had executive
power to make laws with respect to trade and commerce, its production and supply, and the
distribution of goods within its boundaries. Hence, it was a sales tax and the Act was not ultra
vires. The Court added that there was no overlapping or conflict of two entries, so as to apply
a non-obstante clause.

The doctrine’s conception can be tracked all the way back to the first amendment to
the Constitution of India, 1951, in the landmark judgement of Sri Shankari Prasad Singh Deo
v. Union of India (1951). The disagreement between the Fundamental Rights (Part III) and
the Directive Principles (Part IV) of the Constitution of India was the subject of the case.
Constitutional law is mainly concerned with the creation of the three great organs and the
distribution of governmental powers among them, that is the executive, the legislature and the
judiciary.

The Apex Court, in this case, made use of the rule of harmonious construction and held that
Fundamental Rights are granted against the State and they may be revoked only under certain
circumstances and even modified by the Parliament to comply with the constitutional
provisions. The Supreme Court gave preference to both and said that the Fundamental Rights
and Directive Principles of State Policy are two sides of the same coin, and it is beneficial that
they must work together. The Supreme Court further held that the Fundamental Rights enforce
limitation over both the legislature and executive power. They are not sacrosanct and the
Parliament can amend them to bring them in conformity with the Directive Principles.

The Supreme Court articulated the doctrine of harmonious construction in the case, Re Kerala
Education Bill Case (1957). The court added that there was no inherent conflict between the
Fundamental Rights and the Directive Principles of the State Policy and they together constitute
an integrated scheme and a comprehensive administrative and social programme for a modern
democratic state. The court called them supplementary and complementary to each other.
Therefore, effort should be put to construe them harmoniously, so that the courts avoid any
conflict among the Fundamental Rights and Directive Principles. They basically run parallel to
each other and neither one is subordinate to the other.

Scope and objective of the doctrine of Harmonious Construction

The aim of the judiciary and the courts should be to view the law as a whole. The interpretation
of the law should be such that it prevents confusion or incompatibility between the different
sections or parts of the statute being used. Whenever a discrepancy arises between two or more
statutes or different clauses or sections of a statute, the doctrine of harmonious construction
must be followed. The doctrine is based on the straightforward principle that every statute has
a legal purpose and should be read in totality. The interpretation should be such that it is
unswerving and all of the statute’s provisions should be used. In the event that harmonizing
two or more statutes or different clauses or sections of a statute is unlikely, the court’s decision
on the provision would take precedence.
Latin maxims related to the doctrine of Harmonious Construction

Generalia specialibus non derogant

The Latin maxim means that the courts prefer specific provisions to provisions of general
application whenever the provisions are in conflict. In other words, the general rule to be
followed in case of a conflict between two statutes is that the latter retracts the previous one.
One cannot hold that previous or special legislation indirectly repealed, altered or consider it
in derogated from, simply by force of such general words, without any suggestion of that
particular intention to do so. This means that a prior special law would yield to a later general
law if two of the following conditions are satisfied, the later law, even though general, would
prevail if:

 The two provisions are conflicting with each other.

 There is some express reference in the later legislation of the previous enactment.

Generalibus specialia derogant

Generalibus specialia derogant is another legal maxim used in connection with the harmonious
construction rule in India. It basically means that special things detract from general things. In
other words, if a special provision is made on a certain matter, then that matter is excluded
from the general provisions. Applying this rule, the Patna High Court held in its
judgement, Vinay Kumar Singh v. Bihar State Electricity Board (2003) that Article 351 of the
Constitution of India is a general provision regarding the development of Hindi in India. Article
348 on the other hand, is a specific provision with respect to the language to be used in the
Supreme Court and the high courts. Therefore, the applicability of Article 351 of the
Constitution is entirely precluded.

Principles that govern the doctrine of Harmonious Construction

Commissioner of Income Tax v. M/S Hindustan Bulk Carriers (2000) is a landmark case where
the Supreme Court laid down five main principles that govern the rule of harmonious
construction that are as follows:
The courts should try and avoid a conflict of seemingly disputing provisions and effort must
be made to construe the disputing provisions so as to harmonize them.

 The provision of one section cannot be used to overthrow the provision covered in
another section unless the court is unable to find a way to settle their differences
despite all its effort.

 In the situation when the court finds it impossible to entirely reconcile the
differences in inconsistent provisions, the courts must interpret them such that effect
is given to both the provisions as far as possible.

 Courts must also take into account that the interpretation that makes one provision
redundant and useless is against the essence of harmonious construction.

 Harmonizing two contradicting provisions means not to destroy any statutory

provision or to render it ineffective.

Application of the doctrine of Harmonious Construction

The Courts have articulated some procedures for the proper applicability of the aforesaid
doctrine after reviewing numerous case laws. They are as follows:

 Giving equal importance to both the conflicting provisions, thus reducing their
inconsistency.

 The provisions that are fundamentally inconsistent or repugnant to each other must
be read in their entirety, and the complete enactment must be taken into account.

 The provision with a broader reach of the two contradicting provisions should be
considered.

 Comparing the broad and narrow provisions, the courts should analyse the broad
law to see if there are any other concerns. No further thought needs to be given if
the result is fair and harmonizing both clauses can be done by giving them full
weight separately. This is because the legislature was well aware of the situation
they were attempting to address when enacting the provisions, and hence all
provisions adopted must be given full effect.
  When one provision of the Act slivers, the powers conferred by another Act then a
non-obstante clause must be used.

 It is significant that the court establishes the degree that the legislature wanted to
grant one provision overriding authority over another.

Case laws explaining the application of the doctrine of Harmonious Construction

Following are some famous Indian case laws where the courts have tried to interpret certain
statutes with the help of applying the rule of harmonious construction.

Sri Jagannath Temple Managing Committee v. Siddha Math and Others (2015)

In this case, provisions of the Sri Jagannath Temple Act,1955 and the Orissa Estate Abolition
Act, (OEA) 1951 came into scrutiny. The Supreme Court said that a clear conflict arose
between Section 2(oo) of the Orissa Estates Abolition Act,1951 and Sections 5 and 30 of the
Shri Jagannath Temple Act, 1955. The Court added that it was also clear that both the given
statutory provisions of the aforementioned Acts cannot survive together. The Court said that
while using the rule of harmonious construction it should be taken into account that when the
provisions of two statutes are irreconcilable, one must decide which provision must be given
effect to.

In this case, Section 2(oo) of the OEA Act in its entirety was not violating the provisions of Sri
Jagannath Temple Act. It was only the first part of the proviso which was contradicting the
Jagannath Temple Act. If that part of the proviso continued to be given effect then Sections 5
and 30 of the Jagannath Temple Act, by which the estates of the Jagannath temple at Puri are
entrusted in the temple committee, would then lose their meaning. The Court further explained
that by striking down Section 2(oo) proviso of the OEA Act, both the provisions would be
operable. Whenever a question comes up about the application of specific and general laws in
the same case then the nature of the case and the issues must be scrutinised by the court
concerned. If, however, the two laws are in absolute conflict, then there must be a check on the
limitations placed and exceptions foisted by the Legislature.

The Apex Court held that the special provisions of the Jagannath Temple Act would prevail in
this case, and thus, the principle of generalia specialibus non derogant was applied.
Venkataramana Devaru v. State of Mysore (1957)

In this case, the trustees of an ancient, renowned temple of Sri Venkataramana filed a suit
under Section 92 of the Code of Civil Procedure, 1908 (CPC) against the exclusion of Harijans
from entering into Hindu temples after the passing of the Madras Temple Entry Authorization
Act (Madras V of 1947). The trustees made a representation to the Government that the temple
was a private one and founded exclusively for the Gowda Saraswath Brahmins, and, therefore,
outside the operation of the Madras Temple Entry Authorization Act. However, the
Government did not accept that position and held that the said Act applied to the temple.

The trustees argued that the temple was not defined under Section 2(2) of the Madras Temple
Entry Authorization Act and Section 3 of the Act was void because it was offensive to Article
26(b) of the Constitution of India. Thus, an appeal was made to the Trial Court which gave a
decision against the appellants. But the High Court of Madras passed a limited decree in the
favour of the appellants stating that although the public, in general, were entitled to worship in
a temple, the appellants had a right to exclude the general public during certain ceremonies in
which only the members of the Gowda Saraswath Brahmins alone were entitled to participate.
Dealing with the controversy that Section 3 of the Madras Temple Entry Authorization Act
was in violation of Article 26(b) of the Indian Constitution, the High Court held that a
denominational institution is also a public institution, Article 25(2)(b) of the Constitution
would apply, and therefore, all classes of Hindus were entitled to enter into the temple for
worship.

The Court further added that Article 25(1) of the Constitution deals with the rights of
individuals and Article 26(b) with the rights of religious denominations. However, Article
25(2) covers a much wider ground and controls both the Articles. Article 26(b) must, therefore,
be read keeping in mind Article 25(2)(b) of the Constitution.

The decision by the Supreme Court clarified the challenge in the interpretation of Section 2(2)
and Section 3 of the Madras Temple Entry Authorisation Act (V of 1947) while also laying
clearly the concepts pertaining to the matter of religion and harmonisation of irregularities
arising at the time of interpretation of Article 25(2)(b) and Article 26(b) of the Indian
Constitution. The Apex Court dismissed both the appeal and the application for special leave
to appeal.
State of Rajasthan v. Gopi Kishan Sen (1992)

The respondent, in this case, was appointed as an untrained teacher in Rajasthan in 1972. The
State of Rajasthan, who is the appellant, in this case, refused him his claim of salary on the pay
scale of Rs. 160-360/- per month. The respondent then made an application under Article
226 of the Constitution of India in the High Court of Rajasthan which was allowed by the
impugned judgement. However, the pay scale of Rs. 160-360/- per month was given only to
trained teachers. The respondent was not a trained teacher and hence, he was appointed at a
fixed salary of Rs. 130/- per month until he became trained which comes under the provisions
of the Rajasthan Civil Services (New Pay Scales) Rules, 1969 that is read with Rajasthan
Education Subordinate Service Rules, 1971.

The pay scales, however, have been revised subsequently. The amount of Rs. 130/- per month
was fixed as the salary of the untrained teacher and this provision was struck down by the High
Court in part, considering it to be illegal discrimination. Accordingly, the appellant was asked
to pay the respondent his salary at the higher rate for the period of 1972 to 1982 and this was
challenged on behalf of the appellant as flawed.

When the case reached the Supreme Court, the Court observed that the rule of harmonious
construction of seemingly contradictory statutory provisions is well recognized for as far as it
may be possible to uphold and give effect to all the provisions and avoid the interpretation
which may render any of them powerless.

Rule 29 of the Rajasthan Services Rules, 1951 dealing with the increment in pay scale is in
general terms, while the schedule in the Rajasthan Civil Services (New Pay Scales) Rules, 1969
has a special provision overseeing the untrained teachers. This case thus attracts the maxim
‘generalibus specialia derogant’ because when a special provision is made on a certain subject
then that subject is excluded from the general provision.

Unni Krishnan, J.P., etc. v. State of Andhra Pradesh and Others (1993)

The case of Unni Krishnan was momentous with respect to the Right to education in India as
it contested the question of the ‘Right to life’ as provided under Article 21 of the Constitution
of India. Article 21 guarantees every citizen a right to education. The issues which came before
the Apex Court were, whether a citizen has a Fundamental Right to education for professional
degrees like medicine, engineering etc. and whether our Constitution guarantees the right to
education to all its citizens.

A writ petition was filed challenging whether the ‘Right to life’ under Article 21 also covers
and guarantees the right to education to all the citizens of India, and the right to education here
also includes professional education or degree.

The Supreme Court held that the right to basic education was inferred by the: Right to life
under Article 21 when read with Article 41 of the directive principle on education. The Court
also referred to Article 45 and inferred that there is no fundamental right to education for a
professional degree that emanates from Article 21. On the issue of the prevalence of
Fundamental Rights over Directive Principles of State Policy (DPSP), the Court commented
that the provisions of Part Three and Part Four are supplementary and complementary to each
other and that the Fundamental Rights and Directive Principles should be interpreted
harmoniously as they form the social conscience of the Indian Constitution.

Sirsilk v. Government of Andhra Pradesh (1963)

In this case, the Sirsilk Company entered into a dispute with the Government of Andhra
Pradesh and their employees. The dispute was also taken to an Industrial Tribunal. After
deciding on it, the authority delivered its award in September 1957 after which it was to be
published in the Official Gazette of the Government of Andhra Pradesh. But the corporation
and the employees jointly asked not to publish the award because they had already resolved
their disagreement amicably. The Government declined to acknowledge the appeal of the
parties after which the parties lodged a writ application with the High Court, for issuance of an
order to the government for stopping them from publishing the issue of the award in a
publication. The High Court rejected the writ application and said that it was mandatory
under Section 17 in the Industrial Disputes Act, 1947 and the government should not withhold
the publication of an award submitted to it by the Industrial Tribunal. The appeal by the Sirsilk
Company was then filed in the Supreme Court by the parties.

The corporation and the employees submitted that since both the parties signed a resolution
that is binding to them under Section 18(1) of the Industrial Dispute Act, the government’s
award under Section 17(1), is daunting on the group and it should not be released. The
resolution agreed by the parties should be observed and the industrial peace preserved. The
Government on the other hand quoting the mandatory nature of Section 17(1) of the Industrial
Dispute Act said that the award had to be issued within 30 days of receipt of the same. The
objective of the reference to the Tribunal is to settle disputes and when a resolution is reached
between the parties then the question of the award for publication, issued by the Tribunal
appears to be illogical and has no essence since there is no conflict left to be resolved by
publication of the award.

The Supreme Court observed that there is a difference of opinion between Section 17 and
Section 18 of the Act and it is important to find a remedy that preserves the primary spectrum
of the Industrial Dispute Act. The Supreme Court held that the only way to resolve the two
contradictory clauses of such a case is to allow the Government to withdraw the publication of
the award and to permit the parties to continue with their resolution. The Supreme Court said
that while Section 17 and Section 18 of the Act were mandatory, in spite of the fact that the
parties have already settled their dispute amicably by agreement, in the present case, no dispute
remained to be resolved by the publication of the award, and hence, the Apex Court directed
the Government not to publish the award in compliance with Act 17(1) and the appeal was
approved.

This decision of the Supreme Court is a perfect example of how one provisions’ rules can be
applied without rendering meaningless or obsolete another provision of the law.

K.M. Nanavati v. The State of Maharashtra, (1961)

This is one of the most famous cases in Indian legal history and the jury trials were abolished
after this case in India. A Navy Commander KM Nanavati was accused of murdering his wife’s
secret lover, Prem Ahuja, and as a result, was held guilty under Section 302 of the Indian Penal
Code.

He was charged under Section 302 and Section 304 of the IPC and the trial was held by a
Sessions Judge, Bombay and the special jury held him not guilty under both the sections
involved under IPC. However, the Sessions Judge was dissatisfied with the jury’s decision as
he felt that it was not a logical decision taking into view the evidence of the case. So, he took
the case to the High Court of Bombay under Section 307 of the Code of Criminal Procedure,
1973 giving reasons for his views. The High Court approved the reasoning of the Sessions
Judge. The High Court said that taking into account the circumstances of the case, the offence
could not be reduced from murder to culpable homicide not amounting to murder. The High
Court held Nanavati guilty of the offence of murder and this decision was further challenged
in the Supreme Court. In the meantime, the Governor of Bombay by the use of power vested
in him under Article 161 of the Constitution of India passed an order for the suspension of
Nanavati.

The decision of the Governor was questioned because when the suspension was ordered the
case was sub-judice under the Supreme Court. Applying the principle of harmonious
construction to settle the conflict that arose between the executive and the judiciary, the
Supreme Court held that Article 161 and the suspension by the Governor was not applicable
when the case was sub-judice.

Calcutta Gas Company Private Limited v. State of West Bengal (1962)

Oriental Gas Company Act,1960 was passed by the State Legislative Assembly of West
Bengal. The appellant, in this case, challenged the validity of this Act on the grounds that the
State Legislative Assembly had no power to pass such an Act under Entry 24 and Entry 25
(Constitution of India, List II) of the State since the Government wanted to take over the
management of the company. The appellant reasoned that the Parliament had already
enacted the Industries Development and Regulation Act, 1951 under Entry 52 of the Union
list/List I, which dealt with industries.

Entire industries in the State List are covered under Entry 24, and Entry 25 is only limited to
the gas industry. The Supreme Court in this case used the rule of harmonious construction and
held that it was clear that the gas industry was covered completely by Entry 25 of the State List
over which the State had full control. Therefore, the state had the power to make laws in this
regard. Therefore, with the help of the rule of harmonious construction, the Supreme Court
expressed that the gas industry came under Entry 25 which is a part of the State List, and this
gives the State full control over it.

Conclusion
The judiciary and the courts in India are making all efforts to protect and maintain the object
of every provision of the Indian Constitution by using the doctrine of harmonious construction
as one of the tools. Using the principle of harmonious construction, the Indian Judiciary has
tried to explain the intention or objective of the framers of the Constitution for framing the
different statutes. The rule of harmonious construction brings consistency between different
conflicting provisions so that none of them is rendered powerless or dead-letter as there has
been considerable thought by the legislature in making them. Through the analysis of the
different cases in this article, it can be concluded that the principle of harmonious construction
or interpretation is an effective tool of interpretation used by the Indian courts to not only
resolve conflicts but also to make important decisions on subject matters of different lists.

Doctrine of pith and substance

Introduction

The Doctrine of Pith and Substance states that if the substance of legislation falls within a
legislature’s lawful power, the legislation does not become unconstitutional just because it
impacts an issue beyond its area of authority. “True nature and character” is what the phrase
“pith and substance” signifies. The infringement of the constitutional delimitation of legislative
powers in a Federal State is the subject of this concept. The Court uses it to determine whether
the claimed intrusion is just incidental or significant. Thus, the ‘pith and substance’ concept
holds that the challenged statute is fundamentally within the legislative competence of the
legislature that enacted it but only incidentally encroaches on the legislative field of another
legislature. The present article discusses this doctrine majorly highlighting the same on how
the Indian Constitution has perceived this doctrine.

Evolution of the doctrine of pith and substance

The Canadian Constitution inspired the doctrine of pith and substance. The country of Canada
is divided into two parts, namely, the Dominion and the Provinces. In order to divide the powers
of the Dominions and Provinces, the framers of the Canadian Constitution inserted two separate
lists to the Constitution. Section 69 of the Canadian Constitution, which was first established
in 1857 as the British North America Act, separated the powers delegated to the Dominion
from those delegated to the Provinces. Furthermore, Sections 91 and 92 of the Constitution Act
of 1867 define the Dominions’ and Provinces’ exclusive rights.
The origin of this doctrine can be traced back to the case of Cushing vs. Dupuy (1880) in
Canada, and it has since spread to India, where it is firmly supported by Article 246 of the
Indian Constitution and the Seventh Schedule, through which the Constitution of India divides
the scope of legislative powers between the Centre and states. The Union, State, and Concurrent
Lists of the Indian Constitution make up this schedule.

While the term ‘Pith’ implies genuine nature or essence of anything, ‘Substance’ indicates the
most important or vital aspect of something, to break down the concept to its molecular
meanings. The state and union legislatures are made supreme within their respective areas, and
they should not intrude on the sphere delimited for the other, according to the doctrine’s
interpretation.

When a law approved by one legislature is contested or trespassed by another legislature, the
doctrine of pith and substance is applied. This doctrine states that while assessing whether a
certain law applies to a specific issue, the court looks to the content of the case. If the content
of the thing falls inside one of the three lists, the encroachment by law on another list does not
render it illegal since it is said to be ultra vires.

Reason behind the formation of doctrine of pith and substance

The objective behind the creation of this doctrine was to prevent absolute intrusion of
legislative powers by evaluating the ‘content’ of enactment and then determining which list the
specific subject matter fell within. As a result, this doctrine is applied to establish the legislative
competency of a given law by examining the ‘content’ of that statute. Examining an
enactment’s ‘substance’ might lead to one of two outcomes:

1. The enactment’s substance corresponds to the subject matter given to the

legislature for the purpose of enacting laws: This will constitute the enactment
totally lawful.

2. Enactment includes subject matter that is outside the jurisdiction of the federal
or state legislatures: This may result in a partial or accidental incursion of
legislative powers, which may or may not render the entire statute invalid and void.
 Certain subject topics enumerated in the three lists indicated in the Seventh Schedule
might overlap at times, therefore incidental encroachments are permitted to some
extent when evaluating legislative competency.

Early takes on the doctrine of pith and substance by the judiciary

During the course of examining the scope of the intrusion, a crucial question about the grounds
on which legislative competence should be confirmed arose. In the case of Cushing v.
Dupey (1880), the Privy Council came to the rescue in 1880. In its judgment, the Privy Council
developed the doctrine of pith and substance, holding that the ‘pith and substance’ of enactment
must be considered in determining whether it falls within or beyond the scope of legislative
powers allocated to either the Dominion or the Province.

Lord Watson, while testifying for the Privy Council in the matter of Union Colliery Company
of British Columbia v. Bryden in 1889, caught the notion of “real essence and character” of
law and treated it as a metaphor “whole pith and substance” of an enactment.

Features of the doctrine of pith and substance

1. The philosophy behind the doctrine emphasises that it is the primary subject matter
that must be contested, not its unintended consequences in another discipline. Pith
refers to a thing’s ‘essence’ or ‘real nature,’ whereas substance refers to a thing’s
most significant or fundamental portion.’

2. The adoption of this doctrine is necessary because otherwise every law would be
considered unconstitutional since it encroaches on the subject matter of another
realm.

3. The actual character of law is defined by pith and substance. The true subject matter
is being questioned in this regard and not its unintended consequences in another
discipline. The idea has also been used in India to allow some flexibility in an
otherwise strict electricity distribution structure.

4. To identify which list a piece of legislation belongs to, the doctrine looks at its
genuine nature and substance.
 5. It considers whether the state has the authority to enact legislation that affects a
subject from another list or not.

Doctrine of pith and substance under the Indian Constitution

The doctrine of pith and substance, sometimes known as incidental encroachment, is a product
of Canadian jurisprudence that has been applied to the Government of India Act, 1935, and the
current Constitution. Occasionally, legislation is enacted under the authority of an item in one
of the VII Schedule’s Lists. The idea of pith and substance is employed in such instances to
determine which legislature has the authority to implement such legislation. The court must
consider the genuine nature and character of the law, whether it essentially comes within the
authority of the legislature passing it, and whether it is valid even though incidentally it touches
upon some matter within the competence of another legislature.

In general, the Parliament and state legislatures are supposed to stay in their allocated sectors
and not trespass on each other’s jurisdiction. If otherwise, the legislation would be declared
illegal by the judiciary. But first, it will apply the doctrine of pith and substance to determine
the true authority that the aforementioned piece of law comes under. To put it another way, the
idea of pith and substance is used to identify which category a piece of legislation belongs to.
However, the powers bestowed on each level are certain to intersect at some point. It is
impossible to draw a clear line between the competencies of separate legislatures as they will
inevitably overlap at times.

Need for the doctrine of pith and substance in India

1. One of the key reasons for the doctrine’s adoption and use in India was to give
flexibility to an otherwise inflexible framework for power allocation under a federal
structure.

2. Another important ground establishing a need for the doctrine in India is that if every
legislation were to be declared invalid on the ground that it encroached on the
subject of another legislature, then these powers assigned to the legislature would
be enormously restrictive, and this would not serve the purpose of the power being
granted to the legislature.
Article 246 of the Indian Constitution : all you need to know

The distribution of authority between the Union and the States is addressed in the
Constitution’s Seventh Schedule, which is enshrined under Article 246 of the Indian
Constitution. Article 246 of the Constitution defines the Union’s and states’ powers by
categorising them into three lists, namely, Union List, State List, and Concurrent List. The
Indian Constitution establishes the doctrine of separation of powers between the national and
state governments. The three lists have been placed hereunder:

1. Union List: This is the List in which the Centre has sole authority to enact
legislation. The Union List essentially covers military, foreign affairs, railways, and
banking, among other areas where Parliament can enact legislation.

