Basic Principles of the Constitution

All constitutions are a reflection of the ideas and ideals of the people who framed it. Though it
is intended to be a document of permanent value, it is bound to reflect the prevailing
conditions and circumstances of the period in which it is framed. Indian constitution is no
exception to this.
A careful study of the constitution of India shows that it has at least 8 such basic principles
which are:-
1. Popular Sovereignty
2. Fundamental Rights
3. Directive Principles
4. Cabinet Government
5. Secularism
6. Socialism
7. Federalism
8. Judicial Independence.
Let's briefly examine the scope of these principles.
Popular Sovereignty- India is a Sovereign Democratic Republic. The starting words of the
Preamble in the Constitution emphasizes the ultimate authority of the citizens of India. The
Preamble proclaims the solemn resolution of the people to constitute India into a Sovereign,
Socialist, Secular and Democratic Republic. It was the will of the Indian citizens due to which
constitution came into existence.
Popular Sovereignty here implies that all the powers of the government agencies arises from
the will of the citizens of India as expressed in the Indian Constitution and the citizens have the
ultimate right to determine in whose hands these powers should remain from time to time
through elections. Moreover these representatives selected to Government are answerable to
the legislature and through it to the citizens.
The elections to the House of the People (Lok Sabha) and the Legislative Assembly of every
State have to held on the basis of adult suffrage and it is a must that these should be held at
least once in every five years. Most important is the democratic ideal followed in the
constitution that of "one man, one vote, one value" irrespective of the wealth, education, social
status or any other importance of the citizen.
India is the largest democracy in the world. In 1952, when the first elections were held for the
parliament the total number of eligible voters were around 173 million. During the Ninth
General Elections during November 1989 this number was around 499 million and in 2004 this
number rose to 650 million.
The framers of our constitution also made sure that elections are conducted freely by creating
the independent constitutional body- the Election Commission of India- which is the total in
charge of everything related to elections.
The fifteen General Elections that the independent India have so far proved that inspite of
poverty, caste, widespread illiteracy and difficulties in communication, the people in general
have been able to exercise robust common sense in electing candidates of their choice and
thus, exercise their supreme authority in setting up a democratic, people's government.

Fundamental Rights - There are six groups of Fundamental Rights:

There are six groups of Fundamental Rights:
1.Right to equality (Arts. 14-18)
2.Right to freedom (Arts. 19-22)
3.Right against exploitation (Arts. 23-24)
4.Right to Freedom of Religion (Arts. 25-28)
5.Cultural and Educational Rights (Arts. 29-30)
6.Right to Constitutional Remedies (art. 32)
5.10 Fundamental Rights exclusive to citizens
a)Art. 15. Prohibition of discrimination only on grounds of religion, race, caste, sex or
place of birth.
b)Art. 16. Equality of opportunity in matters of public employment.
c)Art. 19. Protection of certain rights, regarding freedom of speech etc.
d)Art. 30. Right of minorities to establish and administer educational institutions.
5.11 Fundamental Rights available to any person on the soil of India (except the enemy aliens)
a)Art. 14. Equality before law and equal protection of laws.
b)Art. 20. Protection in respect of conviction for offences.
c)Art. 21. Protection of life and personal liberty.
d)Art. 23. Prohibition of traffic in human beings and forced labor.
e)Art. 25. Freedom of religion.
f)Art. 27. Freedom as to payment of taxes for promotion of any particular religion.
5.12 Article 14
5.12.1 Right to Equality-The State shall not deny to any person equality before the law or
equal protection of the laws within the territory of India.
5.12.2 Equality before Law -This is borrowed from the British Constitution. Equality before
Law is a negative concept. It means ‘no man is above the law’ and every person, whatever be
his social status, is subject to the jurisdiction of the courts. Equality is an antithesis of
arbitrariness. Equality and arbitrariness are sworn enemies.
The Directive Principles of State Policy (DPSP) are the guidelines or principles given to the
federal institutes governing the state of India, to be kept in citation while framing laws and
policies. These provisions, contained in Part IV (Article 36-51) of the Constitution of India, are
not enforceable by any court, but the principles laid down therein are considered irrefutable in
the governance of the country, making it the duty of the State[1] to apply these principles in
making laws to establish a just society in the country. The principles have been inspired by the
Directive Principles given in the Constitution of Ireland relate to social justice, economic
welfare, foreign policy, and legal and administrative matters.

