CONSTITUTIONAL

LAW -II
Mrs. Shilpa A Raikar
Lecturer
R. L. Law College, Belagavi.
UNIT-I
Federal System: Organization of State.

Relationship between the Centre and the State: Legislative, Financial and
Administrative,

Cooperative Federalism and recommendation of Commission.

Freedom of Trade and Commerce, Official Language, Local self-government with

special
emphasis on 73rd and 74th Amendment.

Constitutional provision of Jammu and Kashmir (Art. 370)

Special provisions relating to specific states (Articles 371-A to 371-J).

UNIT-II

•Executive: Centre and State; President and Governor; powers and functions.

•Parliament and State Legislature: Bicameralism, Composition, powers and function.

•Councils of ministers: collective responsibility, Position of Prime Minister and Chief

Minister.
UNIT-III

•Speaker: Parliament and State Legislature, Powers and Functions,

Privileges Anti-Defection Law.

•Judiciary: Union and States, appointment, powers, jurisdiction and Transfer of

judges.
UNIT-IV

•Subordinate Judiciary, Administrative Tribunals.

•Public Service Commission: services under the center and the state, Constitutional
protection to Civil Servants.

•Election Commission: Powers and functions.

•State liability for Torts and Contract.

UNIT V

Emergency: Types, Effects and effects on Fundamental Rights.

Constitutional Interpretation

Amendment: Basic structure theory.

Schedules.

Review of working of the Constitution.

Prescribed Books

l. M. P. Jain – Indian Constitutional Law Vol. I & II

Reference Books

• 1. H. M. Seervai – Constitutional Law of India

• 2. V. N. Shukla – Constitution of India
• 3. T. K Tope – Constitutional Law
• 4. S. Shiva Rao – Framing of Indian Constitution
• 5. Subash.C. Kashyap – Parliamentary Procedure
• 6. Subash. C. Kashyap – Constitution of India
• 7. D. J. De – The Constitution of India, Vol. I and II
• S. J. N. Pandey – Constitutional Law of India
• 9. D. D. Basu – Constitutional Law of India
•  

 
INTRODUCTION
Constitutional law
Constitutionalism
Rule of Law
Historical perspective
Salient features of the Indian Constitution
Fundamental Law
RELATIONSHIP BETWEEN CENTRE
AND STATE
• LEGISLATIVE RELATIONS ------------ Articles 245 to 255
• ADMINISTRATIVE RELATIONS------ Articles 256 to 263
• FINNANCIAL RELATIONS ------------- Articles 264 to 293
Legislative Relations

Distribution of legislative powers – The Three Lists-Union –State –

Concurrent List.
-Territorial Jurisdiction to Legislate
A.H. Wadia v. Income-tax Commissioner(AIR !949 FC 18,25)
Territorial Nexus
Principles of Interpretation of the Lists
-Each entry to be interpreted Broadly
-Harmonious Interpretation of Entries
Rule of Pith and substance
Doctrine of Colorable Legislation –what can not
be done directly cannot also be done indirectly.
Repugnancy between a central and state law Article 254(1)
Repugnancy means that conflicting results are produced when both the
laws are applied to the same facts.
Residuary Power

Central control over state legislation

Administrative Relations[Art.s 256-263]

Distribution of Executive Power

Central – State Administrative Co-ordination
Centre conferring Powers on the States under the Constitution
ALL-INDIA SERVICES
Grant in aid
Full faith and credit clause
Inter-State Council
Establishment- Duties - Procedure
FINANCIAL RELATIONS[Articles 264-293]
Allocation of Taxing Powers
Central Taxes(entries 82 to 92B Parliament is entitled to levy exclusively)
State Taxes(entries 45-63)
Fees and Tax
Restrictions on Taxing Powers
Fiscal need grants
Specific purpose grants
Finance Comission-establishment- powers and functions.
Co-Operative Federalism
From competitive to co-operative federalism
Full Faith and Credit
Inter-State Council
Zonal Councils
River Water Disputes
Other Statutory Disputes-UGC-DVC-DCC
Planning Commission- Niti Ayog
Trade, Commerce and Intercourse
[Articles 301 to 307]
Inter-relation between Articles 19(1)(g)and 301
Content of Article 301
- Trade, commerce and intercourse
- Free
- Throughout the Territory of India
Regulatory and Compensatory Tax
Exceptions to Freedom of Trade and Commerce
Parliamentary power to regulate trade and commerce
States power to regulate Trade and Commerce
Meenakshi v. State of Karnataka
Status of Jammu and Kashmir
• What is Article 370?