2. State List: This is the List in which states have sole authority to enact legislation.
Public order, police, public health, and sanitation, as well as hospitals and
dispensaries, betting, and gambling, are some of the subject matters covered under
the same.

3. Concurrent List: The List in which both the Centre and the states can pass
legislation is the Concurrent List. The central law takes precedence over state law
in circumstances of repugnancy. It covers subject matters such as education,
population management, family planning, criminal law, animal cruelty prevention,
wildlife and animal preservation, forests, and several others.
The Constitution’s Seventh Schedule has been amended several times since 1950. The Union
List and the Concurrent List have grown in size, while the State List has converged over the
years. In 1976, the 42nd Amendment Act rebuilt the Seventh Schedule, guaranteeing that State
List subject matters such as education, forest, wildlife, and bird preservation and administration
of justice. Whereas, weights and measures were transferred to the Concurrent List.

Interpretation of the doctrine of pith and substance

In Kartar Singh v. the State of Punjab (1961), the Supreme Court’s Constitutional Bench
explained how the doctrine of pith and substance should be applied. It was discovered that
when the idea of pith and substance is applied, legislation relating to a topic in one of the lists
may also be connected, if indirectly, to a subject in another list. The essence and substance of
the legislation must be determined in such a case. If a comprehensive examination of the law
reveals that it is on a topic listed in a list pertaining to the legislature, the act in its whole is to
be deemed legal, regardless of any accidental encroachments that may exist.

When there is a question of legislative power, the courts must apply the theory of pith and
substance. The court analyses the statute’s subject matter to the subjects covered by the three
Lists, namely, the Union, the State, and the Concurrent List, and determines which of the three
lists would cover the law. If the statute is covered by the List that pertains to the legislature in
question, it is intra vires and hence lawful. However, if the enactment is unconstitutional, it
will be declared null and invalid.

It was decided in State of Rajasthan v. Vatan Medical and General Store (2001) that once
enactment is inside the four corners of an item in List-II (State List), no central law, whether
issued with respect to an entry in List I or List III, can impact the legality of that state
enactment. The Court further concluded that once enactment is related to Entry 8 in List II, or
any other entry in List II for that matter, Article 246 cannot be used to argue that the state
legislature is not competent to pass that statute.

In the case of Zameer Ahmed Latifur Rehman Sheikh v. the State of Maharashtra and Ors.
(2010), the notion of pith and substance was effectively articulated. The doctrine, according to
the Court, should be used when the legislature’s legislative power in relation to a certain statute
is called into doubt. If there was a challenge to the legislature’s capacity, the court would assess
the law’s gist and content after the Act had been scrutinised. It is critical for the courts to
evaluate the real character of the legislation, its goal, scope, and impact, as well as to determine
if the law in issue was genuinely covered by a subject matter listed in the legislature’s
concerned list.

Doctrine of ancillary or incidental encroachment

The idea of ancillary and incidental powers broadens the legislative power’s scope. It specifies
that the authority to legislate includes the ability to legislate on supplementary or incidental
subjects. These abilities are intended to assist the primary goal of the enactment in question.
This concept allows for a broad and liberal reading of the items in the three legislative lists.
The doctrine of ancillary or incidental powers is utilised to determine the legislative authorities’
goals and scope. The ability to legislate on incidental and supplementary topics aids in the
extension of these powers.

The question in R. D. Joshi v. Ajit Mills (1977) was whether the State legislature had the
authority to adopt a statute allowing it to forfeit the sales tax received by dealers. The Court
ruled that this was a punitive measure to ensure that social policy was properly and effectively
enforced. It further said that the entries must be given a broad interpretation in order to include
ancillary and incidental capabilities.

The doctrine of ancillary or incidental encroachment is in addition to the doctrine of pith and
substance. The Constitution specifies the legislative powers of both the Union and state
governments. Neither of them should meddle with the other’s power. When one person’s
powers are encroached upon, the notion of pith and substance comes into play. It aids in
determining whether the legislature in issue was competent to pass the law in question. The
‘pith and substance’ of law, i.e., the legislation’s goal, must be within the limits of the issue
over which the concerned legislature has the authority to legislate. If such is the case, the law
would be unconstitutional, even if it appeared to trespass on the power.

Application of doctrine of pith and substance by the Indian judiciary

When declaring an Act null and invalid, several considerations must be taken into account. It’s
possible that the concerned legislature inadvertently encroached on the authority of another
legislative, and in that case, careful inspection is required to ensure that it wasn’t done on
purpose. The Supreme Court of India had observed in the case of Assn. of Natural Gas v. the
Union of India and Ors. (2004) that understanding what would ordinarily be treated as
“covered within that subject in legislative practice” as well as the practice of such State that
had conferred such power.

This concept is a well-established legal theory in India, having been recognized by different
high courts and the Supreme Court. The doctrine of pith and substance comes into play
whenever a law is deemed to be intruding or trespassing into an area whose legislation has been
allocated to another. The essence of the theory is that if a dispute arises about whether a certain
law applies to a specific subject (which would be listed in one of the lists under the 7th
Schedule), the court, in deciding such questions, examines the content of the case. Although
there are several notable decisions by courts across India concerning the discussed doctrine,
five landmark judgments that contributed to embedding this doctrine in the Indian Constitution
have received explanation hereunder.

Prafulla Kumar v. Bank of Commerce, Kulna (1947)

The Bengal Moneylender Act, 1940 was passed for the greater good of the people and set a
limit past which money lenders could not collect any money. Even the rate of interest was set
at a maximum that the money lenders could collect. Moneylenders questioned the Act’s
legitimacy since the loan rate was so low.

The issue that arose with respect to the case of Prafulla Kumar v. Bank of Commerce,
Kulna (1947) concerned the constitutionality of the Bengal Moneylenders Act, 1940, which
was adopted by state legislatures. It was contested on the grounds that the Act only applied to
promissory notes. As the subject matter of promissory note comes under the Union List, it was
argued that the state had no power to create laws concerning a union matter.

Privy Council’s observations

1. The Privy Council correctly determined that the genuine object, scope, and effect of
the Act is money lending and interest on the same, that the primary issue is not
promissory notes, and that the state legislature can pass legislation to safeguard the
true object, extent, and effect.

2. In this case, the doctrine of pith and substance is critical in interpreting the case’s
main subject matter. The doctrine is used to safeguard the rigorous pattern of power-
sharing between the state and the Union since the major subject matter is money
lending.

3. Whatever is supplementary or indirectly influences legislation established by a state

legislature must be credited to the proper list according to its genuine nature and
character to serve the wider public interest.
State of Bombay and another v. F.N Balsara (1951)

The decision in the case of State of Bombay and another v. F.N Balsara (1951) is noteworthy
in constitutional law because it clarified several ambiguities around the doctrine of pith and
substance. When a legislature’s legislative competence in regard to a particular enactment is
challenged with reference to entries in different legislative lists, the doctrine of pith and
substance is applied, as a law dealing with a subject in one list within the competence of the
legislature concerned also touches on a subject in another list, not within the competence of
that legislature. In such a circumstance, what must be determined is the essence and content of
the legislation, its genuine character, and nature.

Observations of the Supreme Court of India

1. Under List II, Entry 31 of the Indian Constitution, the state legislature has the
authority to entirely outlaw the keeping, marketing, and use of intoxicating wine. As
a result, there is no issue about the state’s and the centre’s jurisdictions clashing with
each other in this regard.

2. The Apex Court viewed that any act passed by the state legislature that prohibits or
restricts the export of the items listed in Entries 27 and 29 of List II outside the
state’s borders is illegal. However, because this Act was approved under List II Entry
31, Section 297(1)(a) of the Bombay Prohibition Act, 1949 does not apply to it. As
a result, the exemption granted to Army men, Land Forces messes, and Water Ships
cannot be ruled unconstitutional under Section 37 of the aforementioned Act.

3. The Supreme Court ruled that the portions of the Bombay Prohibition Act that dealt
with maintaining alcohol-mixed medications and toilet products, selling and buying
them, as well as using them, were unconstitutional under Article 19(1)(g) of the
Constitution, but the remainder of the provisions were upheld to be valid. It was also
established that an Act cannot be deemed entirely invalid simply by declaring any
of its sections to be illegal.

4. The Apex Court had also stated that under Article 277 of the Constitution, any taxes,
duties, cesses, or fees that were lawfully levied by the government of any State or
municipality or other local authority or body for the purpose of the state,
municipality, district, or another local area immediately before the commencement
 of the Constitution may continue to be levied and applied for the same purpose until
provisions to the contrary are made by Parliament by law. Thus the legal principle
that has been established provides that if the state government has adopted an Act
on a topic over which it has constitutional authority, the Act is valid.

Synthetics and Chemicals Ltd. and Others v. the State Of U.P. and Ors.

The above-discussed case is no longer relevant because it was overturned by the Apex Court’s
decision in the case of Synthetics and Chemicals Ltd. and Others v. State of Uttar Pradesh and
Others (1989).

This decision was made on the grounds that there could not be a full restriction of therapeutic
remedies including alcohol. As a result, it was argued that in the case of alcohol that is unfit
for human consumption, commerce in such an object cannot be regarded as a noxious trade.
Only when it is produced or processed for human use will it be a toxic trade.

The reasoning provided in the FN Balsara’s case was followed here. As alcohol is counted
under luxurious goods, the state legislature will have to collect taxes on the ownership of
alcoholic liquors suited for human consumption. However, because alcohol that is unfit for
human consumption is not a luxury, state legislatures will not be able to charge taxes on it,
according to the learned Attorney General. It was held that all alcohol taxes not covered by any
other entries in Lists I and II will be levied by Parliament.

State of Rajasthan v. G Chawla (1959)

The state of Rajasthan passed legislation prohibiting the use of sound amplifiers in the case
of State of Rajasthan v. G. Chawla (1959). The respondent broke the law, and the judicial
magistrate declared the deed unconstitutional. On appeal to the Supreme Court, the state argued
that the law was within the legislative competence of the state legislature under Entry 6 of List
II, that is the power to legislate in relation to public health includes the power to regulate the
use of amplifiers because they produce a loud noise, whereas the opposition argued that
amplifiers fell under Entry 31 of List I that includes post and telegraphs, telephones, wireless,
broadcasting and other like forms of communication.
Supreme Court’s observation

The Apex Court observed that even though the amplifier is a broadcasting and communication
apparatus, it did not fall under Entry 31 of List I because the legislation was a state matter in
its essence and was not held invalid even if it encroached on the subject of broadcasting and
communication by accident.

State of Karnataka v. Drive-In Enterprises (2001)

The imposition of tax on ‘drive-in-cinemas’ was at issue in State of Karnataka v. Drive-In

Enterprises (2001). A drive-in cinema is an open-air theatre premise in which entrance is
generally granted to people who want to see the movie while sitting in their automobiles. The
state assessed an entertainment tax on automobiles entering the theatre, in addition to collecting
an entertainment tax on those being entertained. The dispute arose as to whether the state
legislature has the authority to adopt legislation imposing a tax on entry of cars/motor vehicles
within such theatres under Entry 62, List II of the 7th Schedule or not. It is to be noted that the
state legislature has the authority to charge a tax on ‘luxuries, entertainment, amusements,
betting, and gaming,’ according to Entry 62.

Observations by the Apex Court

1. The Supreme Court stated that what must be determined is the true character of the
levy, its essence and content and that it is in this light that the state legislature’s
competence must be assessed. The doctrine of pith and substance states that
enactment cannot be held ultra vires simply because its nomenclature indicates that
it encroaches on matters assigned to another heading of legislation if it substantially
falls within the powers expressly conferred on the legislature by the Indian
Constitution.

2. The Court further observed that the true nature and character of the contested tax, in
this case, is not on the entrance of cars/motor vehicles, but on the person amused
who drives their automobile into the theatre and watches the movie from their car.
In essence, the tax is placed on the person who is entertained, and it makes no
difference under whichever name or forms it is enforced. The term ‘entertainment’
is broad enough to encompass the luxury or comfort with which one entertains
 oneself. The levy is justified and lawful if a link between legislative competence and
the subject matter of taxes is established.

State of A.P. v. K. Purushotham Reddy (2003)

The A.P. State Council of Higher Education Act, 1988, established a State Council for higher
education in the present case. The Council’s responsibilities and tasks are divided, and it must
operate in accordance with Central UGC’s rules. It must support the UGC in determining and
maintaining standards, as well as proposing corrective actions for higher education in the state.
It lacks the authority to operate as an independent entity in the areas of coordination and
standard-setting for higher education, research, and technical institutes. The state Act is within
the legislative competence of the state legislature and does not trespass on the Central field. In
addition, the Act is not a colorable piece of legislation.

Observations by the Supreme Court of India

1. It was decided in State of A.P. v K. Purushotham Reddy (2003) that the state
legislation may only be declared ultra vires when it cannot coexist with the Central
legislation. The legislation should be construed in such a way that its
constitutionality is preserved.

2. The Apex Court further noted that the entries in Schedule VII should be construed
broadly. On a combined reading of List I Entry 66 and List III Entry 25, it is evident
that, while the State has a large legislative field to cover, it is subject to List I Entries
63-66. When it is determined that a state Act does not encroach into the legislative
sphere defined by Entry 66 List I, the state Act cannot be declared illegal.

Conclusion

The doctrine of pith and substance has been relevant in a number of cases in which the Centre
and the States have fought for legislative primacy. Because the Centre has more clout in India
than the states, several of the subjects on the Union List are extremely important. States are
only obligated to legislate on things that affect them. Even yet, overlaps may exist merely
because one legislation is linked to another, either directly or indirectly. It is therefore
important that the courts carry out their responsibilities without error.
Doctrine of repugnancy

Introduction

The Constitution of India, the supreme law of the nation, has empowered the Central and the
State Government to enact laws by virtue of various Articles read with Schedule VII. Black’s
Law Dictionary defines repugnancy as inconsistency or contradiction between two or more
parts of a legal instrument. In a system that divides its law-making power between the Centre
and the States, an inconsistency can arise between the laws made by the Centre and those made
by the State. The Doctrine of Repugnancy was introduced in the Constitution to resolve such
situations.

Meaning of doctrine of repugnancy

Article 254 of the Indian Constitution establishes the doctrine of repugnancy in India. Before
getting to this doctrine, it is quintessential to understand the legislative scheme and the Centre-
State relations set out by the Constitution. `

Article 245 empowers the Parliament to make laws for the whole or any part of India and the
State legislature to make laws for the whole or any part of the State. It also states that a law
made by the Parliament shall not be deemed invalid due to its extraterritorial application.
Further, Article 246 provides the subject-matter of laws that can be made by the Parliament
and Legislature of the States.

 The Parliament has exclusive powers to make laws for all matters given in the Union
List or List I of the Schedule VII of the Indian Constitution.

 The Legislature of the State has powers to make laws for such State for all matters
given in the State List or List II of Schedule VII.

 Both the Parliament and the State Legislature have powers to make laws for all
matters listed in the Concurrent List or List III of the Seventh Schedule.

 The Parliament is empowered to make laws relating to any matter for any part of the
territory of India, not included in a State, notwithstanding if it is enumerated in the
State List.
Repugnancy means a contradiction between two laws which when applied to the same set of
facts produce different results. It is used to describe inconsistency and incompatibility between
the Central laws and State laws when applied in the concurrent field. The situation of
repugnancy arises when two laws are so inconsistent with each other that the application of any
one of them would imply the violation of another.

The doctrine of repugnancy, in accordance to Article 254, states that if any part of State law is
repugnant or conflicting to any part of a Central law which the Parliament is competent to
enact, or to any part of a law of the matter of List III, then the Central law made by the
Parliament shall prevail and the law made by the State legislature shall become void, to the
extent of its repugnancy. While considering this doctrine, whether the central law is passed
before or after the State law is immaterial. Hence, this is a principle to ascertain that when a
state law becomes repugnant to the Central law.

Judicial interpretation

One of the landmark judgments concerning this doctrine is M. Karunanidhi v. Union of India.
In this case, a constitutional bench of the Apex court considered the question of repugnancy
between a law made by the Parliament and a law made by the State legislature. It was observed
that the following conditions should be satisfied for the application of the doctrine of
repugnancy:

1. A direct inconsistency between the Central Act and the State Act.

2. The inconsistency must be irreconcilable.

3. The inconsistency between the provisions of the two Acts should be of such nature
as to bring the two Acts into direct collision with each other and a situation should
be reached where it is impossible to obey the one without disobeying the other.
The Hon’ble Court also laid down some propositions in this respect. For the application of the
doctrine of repugnancy, two enactments must contain provisions that are so inconsistent that
they cannot stand together in the same field. Repeal by implication cannot be done unless there
is a prima facie repugnancy in the enactments. If two enactments exist in the same field and
there is a possibility for both of them to operate without colluding with the other, then this
doctrine is not attracted. When there is an absence of inconsistency but enactment in the same
field creates distinct offences, the question of repugnancy does not arise.
Another landmark judgment is Government of Andhra Pradesh v. J.B. Educational Society,
where the Court observed that the judiciary must interpret legislation made by the Parliament
and the State Legislature in such a way that the question of conflict does not arise or can be
circumvented. However, if such a conflict between laws is unavoidable, then the Parliamentary
law shall prevail. Since List III gives equal competence to both the Parliament and the State
Legislatures, to enact laws, the highest scope of a conflict exists here. Again, the Court should
interpret laws to avoid the conflict or else follow the manner of resolution iterated in Article
245. Clause (2) of Article 254 deals with a situation where the State legislation having been
reserved and having obtained President’s assent, prevails in that State; this again is subject to
the proviso that Parliament can again bring a legislation to override even such State
legislation.

The case of Hoechst Pharma ltd. v. State of Bihar discusses the effect of Clause (2) of Article
254. It was observed that the assent of the President for a state law which is repugnant to a
Central law for a matter related to a concurrent subject is important as it results in the prevailing
of the State law in that particular State, thereby, overriding the application of the Central law
in that state only.

Tests for determining repugnancy

The principles of repugnancy have been applied under the Australian Constitution and have
been borrowed by analogy for their application in India. Following Australian precedents, the
Court in the case of Deep Chand v. State of Uttar Pradesh observed that repugnancy between
two enactments can be identified with the help of the following three tests:

1. Whether there is a direct conflict between the two conflicting provisions;

2. Whether the Parliament intended to lay down an exhaustive enactment on the

subject-matter and to replace the law made by the State legislature; and

3. Whether the law made by the Parliament and that made by the State legislature
occupies the same field.
Direct conflict

Direct conflict is said to exist when two laws cannot be effectuated at the same time. A lucid
occurrence of repugnancy is when the existence of one law prohibits the application of another
law with respect to the same conduct. Such were the circumstances in the case Mati Lal Shah
v Chandra Kanta Sarkar before the Calcutta High Court. A conflict arose between Section 20
and Section 34 of the Bengal Agricultural Debtors Act, 1936, and Section 31 of the Presidency
Small Causes Courts Act, 1882 which is an existing Indian law in force. The former required
that the service of a notice shall stay for the execution of certain decrees against the agricultural
debtors while the latter required that the execution shall take place through other courts, if
necessary. The Court held the provisions of the Bengal Act void due to repugnancy.

In another case of Vishwanath v. Harihar Gir (1939), Section 16 read with Section 17 of
the Bihar MoneyLenders Act, 1938 was conflicting with Order 21, Rule 66 of the Code of Civil
Procedure. The Bihar Act provided that the Court should fix an amount of the property, when
it is brought for sale, and not permit its sale below that fixed amount. On the other hand, the
Code provided that the Court shall mention the amount of the property which is mentioned by
the Decree holder or judgment debtor but is not required to vouch for the correct price of the
property. The Court observed that the application of both the provisions at the same time is
impossible as they are contradictory to each other. Hence, in substance, there is repugnancy.
The Court held the provisions of the Bihar Act void and applied those of the Code. In this case,
it was seen that although there is a judicial eagerness to limit the area of repugnancy, however,
when it is coupled with mechanical reconciliation, the result might not always end up being
desirable or beneficial for the society in general. The implementation of the doctrine remains
unpreventable.

Exhaustive code

The test of direct conflict can prove to be narrow for complex scenarios. Thus, a second
principle was evolved for the fuller understanding of the application of the dominant
legislation, which is, if the Central government intentionally drafted a code for its exhaustive
application for regulating the subject-matter, then it would not be harmonious for the State
legislation to function at the same time. This test provides ample scope for the Judiciary to
uphold the intended values, envisaged in the paramount legislation, by the makers of the
legislation and to defeat narrow arguments that could be raised on the basis of the direct
collision test.

In the case of State of Assam v. Horizon Union, the Apex Court undertook the exhaustive code
test. For appointing the Presiding Officer of an Industrial Tribunal, the qualifications required
by the candidate, as per the State law, were 3 years experience as a District Judge or qualified
for appointment as a High Court judge, provided that such appointment could be made only
after consultation with the High Court. The challenge, in the present case, was on a candidate
who was appointed without any consultation from the High Court. The Supreme Court
observed that the Central Act was intended to be an exhaustive code on the subject-matter, i.e.,
the appointment of District Judges as a Presiding Officer, and the appointment was valid.
However, if a person qualified to be appointed as a Judge of the High Court were to be
appointed as the Presiding Officer, the provisions in the State law for consultation with the
High Court were still valid. This shows on what narrow field the Central Government was held
to have laid down an exhaustive code.

In the above case, the test of direct conflict would have failed in determining the conflict.

Occupying the same field

This test is in close relation with the exhaustive code test for identifying repugnancy between
two enactments. If the Central government has enacted a law with the intention of occupying
the whole field, then it would not be fit for the State law to legislate in the same field.

In Zaverbhai Amaidas v. the State of Bombay, a convict pleaded that he was convicted by a
Court having no jurisdiction. According to the state law, the offence committed by him, that
is, transporting food grains without permit attracted imprisonment for a term of 7 years. On the
other hand, the Central law prescribed punishment of imprisonment for a term of 3 years for
the offence committed by him. An additional provision in the Central law was that the
punishment could be increased to 7 years if the person was found possessing double the
permitted quantity of food grains. The convict argued that he should have been governed by
the provisions of the Bombay Act and not the Central Act which would render the decision of
the court a faulty one, and without jurisdiction as the Magistrate who punished him could
sentence him for the imprisonment of only up to 3 years. The occupation of the field of both
the laws was observed as seen whether they occupy the same field or not. The Supreme Court
held that both the laws occupied the same field and cannot be split up. Hence, the State laws
were held to be void and the Central law prevailed as per the doctrine of repugnancy.

Conclusion

The effect of the application of this doctrine will make the State law void to the extent of
repugnancy. As long as the Central law occupies the field, the State law is eclipsed. If, in case,
the Central law is repealed, then the State law shall revive. The doctrine of severability also
comes into application since if a State law is repugnant for a matter in the concurrent list, then
only the repugnant part will be held void and the rest shall function normally, thereby, giving
rise to severability. Article 254 proves that the Indian Constitution is both unitary and federal.
This doctrine is quintessential for the Centre-State relations in the country.

 The Bengal Money Lenders Act passed to scale down debts owed by the
agriculturists, was challenged on the ground that being a provincial (State) law, it
affected promissory notes, a Central subject (Entry 46, ListI). The Privy Council found
that in its true nature and character, the legislation dealt with money-lenders and money-
lending (Entry 30, List II), and not with promissory notes. The money-lenders
commonly take a promissory note as security for a loan. A legislature would not, in any
real sense, be able to deal with money-lending if it cannot limit the liability of a
borrower in respect of a promissory note given by him. The Act was held valid even
though as an ancillary effect it affected the negotiable instruments--a Central subject.

The Supreme Court has enunciated the rule of pith and substance in Balsara as follows:

"It is well settled that the validity of an Act is not affected if it incidentally trenches on matters
outside the authorised field and, therefore, it is necessary to enquire in each case what is the
pith and substance of the Act impugned. If the Act, when so viewed, substantially falls within
the powers expressly conferred upon the legislature which enacted it then it cannot be held to
be invalid merely because it incidentally encroaches on matters which have been assigned to
another legislature".

Applying the rule of pith and substance, it has been held that--
(i) A State law enforcing prohibition is valid because it prohibits purchase, use, possession,
transport and sale of liquor (Entry 8, List II), and it only incidentally encroaches on the Central
power on imports (Entry 41, List I).