Directive Principles are classified under the following categories: economic and socialistic,
political and administrative, justice and legal, environmental, protection of monuments and
peace and security.
Cabinet Government
The Union Council of Ministers exercises executive authority in the Republic of India.[1] It
consists of senior ministers, called "Cabinet Ministers", junior ministers, called "Ministers of
State" and deputy ministers.

It is led by the Prime Minister. A smaller executive body, called the Union Cabinet is the
supreme decision-making body in India.[2] Only the Prime Minister and ministers of the rank of
"Cabinet Minister" are members of Union Cabinet as per Article 352. As Per Article 75(3), the
Council of Ministers is responsible collectively to the lower house of the Indian Parliament,
called the Lok Sabha (House of People).[1] When a bill introduced by a minister in the Lok sabha
is not approved by it, entire council of ministers is responsible and not the minister. The council
of ministers upon losing confidence of Lok Sabha shall resign to facilitate new government
formation.

Mohd. Ahmed Khan v. Shah Bano Begum

Background:

In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an affluent
and well-known advocate in Indore, Madhya Pradesh, and had five children from the marriage.
After 14 years, Khan took a younger woman as second wife and after years of living with both
wives, he threw Shah Bano, who was then aged 62 years, and her five children out. In April
1978, when Khan stopped giving her the ₹200 per month he had apparently promised, claiming
that she had no means to support herself and her children, she filed a petition at a local court in
Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him
for a maintenance amount of ₹500 for herself and her children. On November 1978 her
husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law
and took up the defence that hence Bano had ceased to be his wife and therefore he was under
no obligation to provide maintenance for her as except prescribed under the Islamic law which
was in total ₹5,400. In August 1979, the local court directed Khan to pay a sum of ₹25 per
month to Bano by way of maintenance. On 1 July 1980, on a revisional application of Bano, the
High Court of Madhya Pradesh enhanced the amount of maintenance to ₹179.20 per month.
Khan then filed a petition to appeal before the Supreme Court claiming that Shah Bano is not
his responsibility anymore because Mr. Khan had a second marriage which is also permitted
under Islamic Law.

Introduction:

This is a landmark judgement in securing the rights of Muslim women on the maintenance field.
A provision was applied in terms of uniform civil code.
Fact of the case:

An application was made under Section 125 in regards to maintenance granted to a wife who is
unable to maintain herself. Wife includes a women who has been divorced or has obtained
divorce and not remarried.
The Appellant was a advocate by Profession married to Respondent in 1932. They begot 3 sons
and 2 daughters out of the Marriage.
In 1975 the appellant drove the respondent out of the home. In 1978 respondent filed a
petition under Section 125 of Crpc, in JMFC Indore for maintenance.
In 1978 the appellant divorced the respondent by irrevocable Talak and took up the defence
that since she is no more a wife he has no obligation to provide maintenance to her as he has
already paid Rs.200 per month for 2 years in a manner of Dower during the period of Iddat.
In 1979 the Magistrate directed to pay a sum of Rs.25 per month to the respondent by way of
maintenance.
The High Court of Madhya Pradesh enhanced the amount to Rs.179.20 per month.
The Husband made a special writ petition to Supreme Court.
Judgement :

1. It was held that Section 125 of the code is truly secular in character. It was enacted to
provide quick and summary remedy to the class of persons who are unable to maintain
themselves.
2. Irrespective of the person being of any religion sec 125 is applicable because it is a part of
Criminal Procedure Court and not Civil Laws.
3. Neglect by a person of sufficient means to not give maintenance to any dependants leads to
invoking of 125.
4. The rights conferred by Section 125 can be exercised irrespective of Personal Law of the
Parties.
5. In this case Husband Liabilities to provide maintenance doesn’t get limited into the
foundation of time period of Iddat but as long as the wife is unable to maintain herself or
remarried even though Iddat period is over.
 Prime Minister of India

About Prime Minister of India

The Prime Minister of India is the head of the executive branch of the Government of India.
His position is distinct from that of the President of India, who is the head of the State. As
India follows a parliamentary system of government modelled after the Westminster system,
most of the executive powers are exercised by the Prime Minister. He acts as an advisor to
the President and is the leader of the Council of Ministers. The President appoints the
Prime Minister of India and on his advice, appoints the Council of Ministers. The Prime
Minister can be a member of either the Lok Sabha or the Rajya Sabha.