• Included in the Constitution on October 17, 1949, Article 370 exempts J&K from the Indian Constitution
(except Article 1 and Article 370 itself) and permits the state to draft its own Constitution. It restricts
Parliament’s legislative powers in respect of J&K. For extending a central law on subjects included in the
Instrument of Accession (IoA), mere “consultation” with the state government is needed. But for extending it
to other matters, “concurrence” of the state government is mandatory. The Instrument of Accession came into
play when the Indian Independence Act, 1947 divided British India into India and Pakistan.

• For some 600 princely states whose sovereignty was restored on Independence, the Act provided for three
options: to remain an independent country, join Dominion of India, or join Dominion of Pakistan — and this
joining with either of the two countries was to be through an IoA. Though no prescribed form was provided,
a state so joining could specify the terms on which it agreed to join. The maxim for contracts between states
is pacta sunt servanda, i.e. promises between states must be honoured; if there is a breach of contract, the
general rule is that parties are to be restored to the original position.
What were the terms included in the IoA for Kashmir?
The Schedule appended to the Instrument of Accession gave Parliament the power to
legislate in respect of J&K only on Defence, External Affairs and Communications. In
Kashmir’s Instrument of Accession in Clause 5, Raja Hari Singh, ruler of J&K,
explicitly mentioned that the terms of “my Instrument of Accession cannot be varied
by any amendment of the Act or of Indian Independence Act unless such amendment
is accepted by me by an Instrument supplementary to this Instrument”. Clause 7 said
“nothing in this Instrument shall be deemed to commit me in any way to acceptance
of any future constitution of India or to fetter my discretion to enter into arrangements
with the Government of India under any such future constitution”.
• How did the accession come about?
Raja Hari Singh had initially decided to remain independent and sign standstill
agreements with India and Pakistan, and Pakistan in fact signed it. But following an
invasion from tribesmen and Army men in plainclothes from Pakistan, he sought the
help of India, which in turn sought the accession of Kashmir to India. Hari Singh
signed the Instrument of Accession on October 26, 1947 and Governor General Lord
Mountbatten accepted it on October 27, 1947.
• It was India’s stated policy that wherever there was a dispute on accession,
it should be settled in accordance with the wishes of people rather than a
unilateral decision of the ruler of the princely state. In India’s acceptance of
the IoA, Lord Mountbatten stated that “it is my Government’s wish that as
soon as law and order have been restored in Kashmir and her soil is cleared
of the invader, the question of the State’s accession be settled by a reference
to the people”. India regarded accession as purely temporary and
provisional, as stated in the Government of India’s White Paper on J&K in
1948. In a letter to J&K Prime Minister Sheikh Abdullah dated May 17,
1949, Prime Minister Jawaharlal Nehru with the concurrence of Vallabhbhai
Patel and N Gopalaswami Ayyangar wrote: “It has been settled policy of
Government of India, which on many occasions has been stated both by
Sardar Patel and me, that the Constitution of Jammu and Kashmir is a
matter for determination by the people of the state represented in a
Constituent Assembly convened for the purpose.”
• Was Article 370 a temporary provision?
It is the first article of Part XXI of the Constitution. The heading of this part is
‘Temporary, Transitional and Special Provisions’. Article 370 could be interpreted as
temporary in the sense that the J&K Constituent Assembly had a right to
modify/delete/retain it; it decided to retain it. Another interpretation was that accession
was temporary until a plebiscite. The Union government, in a written reply in
Parliament last year, said there is no proposal to remove Article 370. Delhi High Court
in Kumari Vijayalaksmi (2017) too rejected a petition that said Article 370 is temporary
and its continuation is a fraud on the Constitution. The Supreme Court in April 2018
said that despite the headnote using the word “temporary’, Article 370 is not temporary.
In Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. A five-
judge Bench said “Article 370 has never ceased to be operative”. Thus, it is a permanent
provision.
• Is there any ground in the view that Article 370 is essential for J&K being a part of India?
• Article 3 of the J&K Constitution declares J&K to be an integral part of India. In the Preamble to the Constitution,
not only is there no claim to sovereignty, but there is categorical acknowledgement about the object of the J&K
Constitution being “to further define the existing relationship of the state with the Union of India as its integral
part thereof. Moreover people of state are referred as ‘permanent residents’ not ‘citizens’.” Article 370 is not an
issue of integration but of autonomy. Those who advocate its deletion are more concerned with uniformity rather
than integration.
• What is Article 35A?
Article 35A stems from Article 370, having been introduced through a Presidential
Order in 1954. Article 35A is unique in the sense that it does not appear in the main
body of the Constitution — Article 35 is immediately followed by Article 36 — but
comes up in Appendix I. Article 35A empowers the J&K legislature to define the