(ii) A State prohibition law is valid even though it also deals with some aspects of evidence and
criminal procedure which fall in the Concurrent List, for the law deals, in substance, with
intoxicating liquors and only incidentally with evidence and criminal procedure.

(iii ) The Industrial Disputes Act enacted by Parliament, even though it applies to employees
of municipalities, is valid as, in substance, it deals with 'industrial and labour disputes' (Entry
22, List III), and not with 'local government' (Entry 5, List II).

(iv) A State law banning use of amplifiers after 10 P.M. is valid as it seeks to control use of
amplifiers in the interests of health (Entry 6, List II), and it only incidentally touches upon entry
31, List I.

(v ) A State law dealing with co-operative societies engaged in the banking business falls under
entry 32, List II, and not under Entry 44 or 45, List I.

(vi ) A State Law dealing with chit funds falls under Entry 7, List III, and not under Entries 26
or 30 of List II. Itdoes not fall under Entry 34, List II, as there is no element of gambling in
running chits, nor under Entry 45,List I, as the essence of banking is absent in running chits.

(vii ) A State law reducing arrears of rent or debts due from agriculturists falls under entries 18
and 30, ListII.

(viii) The Central Reserve Police Force Act enacted by Parliament falls under Entry 2, List I,
and Entries 1and 2, List III, and not under Entry 2, List II.

(ix) The object of the Advocates Act, 1961, is to constitute one common Bar for the whole
country and to provide machinery for its regulated functioning. Though the Act relates to legal
practitioners, in its pith and substance it concerns itself with the qualifications, enrolment and
discipline of the persons entitled to practiseas advocates before the Supreme Courtor the High
Courts. The Act thus falls under items 77 and 78 of List I. The power to legislate in regard to
such persons is excluded from entry 26 of List III.

(x) In Krishna v. State of Madras applying the rule of pith and substance, the Supreme Court
upheld the Madras Prohibition Act, even though it laid down procedure and principles of
evidence for trial of offences under the law in question very different from those contained in
the Criminal Procedure Code and the Indian Evidence Act, both Central Acts in the Concurrent
field. In this case, the Court appears to have gone rather too far in upholding the State law. In

Ukha ,(53)the Supreme Court had held that provisions in the State law in question concerning
criminal procedure and evidence fell under entries 2 and 12 of List III. The only difference in
the situations in the two cases appears to be that, while in Ukha the State law had received the
Presidential assent, the law involved in Krishna had not been so reserved, and this perhaps
explains the dichotomy in the judicial attitudes, for to take the same view in Krishna, as was
done in Ukha, would have been to hold the law bad on the ground of repugnancy with a Central
law.

The danger in taking the Krishna doctrine too far is that the uniformity achieved in the
procedural areas maybe destroyed; the Cr.P.C. would become limited to offences under
the I.P.C., and the States would be free to lay down their own brand of procedure and evidence
for trial of offences created by their own laws under List II. The doctrine of pith and substance
introduces a degree of flexibility into the otherwise rigid scheme of distribution of powers. It
gives an additional dimension to the powers of the Centre as well as the States. The
reason behind the rule is that if every legislation were to be declared invalid, howsoever, slight
or incidental the encroachment by it of the other field, then the power of each legislature will
be drastically circumscribed to deal effectively with the subjects entrusted to it for legislation.
Though the rule applies to both, the Centre and the States, and helps both to some extent, yet
since Parliament is the more dominant legislature and its powers are more generally and
broadly worded, the State Legislatures benefit much more by the rule than Parliament, for the
rule enables them to incidentally trespass into the much larger, and comparatively more
important, Central Area. The doctrine gives quite a good deal of manoeuvrability to the Courts.
It furnishes them with a tool to uphold legislation, for it is for them to decide its true nature and
character and, thus, they have a number of choices open to them and most often the Courts
by putting a favourable interpretation on the legislation in question use their power to support
the same.

Legislation made under the power of regulation and control of one legislature, in respect of a
particular subject of legislation, does not ipso facto deprive another legislature of the power of
taxation in respect of the same subject of legislation. Power to tax or impose a levy for
augmenting revenue shall continue to be exercisable by the legislature in whom it vests, in spite
of regulation or control having been assumed by another legislature, unless the tax legislation
concerned levies a tax in such a manner or of such magnitude as can be demonstrated to be
tampering or intermeddling with the other legislature's power of regulation and control. Further
it has been held that the primary object and the essential purpose of legislation must be
distinguished from its ultimate or incidental results or consequences, for determining the
character of the levy. A levy essentially in the nature of a tax and within the power of taxation
of the legislature concerned cannot be annulled as unconstitutional merely because it may have
an effect on the price of the commodity by reason of the incidence of the levy being permitted
to be passed on to the buyer.

The Doctrine of Basic Structure

Introduction

As per the Constitution of India, the Parliament and the state legislatures in the nation have the
powers to make laws within the scope of their respective jurisdictions. However, this power is
not absolute in nature. The Constitution has awarded the judiciary the power to adjudicate upon
the constitutional validity of all laws. If a law made by Parliament or the state legislature is
violative in nature of any provision enshrined under the Constitution of India, the Supreme
Court has the power to declare such a law made by Parliament to be deemed as invalid or ultra
vires.

The founding fathers of the Constitution wanted the Constitution to be an adaptable document
and not a rigid framework for Governance. Hence, the Parliament was invested with the power
to amend the Constitution of India.

Article 368 of the Constitution makes it appear as the Parliament’s amending powers are
absolute and encompass all parts of the Constitution of India. But the Supreme Court has had
curtailed the legislative enthusiasm of Parliament ever since the independence of the nation.
With the intention of preserving the original ideals envisioned by the constitution-makers, the
apex court pronounced that Parliament could not distort, damage or alter the basic features of
the Constitution under the pretext of amending it. The term ‘basic structure’ cannot be found
in the Constitution but its essence is available.
The Supreme Court of India has recognised the concept of ‘basic structure’ for the first time in
the historic case of Kesavananda Bharati v. the State of Kerala in the year 1973. And ever since
then, the Supreme Court has been the translator of the Constitution and the arbiter of all
amendments made by Parliament.

What was the position before the Kesavananda Bharati case?

 The Parliament’s authority to amend the Constitution, specifically the chapter on

the fundamental rights of the citizens of India, was challenged as early as in 1951.
After the independence of India, many laws were enacted in the states with the aim
of reforming land ownership and tenancy structures.

 Such a thing was done for keeping up with the ruling Congress party’s electoral
promises of implementing the socialistic goals of the Constitution (these are
contained in Article 39 (b) and (c) of the Directive Principles of State Policy). These
required fair and impartial distribution of resources of production among all citizens
of India and prevention of concentration of wealth in the hands of a few.

 The Property owners were adversely affected by these laws, hence, they had
petitioned in the courts. The courts struck down the land reforms laws saying that
they were acting above the fundamental right to property guaranteed by the
Constitution.

 Curious by the unfavourable judgements, the Parliament placed these laws in the
Ninth Schedule of the Constitution by the First and Fourth amendments (made in
the years 1951 and 1952 respectively), this resulted effectively into removing these
laws from the scope of judicial review by the independent judiciary.

 Owners of properties then once again challenged the constitutional amendments

which then placed land reforms laws in the Ninth Schedule before the Supreme
Court, saying that they violated Article 13 (2) of the Constitution of India.

 Article 13 (2) ensures the protection of the fundamental rights of all the citizens of
India. Hence, the Parliament and the state legislatures were clearly prohibited from
making laws that may take away or abridge or infringe the fundamental rights
guaranteed to every citizen of India. They argued that any amendment made to the
Constitution of India had the status of the law as understood by Article 13 (2).
Golaknath v. State of Punjab

 In the year 1967, an eleven-judge bench of the Supreme Court of India reversed the
pre-existing position. By giving a 6:5 majority judgement in the Golaknath v. State
of Punjab case, Chief Justice Subba Rao put forth the curious position that Article
368, that contained provisions related to the amendment of the Constitution, merely
laid down the amending procedure.

 Article 368 did not grant the power to the Parliament to amend the Constitution.
Hence, the amending power of Parliament came from other provisions contained in
the Constitution of India under various Articles such as Article 245, 246, and 248,
which gave Parliament the power to make laws. Thus, the Supreme Court held that
the amending power and legislative powers of Parliament were the same essentially.
Therefore, any amendment of the Constitution must be deemed law as enshrined
under Article 13 (2) of the Constitution of India.

 Most part of the judgement called upon the concept of implied limitations on
Parliament’s power to amend the Constitution of India. This view was held that the
Constitution gives a place of permanence to the fundamental freedom of the citizen.
Article 13, as per the view of the majority of the people, expressed this limitation
on the powers of Parliament. Hence, Parliament could not modify, restrict, or impair
fundamental freedoms due to this very scheme of the Constitution and the nature of
the freedoms granted under it.

 The judges then stated that the fundamental rights were so sacred and supernatural
in their importance that they could not be restricted even if such a move were to
receive through the unanimous approval of both houses of Parliament. The judges
observed that a Constituent Assembly may be summoned by Parliament for the
purpose of amending the fundamental rights if it is found to be necessary.

 In other words, the Supreme Court of India held that some features of the
Constitution lay at its core and required much more than the usual procedures to
change them.

 The term ‘basic structure‘ was introduced for the very first time by M.K. Nambiar
while arguing for the petitioners in the landmark case of Golaknath v. the State of
 Punjab, but it was only until 1973 that the concept surfaced in the text in written
format of the apex court’s verdict.

What led to the Nationalisation of Banks and the Abolition of Privy Purses?

 After a few weeks of the Golaknath case, the Congress party had suffered huge
losses in the parliamentary elections and it lost its power in several states. Though a
private member’s bill, tabled by Barrister Nath Pai, seeking to restore the supremacy
of Parliament’s power to amend the Constitution was introduced and debated in both
the houses of Parliament and in the Select Committee, it could not be passed due to
political pressure at the time.

 The chance to test Parliament’s ascendancy came back into play once again when
Parliament introduced some laws which provided greater access to bank credit for
the agricultural sector and ensured fair and impartial distribution of wealth and
resources of production by the nationalisation of banks.

 Parliament then questioned that it was implementing the Directive Principles of

State Policy but the Supreme Court struck down both the moves. By now, it was
clear that the Supreme Court and Parliament were at a clash over the relative position
of the fundamental rights and the Directive Principles of State Policy.

 On one hand, the battle was about the supremacy of Parliament and the power of the
courts to interpret and uphold the Constitution. On the other hand, the dispute was
over the holiness of the property as a fundamental right jealously guarded by an
affluent class much smaller than that of the large impoverished masses for whose
profit the Congress-led government claimed to put forth its socialist developmental
programme.

 Less than two weeks after the Supreme Court struck down the President’s order
derecognising the princes, in a quick move to secure the mandate of the people and
to bolster her own stance, then Prime Minister Indira Gandhi dissolved the Lok
Sabha and called it a ‘snap election’.

 For the very first time, the Constitution of India itself had become an electoral issue
in India because of such a move. Eight of the ten manifestos in the 1971 elections
called for changes in the Constitution in order to restore the supremacy of
Parliament.
  A.K. Gopalan, a member of the Communist Party of India (Marxist), went to the
limit by saying that the Constitution can be done away with lock, stock and barrel
and can be replaced with one that enshrined the real sovereignty of the people.

 Later on, the Congress party came back to power once again with a two-third
majority. The Congress party’s socialist ideology was fully supported by the
electorate which among many other things spoke of making basic changes to the
Constitution in order to restore Parliament’s supremacy.

 Through a ton of amendments made between July 1971 and June 1972, the
Parliament sought to regain it’s lost stance. The Parliament restored for itself the
absolute power to amend any part of the Constitution of India including Part III,
dealing with the fundamental rights. Even the President of India was made duty
bound to provide his assent to any amendment bill passed by both houses of
Parliament.

 Several restrictions on the right property were passed into law. The right to equality
before the law and equal protection of the laws (Article 14) and the fundamental
freedoms guaranteed under Article 19 were made as subordinate to Article 39 (b)
and Article 39 (c) in the Directive Principles of State Policy. Privy purses of the
former princes were abolished and an entire category of legislation dealing with land
reforms was placed in the Ninth Schedule which was made to be beyond the scope
of judicial review.

The Need for the Basic Structure Doctrine

 Eventually, the constitutional validity of these amendments was challenged in front

of a full bench of the Supreme Court of India (thirteen judges). Their decision can
be found in eleven separate judgements. Nine judges signed a summary statement
which records for the most important conclusions reached by them in this case.

 Granville Austin addresses that there are many inconsistencies between the points
which are enshrined in the summary signed by the judges and the opinions which
were expressed by them in their separate judgements. Regardless, the concept of
‘basic structure’ of the Constitution gained recognition in the majority verdict
conclusion. All the judges upheld the validity of the Twenty-fourth Amendment of
 the Constitution by saying that Parliament had the power to amend any or all
provisions of the Constitution.

 All signatories to the summary held that the Golaknath v. State of Punjab case had
been decided incorrectly and that Article 368 contained both the powers and the
procedure for amending the Constitution.

 However, they were clear that an amendment to the Constitution was not the same
as a law as per Article 13 (2).

 It is very much needed to point out the major difference that exists between two
kinds of functions which are performed by the Indian Parliament:

1. It can make laws for the country by exercising its legislative power; and

2. It can amend the Constitution by exercising its constituent authority.

Constituent authority is much more superior to the ordinary legislative power

 Unlike in the case of British Parliament which is a sovereign body (in the absence
of a written constitution), the powers and functions of the Indian Parliament and
State legislatures are subject to certain limitations which are laid down in the
Constitution of India.

 The Constitution does not have all the laws that govern the country. Parliament and
the state legislatures make laws from time and again on many subjects, which are
within their respective jurisdictions.

 The framework for making such laws is provided through the Constitution of India.
Parliament itself alone is given the power to make changes to this framework under
Article 368 of the Constitution of India. Unlike normal laws, the amendments made
to the constitutional provisions require a special majority vote in Parliament.

 According to Article 21 of the Constitution of India, no one in the nation can be

deprived of his life or personal liberty except in accordance with the procedure
which is established by the law. The Constitution of India does not lay down the
details of the procedure as that role is given to the legislatures and the executive.
  Parliament and the state legislatures make the necessary laws by identifying
offensive activities for which a person may be imprisoned or even sentenced to
death. The executive lays down the procedure of implementing these laws which are
made by Parliament and the State legislature and hence, the accused person is tried
in a Court of law. The changes to these laws may be done by a simple majority vote
in the concerned state legislature. There is no need to amend the Constitution of
India in order to put changes to these laws. In certain cases, if there is a demand to
convert Article 21 into the fundamental right to life by abolishing the death penalty,
the Constitution may have to be amended suitably to the circumstances by
Parliament using its constituent power.

 The most important part of this is that, seven of the thirteen judges in the
Kesavananda Bharati v. State of Kerala case, including Chief Justice Sikri who had
signed the summary statement and declared that the Parliament’s constituent power,
was subjected to certain limitations. Parliament cannot use its amending power
under Article 368 to cause ‘damage’, or to ’emasculate’, or even ‘destroy’, or
‘abrogate’, or ‘change’ ,or ‘alter’ the ‘basic structure’ of the Constitution of India.

Basic Features of the Constitution according to the Kesavanada Bharati case

Each judge, in this case, gave their opinions separately about what they thought were the basics
or essential features of the Constitution of India. There was no consensus within the majority
view either.

Chief Justice Sikri explained that the concept of the basic structure included the following:

 The Supremacy of the Constitution of India;

 The Republican and Democratic forms of government;

 The Secular character of the Constitution;

 The Separation of powers between the three bodies i.e. the legislature, executive and
the judiciary; and

 The Federal character of the Constitution.

Justice Shelat and Justice Grover added two more features to the list provided by Justice Sikri
which are as follows:
  The authority to build a welfare state contained in the Directive Principles of State
Policy;

 The Unity and Integrity of India.

Justice Jaganmohan Reddy said that the elements of the basic features could be found in the
Preamble of the Constitution of India and the provisions into which they were translated. These
were:

 The Sovereign Democratic Republic;

 The Parliamentary form of Democracy; and

 The three organs of the State.

He further stated that the Constitution of India would not itself be without the fundamental
freedoms and the directive principles. Only six judges of the thirteen judges bench came to the
consensus that the fundamental rights of the citizens of India belonged to the basic structure of
the Constitution and Parliament cannot amend it.

State of Uttar Pradesh v. Raj Narain

 In the year 1975, The Supreme Court of India once again had the chance to
pronounce on the basic structure of the Constitution. A direct challenge to Prime
Minister Indira Gandhi’s electoral victory was put forth by the Allahabad High
Court on grounds of electoral malpractice in 1975.

 Pending the appeal, the vacation judge, Justice Krishna Iyer, granted a stay which
allowed Smt. Indira Gandhi to function as the Prime Minister of India on the
condition that neither will she take any salary nor will she speak or vote in
Parliament until the case was decided. On the other hand, the Parliament passed the
Thirty-ninth amendment to the Constitution of India which then removed the
authority of the Supreme Court of India to adjudicate certain petitions related to the
elections of the President, Vice President, Prime Minister and the Speaker of the Lok
Sabha. Instead, a body constituted by the Parliament would be granted with the
power to resolve such election disputes.

 Section 4 of the Amendment Bill prevented any attempt to challenge the election of
an existing official, occupying any of the above offices in a court of law. This was
 clearly a pre-emptive action designed to profit Smt. Indira Gandhi whose election
victory was the main object of the ongoing issue.

 The Amendments were also made to the Representation of Peoples Acts of 1951 and
1974 and placed in the Ninth Schedule along with the Election Laws Amendment
Act, 1975 in order to save the Prime Minister from any embarrassment in case if the
Supreme Court of India delivered an unfavourable judgement.

 The mala fide (in bad faith) intention of the government was then proved in which
the Thirty-ninth amendment was passed. The bill was introduced on August 7, 1975,
and passed by the Lok Sabha the same day.

 The Rajya Sabha (Upper House) passed it the next day and the President gave his
assent two days after that. The amendment was later confirmed by the state
legislatures in a Special Saturday Session. It was gazetted on August 10. When the
Supreme Court opened the case for hearing the very next day, the Attorney General
asked the Court to remove out the case in the response to the new amendment.

 The Counsel for Raj Narain who was the political opponent who had challenged
Mrs. Gandhi’s election argued that the amendment was against the basic structure
of the Constitution of India as it severely affected the conduct of free and fair
elections and the power of judicial review.

 The counsel also questioned that Parliament was not competent enough to use its
constituent powers for validating an election that was declared void by a High Court.

 One judge, Justice Beg upheld that the thirty-ninth amendment in its entirety
established Mrs Gandhi’s election to be declared valid on the basis of the amended
electoral laws. The judges then had accepted Parliament’s power to pass laws which
had a retrospective effect.

Basic Features of the Constitution as per the Election case verdict

In this case, as well, each judge expressed his views about what amounts to the basic structure
of the Constitution of India:

1. Justice H.R. Khanna stated that democracy is a basic feature of the Constitution
and includes free and fair elections;
 2. Justice K.K. Thomas stated that the power of judicial review is an essential feature
of the independence of the judiciary;

3. Justice Y.V. Chandrachud made a list of four basic features which he considered
to be not amendable by Parliament. These were:

 The Sovereign Democratic Republic status;

 The Equality of status and opportunity to each individual;

 Secularism and the Freedom of conscience and religion; and

 The rule of law.

1. Chief Justice A.N. Ray stated that the constituent power of Parliament was above
the Constitution itself and therefore it was not bound by the principle of separation
of powers. Parliament could, therefore, exclude laws relating to electoral disputes
from judicial review. He said that democracy was a basic feature but free and fair
elections were not. Hence, he held that ordinary legislation was not within the scope
of basic features.

2. Justice K.K. Mathew agreed with Chief Justice Ray and said that the ordinary laws
did not fall within the purview of the ‘basic structure’ of the Constitution of India.
But he also held that democracy was an essential feature and that election-related
disputes must be decided on the basis of law and facts by the independent judiciary.

3. Justice M.H. Beg disagreed with Chief Justice Ray and stated that it would be
unnecessary to have a Constitution if Parliament’s constituent power was said to be
above it. Judicial powers were vested in the Supreme Court and the High Courts as
the Parliament could not perform them. He further stated that the supremacy of the
Constitution and separation of powers were basic features as understood by the
majority in the Kesavananda Bharati v. State of Kerala case. Beg emphasised that
the doctrine of the basic structure included ordinary legislation also.
Despite the disagreement between the judges on what constituted the basic structure of the
Constitution, the idea that the Constitution had a core content which was sacred and was upheld
by the majority view.

The Kesavananda Bharati case Review Bench after the decision of the Election case
  After three days of the decision on the Election case Chief Justice Ray, directed a
thirteen judge bench to review the Kesavanada verdict on the pretext of hearing a
number of petitions related to the land ceiling laws which had been rotting in the
high courts. The petitions said that the application of land ceiling laws violated the
basic structure of the Constitution. In effect to this, the Review bench was to decide
whether or not the basic structure doctrine prevented the Parliament’s powers to
amend the Constitution. The decision made in the Nationalisation of Bank case was
also up for review.

 While Prime Minister Indira Gandhi, in a speech in Parliament, did not accept the
concept of the basic structure, it must also be remembered that no specific petition
seeking a review on the Kesavananda Bharati case verdict filed before the Supreme
Court of India, a fact noted with much annoyance by several members of the
bench. N. N. Palkhivala appearing for and on behalf of a coal mining company
questioned against the move to review the Kesavananda Bharati case’s decision.
Later on, Ray dissolved the bench after two days of hearings. Many people had
suspected the government’s indirect involvement in this episode seeking to undo an
unfavourable judicial precedent set by the Kesavananda decision. However, efforts
were made to pursue the case.

 The declaration of a National Emergency in June 1975 and result of it such as the
suspension of the fundamental freedoms, including the right to move courts against
preventive detention, rerouted the attention of the country from this issue.

Sardar Swaran Singh Committee and the Forty-second amendment

During the National Emergency in the year 1776, the Indira Gandhi led Congress party set up
a committee under the Chairmanship of Sardar Swaran Singh for studying and questioning of
amendments of the Constitution in the light of past experiences. Based on its recommendations,
the government made many changes to the Constitution of India including the Preamble,
through the Forty-second amendment (passed in 1976 which came into effect on January 3rd,
1977).

The Amendment stipulated the following:

  Gave the Directive Principles of State Policy priority over the Fundamental Rights
contained under Article 14 (the right to equality before the law and equal protection
of the laws), Article 19 (many freedoms like the freedom of speech and expression,
right to assemble peacefully, right to form associations and unions, right to move
and reside freely in any part of the country and the right to pursue any trade or
profession) and Article 21 (the right to life and personal liberty). Article 31C was
amended to prevent any challenge to the laws made under any of the Directive
Principles of State Policy;

 It laid down that the amendments made to the Constitution of India made in the past
or those likely to be made in the future could not be questioned in any court on any
grounds;

 It removed all the amendments made to the fundamental rights from the scope of
judicial review; and

 It deleted all limitations on Parliamentary powers to amend the Constitution under

Article 368.

Conclusion

It can be established from this article that the final word on the issue of the basic structure of
the Constitution has not been declared by the Supreme Court of India. It is a scenario that may
change in the near future. While the idea that there is such a thing as a ‘basic structure’ of the
Constitution of India has been well established and its content cannot be completely determined
with any measure of finality until a judgement of the Supreme Court spells it out to be. From
the cases mentioned in the article, it can be said that the concept of the ‘basic structure’ will
definitely change in the near future as similar cases of this kind are likely to arise.

Emergency Powers US, UK and France

1. USA

The Insurrection Act

 The Insurrection Act needs a major overhaul. Originally enacted in 1792, the law grants
the president the authority to deploy the U.S. military domestically and use it against
 Americans under certain conditions. While there are rare circumstances in which such
authority might be necessary, the law, which has not been meaningfully updated in over
150 years, is dangerously overbroad and ripe for abuse.

 What is the Insurrection Act?