Roles and Responsibilities of Prime Minister

The roles and responsibilities of the Prime Minister are as follows:

Link between President and Council of Ministers:

The Prime Minister is the leader of the Council of Ministers and serves as the channel of
communication between the President and the Council of Ministers. It is his duty to
communicate to the President all the decisions taken by the Council of Ministers and to
provide information regarding administration of the Union or proposals for the legislature as
called for by the President.

Allocation of Portfolios:
He allocates portfolios among the ministers and distributes work among various ministries
and offices. The Prime Minister coordinates work among various ministries and
departments through the Cabinet Secretariat.

In-Charge of Ministries:
Prime Minister also retains certain portfolios that are not allocated to other ministers. He is
generally in charge of the following ministries/departments:

 Ministry of Personnel, Public Grievances and Pensions

 Ministry of Planning
 Department of Atomic Energy
 Department of Space
 Appointments Committee of the Cabinet
Leader of the Cabinet:
The Prime Minister summons and presides over meetings of the cabinet and determines
what business shall be transacted in these meetings.
 Link between the Parliament and the Cabinet:
The Prime Minister is also the link between the cabinet and the Parliament. He is the chief
spokesperson of the government in the Parliament, along with the leader of the party in
majority in the Lok Sabha. It is his responsibility to announce important policy decisions.
The Prime Minister can also intervene in debates of general importance in the Parliament to
clarify the government’s stand or policy.

Official Representative:
The Prime Minister represents India in various delegations, high-level meetings and
international organisations and also addresses the nation on various occasions of national
importance.

Selection Process of Prime Minister

The Constitution states that the President of India should appoint the leader of the party or
alliance which is in majority in the Lok Sabha as the Prime Minister of India. In case no
party or alliance enjoys majority, the President appoints the leader of the largest party or
alliance as the Prime Minister. But he has to win the confidence vote in the Lower House of
the Parliament as early as possible. A member of either the Lok Sabha or the Rajya Sabha
can be appointed as the Prime Minister. If he is not a member of either House of the
Parliament then he has to be elected to either House within six months of his appointment.
As the Prime Minister, he is the Leader of the House of which he is a member.

Term and Retirement Age of Prime Minister

Unlike the President, the Prime Minister does not have a fixed tenure. The full term of the
Prime Minister is five years, which coincides with the normal life of the Lok Sabha.
However, the term can end sooner if he loses the vote of confidence in the Lower House.
So, it can be said that he remains in power as long as he enjoys the confidence of the Lok
Sabha. The Prime Minister can also resign by writing to the President.

There are no term limits on the office of the Prime Minister. There is also no official
retirement age.

Eligibility Criteria to become Prime Minister of India

To be eligible for the position of the Prime Minister of India, a person should:

 Be a citizen of India.
 Be a member of either the Lok Sabha or the Rajya Sabha.
 Complete 25 years of age if he is a member of the Lok Sabha or 30 years if he is a member
of the Rajya Sabha.
A person cannot be the Prime Minister of India if he holds any office of profit under the
Government of India, the government of any state, or any local or other authority subject to
the control of any of the said governments.

President of India

Eligibility
Article 58 of the Constitution sets the principle qualifications one must meet to be eligible to the
office of the President. A President must be:

a citizen of India
of 35 years of age or above
qualified to become a member of the Lok Sabha
A person shall not be eligible for election as President if he holds any office of profit under the
Government of India or the Government of any State or under any local or other authority subject
to the control of any of the said Governments.

Certain office-holders, however, are permitted to stand as Presidential candidates. These are:

The current Vice-President

The Governor of any state
A Minister of the Union or of any state (including Prime Minister and Chief Ministers)[17]:72
In the event that the Vice-President, a State Governor or a Minister is elected President, they are
considered to have vacated their previous office on the date they begin serving as President.

A member of Parliament or of a State Legislature can seek election to the office of the President
but if he is elected as President, he shall be deemed to have vacated his seat in Parliament or
State Legislature on the date on which he enters upon his office as President [Article 59(1)].
Article 57 provides that a person who holds, or who has held, office as President shall, subject to
the other provisions of this Constitution, be eligible for re-election to that office.