state’s permanent residents and their special rights and privileges.
• Present Position of Jammu and Kashmir
Jammu and Kashmir was a region formerly administered by India as a state
from 1954 to 2019, constituting the southern and southeastern portion of the
larger Kashmir region, which has been the subject of a dispute between
India, Pakistan and China since the mid-20th century. After the Government
of India repealed the special status accorded to Jammu and Kashmir under 
Article 370 of the Indian constitution in 2019, the Parliament of India passed
the Jammu and Kashmir Reorganisation Act, which contained provisions that
dissolved the state and reorganised it into two union territories – 
Jammu and Kashmir in the west and Ladakh in the east, with effect from 31
October 2019. The state of Jammu and Kashmir consisted of three divisions:
the Jammu Division, the Kashmir Division and Ladakh which are further
divided into 22 districts.
Special provisions with respect to the States of Maharashtra and
Gujarat(Art.371)
Special provisions with respect to the States of Nagaland(Art. 371-A)
Special provisions with respect to the States of Assam(Art. 371-B)
Special provisions with respect to the States of Manipur(Art. 371-C)
Special provisions with respect to the States of Andhra Pradesh &
Telangana(Art. 371- D)
Establishment of Central University in Andhra Pradesh( Art. 371- E)
Special provisions with respect to the States of Sikkim(Art. 371-F)
Special provisions with respect to the States of Mizoram(Art. 371-G)
Special provisions with respect to the States of Arunachal Pradesh(Art. 371-H)
Special provision with respect to the State of Arunachal Pradesh
(Art.371-H)
Special provision with respect to the State of Goa(Art. 371-I)
Special provision with respect to the State of Karnataka(Art. 371-J)
THE UNION
The Union may be resolved into three institutional components;
(a) Legislative as represented by Parliament,
(b) Executive as represented by the President and the Council of
Ministers [Art.s 52to78 and 123] and
(c) Judicial as represented by the Supreme Court of India
.[Art.s 124-147].
Articles 52 to 151 of the Constitution deal with the Union.
Constitution of Parliament
India’s Parliament is bicameral.
House of the People or Lok Sabha or Lower or Popular House
Council of States or Rajya Sabha or Upper House
Composition of Rajya Sabha- 250 membership- among 238 elected
representatives of the State- permanent house
Composition of Lok Sabha- 550 members
Parliamentary membership- Qualifications and Disqualifications
Anti Defection Law- X SCHEDULE- 53rd Amendment
Kihota Hollohan case
Meeting of Parliament
Summoning
Prorogation
Adjournment
Dissolution
Functions of Parliament
Legislation- procedure-Joint session-president’s assent-
Control of Public finance
Deliberation and Discussion
Control of the Executive
Removal of certain high officials and
the Constitution function.
Parliamentary Privileges
Supremacy of the Indian Parliament
UNION JUDICIARY
Supremacy of Executive and Independence of Judiciary
Judges Transfer case I
Meaning of word “consultation”
S P Gupta Case
Sankalchand Sheth’s case
Jurisdiction of Supreme Court
1. A Court of Record Art 129
2. Original Jurisdiction
3. Appellate Jurisdiction
a) Appeal in Constitutional Matters .Art. 132
b) Appeal in Civil Cases, Art. 133
c) Appeal in Criminal Matters. Art. 134
4. Appeal by Special Leave . Art. 136
5. Advisory Jurisdiction Art 143
A Court of Record
• Article 129 in The Constitution Of India
• 129. Supreme Court to be a court of record The Supreme Court shall be a
court of record and shall have all the powers of such a court including the
power to punish for contempt of itself.
Contempt of Court- Civil –Criminal
Delhi Judicial Service association v. State of Gujarat
Mohd. Aslam v. Union of India
Manipur Assembly Speaker Borobaru’s Case
In re Vinay Chandra Mishra case
DDA v. Skipper Construction Co. and Ltd.
DDA v. Skipper Construction Co. and Ltd.
• Delhi Development Authority in auction –Highest bid by Skipper
Company- 9.82 crores –company did not paid even after repeated
demand by DDA-DDA started proceeding to cancel the bid – skipper
went to court-stayed for cancellation – DDA applied for vacating stay –
however repeated adjournments- Skipper started selling plots to
various persons receiving money-in 1990 HC passed an order
permitting skipper to commence construction on plots subject to
deposit 8 crores within one month and stop all further construction till
the said payment licence gets terminated and in case of default DDA
would be entitled to re-enter the plot-Skipper failed to deposit the
amount ,approached SC by Special leave petition-SC granted
SC granted an interim order subject to deposit 2.5 crores within one
month and 2.5 crores before 8.4.91 and expressly prohibited skipper
from any right in favour of third person – in spite of this prohibitory
orders, the respondent issued ad in newspaper-SLP dismissed –DDA re-
entered the plot-skipper co. collected 14 crores from other persons –
SC Initiated suomoto contempt proceedings against the directors of the
co. Tejwant singh and his wife sentenced them to imprisonment and
fine under Art 129 &142.
II . Original Jurisdiction of the Supreme
Court
Article 131
• Original jurisdiction
Enforcement of Fundamental Rights
• Extraordinary jurisdiction
@ Election of President and Vice- President
@ Intergovernmental Disputes
Case: State of Mysore v. U O I (AIR 1978 SC 143)
• Extraordinary jurisdiction
@ Election of President and Vice- President
@ Intergovernmental Disputes
Parties
Disputes
1. Appellate Jurisdiction