 The Insurrection Act authorizes the president to deploy military forces inside the United
States to suppress rebellion or domestic violence or to enforce the law in certain
situations. The statute implements Congress’s authority under the Constitution to
“provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions.” It is the primary exception to the Posse Comitatus
Act, under which federal military forces are generally barred from participating in
civilian law enforcement activities.
 Although it is often referred to as the “Insurrection Act of 1807,” the law is actually an
amalgamation of different statutes enacted by Congress between 1792 and 1871. Today,
these provisions occupy Sections 251 through 255 in Title 10 of the United States
Code.
 What does invoking the Insurrection Act allow the president and military to do?
 Under normal circumstances, the Posse Comitatus Act forbids the U.S. military —
including federal armed forces and National Guard troops who have been called into
federal service — from taking part in civilian law enforcement. This prohibition reflects
an American tradition that views military interference in civilian government as being
inherently dangerous to liberty.

 Invoking the Insurrection Act temporarily suspends the Posse Comitatus rule and
allows the president to deploy the military to assist civilian authorities with law
enforcement. That might involve soldiers doing anything from enforcing a federal court
order to suppressing an uprising against the government. Of course, not every domestic
use of the military involves law enforcement activity. Other laws, such as the Stafford
Act, allow the military to be used to respond to natural disasters, public health crises,
and other similar events without waiving the restrictions of the Posse Comitatus Act.

 In theory, the Insurrection Act should be used only in a crisis that is truly beyond the
capacity of civilian authorities to manage. However, the Insurrection Act fails to
 adequately define or limit when it may be used and instead gives the president
significant power to decide when and where to deploy U.S. military forces
domestically.

 When can the president invoke the Insurrection Act?

 Troops can be deployed under three sections of the Insurrection Act. Each of these
sections is designed for a different set of situations. Unfortunately, the law’s
requirements are poorly explained and leave virtually everything up to the discretion of
the president.

 Section 251 allows the president to deploy troops if a state’s legislature (or governor if
the legislature is unavailable) requests federal aid to suppress an insurrection in that
state. This provision is the oldest part of the law, and the one that has most often been
invoked.

 While Section 251 requires state consent, Sections 252 and 253 allow the president to
deploy troops without a request from the affected state, even against the state’s wishes.
Section 252 permits deployment in order to “enforce the laws” of the United States or
to “suppress rebellion” whenever “unlawful obstructions, combinations, or
assemblages, or rebellion” make it “impracticable” to enforce federal law in that state
by the “ordinary course of judicial proceedings.”

 Section 253 has two parts. The first allows the president to use the military in a state to
suppress “any insurrection, domestic violence, unlawful combination, or conspiracy”
that “so hinders the execution of the laws” that any portion of the state’s inhabitants are
deprived of a constitutional right and state authorities are unable or unwilling to protect
that right. Presidents Dwight D. Eisenhower and John F. Kennedy relied on this
provision to deploy troops to desegregate schools in the South after the Supreme
Court’s landmark decision in Brown v. Board of Education.
 The second part of Section 253 permits the president to deploy troops to suppress “any
insurrection, domestic violence, unlawful combination, or conspiracy” in a state that
“opposes or obstructs the execution of the laws of the United States or impedes the
 course of justice under those laws.” This provision is so bafflingly broad that it cannot
possibly mean what it says, or else it authorizes the president to use the military against
any two people conspiring to break federal law.

 Who decides when the conditions for deployment have been met?
 Nothing in the text of the Insurrection Act defines “insurrection,” “rebellion,”
“domestic violence,” or any of the other key terms used in setting forth the prerequisites
for deployment. Absent statutory guidance, the Supreme Court decided early on that
this question is for the president alone to decide. In the 1827 case Martin v. Mott, the
Court ruled that “the authority to decide whether [an exigency requiring the militia to
be called out] has arisen belongs exclusively to the President, and . . . his decision is
conclusive upon all other persons.”
 However, while this precedent might prevent judges from second-guessing whether the
president is allowed to invoke the Insurrection Act in response to a given situation, the
Supreme Court clarified in Sterling v. Constantin (1932) that courts may still review
the lawfulness of the military’s actions once deployed. In other words, federal troops
are not free to violate other laws or trample on constitutional rights just because the
president has invoked the Insurrection Act.
 Is invoking the Insurrection Act the same as declaring martial law?
 The Insurrection Act does not authorize martial law. The term “martial law” has no
established definition, but it is generally understood as a power that allows the military
to take over the role of civilian government in an emergency. By contrast, the
Insurrection Act generally permits the military to assist civilian authorities (whether
state or federal), not take their place. Under current law, the president has no
authority to declare martial law.
 How has the Insurrection Act been used in the past?
 The Insurrection Act has been invoked numerous times throughout American history
for a variety of purposes. Presidents George Washington and John Adams used it in
response to early rebellions against federal authority. President Abraham Lincoln
invoked it at the start of the Civil War, and President Ulysses Grant used it to crush the
first incarnation of the Ku Klux Klan in the 1870s. Several other presidents, including
Andrew Jackson, Rutherford Hayes, and Grover Cleveland, have deployed troops under
the Insurrection Act to intervene in labor disputes, invariably on the side of employers.
 Most famously, Presidents Eisenhower, Kennedy, and Lyndon B. Johnson all invoked
the Insurrection Act during the civil rights movement to enforce federal court orders
desegregating schools and other institutions in the South.
 When was the Insurrection Act last invoked?
 The Insurrection Act was last invoked in 1992, when the governor of California
requested military aid from President George H.W. Bush in response to civil unrest in
Los Angeles that followed the acquittal of four white police officers charged with
beating Black motorist Rodney King. At 29 years and counting, this is the longest
period the United States has ever gone without an invocation of the Insurrection Act.

 No president has unilaterally invoked the Insurrection Act against a state’s wishes since
Lyndon Johnson did so to provide protection for civil rights activists in Alabama
marching from Selma to Montgomery in 1965.

 How should the Insurrection Act be reformed?

 The lack of clear standards within the Insurrection Act itself, combined with the
Supreme Court’s ruling in Martin v. Mott, has created a situation where the president
has almost limitless discretion to deploy federal troops in cases of civil unrest. Such
unbounded authority to use the military domestically has always been dangerous. In the
21st century, it is also unnecessary and untenable. The United States has changed
profoundly in the 150 years since the Insurrection Act was last amended, as have the
capabilities of state and federal civilian authorities and the expectations of the American
people. The Insurrection Act — arguably the most potent of the president’s emergency
powers — should reflect those realities.
 To address these concerns, Congress should amend the Insurrection Act to define more
clearly and precisely what situations may trigger it. Congress also should establish
mechanisms for review of the president’s decision that will guard against abuse while
still preserving the president’s flexibility in a crisis.

Sec. 331. Federal aid for State governments Whenever there is an insurrections in any
State against its government, the President may, upon the request of its legislature or of its
governor if the legislature cannot be convened, call into Federal service such of the militia of
the other States, in the number requested by that State, and use such of the armed forces, as he
considers necessary to suppress the insurrection.

Sec. 332. Use of militia and armed forces to enforce Federal authority Whenever the
President considers that unlawful obstructions, combinations, or assemblages, or rebellion
against the authority of the United States, make it impracticable to enforce the laws of the
United States in any State by the ordinary course of judicial proceedings, he may call into
Federal service such of the militia of any State, and use such of the armed forces, as he
considers necessary to enforce those laws or to suppress the rebellion.

Sec. 333. Interference with State and Federal law The President, by using the militia or
the armed forces, or both, or by any other means, shall take such measures as he considers
necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination,
or conspiracy, if it-- (1) so hinders the execution of the laws of that State, and of the United
States within the State, that any part or class of its people is deprived of a right, privilege,
immunity, or protection named in the Constitution and secured by law, and the constituted
authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity,
or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the
course of justice under those laws. In any situation covered by clause (1), the State shall be
considered to have denied the equal protection of the laws secured by the Constitution.

Sec. 334. Proclamation to disperse Whenever the President considers it necessary to

use the militia or the armed forces under this chapter, he shall, by proclamation, immediately
order the insurgents or those obstructing the enforcement of the laws to disperse and retire
peaceably to their abodes within a limited time.

NATIONAL EMERGENCY ACT 1976

In 1973 the Senate assigned a herculean task to a small temporary committee. The Special
Committee on the Termination of the National Emergency (renamed the Special Committee on
National Emergencies and Delegated Emergency Powers in 1974), co-chaired by Democrat
Frank Church of Idaho and Republican Charles Mathias of Maryland, would investigate
outdated emergency powers granted to presidents by Congress in the previous half century. The
inquiry’s surprising findings convinced Congress to pass the National Emergencies Act of
1976.
The story of this obscure Senate committee begins with the Vietnam War. In 1968 Republican
presidential candidate Richard Nixon pledged to end the war if elected. In the spring of 1970,
however, President Nixon secretly expanded the war into Cambodia—without congressional
approval. Weeks later, Nixon announced the expansion of the war into Cambodia on national
television. The administration’s actions infuriated many senators, especially Frank Church, a
long-time Vietnam War critic. Church drafted a proposal—later known as the Cooper-Church
amendment—to prevent congressionally appropriated funds from being used in Cambodia.
Secretary of Defense Melvin Laird quickly rendered this effort moot. If Congress halted
funding for the Cambodia effort, Laird warned, the Pentagon would fund the operation under
the emergency provisions of a Civil War-era law called the Feed and Forage Act. With that law,
Congress had granted the U.S. Cavalry the authority to purchase feed for its horses if previously
appropriated money had run out while Congress was not in session. Laird explained that the
provision had been used in 1958 in Lebanon and in 1961 in Berlin to fund U.S. military actions.

The administration’s ability to circumvent Congress under the authority of a century-old law
troubled Church. He had developed a reputation among his colleagues as a checks and balances
proselytizer, routinely sermonizing that growing executive power threatened the health of
constitutional government. When Nixon’s predecessor, Democrat Lyndon Johnson, occupied
the White House, Democratic majorities in Congress felt little urgency to limit the powers of a
president of their own party, and Church’s homilies fell on deaf ears, but the Nixon
administration’s invasion of Cambodia converted some of Church’s colleagues to his cause.
One of them, Republican Charles “Mac” Mathias of Maryland, insisted that Congress had a
role to play in holding every president accountable—regardless of party. On January 6, 1973,
the Senate created the Special Committee on the Termination of the National Emergency.
Church and Mathias would lead the inquiry, joined by six colleagues and a small committee
staff.

Identifying the powers that Congress had conferred on presidents during times of emergency
proved to be a complex task. In the pre-personal computer era, searching hundreds of printed
government publications for delegated emergency powers was extraordinarily time-
consuming. After months of digging, committee staff learned that the U.S. Air Force
maintained a searchable list of statutes on a computer in Colorado. Using that database and
other published paper sources, investigators painstakingly compiled a list of 470 powers that
Congress had granted to presidents in the previous 50 years during times of crisis, such as
depression or war. “Taken together, these hundreds of statutes clothe the president with
virtually unlimited power with which he can affect the lives of American citizens in a host of
all-encompassing ways,” Church wrote, including seizing property and commodities,
instituting martial law, and controlling transportation and communication. Though these crises
had ended, Congress had not officially cancelled or revoked the powers it had granted to
administrations to address them. As the Nixon administration had demonstrated, presidents
could exercise these powers without congressional approval.

Four national emergencies remained in effect—including one on the books since 1933! “It may
be news to most Americans,” explained one Washington Post reporter, that “we have been
living for at least 40 years under a state of emergency rule.”

The committee’s investigation found that the legislative branch had rarely limited presidents’
emergency powers. The judicial branch, by contrast, had occasionally constrained those
powers. For example, the Supreme Court firmly rebuffed President Harry Truman during the
Korean War. The president had issued an executive order to seize control of some steel mills in
1952. Truman insisted that, as commander in chief, he had the authority to take action to avoid
steel production slowdowns likely to be caused by an anticipated labor strike. The Court’s
landmark decision in Youngstown Sheet & Tube Company v. Sawyer found that no law
provided for the president to seize control of private property. Associate Justice Robert Jackson
wrote that presidents enjoyed maximum power when they worked under the express or implied
authority of Congress, but presidents who took steps explicitly at odds with the wishes of
Congress worked “at [the] lowest ebb” of their constitutional power.

The committee’s exhaustive research as well as several high-profile congressional

investigations, including the Senate Watergate inquiry of 1973–74, convinced many in
Congress that the time had come to reassert congressional checks and balances. The House
introduced the National Emergencies Act in 1975 and the Senate passed a slightly amended
version of that bill by voice vote in August 1976. The House agreed to the Senate’s amended
bill, and President Gerald Ford signed the National Emergencies Act into law on September
14, 1976. The new law ended four existing states of emergency and instituted accountability
and reporting requirements for future emergencies.

2.UK

Emergency Powers Act 1939

The Emergency Powers (Defence) Act 1939 (2 & 3 Geo. 6. c. 62) was emergency legislation
passed just prior to the outbreak of World War II by the Parliament of the United Kingdom to
enable the British government to take up emergency powers to prosecute the war effectively.
It contained clauses giving the government wide powers to create Defence Regulations which
regulated almost every aspect of everyday life in the country. Two offences under the
regulations were punishable with death.

Passage

The Act was passed in reaction to the Nazi–Soviet Pact of 23 August 1939 and provided the
government with powers from 24 August 1939. It was originally intended to be in force for
only one year,[2] and made general provision for prosecuting the war effort. In particular, it
provided for the following:

1. (1) Subject to the provisions of this section, His Majesty may by Order in Council make such
Regulations (in this Act referred to as "Defence Regulations") as appear to him to be necessary
or expedient for securing the public safety, the defence of the realm, the maintenance of public
order and the efficient prosecution of any war [in which] His Majesty may be engaged, and for
maintaining supplies and services essential to the life of the community.

(2) Without prejudice to the generality of the powers conferred by the preceding subsection,
Defence Regulations may, so far as appears to His Majesty in Council to be necessary or
expedient for any of the purposes mentioned in that subsection:-

(a) Make provision for the apprehension, trial, and punishment of persons offending against
the Regulations and for the detention of persons whose detention appears to the Secretary of
State to be expedient in the interests of the public safety or the defence of the realm;

(b) authorise -

(i) the taking of possession or control, on behalf of His Majesty, of any property or
undertaking;
(ii) the acquisition, on behalf of His Majesty, of any property other than land;

(c) authorise the entering and searching of any premises; and

(d) provide for amending any enactment, for suspending the operation of any
enactment, and for applying any enactment with or without modification.
 The Emergency Powers (Defence) Act 1940

The Emergency Powers (Defence) Act 1940 (3 & 4 Geo. 6. c. 20) extended the 1939 Act for
another year, and provided for annual extensions by parliamentary resolution. [2] It significantly
extended the government's powers under the Defence Regulations to require persons "to place
themselves, their services and their property at the disposal of His Majesty."

The Emergency Powers (Defence) (No. 2) Act 1940 (3 & 4 Geo. 6. c. 45) enabled the creation
of special courts to administer criminal justice in war zones, as well as authorizing them to
punish offenders for violating the Defence Regulations.

Repeal

The Act was repealed on 25 March 1959 by the Emergency Laws (Repeal) Act 1959, [4] but the
last of the Defence Regulations did not expire until 31 December 1964

3.FRANCE

States of emergency in France (French: état d'urgence) are dispositions to grant special
powers to the executive branch in case of exceptional circumstances. A state of emergency was
declared following the November 2015 Paris attacks, which expired, after five extensions, in
November 2017.[1][2][3][4][5]

Four main provisions concern various kinds of "states of emergency" in France: two of those
stem from the Constitution of France, and the other two from a statute:

 Article 16 of the Constitution provides the President of France with "exceptional

powers" (Pouvoirs exceptionnels) in times of acute crisis.
 Article 36 of the same constitution regulates "state of siege" (état de siège).
 The Act of 3 April 1955 allows the president to declare a "state of emergency". [6]
 The Act of 23 March 2020 allows the declaration of a "sanitary state of emergency",
which allows the Prime Minister of France to take measures to protect public health
during an epidemic, pandemic or health disaster endangering the country.

There are distinctions between article 16, article 36, and the 1955 Act, which concern mainly
the distribution of powers. These dispositions have been used at various times, in 1955, 1958,
1961, 1988, 2005, 2015 and 2017.
Legal framework

The French constitution, adopted in October 1958, was drafted taking into account the
difficulties experienced by the executive in 1940 during the Battle of France and the
contemporary state of affairs, namely the Algerian war.

Article 16 of the Constitution – Pouvoirs exceptionnels

Article 16 of the constitution[7] grants the President of France "extraordinary powers" in

exceptional cases, leading to an effective "state of exception":

When the institutions of the Republic, the independence of the nation, the integrity of its
territory, or the fulfillment of its international commitments are under grave and immediate
threat and when the proper functioning of the constitutional governmental authorities is
interrupted, the President of the Republic shall take the measures demanded by these
circumstances after official consultation with the Prime Minister, the presidents of the
Assemblies, and the Constitutional Council [fr].

He shall inform the nation of these measures by a message.

These measures must be prompted by a will to ensure within the shortest possible time that the
constitutional governmental authorities have the means of fulfilling their duties. The
Constitutional Council shall be consulted with regard to such measures.

Parliament shall meet ipso jure.

The National Assembly may not be dissolved during the exercise of emergency powers.

After thirty days of the exercise of the exceptional powers, the Constitutional Council can be
referred to by the President of the National Assembly, the President of the Senate,
sixty députés or sénateurs (members of each chamber), to determine if the conditions provided
in the first paragraph are still met. The Council shall rule in the shortest time possible by a
public ruling. The Council rules ipso jure and rules in the same conditions after sixty days of
the exercise of the exceptional powers and at any moment beyond this period.

The conditions are both that the state is confronted with exceptional circumstances and that the
regular institutions are disrupted and cannot govern effectively. This article of the constitution
of the French Fifth Republic has been qualified as "liberticide" by critics. [8] Invoked on 23
April 1961 during the Algerian War; normal functioning of institutions was quickly restored. [8]
In the judgment Rubin de Servens of 2 March 1962, the Council of State [fr] judged that it
could not itself invoke Article 16, as that constituted an "act of government". Furthermore, the
State Council considered that it could only pronounce on rulings which were not legislative
acts carried out during this period. Thus, a legislative measure (although the role of Parliament
is not specified, just that it is not to be dissolved) which breaches fundamental liberties cannot
be appealed against before the State Council. [8]

In 1972, the Common Programme of the Left (issued from an alliance between the Socialist
Party and the Communist Party) proposed to repeal Article 16. However, François Mitterrand's
programme for the socialist presidential campaign in 1981, that he eventually won, did not
include this proposition. In 1992, the socialist government of Pierre Bérégovoy proposed to
amend this article during a project of constitutional reform; however, the project was not
implemented. Also in 1992, the Vedel Commission, created by François Mitterrand, proposed
to give to the Conseil Constitutionnel (Constitutional Council), on the concerted initiative of
the president of the Republic and the presidents of both chambers (the Assemblée nationale and
the Sénat), the mission to determine that the conditions required for the use of Article 16 were,
in fact, met.[8]

On 23 July 2008, a constitutional act was passed which, among other amendments, added a
paragraph to Article 16 of the constitution[9] which stated that after 30 days the Constitutional
Council can be requested to determine in a public ruling whether or not the conditions that
justified the use of Article 16 are still current. At any time beyond 60 days, the Council rules
on this issue without the need for a referral.

Article 36 of the Constitution – État de siège

Article 36 of the constitution is concerned with the state of siege (État de siège (France) [fr],
which can be decreed by the president in the Council of Ministers for a period of twelve days
and which can only be extended with the approval of Parliament. A state of siege may be
declared in case of an "imminent peril resulting from a foreign war [guerre étrangère, or simply
"war"] or an armed rebellion (une insurrection à main armée).[10]

Military authorities may take police powers if they judge it necessary. Fundamental liberties
may be restricted, such as the right of association, legalization of searches in private places day
and night, the power to expel people who have been condemned for common law matters or
people who do not have the right of residence in the territory, etc.
Statute provisions – État d'urgence

The state of emergency in France is framed by the Law n°55-385 of 3 April 1955 (pre-dating
the constitution of the Fifth Republic) and modeled on the "état de siège". It was created in the
context of the Algerian War, to allow the authorities to manage the crisis without having to
declare the "état de siège", which allows the military to take over a large part of the civilian
authorities and which was conceived for wartime.

The 1955 statute states that the state of emergency can be decreed by the president in the
Council of Ministers. The decision to proclaim the state of emergency can only last for 12 days.
To extend the state of emergency for a longer period of time necessitates a law passed regularly
through the Parliament.

Proclaiming the state of emergency gives exceptional powers to the Minister of the Interior and
to prefects. The Minister can pronounce house arrests. The prefects can regulate or forbid
circulation and gathering in some areas: the power of curfew, which mayors can pronounce for
the territory of their city independently of the state of emergency, is extended to prefects.

The Minister and the prefects can, for the part of the territory concerned by the state of
emergency, order places of gathering to be closed. Authorities can also order that legally-
detained weapons be relinquished to them. There is no need for the administration to motivate
its decisions: house arrests or decisions forbidding someone to enter a defined area can be
appealed.

All of those powers are not enacted by the simple proclamation of the state of emergency but
may be decided by the authorities if the need arises.

If the decree, or later, the law, says so, the authorities can:

 conduct administrative searches and seizures, day and night, without judiciary
oversight,
 censor the press, radio, films, and theater representations.

Article 12 of the 1955 law allows, if a decree specifically provides it, the transfer of some
crimes from the judicial jurisdiction to that of the military.

This law is modeled after the society of the time, to deal with a specific crisis, and its objective
was to prevent a civil war or very severe unrest emanating from a part of the population. Some
parts have since become obsolete:
  politically, censorship is not as acceptable in the twenty-first century as it was at
the time the law (which mentions neither television nor the internet) was passed;
 administrative search and seizures must now be submitted to judicial oversight;
 the 2012 law on gun control[11] has rendered partly obsolete the possibility of a
decree requiring citizens to relinquish legally-owned weapons, which were more
common in the aftermath of World War II;
 various terrorism laws have strengthened the criminal procedure since the 1980s:
the powers available to the police and judges when investigating acts of terrorism
are more extensive than those described in the 1955 law.

Sanitary state of emergency

To control the COVID-19 pandemic in France, the Parliament created a sanitary state of
emergency (état d'urgence sanitaire). To protect public health, the prime minister can:

 regulate or prohibit the movement of people and vehicles and regulate access to
public transport and the conditions of their use;
 prohibit people from leaving their homes, except for necessary travel such as for
medical or important familial appointments;
 order measures aimed at the quarantine of persons likely to be affected;
 order measures to place and keep in quarantine, at their home or any other suitable
accommodation, the affected people;
 order the provisional closure and regulate the opening, including the conditions of
access and presence, of one or more categories of establishments open to the public
as well as meeting places, guaranteeing the access of people to goods and basic
necessities;
 place restrictions on the freedom of assembly;
 order the requisition of all persons (mandatory service) and all goods and services
necessary to combat the health disaster;
 take temporary measures to control the prices of certain products;
 take all measures to make available to patients appropriate medicines for the
eradication of the health disaster;
 take any other regulatory measure limiting the freedom to conduct business. [12]
This state of emergency is framed by the law of 23 March 2020 and can be declared in the
Council of Ministers for a period of 2 months. Extensions to this must be voted for by
Parliament.