Under The Presidential and Vice-Presidential Elections Act, 1952,[38] a candidate to be

nominated for the office of president needs 50 electors as proposers and 50 electors as seconders
for his name to appear on the ballot.[39]

Time of election
Article 56(1) of the Constitution provides that the President shall hold office for a term of five
years from the date on which he enters upon his office. According to Article 62, an election to fill
a vacancy caused by the expiration of the term of office of President shall be completed before
the expiration of the term. An election to fill a vacancy in the office of President occurring by
reason of his death, resignation or removal, or otherwise shall be held as soon as possible after,
and in no case later than six months from, the date of occurrence of the vacancy; and the person
elected to fill the vacancy shall, subject to the provisions of Article 56, be entitled to hold office
for the full term of five years from the date on which he enters upon his office. To meet the
contingency of an election to the office of President not being completed in time due to
unforeseen circumstances like countermanding of election due to death of a candidate or on
account of postponement of the poll for any valid reason, Article 56(1)(c) provides that the
President shall, notwithstanding the expiration of his term, continue to hold office until his
successor enters upon his office.

Conditions for the Presidency

Certain conditions, per Article 59 of the Constitution, debar an otherwise eligible citizen from
contesting the presidential elections. The conditions are:

The President shall not be a member of either House of Parliament or of a House of the
Legislature of any State, and if a member of either House of Parliament or of a House of the
Legislature of any State be elected President, he shall be deemed to have vacated his seat in that
House on the date on which he enters upon his office as President.
The President shall not hold any other office of profit.
The President shall be entitled without payment of rent to the use of his official residences and
shall be also entitled to such emoluments, allowances and privileges as may be determined by
Parliament by law and until provision in that behalf is so made, such emoluments, allowances
and privileges as are specified in the Second Schedule.
The emoluments and allowances of the President shall not be diminished during his term of
office.[36]:170
Election process
Whenever the office becomes vacant, the new President is chosen by an electoral college
consisting of the elected members of both houses of Parliament (M.P.s), the elected members of
the State Legislative Assemblies(Vidhan Sabha) of all States and the elected members of the
legislative assemblies (M.L.A.s) of two Union Territories (i.e., National Capital Territory (NCT) of
Delhi and Union Territory of Puducherry). The election process of President is more extensive
process than Prime Minister who is also elected indirectly (not elected by people directly) by the
Lok Sabha members only. Whereas President being constitutional head with duties to protect,
defend and preserve the constitution and rule of law in a constitutional democracy with
constitutional supremacy, is elected in an extensive manner by the members of Lok Sabha, Rajya
Sabha and state legislative assemblies in a secret ballot procedure.

The nomination of a candidate for election to the office of the President must be subscribed by
at least 50 electors as proposers and 50 electors as seconders. Each candidate has to make a
security deposit of ₹15,000 (US$230) in the Reserve Bank of India.[40] The security deposit is
liable to be forfeited in case the candidate fails to secure one-sixth of the votes polled.

The election is held in accordance to the system of Proportional representation by means of the
Single transferable vote method. The voting takes place by secret ballot system. The manner of
election of President is provided by Article 55 of the Constitution.[41]

Each elector casts a different number of votes. The general principle is that the total number of
votes cast by Members of Parliament equals the total number of votes cast by State Legislators.
Also, legislators from larger states cast more votes than those from smaller states. Finally, the
number of legislators in a state matters; if a state has few legislators, then each legislator has
more votes; if a state has many legislators, then each legislator has fewer votes.

The actual calculation for votes cast by a particular state is calculated by dividing the state's
population by 1000, which is divided again by the number of legislators from the State voting in
the electoral college. This number is the number of votes per legislator in a given state. Every
elected member of the parliament enjoys the same number of votes, which may be obtained by
dividing the total number of votes assigned to the members of legislative assemblies by the total
number of elected representatives of the parliament.

Although Indian presidential elections involve actual voting by MPs and MLAs, they tend to vote
for the candidate supported by their respective parties.[42]

Emergency powers
The President can declare three types of emergencies: national, state and financial, under articles
352, 356 & 360 in addition to promulgating ordinances under article 123.[22]:12

National emergency
A national emergency can be declared in the whole of India or a part of its territory for causes of
war or armed rebellion or an external aggression. Such an emergency was declared in India in
1962 (Indo-China war), 1971 (Indo-Pakistan war),[25] and 1975 to 1977 (declared by Indira
Gandhi).[see main]

Under Article 352 of the India Constitution, the President can declare such an emergency only on
the basis of a written request by the cabinet of ministers headed by the Prime Minister. Such a
proclamation must be approved by the Parliament with two thirds majority within one month.
Such an emergency can be imposed for six months. It can be extended by six months by repeated
parliamentary approval-there is no maximum duration.[22][page needed]