a) Appeal in Constitutional Matters .Art. 132

b) Appeal in Civil Cases, Art. 133
c) Appeal in Criminal Matters. Art. 134
Appellate Jurisdiction of the Supreme
Court
@1..Constitutional Matters( Art.132)
An appeal lies to the SC from any judgment, decree or final order, whether in a
civil , criminal or other proceeding of a high Court if it certifies that the case
involves a substantial question of law as to the interpretation of the Constitution.
Certificate from High Court must.
SC is Final Interpreter
No appeal lies from interim order of High Court.
Contempt of court proceedings can be dealt under this.
Substantial question of law must be involved to make under this provision.
@.2.. Civil Proceedings appeal lies -Article 133(i)

What do you mean by civil proceeding

Proceedings under Art.226 is civil proceeding?
Related caselaws
@3..Criminal matters (Art. 134)
-Limited power to SC
-only in exceptional criminal cases
“Acquittal” broadly interpreted
Tarachand v. State(1962)– Accused charged with murder under 302 I P
C -trial court convicted him under 304 I P C- HC reversed – SC held
accused entitled to appeal under Art.134(1)(a)-as a matter of right.
Art.134(1)(b)-HC has withdrawn for trial a case from a lower court –
sentenced to death appeal can lies before SC.
State of Assam v. Abdul Noor,- HC should specifically mention the why
it has granted the certificate to allow appeal to SC.
Appeal by Special Leave petition –Article
136
• Under this article the SC is authorised to grant in its discretion, special
leave to appeal from