Historical uses

Since 1955, a state of emergency has been decreed six times:

 In 1955 during the Algerian War;

 In 1958, due to the uprising in Algeria;
 In 1961, after the Generals' putsch (invocation of article 16 from 23 April to 29
September 1961;
 In 1984, in New Caledonia, amidst calls for independence in the territory;
 During the 2005 civil unrest in France, President Jacques Chirac declared a state of
emergency on 8 November 2005. It was extended for three months on 16 November
by Parliament, which was dominated by the UMP majority. On 10 December 2005
France's highest administrative body, the Council of State, ruled that the three-
month state of emergency decreed to guarantee calm following the unrest was legal.
It rejected a complaint from 74 law professors and the Green party challenging the
necessity of the state of emergency and stating that it compromised fundamental
liberties. In its rejection the council of state declared that the conditions that led to
the unrest (which began on 27 October), the rapid spread of violence, and the
possibility that it could recur justified the state of emergency.
 On 13 November 2015, immediately following the November 2015 Paris attacks.
This was due to expire after four extensions in April or May 2017. As of
23 July 2016, almost 3,600 houses had been raided under the state of emergency,
leading to more than 400 arrests, the seizure of more than 500 weapons including
40 war weapons,[19] and four or five of these raids led to a terrorism-linked judicial
investigation.[20][21] Some Muslim rights groups criticized the raids as unfairly
targeting French Muslims, especially those of North African descent, claiming that
they are conducted with little concern for civil rights, and pointing out that only one
terrorism-related investigation had led to prosecution by August 2016.
 On 16 November 2016, President François Hollande and Prime Minister Manuel
Valls announced that the state of emergency would be extended until the 2017
French presidential election, stating that the measure would be necessary to protect
 rallies and other events during the electoral campaign. [1] In the run up to his election
as President, Emmanuel Macron stated that he would make a decision regarding the
state of emergency once he had been briefed by the security services.
 On 24 May 2017, following a security meeting held to discuss the situation after
the Manchester Arena bombing in England, he announced that he would ask
parliament to extend the state of emergency until November 2017.[This was
approved by Parliament on 6 July 2017, extending the state of emergency until 1
November.[22] New counter-terrorism legislation was approved on 3 October to
supersede the state of emergency, which came to an end on 1 November.
 UNIT 4

ROLE OF FUNDAMENTAL RIGHTS UN PUBLIC LAW – COMPARATIVE STUDY

INTRODUCTION

Since the 17th Century, human thinking has been veering round to the theory that man has
certain essential, basic, natural and inalienable rights or freedoms and it is the function of the
state to recognize these rights and freedoms and allow them a free play, in order that human
liberty may be preserved, human personality be developed and an effective social and
democratic life be promoted. Through this paper an attempt has been made to make a
comparative study of the concept of fundamental rights in US, UK and India.

The role of fundamental rights in public law is critical in ensuring the protection of individual
liberties and human dignity within a legal framework. Across various legal systems globally,
the concept of fundamental rights serves as a cornerstone for the establishment of democratic
societies, ensuring that the state respects and safeguards the rights of its citizens. A comparative
study can provide insights into how different countries approach the incorporation and
protection of fundamental rights within their respective legal systems.

LOCKEIAN CONCEPT OF RIGHTS: -

The concept of human rights can be traced back to the Natural law philosophers, such as Locke
and Rousseau. The Natural law philosophers philosophized over such inherent human rights
and sought to preserve these rights by propounding the theory of ‘Social Contract’. According
to Locke, man is born “with a title to perfect freedom and an uncontrolled enjoyment of all the
rights and privileges of the Law of Nature.” and he has by nature a power – “to preserve his
property- that is, his life, liberty and estate against the injuries and attempts of other men.”

EARLIER RECOGNITION OF BASIC RIGHTS: -

As early as in 1215, the English people exacted an assurance from King John for respect of the
then ancient liberties. The MAGNA CARTA is the evidence of their success which is a written
document. This is the first written document relating to the fundamental rights of citizens. In
1689, the BILL OF RIGHTS was written consolidating all important rights and liberties of the
English people. The DECLARATION OF THE FRENCH REVOLUTION, 1789 provided that,
“the aim of all political association is the conservation of the natural and inalienable rights of
man.”
CONSTITUTIONAL RECOGNITION: - THE PROCESS BY WHICH BASIC RIGHTS
BECAME FUNDAMENTAL RIGHTS: -

The underlying idea in entrenching certain basic rights is to take them out of the reach of the
transient political majorities. It has, therefore, come to be regarded as essential that these rights
be entrenched in such a way that they may not be violated, tampered or interfered with by an
oppressive government. With this end in view, some written constitutions guarantee a few
rights to the people and forbid governmental organs from interfering with the same. In that
case, a guaranteed right can be limited or taken away only by the elaborate and formal process
of the constitutional amendment rather than by ordinary legislation. These rights are
characterized as fundamental rights.

FUNDAMENTAL RIGHTS IN THE US CONSTITUTION: - The modern trend of

guaranteeing fundamental rights to the people may be traced to the Constitution of the USA.
The original constitution as drafted in the year 1787 did not contain any fundamental right.
There was trenchant criticism of the US Constitution on this point. Following the spirit of the
MAGNA CARTA of the British and the DECLARATION OF THE RIGHTS OF MAN AND
THE CITIZENS OF FRANCE, the Americans incorporated the BILL OF RIGHTS in their
constitution in the year 1791 in the form of TEN AMENDMENTS and thus the Americans
were the first to give Bill of Rights a constitutional status.

PURPOSE:-

In West Virginia State Board of Education v. Barnette, JUSTICE JACKSON explaining the
nature and purpose of Bill of Rights in the USA observed:- “The very purpose of the Bill of
Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials, to establish them as legal principles to be
applied by the courts. One’s right to life, liberty and property, to free speech, a free press,
freedom of worship and assembly and other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections.”

FUNDAMENTAL RIGHTS IN BRITAIN: - Initially, till the year 1998, there was no formal
declaration of people’s fundamental rights in Britain. The orthodox doctrine of the sovereignty
of Parliament was prevailing there which did not envisage any legal check on the power of the
Parliament. There was concept of Rule of Law which represents, in short, the thesis that the
executive is answerable to courts for any action which is contrary to the law of the land. There
was an ever growing realization that guaranteed civil rights do serve a useful purpose and that,
Britain should also have a written Bill of Rights. On July 7, 1975 a resolution was moved in
the House of Commons demanding that England should have a Bill of Rights…. Later on
Britain had accepted the European Charter on Human Rights. But this was not good enough
because the Charter did not bind the Parliament but could be used only to interpret the local
law. What was, therefore, necessary was a Bill of Rights which could curb parliamentary
legislative power. As SCARMAN observed: “Without a Bill of Rights protected from repeal,
amendment and suspension by the ordinary process of a bare parliamentary majority controlled
by the government of the day, human rights will be at risk.”

ENACTMENT OF THE HUMAN RIGHTS ACT, 1998- Ultimately, the British Parliament
enacted the Human Rights Act, 1998. The purpose of the Act is to give effect to the rights and
freedoms guaranteed under the European Convention on Human Rights. The Act incorporates
the Convention in Schedule I. These are the rights to which the Act gives effect. All legislation,
so far as possible, is to be read and given effect to in a way which is compatible with
Convention Rights [Section 3(1) (a)]. The Act is a significant constitutional innovation.

FUNDAMENTAL RIGHTS IN INDIA- Coming to India, a few good reasons made the
enunciation of the fundamental rights in the Constitution rather inevitable. Firstly, the main
political party, the Congress, had for long been demanding these rights against the British rule.
During the British rule in India, human rights were violated by the rules on a very wide scale.
Therefore, the framers of the Constitution, many of whom had suffered incarceration during
the British regime, had a very positive attitude towards these rights. Secondly, the Indian
society is fragmented into many religions, cultural and linguistic groups and it was necessary
to declare fundamental rights to give to the people a sense of security and confidence.

SIMILARITIES (US & INDIA)

The people of India and the United States of America have a lot in common when it comes to
their fundamental rights. The fact that many of the rights in the Indian constitution are derived
from those in the United States constitution is the primary reason for the similarity. In order to
ensure that no significant rights were left out, the fundamental rights in both nations were
regularly amended. Freedom of speech is one of the fundamental rights that have been observed
in both nations in common. Both countries' constitutions guarantee individuals freedom of
speech and empower individuals by providing ample opportunities to address the challenges or
issues they face . It has also been observed that the country's government ensures that these
rights are exercised and that no one in the country is prevented from exercising them.
IMPACT OF THE US CONSTITUTION-

The constitution of USA has been the source of inspiration for the inclusion of fundamental
rights in the Constitution. The original US Constitution did not contain any provision relating
to fundamental rights, however, in the year 1791 the Bill of Rights was incorporated in the US
Constitution in the form of ten amendments, and thus, the Americans became the first to give
the Bill of Rights a constitutional status. When the Indian constitution was being framed the
background for the incorporation of Bill of Rights was already present. The framers took
inspiration from this and incorporated a full Chapter in the Constitution dealing with
fundamental rights. But, the fundamental rights contained in Part III of the Constitution of India
differ from the US Bill of Rights.

DIFFERENCE BETWEEN PART III OF THE INDIAN CONSTITUTION AND THE US

BILL OF RIGHTS-

While the declarations in the American Bill of Rights are absolute and the power of the state to
impose restriction upon the fundamental rights of the individual in the collective interests had
to be evolved by the Judiciary. In India, this power of imposing restrictions has been expressly
conferred upon the legislature by the Constitution itself, in the case of the major fundamental
rights, of course, leaving a power of judicial review in the hands of the judiciary to determine
the reasonableness of the restrictions imposed by the legislature.

NEED FOR FUNDAMENTAL RIGHTS- Fundamental rights were deemed essential to protect
the rights and liberties of the people against the encroachment of the power delegated by them
to their government. They are limitations upon all the powers of the government, legislative as
well as executive and they are essential for the preservation of public and private rights. These
rights are regarded as fundamental because they are most essential for the attainment by the
individual his full intellectual, moral and spiritual status. The negation of these rights will keep
the moral and spiritual rights stunted and his potentialities underdeveloped. Part III of the
Constitution serves as remainder to the government in power that certain liberties assured to
the people by the Constitution are to be respected. The object behind the inclusion of Part III
in the Constitution is to establish a government of law and not of man.

NEED FOR FUNDAMENTAL RIGHTS AND OBSERVATION OF THE SUPREME COURT

In Daryao v. State of U.P., the SC observed that, “the fundamental rights are intended not
only to protect individual’s rights but they are based on high public policy. Liberty of the
individual and the protection of his fundamental rights are the very essence of the democratic
way of life adopted by the Constitution.”

In Golak Nath v. State of Punjab, the SC held that, Part III of the Constitution of India
guarantees certain fundamental rights because they are considered necessary for the
development of human personality. These rights enable a man to chalk out his own life in the
manner he likes best.

In Maneka Gandhi v. Union of India, SC observed that, fundamental rights are calculated to
protect the dignity of the individual and creates conditions in which every human being can
develop his personality to the fullest extent.

FUNDAMENTAL RIGHTS- TO WHOM AVAILABLE-

Part III of the Constitution of India deals with various fundamental rights in its Articles 12-35.
The fundamental rights in Articles 15, 16, 19, 29 and 30 are available only to citizens, while
the rights guaranteed by other Articles are available to the citizens and non-citizens alike.

Most of the fundamental rights in Part III of the Constitution of India are available against the
State only but some of them are also available against the private individuals. For example- the
fundamental rights guaranteed in Articles 14, 15(1), 16, 18(1), 19, 20, 21, 22, 25, 26, 27, 28,
29 and 30 are available against the State only.

While the fundamental rights guaranteed in Articles 15(2), 17, 23(1) and 24 are available
against the State as well as against the private individuals.

CLASSIFICATION OR KINDS OF FUNDAMENTAL RIGHTS IN INDIA-

The fundamental rights guaranteed in Part III of the Constitution have been classified in the
following categories.

1. Right to Equality (Articles 14-18);

2. Right to Freedom (Articles 19-22);

3. Rights against Exploitation (Articles 23-24);

4. Right to Freedom of Religion (Articles 25-28);

5. Cultural and Educational Rights (Articles 29-30);

6. Right to Constitutional Remedies (Articles 32-35).

It is to be noted here that, the Right to Property guaranteed by Article 31 has been excluded
from the list of fundamental rights by the Constitution (Forty fourth Amendment) Act, 1978
with effect from 20-06-1979.

REMEDIES IN CASES OF VIOLATION OF FUNDAMENTAL RIGHTS

(ENFORCEMENT OF FUNDAMENTAL RIGHTS) - In the case of infringement of the
fundamental rights special remedy has been provided. Articles 32-35 deal with right to
constitutional remedies in the cases of violation or infringement of fundamental rights
guaranteed in Part III of the Constitution.

EXCEPTION TO FUNDAMENTAL RIGHTS- There are certain exceptions to the

fundamental rights.

SAVING OF LAWS PROVIDING FOR ACQUISITIONS OF ESTATES, etc.

ARTICLE 31-A: - Article 31-A provides that no law providing for acquisition of any ‘estate’
or any right therein extinguishment or modification of any such rights, shall be deemed to be
void on the ground that it is inconsistent with or takes away or abridges any of the rights
conferred by Article 14 or Article 19 of the Constitution.

VALIDATION OF CERTAIN ACTS AND REGULATIONS-

ARTTICLE 31-B: - Article 31-B was also added by the Constitution (First Amendment) Act,
1951. It provides that none of the Acts and Regulations mentioned in the Ninth Schedule to the
Constitution shall be deemed to be void on the ground that they are inconsistent with any of
rights conferred by Part III of the Constitution. However, the legislature is competent to amend
and repeal these Acts. But the validity of the amended and repealed Act, if not saved under
Article 31-A can be examined by the Court on merits.

SAVING OF LAWS GIVING EFFECT TO CERTAIN DIRECTIVE PRINCIPLESARTICLE

31-C: - (I) AS INTRODUCED IN 1971-

The Constitution (Twenty fifth Amendment) Act, 1971 added a new clause, i.e. Article 31-C to
the Constitution. Article 31-C as originally introduced runs as: “Notwithstanding anything
contained in Article 13, no law giving effect to the policy of the State towards securing the
principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the
ground that it is inconsistent with, or takes away or abridges any of the rights conferred by
Article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving
effect to such policy shall be called in question in any court on the ground that it does not give
effect to any such policy.”

CHANGE IN THE RELATIONSHIP: - Up to the year 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 31-C
sought to change this relationship to some extent by conferring primacy on Articles 39(b) and
(c) over Articles 14, 19 and 31.

CONSTITUTIONAL VALIDITY OF ARTICLE 31-C: CHALLENGED-

In Keshavanand Bharti v. State of Kerala, the constitutional validity of article 39-C was
challenged. The SC held that while the first limb of Article 31-C was valid, its second limb was
invalid. Thus, a declaration as mentioned in the original Article 31-C could not be conclusive.

If the court finds that, the declaration is merely a pretence and the real purpose of the law is to
accomplish some object other than effectuating the policy underlying Article 39(b) or Article
39(c), the declaration could not bar the court from striking down the provision as being
inconsistent with Articles 14 or 19.

ARTICLE 31-C: AS AMENDED IN 1976- In the year 1976, Article 31-C was amended, its
scope further expanded and it was sought to be made much more drastic through the forty
second Amendment. The first part of Article 31-C now says that, no law giving effect to any of
the directive principles would be deemed to be void on the ground of its inconsistency with
Articles 14 or 19.

Thus, the forty second amendment gave primacy to all directive principles and not only to
Article 39(b) and Article 39(c) over Article 14 and 19. The scope of Article 31-C was made
much wider than it was before 1976 when it referred only to Articles 39 (b) and Article 39(c).
Now, Article 31-C referred to all directive principles.

It will be seen that, while before 1971, fundamental rights had precedence over the directive
principles, after 1976, this scenario has undergone a drastic change as well as directive
principles came to have precedence over Articles 14 and 19.

This change was sought to be justified on the ground that the rights of the community must
prevail over the rights of the individual.

IS THE NEW EXTENDED FORM OF ARTICLE 31-C CONSTITUIONALLY VALID?

In Minerva Mills Ltd. v. Union of India, the extended version of Article 31-C was struck
down by the Supreme Court. The SC ruled that, the extension of the shield of Article 31-C to
all the directive principles was beyond the amending process of the Parliament under Article
368, because by giving primacy to all directive principles over the fundamental rights in
Articles 14 and 19, the basic feature of the Constitution, viz, judicial review, has been
destroyed.

In Waman Rao v. Union of India, the SC observed that, Article 31-C, as it stood prior to the
forty second amendment made in 1976, was valid as its constitutionality was upheld in
Keshavanand Bharti case.

But, in Sanjeev Coke Mfg Co. v. Bharat Coking Coal Co. Ltd., the SC opined that, the
question of constitutional validity of Article 31-C appears to us to be concluded by the decision
in Keshavanand Bharti’s case. But this observation appears to be an obiter dicta and not
conclusive on the question of validity of Article 31-C because in Keshavanand, Article 31-C
was partly held valid and partly invalid and then Article 31-C referred to only two clauses of
Article 39 and not whole to all directives.

PRESENT POSITION- It may however, be noted that the declaration made in the law as
envisaged in Article 31-C is not conclusive. The court can go behind the declaration and
ascertain whether the law in question gives effect to the policy underlying the directive
principle concerned. It would be open to the court to ignore such a declaration in a given case
and examine the constitutional validity of that Act. The declaration cannot act as a cloak to
protect the law bearing no relationship with the objectives contained in Article 39 of the
Constitution.

QUALIFYING CRITERION- For a law to get protection of Article 31-C, the court has to
determine whether there is a connection between the law in question and Article 39. There
should be a real and substantial connection. To determine whether the law satisfies this test, the
court would have to examine the pith and substance, the true nature and character of the law
and also its design and the subject matter dealt with by it together with its object and scope.

If the court finds that the dominant object of the law is to give effect to the directive principle,
it would accord protection to the law under Article 31-C. But, if the law, though passed
seemingly for effectuating the directive principle is, in pith and substance, one for
accomplishing an unauthorized purpose not covered by the directive principle, then such law
would not have the protection of Article 31-C.
In such a case, the court is entitled to tear the veil created by the declaration. In Sanjeev Coke
Mfg Co. v. Bharat Coking Coal Co. Ltd., the SC observed that, a law would get protection
under Article 31-C if its object is to give effect to the directive principle. The court refrained
from using such terms as “real and substantial”, “dominant”, “basically and essentially
necessary”, or “closely and integrally connected”. The court preferred to stick to the very words
of Article 31-C without using any adjective.

CONSTITUTIONAL QUESTION-

In Property Owner’s Association v. State of Maharashtra, a fine constitutional point has been
raised. Article 31-C as originally enacted in 1971 by the twenty fifth amendment gave primacy
only to Articles 39(b) and (c) over the fundamental rights in Articles 14 and 19 and to this
extent Article 31-C was held constitutionally valid in Keshavanand.

But, when in 1976, the scope of Article 31-C was expanded by the forty second amendment so
as to give primacy to all directive principles over Articles 14 and 19, this amendment to Article
31-C was held to be invalid in Minerva Mills.

NOW THE QUESTION IS- When the amendment made to Article 31-C in 1976 was
invalidated, did Article 31-C revive in the form in which it was held valid in Keshavanand, or
did it come to naught as a whole as a result of the pronouncement in the Minerva Mills…..?
Till now, it has been assumed all along by the Supreme Court in a number of cases that Article
31-C stood revived in the form in which upheld as a result of the Keshavanand Bahrti decision,
after its amendment made in 1976 has been struck down in Minerva Mills.

But, in Property Owner’s Association v. State of Maharashtra, 13 it was argued that the doctrine
of revival as it applies to ordinary statutes could not be applied to the constitutional amendment.
This means that Article 31-C as it stood as a result of Keshavanand did not stand revived when
the amendment made in 1976 was struck down in Minerva Mills. This argument would mean
that Article 31-C does not survive at all in the Constitution and its benefit could not be available
to exclude the attack to the validity of any statute on the ground of Articles 14 and 19. In
Property Owner’s, a bench of three judges of the Supreme Court has thought it fit that this
significant question ought to be considered and authoritatively decided by a larger bench of
five or more judges as this specific question has not arisen earlier in any case, and also because
the decisions in Minerva, Waman Rao and Sanjeev Coke were all by a bench of five judges. So
the question whether Article 31-C exists in the Constitution or not whether it died with the
decision of the Supreme Court in Minerva Mills is going to be considered by the Supreme
Court in near future.

EVOLUTION OF FUNDAMENTAL RIGHTS

(Can be linked to the previous topic. This gives an overall outline for origin of
fundamental rights.)

INTRODUCTION

The origin of the concept of Fundamental Rights, which are also known as Natural Rights or
Human Rights or Basic Rights or Inalienable Rights, is based on the theory of Natural Law.
The idea that people have certain rights, which cannot be taken away, began with the theory of
Natural Law. This theory states that natural order exists in the universe because all things are
created by Nature or God. Everything has its own qualities and is subject to the rules of Nature
to achieve its full potential. According to this theory, anything that detracts from man's human
qualities, or prevents their 2 full achievement, violates the law of Nature. This idea led to the
belief that men and governments everywhere are bound by Natural Law, it being higher than
man's law. The Roman Philosopher Cicero held the view that this Natural Law could be
discovered from human reason. This theory of Natural Law created an awareness of Natural
Rights and various thinkers and philosophers started discerning the Inherent and Sacred Rights
of men in the Divine Law. Natural Rights thus led to the formulation of Human Rights and the
influence of Natural Rights can be found not only in the English Bill of Rights (1689), the
French Declaration of Rights of Man (1789), the United States’ Bill of Rights (1791), the
Universal Declaration of Human Rights (1948)., but also in the Part III of the Constitution of
India which deals with Fundamental Rights.

The Part III of the Constitution of India, wherein has been incorporated a long list of
Fundamental Rights, is described as the Magna Carta of India. The inclusion of a chapter on
Fundamental Rights in the Constitution of India is in accordance with the trend of modern
democratic thought. The aim of having a declaration of Fundamental Rights is to withdraw
certain elementary rights from the vicissitudes of political controversy, to place them beyond
the reach of shifting majority in legislature of the Country and to regard them as inviolable
under all conditions. Certain elementary rights, such as, right to life, liberty, freedom of speech,
freedom of faith and so on, should not be submitted to vote, they being not depended on
outcome of any election.
The Fundamental Rights represent the basic values cherished by the people of India and they
are calculated to protect the dignity of the individual and create conditions in which every
human being can develop his personality to the fullest extent. The Fundamental Rights impose
a negative obligation on the State not to encroach on individual liberty in its various
dimensions. The declaration of Fundamental Rights in the Constitution thus serves the purpose
of reminding the Government in power to respect those rights and limiting the range of activity
of the State in appropriate directions. The concept of Fundamental Rights has been given a
more concrete and universal texture by the Charter of Human Rights enacted by the United
Nations Organization.

Another purpose behind the inclusion of the chapter on Fundamental Rights in the Constitution
is to establish "a government of law and not of man", that is, a governmental system where the
ruler cannot oppress the ruled by encroaching on citizen's basic rights and liberties. The
incorporation of the Fundamental Rights in the Constitution vests them with sanctity which the
rulers dare not violate them so easily. In a parliamentary system of government those who form
the government are also leaders of the majority party in the legislature and can get laws made
easily. Therefore, the danger of encroachment on citizen's liberty cannot be ruled out in absence
of prescription of limitation of authority of the state by declaration of Fundamental Rights in
the constitution. As a result, the incorporation of Fundamental Right in the constitutions of
modern democratic countries has been a trend.

The Fundamental Rights as incorporated in the Constitution of India can be classified under
six groups. They are (i) Right to equality (Articles 14-18), (ii) Right to freedom (Articles 19-
22), (iii) Right against exploitation (Articles 23-24), (iv) Right to freedom of religion (Articles
25-28), (v) Cultural and educational rights (Articles 29-30) and (vi) Right to constitutional
remedies (Articles 32-35).

Article 21, which provides that "no person shall be deprived of his life or personal liberty except
according to procedure established by law" falls under the group of "right to freedom." But
what is "life" or "personal berty" is not defined by the Constitution anywhere.

Fundamental Rights Origin

The concept of human rights originated from natural law philosophers like John Locke and
Jean-Jacques Rousseau.
They pondered over the idea of human rights and tried to preserve them by postulating the
Social Contract Theory. Locke propounded that man is born “with a title to perfect freedom
and an uncontrolled enjoyment of all the rights and privileges of the Law of Nature.”

He also theorized that he has power, by nature, “to preserve his property that is, his life, liberty
and estate against the injuries and attempts of other men.”