In such an emergency, Fundamental Rights of Indian citizens can be suspended.[4]:33 The six
freedoms under Right to Freedom are automatically suspended. However, the Right to Life and
Personal Liberty cannot be suspended (Article 21).[26]:20.6

The President can make laws on the 66 subjects of the State List (which contains subjects on
which the state governments can make laws).[27] Also, all money bills are referred to the
President for approval.[21]:88 The term of the Lok Sabha can be extended by a period of up to
one year, but not so as to extend the term of Parliament beyond six months after the end of the
declared emergency.[17]:223
National Emergency has been proclaimed 3 times in India till date. It was declared first in 1962
by President Sarvepalli Radhakrishnan, during the Sino-Indian War. This emergency lasted
through the Indo-Pakistani War of 1965 and up to 1968. It was revoked in 1968. The second
emergency in India was proclaimed in 1971 by President V. V. Giri on the eve of the Indo-Pakistani
War of 1971. The first two emergencies were in the face of external aggression and War. They
were hence external emergencies. Even as the second emergency was in progress, another
internal emergency was proclaimed by President Fakhruddin Ali Ahmed, with Indira Gandhi as
Prime Minister in 1975. In 1977, the second and the third emergencies were together revoked.

State emergency
See also: Federalism in India
If the President is fully satisfied, on the basis of the report of the Governor of the concerned state
or from other sources that the governance in a state cannot be carried out according to the
provisions in the Constitution, he can proclaim under Article 356 a state of emergency in the
state.[6] Such an emergency must be approved by the Parliament within a period of 2 months.

Under Article 356 of the Indian Constitution, it can be imposed from six months to a maximum
period of three years with repeated parliamentary approval every six months. If the emergency
needs to be extended for more than three years, this can be achieved by a constitutional
amendment, as has happened in Punjab and Jammu and Kashmir.

During such an emergency, the President can take over the entire work of the executive, and the
Governor administers the state in the name of the President. The Legislative Assembly can be
dissolved or may remain in suspended animation. The Parliament makes laws on the 66 subjects
of the state list[28] (see National emergency for explanation).

A State Emergency can be imposed via the following:

By Article 356 – If that state failed to run constitutionally, i.e. constitutional machinery has failed.
When a state emergency is imposed under this provision, the state is said to be under
"President's rule.[29]:159
By Article 365 – If that state is not working according to the direction of the Union Government
issued per the provisions of the constitution.[30]
This type of emergency needs the approval of the parliament within 2 months. It can last up to a
maximum of three years via extensions after each 6-month period. However, after one year it
can be extended only if

A state of National Emergency has been declared in the country or in the particular state.
The Election Commission finds it difficult to organise an election in that state.
The Sarkaria Commission held that presidents have unconstitutionally misused the provision of
Article 356 many times for achieving political motives, by dismissing the state governments
although there was no constitutional break down in the states.[31] During 2005, President's rule
was imposed in Bihar state, misusing Article 356 unconstitutionally to prevent the democratically
elected state legislators to form a government after the state elections.

There is no provision in the constitution to re-promulgate president's rule in a state when the
earlier promulgation ceased to operate for want of parliaments approval within two months
duration. During 2014 in Andhra Pradesh, president's rule was first imposed on 1 March 2014
and it ceased to operate on 30 April 2014. President's rule was promulgated after being fully
aware that the earliest parliament session is feasible in the end of May 2014 after the general
elections. It was reimposed again unconstitutionally on 28 April 2014 by the president.[32][33]

Financial emergency
Article 282 accords financial autonomy in spending the financial resources available with the
states for public purpose.[6][34] Article 293 gives liberty to states to borrow without any limit to
its ability for its requirements within the territory of India without any consent from the union
government. However union government can insist for compliance of its loan terms when a state
has outstanding loan charged to the consolidated fund of India or an outstanding loan in respect
of which a guarantee has been given by the Government of India under the liability of
consolidated fund of India.[35]

Under article 360 of the constitution, President can proclaim a financial emergency when the
financial stability or credit of the nation or of any part of its territory is threatened.[6] However,
until now no guidelines defining the situation of financial emergency in the entire country or a
state or a union territory or a panchayat or a municipality or a corporation have been framed
either by the finance commission or by the central government.
Such an emergency must be approved by the Parliament within two months by simple majority.
It has never been declared.[36]:604 A state of financial emergency remains in force indefinitely
until revoked by the President.[17]:195