• a) any judgment, decree, determination ,sentence or order

• b) in any case or matter
• C) passed or made by any court or tribunal in the territory of India.
Advisory Jurisdiction
• Article 143 of the Constitution
• Cases –In Delhi laws act case
• In re Kerala education Bill
• In re Berubari Case
• In Re Cuavery water Disputes case
• Ayodhya case…etc
Supreme court bound by its own decision?
INDEPENDENCE OF JUDICIARY
Only an impartial and independent judiciary can protect the rights of
the individual and provide equal justice without fear or favour.
The Constitution has made several provision to ensure independence of
judiciary.
1. Security of tenure.
2. salary of judges fixed not subject to vote of legislature.
3. Parliament can extend but cannot curtail the jurisdiction and power
of the SC(Art.138)
4. No discussion in Legislature on the conduct of the Judges.
5. Power to punish for its contempt.
6. Separation of judiciary from executive.
7. Judges of the SC are appointed by the Executive with the consultation
of legal experts.
8. Prohibition on Practice after retirement.(Art. 124(7))
The State Executive[ Arts.153-167 & 213]
• Governor
Appointment of a Governor
Qualification
Powers of the Governor
Executive Powers
Financial Powers
Legislative Powers
The Pardoning Power
Ordinance making power
The Council of Ministers
• Article 163(1)- there shall be a Council of Ministers with the Chief Minister
as the Head to aid and advice the Governor in exercise of his functions.
• 91st Amendment added two clauses
Maximum size of ministries
Disqualification of defection on the ground of split
Governor can sanction for prosecution of Ministers under Corruption Act-
M.P Special Police Establishment v. State of M.P
Non-legislator can be appointed Minister
Convicted person cannot be appointed as Chief Minister
The State Legislature [Arts. 168-212]
Bicameral or Unicameral Legislature
Abolition or Creation of Legislative Councils
Compositions of Houses
1. Legislative Assembly ,Art. 170
2. Legislative Council, Art. 171
Tenure
Qualifications and Disqualifications of members
Speaker and Deputy speaker -Powers & Functions
Chairman and Deputy Chairman– Powers & Functions
Parliamentary Privileges

• Internal aspect
• External aspect
P V Narsimha Rao v State
Constitutional Provisions Art. 105 & Art. 194
1. Freedom of speech
2. Right of Publication of its proceedings
New privileges can be defined by law made by Parliament
Freedom from arrest, Rt. To exclude strangers from its proceedings and hold
secret sessions, Rt. To prohibit to publication of it Reports and Proceedings-etc
The State Judiciary
• Strength of a H C
• Appointment
• Qualification
• Tenure
• Jurisdiction and powers
Court of Record
General jurisdiction
Writ jurisdiction- locus standi
• Specific writs
Relations between the Union and the State
Articles [245-293]
• Distribution of power
• Federalism
• Legislative relations
1. With respect to territory
2. With respect to subject- matter.
Territorial Jurisdiction
Theory of Territorial Nexus
Wallace v. Income tax Commissioner, Bombay
State of Bombay v. R.M.D.C
Delegated Legislation- Growth of D L
Relations between the Union and the State
Articles [245-293]

Legislative Relations- Articles 245-255

Administrative Relations- Articles 256-263
Financial Relations- Articles 264-293
Principles of interpretation of lists
1. Predominance of Union List
2. Each entry to be interpreted broadly
3. Pith and Substance –case- Profulla Kumar Case- Balsara case
4. Colourable Legislation – Case- Kameshawar Singh
Repugnancy Art254
Validation Act
Parliament power to legislate on state subjects
Central control over State Legislations.
Administrative Relations. Articles 256-263
Control of Union over States
a) Direction by the Union to the State Govt.s Arts. 256 & 257
b) Delegation of union’s function to the States. Arts. 258.258A
c) All-India Services Art.312
d) Grants in Aid
e) Full Faith Credit Clause Art.261
f) Disputes relating to Water Art. 262
Co-ordination between States –Co-operative Federalism
Inter-state Council. Art.262
PANCHAYATS, MUNICIPALITIES AND CO-OPERATIVE
SOCIETIES

• Articles 243, 243-A to 243ZT

• Part IX and IX-A (73rd and 74th Amendment)
• Popularly known as Panchayati Raj and Nagarpalika Constitution
• The Panchayats Art. 243, 243-A to 243-O
Gram Sabha
Constitution and Composition
Duration of Panchayats
Powers to impose taxes and funds
Courts not to interfere in electoral matters.
Freedom of Trade and Commerce
[Articles 301-307]
Object:
The main object of Art.301 was obviously to breakdown the border
barriers between the States and to create one unit with a view to
encouraging the free-flow of stream of trade and commerce
throughout the territory of India. This Article declares that trade,
commerce and intercourse throughout the territory of India shall be
free.
In India the Constitution itself lays down restrictions on Article 301. The
restrictions are contained in Articles 302 to 305. No freedom is
absolute.
Article 301 applies not only to inter-State trade but intra-State trade,
commerce and intercourse.
Restrictions on Trade and Commerce
Article 301 is subject to the restrictions imposed under Arts.302 to 305.
1) Parliament’s power to regulate trade and commerce in the public
interest
2) State’s power to regulate trade and commerce.
Cases: Atiabari case
Authomobiles case
State of Mysore v. Sanjeevayya
Official Language [Articles 343-351]
Official Language of the Union
Commission and Committee of Parliament on Official Language
Union of India v. Marasoli
Directive for the development of the Hindi Language
Languages to be used in the Supreme Court and in the High Courts and
for Acts, Bills etc.
The Official Language Act, 1961
Administrative Tribunals. Arts.323-A & B