Way back in 1215, the English were successful in exacting a promise from their monarch King
John for the respect of the ancient liberties. Their success is evident in the form of the Magna
Carta, the first written document with reference to the fundamental rights of citizens.

Again in 1689, the Bill of Rights was enacted consolidating basic civil rights and liberties for
the English. In 1789, the Declaration of the French 83 Revolution stated that “the aim of all
political association is the conservation of the natural and inalienable rights of man.”

Fundamental Rights – Recent Developments

The Constitution enshrines many benevolent provisions. It is a treasure house spelling out
Fundamental Rights, duties and other basic freedoms. Part III of our Constitution is a work of
pride and the crowning achievement of the founding fathers. Soon after the Constitution was
enacted, the process of amendment started in the very second year of the Constitution’s
working and has been repeated at frequent intervals. It is perhaps an irony that the first
amendment to the Constitution was made in regard to the Part III of the Constitution. Article
15(4) was added to the Constitution in 1951, in the way of helping backward classes by making
discriminatory provisions in their favor and to tide over the difficulties created by decisions
such as Champkam Dorairajan AIR 1951 SC 226.

It may be noted that the Constitution makes a few more provisions for development and
amelioration of the condition of backward classes of people. Under Art.15(4), in innumerable
cases the reservation of seats for SC, ST and Backward Classes in colleges has been upheld.
Reservations are done under Article 15(4) for the advancement of such classes.

Art. 16(1) guarantees equality of opportunity to all citizens in matters relating to employment
or appointment under the State. On a comparative basis, Art. 16 deals with a very limited
subject viz., public employment. On the other hand, the scope of Art.15 (1) is much wider as it
covers the entire range of state activities.
Under Art. 16(4) the state may make reservation of appointments or posts in favour of any
‘backward class’ of citizens which, in the opinion of the state, is not adequately represented in
the public services under the State. The scope of Art. 15(4) is wider than Art.16(4). Articles
15(4) and 16(4), no doubt, fall within Part III of the Constitution comprising the fundamental
rights.

After Indra Sawhny judgment, two Constitutional Amendments have been incorporated in
Art.16 (4) to somewhat tone down the impact of the Supreme Court pronouncement. Article
16(4A) was introduced by 77th Constitutional Amendment permitting reservation in promotion
to the Schedule Castes and Schedule Tribes. The Constitutional (81st Amendment) Act, 2000,
has added Art. 16(4B) to the Constitution. The amendment envisages that the unfilled reserved
vacancies in a year are to be carried forward to subsequent years and that these vacancies are
to be treated as distinct and separate from the current vacancies during any year.

Both these articles come under the heading of Right to Equality. The Constitution guarantees
the Right to Equality through Articles 14 to 18. In the series of constitutional provisions, Art.14
is the most significant. It has been given a highly activist magnitude in recent years by the
courts and, thus, it generates a large number of court cases. The voyage for opening the horizons
of fundamental rights began right from Communist Leader A.K. Gopalan case, in the year
1950, wherein it was held that wider interpretation to be given to fundamental rights. Thereafter
several landmark judgments were delivered construing the provisions of envisaged in Part III.

Legal circles are all agog with the recent judgment of the Supreme Court in Ashoka Kumar
Thakur vs. Union of India (UOI) and Ors, commonly known as OBC
Judgment, (2008)6SCC1.Efforts are afoot to lift it up and place it in the company of causes
celebre like E.P. Royappa, Maneka Gandhi, M.P. Sugar Mills, International Airport Authority,
Water Transport Corporation,Indra Sawhney, N.M. Thomas, and Minor P. Rajendran, which
have adorned the constitutional history of India and marked the development and glorification
of concept of Right to Equality for the last 4 decades or so.

In Ashoka Kumar Thakur case the Court held, inter alia, that there are structural differences in
the Constitution of India and the Constitution of the United States of America. The 14th
Amendment to the U.S. Constitution, inter alia, provides that no state shall “deny to any person
within its jurisdiction the equal protection of the laws”.

Whereas in India, Articles 14 and 18 are differently structured and contain express provisions
for special provision for the advancement of SEBCs, STs and SCs. Preamble to the Constitution
and the Directive Principles of State Policy give a positive mandate to the State and the State
is obliged to remove inequalities and backwardness from society. While considering the
constitutionality of a social justice legislation, it is worthwhile to note the objectives which
have been incorporated by the Constitution makers in the Preamble of the Constitution and
how they are sought to be secured by enacting fundamental rights in Part III and Directives
Principles of State Policy in Part IV of the Constitution.

The Fundamental Rights represent the civil and political rights and the Directive Principles
embody social and economic rights. Together they are intended to carry out the objectives set
out in the Preamble of the Constitution. In our Constitution there is a specific provision under
the Directive Principles of State Policy in Part IV of the Constitution requiring the State to
strive for justice 'social, economic and political' and to minimize the inequalities of income and
endeavor to eliminate inequalities in status, facilities and opportunities (Article 38).

Article 14 has stood throughout at the pinnacle as a portentous, impregnable constitutional

bulwark against all excesses and illegalities of the State and its instruments. The principle of
reasonableness and non- arbitrariness which pervades Article 14 like a brooding omnipresence
was an adequate touchstone in it.

Right to Property

The most drastic amendment to Part III has been one culminating in the outright deletion of the
fundamental right to property guaranteed under Article 19 (1) (f) and Article 31 in 1978. The
history of the constitutional changes in this regard demonstrates the sea change in the public
reactions to notions of private property that seemed sacrosanct at one time. The fundamental
rights to property under Article 19 (1)(f) was specifically introduced by the founding fathers of
the Constitution after detailed discussion and deliberation. Jawaharlal Nehru also felt that
Art.19(1)(f) was a very important right to be incorporated in Part III of the Constitution under
“Fundamental Rights”.

No doubt, under the same Amendment of 1978 Art.300A has been introduced but not in Part
III. That is only recognition of a pre-constitutional right. It is not a new right. This sort of right
already exists in Transfer of Property Act and Land Acquisition Act, thus the introduction of
Art.300A is an eye-wash. Now the right to property is made an ordinary right which can be
taken away by a Legislature. I am of the humble opinion that deletion of Article 19(1)(f) and
Article 31 would amount to altering the basic structure of the Constitution. Even the United
Nations has recognized the right to property as a human right under Article 17 of the
Declaration of Human Rights.

Secrecy of Vote – Negative Voting

Recently in People’s Union for Civil Liberties and Another vs. Union of India and Anr.
(2013)10SCC1, wherein the provision of a “None of the Above” (NOTA) button in the EVMs
was prayed for. The question before the Hon’ble Supreme Court was that whether there is a
violation of right not to vote in secrecy by Rules 41(2) and (3) and 49(O) of the Conduct of
Elections Rules, 1961; whether violation of secrecy amounts to violation of rights granted
under Articles 19(1)(a) and 21 of the Constitution. The Court held that Article 19 guarantees
all individuals the right to speak, criticize, and disagree on a particular issue. It stands on the
spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing
a person to cast vote negatively defeats the very freedom of expression and the right ensured
in Article 21 i.e. right to liberty. In the end, the court held that Rules 41(2) and (3) and Rule
49(O) are ultra vires Article 19(1)(a) of the Constitution to the extent they violate secrecy of
voting.

Right to Sleep

In another recent case of Ramlila Maidan (2012)5SCC1 the Supreme Court has expanded
scope of right to life under Article 21 of the Constitution to include right to sleep and elevated
this right to the category of fundamental rights. Article 21 is the foundation of the constitutional
scheme. In this landmark judgment, the Court held, inter alia, that Sleep is a biological
necessity; its deprivation affects a person’s health and mental condition. Interference with a
person’s sleep is, therefore, a form of third-degree method of torture prohibited by the
Constitution. The Court further held that in many countries there are complete night curfews
(at the airport i.e. banning of landing and taking off between the night hours), for the reason
that the concept of sound sleep has been associated with sound health which is inseparable
facet of Article 21 of the Constitution. The Court also held that privacy, right to silence,
freedom from noise and to have proper rest and sleep, as essential constituents of right to life
under Article 21.

The Supreme Court in Ramlila Maidan case, while discussing Article 19, held, inter alia, that
the Indian Constitution spells out the right to freedom of speech and expression under Article
19(1)(a). Freedom of speech is the bulwark of democratic government. This freedom is
essential for proper functioning of the democratic process. The freedom of speech and
expression is regarded as the first condition of liberty. Article 19 by clause 1 sub-clause b also
provides the right to assemble peacefully and without arms to every citizen of the country.
However, these rights are not free from any restrictions and are not absolute in their terms and
applications. Articles 19(2) and 19(3), respectively, control the freedoms available to a citizen.
However, Article 19(2) was subjected to number of amendments. The framers of our
Constitution, in unambiguous terms, granted the right to freedom of speech and expression and
the right to assemble peaceably and without arms. This gave to the citizens of this country a
very valuable right, which is the essence of any democratic system. There could be no
expression without these rights. With the development of law in India, the right to freedom of
speech and expression has taken within its ambit the right to receive information as well as the
right of press.

Further, in Ramlila maidan case the Court held, inter alia, that with the development of law,
even certain matters covered under Part IV of the Constitution relating to Directive Principles
have been uplifted to the status of fundamental rights, for instance, the right to education
(Article 21A). Though this right forms part of the Directive Principles of State Policy,
compulsory and primary education has been treated as a part of Article 21 of the Constitution
of India by the courts, which consequently led to the enactment of the Right of Children to Free
and Compulsory Education Act, 2009.

Right to adopt

In another recent case of Shabnam Hashmi vs. Union of India (UOI) and
Ors. AIR2014SC1281, the question put forwarded before the Hon’ble Supreme Court was
whether right to adopt and to be adopted could be recognized as Fundamental Rights under
Part III of the Constitution. It was held, inter alia, that the “Fundamental Rights embodied in
Part-III of the Constitution constitute the basic human rights which inhere in every person and
such other rights which are fundamental to the dignity and well being of citizens. While it is
correct that the dimensions and perspectives of the meaning and content of fundamental rights
are in a process of constant evolution as is bound to happen in a vibrant democracy where the
mind is always free, elevation of the right to adopt or to be adopted to the status of a
Fundamental Right, in our considered view, will have to await a dissipation of the conflicting
thought processes in this sphere of practices and belief prevailing in the country. The legislature
which is better equipped to comprehend the mental preparedness of the entire citizenry to think
unitedly on the issue has expressed its view, for the present, by the enactment of the JJ Act
2000 and the same must receive due respect. Conflicting view points prevailing between
different communities, as on date, on the subject makes the vision contemplated by
Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the
Court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain
restraint. All these impel us to take the view that the present is not an appropriate time and stage
where the right to adopt and the right to be adopted can be raised to the status of a fundamental
right and/or to understand such a right to be encompassed by Article 21 of the Constitution.”

Black Money Case – Right To Know – Right To Information

In another recent case of Ram Jethmalani and Ors. Vs. Union of India (UOI) and
Ors.(2011)8SCC1, ,commonly known as Black Money Case, the Court while balancing right
to know / right to information versus right to privacy of persons concerned, held, inter alia, that
there is a special relationship between Clause (1) of Article 32 and Sub-clause (a) of Clause (1)
of Article 19, which guarantees citizens the freedom of speech and expression. The very
genesis, and the normative desirability of such a freedom, lies in historical experiences of the
entire humanity: unless accountable, the State would turn tyrannical. A proceeding under
Clause (1) of Article 32, and invocation of the powers granted by Clause (2) of Article 32, is a
primordial constitutional feature of ensuring such accountability. The very promise, and
existence, of a constitutional democracy rests substantially on such proceedings. Furthermore,
withholding of information from the Petitioners therein by the State, thereby constraining their
freedom of speech and expression before the Supreme Court, may be premised only on the
exceptions carved out, in Clause (2) of Article 19. In the task of upholding of fundamental
rights, the State cannot be an adversary. The Court further held that revelation of details of bank
accounts of individuals, without establishment of prima facie grounds to accuse them of
wrongdoing, would be a violation of their right to privacy. It is only after State has been able
to arrive at a prima facie conclusion of wrong doing, based on material evidence, would the
rights of others in the nation to be informed, enter the picture. Right to know cannot be extended
to being inquisitors of fellow citizens.

The Court in Ram Jethmalani case also discussed basic structure of our Constitution. The Court
held that “the basic structure of the Constitution cannot be amended even by the amending
power of the legislature. Our Constitution guarantees the right, pursuant to Clause (1) of
Article 32, to petition this Court on the ground that the rights guaranteed under Part III of the
Constitution have been violated. This provision is a part of the basic structure of the
Constitution. Clause (2) of Article 32 empowers this Court to issue "directions or orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by"
Part III. This is also a part of the basic structure of the Constitution.”

Right To One’s Reputation

In Umesh Kumar Vs. State of Andhra Pradesh (2013)10SCC591, the Supreme Court held
that “reputation is a sort of right to enjoy the good opinion of others and it is a personal right
and an enquiry to reputation is a personal injury. Thus, scandal and defamation are injurious to
reputation. Reputation has been defined in dictionary as "to have a good name; the credit,
honor, or character which is derived from a favourable public opinion or esteem and character
by report". Personal rights of a human being include the right of reputation. A good reputation
is an element of personal security and is protected by the Constitution equally with the right to
the enjoyment of life, liberty and property. Therefore, it has been held to be a necessary element
in regard to right to life of a citizen under Article 21 of the Constitution. International Covenant
on Civil and Political Rights 1966 recognises the right to have opinions and the right of freedom
of expression under Article 19 is subject to the right of reputation of others. Reputation is "not
only a salt of life but the purest treasure and the most precious perfume of life."

Woman’s right to make reproductive choice

In Suchita Srivastava and Anr. Vs. Chandigarh Admin. (2009)9SCC1, the Supreme Court
held, inter alia, that woman’s right to make reproductive choice is also a dimension of “personal
liberty” as understood under Article 21 of the Constitution. Reproductive rights include a
woman’s entitlement to carry pregnancy to its full term, to give birth and to subsequently raise
children. The court also held that forcible sterilization or abortion of mentally retarded person
(eugenics theory), are anti democratic and violative of Article 14. Here I also recall in this
connection the universal truth of which the English poet Coleridge has said. "A mother is a
mother still, the holiest thing alive".

Freedom of choice in Marriage

Recently, in ‘Gang Rape ordered by Village Kangaroo Court in W.B., In re’

(2014)4SCC786, the Supreme Court has ordered the West Bengal government to pay 500,000
rupees to a tribal woman who was gang-raped in January allegedly on orders of village elders. It
was held that the State is duty bound to protect the fundamental rights of its citizens; and an
inherent aspect of Article 21 of the Constitution would be freedom of choice of Marriage.

Right to Speedy Trial

The Supreme court in Moti Lal Saraf vs. State of J&K (2006)10SCC560 held that speedy
trial is implicit in the spectrum of Article 21 of the Constitution. Speedy trial is one of the facets
of the fundamental rights to life and liberty enshrined in Article 21 and the law must ensure
“reasonable, just and fair” procedure which has a creative connotation. The purpose of speedy
trial is intended to avoid oppression and prevent delay by imposing on the Courts and on the
prosecution an obligation to proceed with reasonable dispatch. The right to speedy trial begins,
with the actual restrained imposed by arrest and consequent incarceration and continues at all
stages. Even in the United States where there has been a constitutional amendment recognizing
speedy trial as an extremely valuable right of the accused even the Court has held that no time-
limit could be fixed for concluding criminal trial.

Custodial violence / death or illegal detention – Compensation against State

In Sube Singh vs. State of Haryana (2006)3SCC178, the question before the Supreme Court
was whether compensation should be awarded to the petitioner therein and his family members
as a public law remedy for the violation of their fundamental rights under Article 21 of the
Constitution. It was held that, Court may award compensation under Articles 32 and 226 in
cases where violation of Article 21 involving custodial death / torture is established or is
incontrovertible. Award of such compensation will not affect the right of claim additional
compensation by way of civil or criminal action.

CONCLUSION

The above decisions tell how those cases involved questions of public policy and Fundamental
Rights of the citizens. They demonstrate how the Hon’ble Supreme Court was every time as
much alive to its duties and as much conscious of the stakes as in Kesavnanda Bharti case. By
definition, preservation of fundamental rights is essential to the society. The alleged benefits
of denying fundamental rights can be illusory; the harms can be arbitrarily severe. Fortunately,
in India fundamental rights are very flexible. The flexibility reminds us that the rights protect
the society (as a whole), and in the long term they protect national security as opposed to being
balanced against it. Therefore, all fundamental rights must be granted to all people in any
civilized society.
CIVIL RIGHTS LEGISLATION

The Civil Rights Movement worked to bring monumental change to the US. The work of
activists in protests, marches, and sit-ins highlighted the injustice of segregation and
discrimination and helped public opinion turn in favor of change. That change was codified
into law largely through Civil Rights Legislation and acts of Congress, although some victories
were won in the courts or achieved by executive action. Learn about the most important Civil
Rights legislation here.

Civil Rights Legislation and Acts

Civil Rights legislation are acts passed by Congress so that they become laws. These acts
concern ensuring people's Civil Rights, or the legal rights they are granted by being citizens of
a country, through the US Constitution.

? You might ask why Civil Rights legislation is necessary if they are designed to simply protect
the rights people already have. Unfortunately, discrimination has been a reality throughout US
history, and people were oftentimes denied their rights. This was most pronounced in the Jim
Crow, segregated South, where African Americans were excluded from many public places and
provided with inferior schools and facilities.

Therefore, Civil Rights Acts were needed to end discriminatory practices by closing loopholes
and forcing segregationists to comply, effectively ensuring all people's Civil Rights were, in
fact, protected.

Civil Rights Legislation Timeline

Civil Rights Legislation and the Movement for Civil Rights

Civil Rights legislation was passed in large degree due to the impact of the Civil Rights
Movement. There was a virtuous cycle created where leaders of the Civil Rights Movement,
such as Martin Luther King, Jr., on the one hand put pressure on lawmakers to act, while on
the other the lack of action or violent reaction by authorities increased public support for
legislation to address the problems.

Therefore, while Civil Rights Legislation Acts were actions of Congress, they cannot be
separated from the Civil Rights Movement and the actions of the countless activists who
participated in marches, rallies, protests, sit-ins, boycotts, and other direct actions, many of
them facing violence, jail, or even death.

Civil Rights Legislation Examples

Congress passed numerous Civil Rights Acts. Below is a summary of some of the most
important Civil Rights legislation examples.

Civil Rights Legislation and Acts that Targeted Jim Crow Segregation

The most monumental Civil Rights legislation were the Civil Rights Act of 1964 and Voting
Rights Act of 1965, passed to address the racial discrimination against African Americans.
Another important Civil Rights legislation was the Fair Housing Act of 1968. While these laws
targeted all forms of discrimination, they were passed through Congress explicitly to address
racial discrimination. Learn about them briefly in the sections that follow and consult the full
summary of each to learn more.

Civil Rights Act of 1964

This Civil Rights legislation is, along with the Voting Rights Act, considered the most important
achievement of the Civil Rights Movement. It outlawed discrimination based on race, color,
sex, religion, or national origin in most public places, and it also outlawed discriminatory
hiring. It also contained provisions to end discriminatory voting restrictions and to enforce the
desegregation of public schools.

Activists from Civil Rights organizations, such as the NAACP, had long advocated for such a
law. As the Civil Rights Movement gained steam, most notably with the shocking images of
police repression of peaceful protestors during the Birmingham Campaign of Spring 1963, it
became increasingly clear to supporters of the movement that legislation was required to
forcibly end segregation.

Therefore, a Civil Rights Act was proposed by John F. Kennedy in June 1963. The March on
Washington of August 1963 had among its goals encouraging passage of the bill. However,
southern Democrats in Congress opposed it. It successfully passed the House of
Representatives, but southern Democrats delayed passage of the bill with a filibuster for 75
days in the Senate.

Fair Housing Act of 1968

The two earlier Civil Rights legislation acts had done much to ensure legal equality, however,
economic equality was more difficult to achieve. Also, while legal discrimination and
segregation was now outlawed, de facto segregation largely remained in place. King and other
Civil Rights leaders began advocating for more to be done on social and economic justice, and
King's SCLS organized the Poor People's Campaign in 1968.

De Facto vs De Jure Segregation

The Latin de facto refers to the reality of a situation, even if it is not officially enforced or even
permitted by law. It contrasts to the phrase de jure, which refers to a situation sanctioned by
law.

Civil Rights legislation did much to eliminate de jure segregation by prohibiting separate
public facilities and schools but fighting de facto segregation such as the separation of African
Americans and whites into separate communities or economic inequality was more difficult to
address.

While Civil Rights legislation was difficult to craft in a way that promoted economic equality
or fought de facto segregation, one significant effort was made in the Fair Housing Act of 1968.

This law was actually part of a larger Civil Rights Act of 1968, with Title VII of that law
concerning housing lending it the name of the Fair Housing Act of 1968 it is largely known by.
This Civil Rights legislation was meant as a follow up to the Civil Rights Act of 1964 and
sought to address the exclusion of minorities from white neighborhoods.

The law was passed in the days after Marin Luther King's assassination and was pushed through
Congress by Johnson in honor of King. He signed it into law on April 11, 1968. It outlawed
discrimination in the sale or renting of housing based on race, color, sex, religion, or national
origin.

This law is usually considered to be the last major achievement of the Civil Rights Movement.
While outlawing discrimination in housing or the explicit exclusion of minorities from
communities, economic inequality and social norms meant de facto segregation of
communities has continued to varying degrees even into the present day, a fact that highlights
the limits of what Civil Rights legislation can effectively achieve.

Other Significant Civil Rights Legislation Examples

While the Civil Rights legislation passed in the context of the Civil Rights Movement of the
1960s stand as the most significant in US history, they are far from the only Civil Rights Acts.
It's worth noting as well that although those Civil Rights legislation acts were passed largely in
the context of ending segregation towards African Americans, they also outlawed
discrimination against other minorities.

Indian Citizenship Act of 1924

Since the colonization of what became the United States, Native Americans and indigenous
peoples were discriminated against, had their tribal lands taken from them, and were largely
neglected. The Indian Citizenship Act of 1924 sought to in part address this discrimination.

This law granted full citizenship to Native Americans. It was passed to address the traditional
application of the 14th Amendment as not applying to Native Americans, and it was signed into
law by President Calvin Coolidge on June 2, 1924. It eliminated the requirement that they give
up tribal citizenship and apply to become US citizens, immediately granting them citizen status.
Many states still denied them the right to vote, although by 1957, these restrictions had been
lifted.

Indian Civil Rights Act

Further action was taken concerning native rights during the larger Civil Rights Movement of
the 1960s. The National Indian Youth Council was important in advocating for more Civil
Rights legislation concerning Native Americans. As part of this effort, the 1968 Civil Rights
Act, which included the Fair Housing Act, contained provisions that directly addressed Native
American rights and became known as the Indian Civil Rights Act.
This Civil Rights legislation effectively extended nearly all the protections in the Bill of Rights
and US Constitution to Native American tribes.

Education Amendment Act of 1972 aka Title IX

This piece of Civil Rights legislation was signed into law on June 23, 1972. It is also sometimes
called the Higher Education Amendments of 1972 but is most commonly referred to by its most
significant provision, Title IX. In the present day, this provision is often linked to college
athletics and the funding of women's sports programs, although this was not a major concern
in the passage of the bill at the time.

Title IX prohibited discrimination on the basis of sex in educational institutions receiving

federal funds. The full law also extended the Equal Pay Act of 1963, which tried to end pay
differences between men and women, to some professions and jobs that had not previously
been covered.

Non-Legislative Actions on Civil Rights

While Civil Rights legislation acts, most notably the Civil Rights Act of 1964 and Voting Rights
Act of 1965 stand out as the most powerful actions taken by the government to end
discrimination, there were some significant actions taken outside of Congress in the form of
executive orders and court cases. Learn about a few of these in the sections below.

Executive Order 9981

Executive Order 9981 was issued by President Harry Truman on July 26, 1948. It eliminated
segregation and discrimination in the US armed forces. It was made in part to recognize the
important role African Americans played in the Second World War.

Truman had proposed more broad Civil Rights legislation, but he failed to pass it through
Congress. Therefore, he chose to use his executive authority to integrate the armed forces.