Article 323-A provides for the establishments of Administrative Tribunals

by a Parliamentary law under the Union Govt. and the State Govt.s
Article 323-B provides for the creation of Tribunals for the determination
of disputes, complaints and offences relating to tax matters, exports and
imports, labor and industrial disputes-etc
Union of India v. Deep Chand Pandey
Exclusion of jurisdiction of Courts
Administrative Tribunals Act, 1985
Composition of Tribunals- Qualification-term-removal-jurisdiction
Public Service Commission: services under the center and
the state, Constitutional protection to Civil Servants.
[Articles 308-323]
• Recruitment and Regulation of Conditions of Services
• Doctrine of Pleasure (Art. 310)
• Restriction on doctrine of Pleasure
Constitutional protection to Civil Servants.
Restrictions on the doctrine of pleasure (Art. 311)
1. No dismissal or removal by subordinate authority
2. Reasonable opportunity
Public Service Commission
Appointment of members
Functions of Public Service Commission
Election Commission: Powers and
functions. Articles 324-329-A
Art.324 provides for the appointment of an Election Commission to
superintend, direct and control elections.
Constitution of EC
Multi member Commission
Functions of EC
Eligibility for inclusion in Electoral Role
Elections on the basis of adult suffrage
Courts not to interfere in election matters
S.S Dhannoa v. UoI
T.N Seshan v. UoI
State liability for Torts and Contract.
[Arts 299 & 300]
King can do no wrong rule
Sovereign immunity
Crown Proceeding Act 1947
King can do wrong rule

Liability in Contract [Art. 299]

Article 299(1) provides –(1) All contracts made in the exercise of the executive power of the Union or
of a State shall be expressed to be made by the President, or by the Governor of the State, as the
case may be.
(2) All such contracts and all assurances of property made in the exercise of that power has to be
executed on behalf of the President or the Governor.
(3) Its execution must be by such persons and in such manner as the President or the Governor may
direct or authorise.
The provisions of the Article 299(1) mandatory
Form of Contract
Ratification
Natural Justice
Bhikraj Jaipuria case
K P Choudry v. State of M.P.
Suits by or against the State Article 300
Liability in tort
Cases: P& O Steam Navigation Co
State of Rajastan v. Vidyawati
Kasturi Lal v. State of U.P.
Principles of Sovereign Immunity
Sovereign and Non- Sovereign functions
Emergency: Types, Effects and effects on
Fundamental Rights. [Articles 352-360]

A. National Emergency- Due to war, external aggression or armed

rebellion(Art.352)
B. State Emergency- Due to the failure of constitutional machinery in
states(Art. 356)
C. Financial Emergency- Art. 360
Grounds- Duration of Emergency
Effects of Proclamation of Emergency:
1. Extension of Centre’s Executive Power
2. Parliament empowered to legislate on State Subjects
3. Centre empowered to alter distribution of revenue between the union
and the state
4. Extension of life of Lok Sabha
5. Suspension of fundamental rights guaranteed by Art.19

A.D.M. Jabalpur v. S. Shukla( Habeas corpus case)

S.R. Bommai v. Union of India
Rameshwar Prasad v Union of India
Constitutional Interpretation
Doctrine of Judicial Review
Meaning:- the constitution is the supreme law of the land and any law
inconsistent therewith is void.
Two functions- 1. legitimizing Govt.al Action
2. to protect the constitution against any undue
encroachments by the govt.
Courts acts as a supreme interpreter, protector and guardian of the
supremacy of the constitution.
Federalism- division of powers- An arbiter needed to resolve dispute
between the union and State.
Position at U.S.A
Direct & Indirect Judicial Review
In 1803, Marbury v. Madison case, as noted , the idea underlying j.r.
namely to test and invalidate ‘state action’ by reference to a higher organic
instrument can be traced to the natural law doctrine according to which
man-made law was susceptible to correction and invalidation by reference
to a higher law.
Position in Britain
1610, Dr. Bonham’s case- Parliamentary Sovereignty.
Wade points out “ all law students are taught that Parliamentary
Sovereignty is absolute. But it is the judges who have the last word. If they
interpret an Act to mean the opposite of what it says, it is their view which
represents the law.
Liberal interpretation
Meaning & cases
Literal interpretation
Meaning & Cases
Judicial creativity in India
Amendment: Basic structure theory.
[Article 368]
Necessity of Amending Provisions in the Constitution
1. Amendment by Simple Majority
2. Amendment by Special Majority
3. By Special Majority and Ratification by States
Procedure for Amendment
Amendment of fundamental rights
Theory of Basic Structure : A limitation on Amending power
Keshavananda Bharati case
Indira Nehru Gandhi v. Raj Narayan
Minerva Mills Ltd. V. Union of India
Important caselaws for Amendment
1. Shankari Prasad v. Union Of India
2. Sajjan Singh v. State of Rajasthan
3. Golak Nath v. State of Punjab
4. Keshavananda Bharati v. State of Kerala
5. Indira Nehru Gandhi v. Raj Narayan
6. Minerva Mills v. Union of India
7. Waman Rao v. Union of India
8. I R Coelho v. State of Tamil Nadu
Schedules.
Indian Constitution contains 12 schedules.
• Schedule 1- list of states and union territories,
• Schedule 2- provisions relating to emoluments, allowances, privileges,
• Schedule 3- forms of oath,
• Schedule 4- number of seats allocated to Rajya Sabha of each state,
• Schedule 5, 6- provisions relating to schedule areas and schedule
tribes,
• Schedule 7- division of powers between union and states,
• Schedule 8- list of recognized languages,
• Schedule 9- laws included under schedule 9 are to be protected from
judicial scrutiny,
• Schedule 10- anti-defection laws and,
• Schedule 11, 12- and powers, authority and responsibilities of
panchayats and municipality
Review of working of the Constitution.
National Commission to review the working of the Constitution
National Commission to review the working of the Constitution (NCRWC) also
known as Justice Manepalli Narayana Rao Venkatachala Commission was set up by a
resolution of the NDA Government of India led by Atal Bihari Vajpayee on 22 February 2000
for suggesting possible amendments to the Constitution of India. It submitted its report in
2002.

Composition of Commission
The 11-member commission was headed by Retired Chief Justice of India Justice 
M.N. Venkatachaliah.[1][2] The other members of the Commission were B.P. Jeevan Reddy
(Chairman of the Law Commission), R.S. Sarkaria (Former Judge of the Supreme Court of
India), K.Punnayya (Former Judge of Andhra Pradesh High Court), Soli Sorabjee (Attorney-
General of India), K. Parasaran (Former Attorney-General of India), Subhash C. Kashyap
 (Former Secretary-General of Lok Sabha), C.R. Irani (Chief Editor & Managing Director of
the Statesman), Abid Hussain (Former Ambassador of India to the USA), Sumitra Kulkarni
(Former Member of Parliament) and P. A. Sangma (Former Speaker of Lok Sabha
Terms of reference of the Commission
The terms of reference given to the Commission stated that the Commission
shall examine, in the light of the experience of the past fifty years, as to how best the
Constitution can respond to the changing needs of efficient, smooth and effective
system of governance and socio-economic development of modern India within the
framework of parliamentary democracy, and to recommend changes, if any, that are
required in the provisions of the Constitution without interfering with its 'basic
structure' or 'basic features’.
Report
The Commission was asked to complete its work and make
recommendations within one year. However, after three extensions, the Commission
submitted its report on 31 March 2002.The report is bulky one, comprising 1979
pages in two-volumes was received by Law and Justice Minister Arun Jaitley. Volume
I contains the recommendations while Volume II (divided in Books 1, 2 & 3) consists
of detailed consultation papers, background papers, details of deliberations and the
report of its drafting and editorial committee dividing into three books.
• The Commission has made 58 recommendations involving
amendments to the Constitution of India, 86 relating to legislative
measures and the rest executive action.
• The recommendations covered broadly, fundamental rights, directive
principles and fundamental duties, electoral processes and political
parties, parliament and state legislatures, executive and public
administration, the judiciary, Union-State relations, decentralization
and devolution and pace of socio-economic change and development.
• The NCRWC was set up by the Government on February 2, 2000,
under the chairmanship of Shri Justice M.N. Venkatachalaiah, a
retired Chief Justice of India. The Commission submitted its report to
the Government on March 31, 2002.