African American participation in the Korean War and Vietnam War helped contributed to more
support for the Civil Rights Movement and eventual legislative action later, as veterans who
had fought in the nation's wars returned home to be mistreated. Therefore, while its impact was
limited to the armed forces, it was an important influence on the early growth of the Civil
Rights Movement.

Brown v. Board of Education

This 1954 court case is considered one of the most important decisions regarding Civil Rights
in US history. In it, the Warren Court ruled that segregation in public schools was
unconstitutional. It effectively overruled the 1896 Plessy v. Ferguson decision that allowed for
"separate but equal" facilities.

The case was an important victory for the NAACP, and it effectively overturned the legal basis
for segregation in public spaces. Pressure to enforce the decision contributed to the larger Civil
Rights Movement and the decision helped provide a legal basis for the Civil Rights Act of
1964, which further strengthened the decision and sought to integrate schools.

Loving v. Virginia

The 1967 Loving v. Virginia Supreme Court decision held that laws prohibiting interracial
marriage violated the 14th Amendment and were unconstitutional. Many states had such laws,
which encouraged segregation, and the case effectively allowed people to marry who they
chose. This case was also an important legal precedent for the 2015 Obergefell v.
Hodges decision that protected same-sex marriage in the US.

Enforcing Civil Rights Legislation

Due to opposition to some Civil Rights legislation, especially in the Jim Crow South, enforcing
Civil Rights legislation was important to ensuring the laws were properly enacted.

Especially problematic was the enforcement of desegregation of public schools. While

the Brown decision had effectively outlawed the separate but equal doctrine, it provided no
clear enforcement mechanisms. A second case did call for integration with "deliberate speed,"
but resistance continued.

In 1957, a group of African American students that became known as the Little Rock Nine,
attempted to integrate Central High School in Little Rock, Arkansas. The state's governor
attempted to use the National Guard to prevent their entry, but President Eisenhower ordered
federal troops to protect their entry. In 1963, President Kennedy also used federal troops to
force the integration of the University of Alabama after Governor George Wallace attempted
to prevent it.

Provisions of the Civil Rights Act of 1964 concerned the enforcement of the desegregation of
schools, denying federal funds to schools and other institutions that did not comply, and in the
1970s one element of enforcing this Civil Rights legislation was the use of busing students to
integrated schools, which was controversial.

Act of 1965 also contained a number of provisions aimed at enforcing Civil Rights legislation,
including a coverage formula that triggered the federal oversight of voter registration in places
where discriminatory practices had been in place or less than 50% of eligible voters were
registered. These areas were also subject to a requirement for preapproval for any changes to
voting laws or the composition of voting districts.

The 2015 Supreme Court case of Shelby County v. Holder overturned the coverage formula in
a controversial decision that many contend weaken the enforcement of Civil Rights legislation
by making the provisions of the law requiring preapproval for changes to voting laws
unenforceable.

The Civil Rights Division of the Justice Department, created in 1957 also worked to enforce
Civil Rights legislation and brought criminal suit against violations of Civil Rights legislation.
It continues to be the main mechanism for enforcing Civil Rights legislation.

Civil rights, guarantees of equal social opportunities and equal protection under the law,
regardless of race, religion, or other personal characteristics.

Examples of civil rights include the right to vote, the right to a fair trial, the right to government
services, the right to a public education, and the right to use public facilities. Civil rights are an
essential component of democracy; when individuals are being denied opportunities to
participate in political society, they are being denied their civil rights. In contrast to civil
liberties, which are freedoms that are secured by placing restraints on government, civil rights
are secured by positive government action, often in the form of legislation. Civil rights laws
attempt to guarantee full and equal citizenship for people who have traditionally been
discriminated against on the basis of some group characteristic. When the enforcement of civil
rights is found by many to be inadequate, a civil rights movement may emerge in order to call
for equal application of the laws without discrimination. Members of the movement may also
engage in identity politics.

The American civil rights movement

Civil rights politics in the United States has its roots in the movement to end discrimination
against African Americans. Though slavery was abolished and former slaves were officially
granted political rights after the Civil War, in most Southern states African Americans
continued to be systematically disenfranchised and excluded from public life, leading them to
become perpetual second-class citizens. By the 1950s the marginalization of African
Americans, often taking an extremely violent form, had spurred a social movement of epic
proportions. The American civil rights movement, based mainly in African American churches
and colleges of the South, involved marches, boycotts, and extensive efforts of civil
disobedience, such as sit-ins, as well as voter education and voting drives. Most of these efforts
were local in scope, but the impact was felt at the national level—a model of civil rights
organizing that has since spread all over the globe.

14th Amendment to the U.S. Constitution: Civil Rights (1868)

Passed by Congress June 13, 1866, and ratified July 9, 1868, the 14th Amendment extended
liberties and rights granted by the Bill of Rights to formerly enslaved people.

Following the Civil War, Congress submitted to the states three amendments as part of its
Reconstruction program to guarantee equal civil and legal rights to Black citizens. A major
provision of the 14th Amendment was to grant citizenship to “All persons born or naturalized
in the United States,” thereby granting citizenship to formerly enslaved people.

Another equally important provision was the statement that “nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.” The right to due process of law and equal
protection of the law now applied to both the federal and state governments.

On June 16, 1866, the House Joint Resolution proposing the 14th Amendment to the
Constitution was submitted to the states. On July 28, 1868, the 14th amendment was declared,
in a certificate of the Secretary of State, ratified by the necessary 28 of the 37 States, and
became part of the supreme law of the land.

Congressman John A. Bingham of Ohio, the primary author of the first section of the 14th
Amendment, intended that the amendment also nationalize the Bill of Rights by making it
binding upon the states. When introducing the amendment, Senator Jacob Howard of Michigan
specifically stated that the privileges and immunities clause would extend to the states “the
personal rights guaranteed and secured by the first eight amendments.” Historians disagree on
how widely Bingham's and Howard's views were shared at the time in the Congress, or across
the country in general. No one in Congress explicitly contradicted their view of the amendment,
but only a few members said anything at all about its meaning on this issue. For many years,
the Supreme Court ruled that the amendment did not extend the Bill of Rights to the states.

Not only did the 14th Amendment fail to extend the Bill of Rights to the states; it also failed to
protect the rights of Black citizens. A legacy of Reconstruction was the determined struggle of
Black and white citizens to make the promise of the 14th Amendment a reality. Citizens
petitioned and initiated court cases, Congress enacted legislation, and the executive branch
attempted to enforce measures that would guard all citizens’ rights. While these citizens did
not succeed in empowering the 14th Amendment during Reconstruction, they effectively
articulated arguments and offered dissenting opinions that would be the basis for change in the
20th century.

AMENDMENT XIV

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.

Section 2.
Representatives shall be apportioned among the several States according to their respective
numbers, counting the whole number of persons in each State, excluding Indians not taxed. But
when the right to vote at any election for the choice of electors for President and Vice-President
of the United States, Representatives in Congress, the Executive and Judicial officers of a State,
or the members of the Legislature thereof, is denied to any of the male inhabitants of such State,
being twenty-one years of age, and citizens of the United States, or in any way abridged, except
for participation in rebellion, or other crime, the basis of representation therein shall be reduced
in the proportion which the number of such male citizens shall bear to the whole number of
male citizens twenty-one years of age in such State.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-
President, or hold any office, civil or military, under the United States, or under any State, who,
having previously taken an oath, as a member of Congress, or as an officer of the United States,
or as a member of any State legislature, or as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote
of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred
for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall
not be questioned. But neither the United States nor any State shall assume or pay any debt or
obligation incurred in aid of insurrection or rebellion against the United States, or any claim
for the loss or emancipation of any slave; but all such debts, obligations and claims shall be
held illegal and void.

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this
article.

Civil Rights Legislations - Key Takeaways

 The Civil Rights Movement was a key driver of the successful passage of Civil Rights
legislation acts that sought to legally address discrimination and segregation.
 The two most important pieces of Civil Rights legislation were the Civil Rights Act of
1964 and Voting Rights Act of 1965, which outlawed discrimination in public places
and enforced fair voting practices.
 The Fair Housing Act of 1968 also sought to eliminate legal discrimination in housing.
 While Civil Rights legislation made great gains in fighting de jure, or legal, segregation,
it has struggled to address de jure, or informal forms of segregation.
 Besides Civil Rights legislation, court cases and executive orders have also advanced
the cause of Civil Rights.
 The US Justice Department has the authority for enforcing Civil Rights legislation, and
some provisions of Civil Rights laws sought to increase the power of the government
in enforcing the law.
EQUALITY PROVISIONS

Introduction

India and USA are two countries that share many similarities. Both countries are affluent in
their diversified culture in society, emphasizing a democratic form of government with
separation of powers and many other similarities. Even though the provisions and explanations
of the term’ Right to Equality’ are quoted in the Constitution of both countries, the principle
that things might differ when observed closely works here. The applications given to the same
concept and the scope are significantly different in both countries.

The United States did not initially have the ‘Right to Equality’ in its Constitution. The
Declaration of Rights from the Bill of Rights expanded this concept of the ‘Right to Equality’
in the United States. It was added as part of the 14th Amendment Act of 1868 in the Bill of
Rights, whereas India’s scenario is entirely different. The ‘Right to Equality’ concept was
intended to be added to the Constitution in the initial stages, resulting in it being a part of the
country’s fundamental rights. This was the initial point of difference between both countries
regarding this concept. The main reason for the difference is the category of people in society
and the rate of development in various fields.

Even though the application of the concept is different in both countries, where India considers
it as a necessity while a country like the USA considers it from the aspect of quality, some basic
features of equality are to be implemented in both countries irrespective of the scope. This
article gives a deeper analysis of differentiating the right to equality on various grounds in both
countries and the areas of development in implementing this provision.

Analysis

The difference based on provisions:

Similar to the provision under the Bill of Rights in the US, Article 14 in India is the
foundation for providing the right to equality in the Indian Constitution. Article 14 has further
introduced the concept of ‘reasonable classification,’ which states that people belonging to
similar circumstances should be treated equally. Whereas in the United States, the mode for
promoting equality is not based on fixing quotas. It is based on passing time-to-time
legislation for the underprivileged like women and children and other minorities. In India,
Article 14 protects against discrimination based on religion, caste, race, sex, or place of birth.
In the case Shayara Bano v. Union of India., triple talaq was struck down, stating that it is
violative of Article 14, whereas the US constitution does not promote social equality per se in
this manner. The concept of social equality was not a part of the American Constitution at the
time of its framing. For example, the rights of black people were protected only after passing
the 14th and 15th Amendments.

Traits of Right to Equality in the US in that of Indian affirmative action

The words stated under the equal protection clause of the 14th amendment were directly
applied in the Indian Constitution concerning the right to protection of life and personal liberty.
The concept of the rational basis test introduced in the US constitution to check the validity of
legislation passed was also applied in India through the judicial review process to check the
arbitrariness of a law.

The US influence in Indian society is evident when India started framing the Constitution. Dr
B.R. Ambedkar, the chairman of the Constitution assembly, was greatly influenced by the US
constitution and its frameworks. He belonged to the category of untouchables in India. When
he was in Columbia, he highly appreciated the framework of the 14th amendment act, which
protected the rights of the black people of the United States and enhanced their livelihood.
Clearly, he also had the same vision to uplift the lives of untouchables and other minority
groups in India. He also idolized the famous black reformer and educator Booker T
Washington. On the other hand, B.N Rao, the advisor to the constitutional assembly, inspired
the Indian Constitution from the views and ideologies of many famous American judges and
jurists.

One of the primary reasons for applying US affirmative reforms in India was that both countries
political scenarios and cultural backgrounds had similarities. Both the countries and people
belonging to different communities in the society. Both countries were federal. At the same
time, society’s reaction regarding affirmative action was also the same. Indian states faced
opposition from the people over affirmative action even after there was support by the
government similar to the United States, where rights provided to black communities were
largely opposed by whites.

Children’s Rights:

When considering the matter of children’s rights, there is no significant difference in provisions
between both countries. Both countries have implemented the provision for providing
compulsory education to children. The only difference is the age group. In India, compulsory
education is 14 years, whereas, in the USA, it is 16 years. Children at 14 years will be way too
young to attain sufficient maturity and take up jobs to sustain themselves. Therefore,
considering the age of 16 is a better approach to implementing equality in education.

Gender inequality:

Equality for women regarding education, job opportunities, etc., is a widely debated topic in
both nations. Thus, both nations have separate provisions to protect and safeguard women’s
rights. Women’s equality and rights protection laws have gained more attention in the USA
than in India among various countries because these laws were framed and implemented
decades before India’s independence. The concepts like ‘liberal feminism’ and ‘radical
feminism’ rose to popularity in the United States and changed people’s stereotypical attitudes
and resulted in women’s independence. While discussing the protection of women’s rights in
the workplace, India made provisions to tackle this problem only recently through the judgment
of Vishaka v. State of Rajasthan. In contrast, this provision in the United States is more
enhanced and developed.

Judicial interpretation of the ‘Right to Equality in India and the US

India has derived the concept of ‘equal protection of the law’ from the US through Article 14
of the Indian Constitution. The same concept is brought into the US constitution through the
14th amendment Act. Right to equality was considered one of the fundamental features of the
Indian Constitution in the case of Indra Sawhney v. Union of India.,This provision applies to
every individual who comes under the definition of a person, even if it is a corporation, and all
people within the boundaries of India, irrespective of citizenship. Equal justice is the motive
behind the concepts of equality before the law and equal protection of the law was stated in the
case of Ramesh Prasad v. State of Bihar., The Constitution of India also provides provisions to
make reservations for women and children in the country; nothing shall prevent them from
doing so. This was to ensure the upliftment of underprivileged groups. This was stated in the
case of Choki v. State of Rajasthan.

Three amendments were brought into the United States constitution after the civil war. All these
amendments improved the concept of equality in the country by recognizing minority groups
in the United States. The 13th amendment abolished the practice of slavery; the
14th amendment played a significant role which granted citizenship to minority groups and
stated that no person should be denied the right to life and personal liberty within the state and
equal protection of laws. In the landmark case of Gitlow v. Newyork the 14th amendment Act
regarding the due process of law was given a much broader interpretation by including the bill
of rights. Other essential rights and liberties, such as the right to freedom of religion, the right
to a fair trial, and, the right to press, were recognized through selective incorporation. In the
case, of Roe v. Wade. the right to privacy was widely recognized.

The concept of equal protection of the law was recognized through the landmark judgment
of Brown v. Board of education, Topeka., in which it prohibited discrimination on basis of race
in public schools. The concept of equal protection was also used to protect rights in the matter
of voting, public jobs, etc.

Conclusion and Suggestions

The ideology and views regarding the concept of equality have been formed during different
periods and contexts which resulted in the difference in application. India considered equality
as a core subject on the other hand the US developed the concepts according to the needs of
the society. But the US system and the Indian system are not different. Regarding constitutional
law, Indian shares similarities with the United States more than any other country. Both
countries give core values to the Constitution with a strong procedure for judicial review, to
strike down inconsistent laws.

After analyzing both countries’ approaches towards the concept of equality, it can be
understood that either of the approaches can be directly applied as both have positives and
flaws. A purely collective approach is not advisable as it puts individuals’ rights at stake. India’s
approach is to attain equality in society and protect the rights of individuals whereas, in
America, it is more of an individual approach. In India, the society’s mindset should be changed
while the government promotes affirmative action. The authorities can initiate a moral
approach. There are still barriers to full equality for people belonging to disabled sections,
women, economically weaker sections, etc. Government should frame policies to uplift these
groups in particular by addressing their needs. In the US, more attention should be given to
providing opportunities to attain equal success for individuals, by removing the unequal effects
in social groups. While promoting equality and abolition of discrimination, the need to provide
equal access to justice should not be ignored.

EQUALITY ACT 2010 - UK

Equality for the few: A critical analysis of the Equality Act 2010 (U.K) from the perspective of
gender equality in the workplace. By Jennifer Gardner :
The Equality Act 2010 is designed to protect individuals from discrimination in the workplace
in England, Scotland and Wales. However, in the year 2018, women in the U.K are paid 18.4%
less on average than men, and this gap in average earnings has stagnated, showing a concern
for the future. Furthermore, women are not reaching senior or managerial roles in equal
measure, displaying an underrepresentation in powerful positions and hinting towards a lack
of access to opportunities. This demonstrates that discrimination against women in the
workplace is a problem and the Equality Act may not be protecting women adequately.

 critical analysis on the Act from the perspective of gender equality and aims to answer
the research question: To what extent does the Equality Act 2010 create equality for
women in the workplace?

The results find that although the Equality Act 2010 has improved gender equality in the
workplace, improvements and further legislation is still necessary. The conclusion can be
summed up into two different statements: Firstly, Money talks. Powerful business and politics
limit the scope of the Equality Act to adequately protect women’s interests in the workplace.
This is discussed through issues such as regulatory burdens, the lack of legislation surrounding
bonus payments, and the lack of conviction behind the new Gender Pay reporting initiative.
Secondly, Equality for some, not all. Those who can financially afford equality are more likely
to achieve it compared to vulnerable members of society. This is manifested through issues
such as the difficulties of launching a court battle, cuts to legal aid, austerity, intersectionality
and wider social policy.

The Equality Act 2010 is described by the Government in the United Kingdom as legislation
that, ‘legally protects people from discrimination in the workplace and in wider society’. It
combines several old discrimination acts into one, ‘making the law easier to understand and
strengthening protection’ (Government Equalities Office, 2013). It also includes new protected
characteristics of discrimination, in order to reflect the U.K’s diverse society. From the
perspective of women in the workplace, the pay gap between men and women in the U.K is
the smallest it has ever been, and women represent more top positions than before. However,
despite praise for the Equality Act, women are still paid an eye watering 18.4% less on average
than men, and this is evident across all age groups, working hours and industries (Labour
Market Statistics, 2018). Worryingly, this gap in average earnings has not changed much over
recent years, showing a concern for the future.
Furthermore, women are not reaching senior or managerial positions to the same extent as men.
For example, only 28% of board positions in the top 100 companies of the U.K are occupied
by women (Hampton-Alexander review, 2017), displaying an underrepresentation in powerful
positions and hinting towards a lack of access to opportunities. These statistics demonstrate
that discrimination against women in the workplace is a problem. Inequality in the workplace
is a problem for everyone, not only women. Inequality of any type leads to a reduction in
professional diversity and a reduced talent pool. For instance, if a woman is not given the same
opportunities as a man in a company, she is more likely to remain under-employed and her
skills are not used to their full potential; damaging business. This damage is extended if the
male employee promoted above her is less able to do the job. Inequality in the workplace also
has a negative effect on the socio-economic wellbeing of those who are discriminated against,
in the case of women this is 51% of the U.K population and this has a much wider effect on the
national economy. Finally, inequalities in economic and social power result in bias decisions at
societal level, where power and control are used to benefit those who hold it and oppress the
rest.

INDIAN CONSTITUTION US CONSTITUTION

AFFIRMATIVE ACTIONS

INDIA

INTRODUCTION

Human beings are not equal. They are born into different communities which do not have
equal levels of economic opportunities, social status, political empowerment, educational
achievements, etc. Thus, they do not possess equal resources of fulfilling their needs. The levels
of inequalities are determined by the relations of individuals and communities with the
resources. In this context, people belonging to all communities do not have resources to meet
their requirements. In India, there exist inequalities among castes, tribes, and gender groups,
and between the poor and the rich. These communities are known as SCs (Dalits), STs, OBCs,
men, women and transgender groups. Because of inequalities among them, all communities
can not be equally capable of meeting their needs. For all to be able to have equal opportunities,
it is essential that the less privileged groups in a society are given special help by the state. The
special help is a compensatory step which the state provides to the deprived groups for the
inequalities they have faced in the past or contemporary time. Reservations Affirmative Action
for the SCs, STs, women, OBCs, and Economically Weaker Sections (EWS) are the
compensatory measures to enable the deprived sections in India for achieving their welfare.

WHAT IS RESERVATION?

Reservation is a device through which some proportion of positions are fixed in employment,
seats in representative bodies such as parliament, state legislatures and local self-government
institutions, for the weaker sections of society such as SCs, STs, OBCs, women or EWS. The
reserved positions can not be occupied by any group which is not entitled for them by law. Why
is reservation required? It is needed to help those sections of society who can not meet their
needs without the help of the state or any other agency. Is reservation discriminatory against
the unreserved categories? It is a discriminatory in the positive sense, not in negative sense.
That mean purpose of such discrimination to bring at par with unreserved category of people
those who need the state’s help. In this sense, reservation is also known as positive
discrimination. As reservation is initiated by the state, is also known as affirmative action.

The Indian state provides reservation to different categories on different grounds. For the
Scheduled Castes (SCs), the principal ground for reservation has been the experience of
untouchability undergone by the castes identified as SCs. The Scheduled Tribes get it because
of their disabilities faced on account of their geographical locations and other characteristics.
The OBCs get it because of their social and educational backwardness. Women get it because
of their discrimination due to patriarchal values in society. And Economically Weaker Section
get it because of their poor economic statues. They latter generally belong to those communities
which can not get reservation in other categories but need state devices for betterment. They
belong to poor persons from the high castes.

CONSTITUTIONAL PROVISIONS

Reservation to backward classes are provided according to Articles 15 (4) and 16 (4) with the
purpose of establishing an egalitarian and secular society. Incorporation of the Articles
promising reservation in the Constitution of India was result of debate in the Constituent
Assembly. There were three arguments in the Constituent Assembly on reservation. Two of the
arguments opposed the reservation. The third one supported it. One argument opposing
reservation underlined that it would result in dilution of merit and efficiency. This would also
create sectarian divisions in society. The second argument did not oppose to reservations in
principles but opposed it on the ground that it would not remove inequalities in society. The
third argument, i.e., the argument which supported reservation, emphasized that the backward
castes had faced discrimination in the past and continued to face even after the Independence.
Reservation for the backward classes in public institutions would solve the problem of
inequalities in society. Several other members of the Constituent Assembly who supported the
reservation gave the following arguments: the weaker sections deserve to be given special
incentives such as reservations, and it would also meet the aspirations of backward classes who
have been aspiring. In order to introduce reservations as per the constitutional provisions, the
central government passed an Ordinance in 1950.

The Ordinance identified SCs and STs for the purpose of getting reservation. But it did not
provide for reservations for other backward Reservation classes than the SCs and STs,
although it used the term “backward classes” or “weaker sections”. This resulted in protest of
the backward classes in south India led by the Dravida Kazhagma (DK). In response to this
demand, the central government led by Nehru, passed the First Constitutional Amendment,
and added sub-close (4) to Article 15, making it 15 (4). The Article 15 (4) provided for the
introduction of social groups which are socially and educationally backward. In 1951, the
Madras government passed an order giving reservation to the SCs and the backward classes
(Shah, ed. 2002). Reservations for the OBCs at the centre and state levels had to be
introduced in the light of recommendations of the commissions which had to be introduced
by the central and state governments respectively.

Two commissions – the Kalelkar Commission in 1953 and Mandal Commission in 1979, were
appointed to identify backward classes who could be provided reservations in the central
government institutions. Different state governments also appointed commissions at different
times to identify backward classes who could benefit from reservations.

Indira Swahney Case

The court in its judgement laid down the following rules

 Backward classes under Article 16(4) cannot be identified on the basis of economic
criteria but the caste system also needs to be considered.
 Article 16(4) is not an exception to clause 1 but an instance of classification as
envisaged by clause 1.
 Backward classes in article 16(4) were different from the socially and educationally
backward mentioned in Article 15(4).
 The concept of a creamy layer was laid down and it was directed that such a creamy
layer be excluded while identifying backward classes.
 Article 16(4) does allow the classification of backward classes into backward and more
backward.
 Reservation shall not exceed 50 percent, moreover, reservation in promotions shall not
be allowed.
 Any new disputes regarding criteria were to be raised in the Supreme Court only.

A number of developments in the reservation have taken place after the Indra Sawhney case.
The Parliament responded by enacting the 77th Amendment to the Constitution by adding
clause [4A] to Article 16 in 1995, by virtue of which powers are conferred to the State to reserve
seats in favour of SC & ST in promotions in Public Services if communities are not adequately
represented in public employment. The Supreme Court upheld the validity of Article 16(4A)
in M. Nagaraj Vs Union of India 2006, and it has laid three requirements:

 SC & ST should be socially and educationally backward.

 No adequate representation for SC and ST in public employment.
  It shall not affect the over efficiency in the administration.

A number of state governments enacted the law in consequence of the 77th Amendment of the
Constitution e.g., Karnataka Extension of Consequential Seniority to Government Servants
Promoted on the Basis of Reservation (to the posts in Civil Services of the State), 2018 was
enacted by the State of Karnataka, and Supreme Court upheld its validity in 2019.

Earlier in BK Pavitra Case, Karnataka Determination of Seniority of the Government Servants

Promoted on the Basis of the Reservation Act, 2002 was held to be unconstitutional on the
ground that the State had not undertaken to determine ‘inadequacy of
representation’, ‘backwardness’ and the impact on overall efficiency before passing the law.

It is also pertinent to mention here that the apex court has also said that, there is no
fundamental right which inheres in an individual to claim reservation in promotions, in the
recent judgment of Mukesh Kumar V State of Uttarakhand which was pronounced in
February 2020.

Ashok Kumar Takur vs State of Bihar

The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure"
of the Constitution so far as it relates to the state maintained institutions and aided educational
institutions.The Court struck down the Bihar Reservation of Vacancies in Posts and Services
(for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment)
Ordinance, 1995.

RESERVATION FOR SCs AND STs

The origin of reservation to the Scheduled Castes can be traced to Poona pact, which was signed
between Gandhi and Ambedkar. According to Poona Pact, the SCs were given reservation in
assemblies and Parliament. The Government of India Act, 1935 gave legal sanction to such
reservation. The Constituent Assembly had representation of the SCs who were elected to
legislative assemblies in British India, and the members of the legislative assemblies
constituted the Constituent Assembly. The issue of reservation was discussed in the Constituent
Assembly. The Constituent Assembly passed a resolution suggesting reservations for the SCs
and STs in the public institutions. Consequently, provisions about reservation were
incorporated in Articles 15 and 16 of the Constitution. And these provisions became effective
with the operation of Constitution in 1950. In 1947 it was decided to introduce the reservation
for the SCs and STs in employment and legislatures. In 1954 it was further extended to the
educational institutions. In central-government funded higher education institutions, 22.5% of
available seats are reserved for Scheduled Caste (SC) and Scheduled Tribe (ST) students which
include 7.5% for STs, 15% for SCs.

HISTORY OF OBC RESERVATION

Although reservation for various socially and educationally backward classes such as SCs, STs,
OBCs, women, and people from the EWS category has been implemented as per provisions of
Indian Constitution in the post-Independence period, its history in India can be traced to the
colonial period. In 1880, the colonial government set Hunter Commission to suggest measures
to give reservation in the government positions to the socially backward classes. Jyotirao Phule
made a plea before the Hunter commission to grant reservation to these classes. In 1902
Maharaja Sahuji of Kolhapur introduced 50 per cent reservation for the backward classes in
jobs. This is the first example of giving reservation to backward classes in India in modern
Indian history. In 1921 Madras government introduced community-wise reservation as follows:
44 percent for non-Brahmins, and16 percent for Brahmins, Muslims, and Christians and Anglo
Indians each.

RESERVATION FOR OBCs IN THE CENTRAL GOVERNMENT INSTITUTIONS

Kaka Kalelkar Report

For introducing reservation at the central level, the central government appointed the first OBC
commission known as Kalelkar Commission in 1953, named after its chairman Kaka Kalelkar.
The Kalelkar Commission consisted of eleven members. Most of them belonged to low castes
and its chairman Kaka Kalelkar was a Brahmin, a freedom fighter from Gujarat. It submitted
the report in 1955.

It aimed to identify the socially and educationally backward classes in India. The Kalekar
Commission used four criteria for identifying the OBCs: low social position in caste hierarchy
in Hindu society; lack of educational progress among the major section of caste or community;
inadequate or no representation in the government service; and inadequate representation in
the field, trade, commerce and industry. The Kalelkar Commission identified 2399 socially and
educationally castes deserving to get reservation in the central government institutions. But the
central government did not accept the recommendations of the Kalelkar Commission. It argued
that the Commission did not apply objective criteria for identifying backward classes (Shah,
ed. 2002; Jaffrelot 2003). And the reservations could not be implemented at the central level
till the implementation of report of another commission’s the Mandal Commission Report in
1993 about the reservation in central government.

Mandal Commission Report Rejection of the recommendations of the Kalelkar Report angered
the backward classes. From the time of the rejection of the Kelelkar Report in the 1950s till the
declaration to implement the Mandal Commission report by the VP Singh government in 1990,
the backward classes, socialist leaders and political parties and farmers leaders belonging to
farming communities continued to mobilize support for introduction of reservation for the
backward classes in the public positions in the centre. Regarding the reservation in the states,
as south Indian states had already implemented OBCs reservations from 1950s- 1970s, such
demand became more persistent in north Indian states. By the mid-1970s, the reservation for
backward classes in public institutions became a common agenda of the socialists, farmers’
leader such as Charan Singh who had strong support base among the farming communities
such Jats, Yadavs, Kumis, etc, of the All India Backward Class Federation (AIBCF) in the
Hindi speaking state.

The parties and leaders representing the interests of backward classes became principal
constituent of the Janata Party, which formed government at the centre in 1977- 1979. They
were able to influence the Morarji Desai government to constitute a backward class
commission to identify backward classes and suggest measures to introduce reservation for
them in the central government institutions.

Thus, in 1979 the Morarji Desai-led Janata Party government constituted the Second Backward
Class Commission, known as the Mandal Commission. It came to be known as such after the
name of its Chairman, B.P. Mandal. The Mandal Commission adopted 11criteria of
backwardness and grouped them in three headings such as social, economic and educational in
order to identify the backward castes. The commission identified around 3743 castes and
communities as backward classes. They formed 52 per cent people belong to backward castes.
As there was no caste census after 1931 census, this census had become the only census of
identifying backward castes by the Mandal Commission.

The Mandal Commission submitted its report in 1980. Submission of the Mandal Commission
report was followed by the demand for its implementation by several political parties and OBC
leaders. The Janata Dal was formed by V.P. Singh following his exit from the Congress. The
Janata Dal consisted several parties or OBC leaders or the next generation descendants which
had earlier been part of the Janata Party. As a result, implementation of the Mandal Commission
Report was included in the Janata Dal’s election manifesto in 1989 Lok Sabha election. The
defeat of the Congress in this election led to the formation of the second non-Congress
government at the centre with VP Singh as the Prime Minister (1989-1990).

It was a government of coalition known as the National Front, and Janata Dal was the principal
partner in the coalition. As implementation of the Mandal Commission was in the Janata Dal’s
manifesto, the VP Singh government announced implementation of the Mandal Commission
Report in July 1990. The implementation of the Report led to violent protest in India, especially
in north India. Several petitions challenged the announcement to implement the Mandal
Commission Report.

The Supreme Court took all petitions together in 1992 in Indra Sawhney vs Union of India. It
upheld the decision to implement the Mandal Commission Report on the following conditions:
One, the creamy layer among the OBCs with certain annual limit (subject to change by the
central government from time to time) would be exclude from the benefits of reservation meant
for the OBCs. That means OBC reservation will be given only to the NonCreamy layers among
the OBCs: those whose income will be less than the limit set to exclude the Creamy layer
among them. Two, the total limit for reservation to all categories – SCs, STs and OBCs would
not cross a limit of 50 per cent of the total positions. Since the SCs and STs have 22.5 per cent
reservation, the reservation limit for the OBCs was fixed as 27.5 per cent. In view of the
Supreme Court judgement, the recommendations of the Mandal Commission got accepted by
the central governments in 1993. In 2006, the UPA-I government extended the reservation for
the OBCs to the central government educational institutions.

RESERVATION FOR OBCs IN THE STATES

Non-implementation of the Kaka Kalelkar Commission report angered the backward classes.
In south India, Periyar-led DK movement, and in north India the socialist and backward classes
continued to raise the demand. As you have read in sub-section 13.6.2, in 1979 the Mandal
Commission was appointed about the reservation to OBCs at the national level.In the 1970s,
several state governments also appointed Socially and Educationally Backward Commissions
(SEBC). The purpose of commissions was to identify backward classes and to suggest special
treatment to be given to the OBCs as given to the SCs and STs. For example, the Hemvati
Nandan Bahuguna Congress government in UP appointed the Cheddi Lal Sathi Commission,
and the Karpoori Thakur-led Janata Party government appointed Mungeri Lal commission to
identify backward classes and suggest measures to introduce reservation for the backward
classes.

Following recommendations of the commissions, reservation was introduced by Reservation

Ram Naresh Yadav’s government and Karpoori Thakur’s governments led by Janata Party, in
the 1970s. In south Indian states, reservation for OBCs was introduced prior to it was in north
Indian states.

RESERVATION FOR WOMEN

The 72rd and the 73rd Constitutional Amendments of 1992 and in 1993 provided 33 per cent
reservation to women in the institutions of local self-governance in rural and urban areas in
India respectively. Prior to these Amendments women were not entitled to political reservation.
The reservation created confidence among women and made them more conscious of their
democratic rights. Unlike prior to introduction of the reservation for them in the political bodies
at local level, women’s presence marked a remarkable increase. However, in practice, several
drawbacks have been noticed. In several cases, the women elected representatives became
proxies for the male members of the families - their husbands, fathers, brothers, etc. While for
the purposes of formalities, the women elected members put the signature, in actual practice
the male members worked on their behalf.

There are some exceptions, where elected women representatives have fulfilled their
responsibilities independently. The reservation for women in the local the institutions of local-
self governance was result of such demand of new social movements of the 1980s. In these
movements, women have played decisive role. The demand is also raised to introduce 33
percent reservation for women in the higher level of political institutions such as Parliament
and Legislative assemblies. Such demands are articulated by civil society organizations,
intellectuals and several political parties. But there is no unanimity among the parties on this
issue. A section of political leaders oppose reservation for women arguing that reservation for
women will cut into the share of backward classes.

The Women’s Reservation Bill promising 33 per cent reservation to women in the Parliament
was passed by the Rajya Sabha on 9 March 2010 by a majority vote of 186 members in favour
and 1 against. The bill has not yet been passed by the Lok Sabha. However, there is consistent
demand from civil society organizations to introduce reservation for women in Parliament and
the state legislative bodies.
Indian Young Lawyers Association vs State of Kerala (2018)

The Supreme Court, in a 4:1 verdict, held that the restrictions upon the entry of women between
the ages of 10-50 into the Sabrimala shrine were unconstitutional and struck down Rule 3(b)
of the KHPW Act. The Court further passed directions to ensure the safety of women pilgrims
entering the shrine.

RESERVATION FOR EWS

Apart from social and educational backwardness and experiences of untouchability in India,
there are some castes that are economically poor but not socially backward. They are not
entitled for caste-based affirmative action under reservation. They are generally known as
general category people, not entitled to reservation benefit meant for the SCs, STs and OBCs.
The Government of India has defined them as EWS (Economically Weaker Sections). In
January 2019, the persons belonging to the EWS category got 10 per cent reservation in
positions in the central government institutions. A person whose family annual income fell
within the limit of Rs. 8 lakh qualifies to belong to the EWS category. The reservation to the
EWS was proposed in the Constitution (One Hundred and Twenty-Fourth Amendment) Bill,
2019 tabled by the Union Government. Under the provisions for reservation to the people
from the EWS, a process of recruitment to positions in central government has started in
several central government institutions in India.

USA

SFFA v Harvard(2023) - is a landmark decision of the Supreme Court of the United States in
which the court held that race-based affirmative action programs in college admissions
processes violate the Equal Protection Clause of the Fourteenth Amendment.

In the United States, affirmative action consists of government-mandated, government-

approved, and voluntary private programs granting special consideration to historically
excluded groups, specifically racial minorities and women. These programs tend to focus on
access to education and employment in order to redress the disadvantages associated with past
and present discrimination. Another goal of affirmative action policies is to ensure that public
institutions, such as universities, hospitals, and police forces, are more representative of the
populations they serve.
U.S. president John F. Kennedy issued Executive Order 10925, which required government
contractors to take "affirmative action to ensure that applicants are employed, and that
employees are treated during employment, without regard to their race, creed, color, or national
origin" but affirmative action eventually evolved into a complex system of group preferences
which would face many legal challenges. Affirmative action included the use of racial quotas
until the Supreme Court ruled that quotas were unconstitutional in 1978. Affirmative action
currently tends to emphasize not specific quotas but rather "targeted goals" to address past
discrimination in a particular institution or in broader society through "good-faith efforts ... to
identify, select, and train potentially qualified minorities and women. For example, many
higher education institutions have voluntarily adopted policies which seek to increase
recruitment of racial minorities Outreach campaigns, targeted recruitment, employee
and management development, and employee support programs are examples of affirmative
action in employment. Nine states in the United States have banned race-based affirmative
action: California (1996), Washington (1998, rescinded 2022), Florida (1999), Michigan
(2006), Nebraska (2008), Arizona (2010), New Hampshire (2012), Oklahoma (2012), and
Idaho (2020). Florida's ban was via an executive order and New Hampshire and Idaho's bans
were passed by the legislature. The other six bans were approved at the ballot. The
1996 Hopwood v. Texas decision effectively barred affirmative action in the three states within
the United States Court of Appeals for the Fifth Circuit—Louisiana, Mississippi, and Texas—
until Grutter v. Bollinger abrogated it in 2003.

Affirmative action policies were developed to address long histories of discrimination faced by
minorities and women, which reports suggest produced corresponding unfair advantages for
whites and males. They first emerged from debates over non-discrimination policies in the
1940s and during the civil rights movement. These debates led to federal executive orders
requiring non-discrimination in the employment policies of some government agencies and
contractors in the 1940s and onward, and to Title VII of the Civil Rights Act of 1964 which
prohibited racial discrimination in firms with over 25 employees. The first federal policy
of race-conscious affirmative action was the Revised Philadelphia Plan, implemented in 1969,
which required certain government contractors to set "goals and timetables" for integrating and
diversifying their workforce. Similar policies emerged through a mix of voluntary practices
and federal and state policies in employment and education. Affirmative action as a practice
was partially upheld by the Supreme Court in Grutter v. Bollinger (2003), while the use of
racial quotas for college admissions was ruled unconstitutional in Regents of the University of
California v. Bakke (1978). In Students for Fair Admissions v. Harvard (2023), the Supreme
Court majority ruled that race-based affirmative action in college admissions violated the Equal
Protection Clause of the Fourteenth Amendment, with concurrences highlighting race-based
affirmative action's violation of Title VI of the Civil Rights Act.

Affirmative action remains controversial in American politics. Supporters claim that it

promotes equality and representation for groups which are socioeconomically disadvantaged
or have faced historical discrimination or oppression and counteracts continuing bias and
prejudice against women and minorities. Supporters also point to contemporary examples of
conscious and unconscious biases, such as the finding that job-seekers with African American
sounding names may be less likely to get a callback than those with white-sounding names, as
proof that affirmative action is not obsolete. Coversely, opponents argue that these policies
constitute racism and/or amount to discrimination against other racial and ethnic groups, such
as Asian Americans and White Americans, which entails favoring one group over another
based upon racial preference rather than achievement, and many believe that the diversity of
current American society suggests that affirmative action policies succeeded and are no longer
required. Opponents also argue that it tends to benefit the most privileged within minority
groups at the expense of the least fortunate within majority groups, or that when applied to
universities it can hinder minority students by placing them in courses too difficult for them.

Source: Britanica

Affirmative action, in the United States, an active effort to improve employment or educational
opportunities for members of minority groups and for women. Affirmative action began as a
government remedy to the effects of long-standing discrimination against such groups and has
consisted of policies, programs, and procedures that give limited preferences to minorities and
women in job hiring, admission to institutions of higher education, the awarding of government
contracts, and other social benefits. The typical criteria for affirmative action are race,
disability, gender, ethnic origin, and age.

Affirmative action was initiated by the administration of President Lyndon Johnson (1963–69)
in order to improve opportunities for African Americans while civil rights legislation was
dismantling the legal basis for discrimination. The federal government began to institute
affirmative action policies under the landmark Civil Rights Act of 1964 and an executive
order in 1965. Businesses receiving federal funds were prohibited from using aptitude tests and
other criteria that tended to discriminate against African Americans. Affirmative action
programs were monitored by the Office of Federal Contract Compliance and the Equal
Employment Opportunity Commission (EEOC). Subsequently, affirmative action was
broadened to cover women and Native Americans, Hispanics, and other minorities and was
extended to colleges and universities and state and federal agencies.

By the late 1970s the use of racial quotas and minority set-asides led to court challenges of
affirmative action as a form of “reverse discrimination.” The first major challenge was Regents
of the University of California v. Bakke (1978), in which the U.S. Supreme Court ruled (5–4)
that quotas may not be used to reserve places for minority applicants if white applicants are
denied a chance to compete for those places. Although the court outlawed quota programs, it
allowed colleges to use race as a factor in making admissions decisions. Two years later a
fragmented court upheld a 1977 federal law requiring that 10 percent of funds for public
works be allotted to qualified minority contractors.

The Supreme Court began to impose significant restrictions on race-based affirmative action
in 1989. In several decisions that year, the court gave greater weight to claims of reverse
discrimination, outlawed the use of minority set-asides in cases where prior racial
discrimination could not be proved, and placed limits on the use of racial preferences by states
that were stricter than those it applied to the federal government. In Adarand
Constructors v. Pena (1995), the court ruled that federal affirmative action programs were
unconstitutional unless they fulfilled a “compelling governmental interest.”

Opposition to affirmative action in California culminated in the passage in 1996 of the

California Civil Rights Initiative (Proposition 209), which prohibited all government agencies
and institutions from giving preferential treatment to individuals on the basis of their race or
sex. The Supreme Court effectively upheld the constitutionality of Proposition 209 in
November 1997 by refusing to hear a challenge to its enforcement. Legislation similar to
Proposition 209 was subsequently proposed in other states and was passed in Washington in
1998. The Supreme Court also upheld a lower-court ruling that struck down as unconstitutional
the University of Texas’s affirmative action program, arguing in Hopwood v. University of
Texas Law School (1996) that there was no compelling state interest to warrant using race as a
factor in admissions decisions. Afterward, there were further legislative and electoral
challenges to affirmative action in many parts of the country. In the Bollinger decisions (2003),
two landmark rulings involving admissions to the University of Michigan and its law school,
the Supreme Court reaffirmed the constitutionality of affirmative action (Grutter v. Bollinger),
though it also ruled that race could not be the preeminent factor in such decisions, striking
down the university’s undergraduate admissions policy that awarded points to students on the
basis of race (Gratz v. Bollinger). Three years later admissions policies of the kind approved
in Grutter were outlawed in Michigan under a state constitutional amendment banning race-
based and other discrimination or preferential treatment “in public employment,
public education, or public contracting.” The Supreme Court upheld the amendment as it
applied to admissions policies in Schuette v. Coalition to Defend Affirmative Action (2014). In
2013 in Fisher v. University of Texas at Austin, the Supreme Court vacated and remanded an
appeals court decision that had rejected a challenge to an affirmative action program modeled
on the one approved in Gratz, finding that the lower court had not subjected the program to
strict scrutiny, the most-demanding form of judicial review. After the appeals court upheld the
program a second time, the Supreme Court affirmed that decision (2016), determining that
strict scrutiny had been satisfied.

In 2022 the Supreme Court agreed to hear two cases during its October 2022 term involving a
challenge to Grutter v. Bollinger: Students for Fair Admissions, Inc. v. President and Fellows
of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. In
both cases the plaintiff argued that the Grutter Court’s ruling was “grievously wrong” and
should be overturned because it permitted intentional racial discrimination in college and
university admissions. The plaintiff also asked the Court to find that the admissions policy of
Harvard violated Title VI of the Civil Rights Act (which prohibits racial discrimination by
institutions that receive federal funding) and that the policy of the University of North Carolina
violated both Title VI and the equal protection clause of the Fourteenth Amendment.

In June 2023 the Court ruled (6–3) that the admissions programs of both Harvard and the
University of North Carolina violated the equal protection clause. Specifically, the Court held
that both programs failed to observe a set of restrictions on the permissible consideration of
race that the Grutter Court had found to be necessary for consistency with the equal protection
clause: namely, that the programs not operate on the basis of stereotyped assumptions
regarding the viewpoints of minority applicants; that they not use race as a negative factor in
the assessment of applicants who are not members of a preferred racial group; and that they
not continue indefinitely but come to a predetermined end. The Court’s decision was widely
understood as marking the effective end of all race-based affirmative action programs in
college and university admissions in the United States.
When did affirmative action start?
Affirmative action was initiated during U.S. President Lyndon B. Johnson’s administration in
the 1960s. The federal government instituted affirmative action policies under the Civil Rights
Act of 1964 and an executive order in 1965. Businesses receiving federal funds were prohibited
from using discriminatory tests and criteria, and Johnson’s executive order, as later
amended, forbade these businesses from discriminating “because of race, color, religion, sex,
sexual orientation, gender identity, or national origin.”

UK

Positive action in the UK

In the UK, we do not have the concept of affirmative action. Instead, under the Equality Act
2010, there is something called “positive action”. This is the use of measures which are
permitted under the Equality Act 2010 to help and enable people from under-represented
workplace groups to overcome barriers when competing with other applicants who are not
under-represented. The aim of positive action is to lessen and remove discrimination from the
workplace, making it more equal

Although UK employers must be careful not to allow their EDI policies to positively
discriminate, which, under the Equality Act 2010 is prohibited, businesses and organisations in
the UK could look at what practical steps they could take to encourage and support those from
underrepresented groups.

What is positive action?

Positive action is a range of equality measures, which are legal under the Equality Act 2010.
Essentially, positive action is where you choose to hire or promote candidates who possess a
protected characteristic, as long as they’re as qualified for the role as other applicants.

Additionally, positive action can be a company training people who possess a protected
characteristic. As a result of this training, someone with a protected characteristic can overcome
disadvantages and compete with other applicants.

What are protected characteristics?

Any of these following characteristics are protected. Therefore, it’s unlawful under the Equality
Act 2010 to favourite people with these protected characteristics without a justifiable reason.
  Age
 Disability
 Gender reassignment
 Marriage or civil partnership
 Pregnancy and maternity
 Race
 Sex
 Religion or belief
 Sexual orientation

What is the difference between positive action and positive discrimination?

Positive discrimination is unlawful, whereas positive action is lawful.

As highlighted above, positive action is where a role is given to someone with a protected
characteristic, and they are as qualified for the position as other applicants.

In contrast, a company recruiting or promoting someone based on a protected characteristic,

regardless of their ability to do the job, is unlawful. This circumstance will be considered
positive discrimination, which is illegal under the Equality Act 2010. Additionally, it’s also
positive discrimination for a company to set quotas to promote or recruit more people who have
protected characteristics.

FRANCE

No distinctions based on race, religion or sex are allowed under the 1958 French
Constitution. Since the 1980s, a French version of affirmative action based on neighborhood is
in place for primary and secondary education. Some schools, in neighborhoods labeled
"Priority Education Zones", are granted more funds than the others. Students from these
schools also benefit from special policies in certain institutions.

The French Ministry of Defence tried in 1990 to make it easier for young French soldiers of
North-African descent to be promoted in rank and obtain driving licenses. After a strong protest
by a young French lieutenant in the Ministry of Defence newspaper (Armées d'aujourd'hui),
the driving license and rank plan was cancelled. After the Sarkozy election, a new attempt in
favour of Arab-French students was made, but Sarkozy did not gain enough political support
to change the French constitution. However, some French schools do implement affirmative
action in that they are obligated to take a certain number of students from impoverished
families.

Additionally, following the Norwegian example, after 27 January 2014, women must represent
at least 20% of board members in all stock exchange listed or state-owned companies. After 27
January 2017, the proportion will increase to 40%. All appointments of males as directors will
be invalid as long as the quota is not met, and monetary penalties may apply for other directors.