The President can reduce the salaries of all government officials, including judges of the Supreme
Court and High Courts, in cases of a financial emergency. All money bills passed by the State
legislatures are submitted to the President for approval. He can direct the state to observe certain
principles (economy measures) relating to financial matters.[37]

Minerva Mills v. Union of India

From Wikipedia, the free encyclopedia
Minerva Mills Ltd. vs Union Of India
Emblem of the Supreme Court of India.svg
Court Supreme Court of India
Full case nameMinerva Mills Ltd. and Ors. vs Union Of India and Ors.
Decided 31 July 1980
Citation(s) AIR 1980 SC 1789
Case opinions
Majority Chandrachud Y.V. (CJ); Gupta, A.C.; Untwalia, N.L.; Kailasam, P.S.
DissentBhagwati, P.N.
Laws applied
Constitution of India
Minerva Mills Ltd. and Ors. v. Union Of India and Ors. (case citation: AIR 1980 SC 1789) is a
landmark decision of the Supreme Court of India[1] that applied and evolved the basic structure
doctrine of the Constitution of India.[2]

In the Minerva Mills case, the Supreme Court provided key clarifications on the interpretation of
the basic structure doctrine. The court unanimously ruled that the power of the Parliament of
India to amend the constitution is limited by the constitution. Hence the parliament cannot
exercise this limited power to grant itself an unlimited power. In addition, a majority of the court
also held that the parliament's power to amend is not a power to destroy. Hence the parliament
cannot emasculate the fundamental rights of individuals, including the right to liberty and
equality.[3]

The ruling struck down section 4 and 55 of the Constitution (Forty-Second Amendment) Act.

Judgement
In its ruling, the Supreme Court declared sections 4 & 55 of the 42nd amendment as
unconstitutional.[2]

Section 55 of the 42nd Amendment, had added clauses (4) and (5) to Article 368 of the
Constitution which read:

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting
to have been made under this article whether before or after the commencement of section 55
of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court
on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on
the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.

The above clauses were unanimously ruled as unconstitutional. Chief Justice Yeshwant Vishnu
Chandrachud explained in his opinion that since, as had been previously held in Kesavananda
Bharati v. State of Kerala, the power of Parliament to amend the constitution was limited, it could
not by amending the constitution convert this limited power into an unlimited power (as it had
purported to do by the 42nd amendment).

Since the Constitution had conferred a limited amending power on the Parliament, the
Parliament cannot under the exercise of that limited power enlarge that very power into an
absolute power. Indeed, a limited amending power is one of the basic features of our
Constitution and therefore, the limitations on that power can not be destroyed. In other words,
Parliament can not, under Article 368, expand its amending power so as to acquire for itself the
right to repeal or abrogate the Constitution or to destroy its basic and essential features. The
donee of a limited power cannot be the exercise of that power convert the limited power into an
unlimited one.[4]

Section 4 of the 42nd Amendment, had amended Article 31C of the Constitution to accord
precedence to the Directive Principles of State Policy articulated in Part IV of the Constitution
over the Fundamental Rights of individuals articulated in Part III. By a verdict of 4-1, with Justice
Prafullachandra Natwarlal Bhagwati dissenting, the court held section 4 of the 42nd Amendment
to be unconstitutional.[2] Chief Justice Chandrachud wrote:

Three Articles of our Constitution, and only three, stand between the heaven of freedom into
which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles
14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the
people of this country an assurance that the promise held forth by the preamble will be
performed by ushering an egalitarian era through the discipline of fundamental rights, that is,
without emasculation of the rights to liberty and equality which alone can help preserve the
dignity of the individual.[3]

Basic Structure of Indian Constitution

The basic structure doctrine is not mentioned in the constitution, yet it has been developed over
the years.

There are three critical milestones in Indian constitution’s path to achieve the basic structure
doctrine:

1. In the case of Sajjan Singh in 1965 , SC for the first time used the phrase `basic feature’ of the
Constitution to argue that there are certain features of the Constitution that cannot be amended
by the Parliament through its amending powers under Art. 368 of the Constitution.
2. Supreme Court in Golak Nath’s case (1967 ) opined that no limitations can be and should be
implied upon the power of amendment under Art. 368 but held that Fundamental Rights cannot
be taken away by an amendment.

3. In Kesavananda’s judgment (1973) where the Supreme Court deliberated that emerges out of
it is that the amending power of the constitution cannot be used to interfere with the basic
structure of the Indian constitution.

The following listed provisions are widely accepted constituent of ‘basic’ structure of the
constitution:

 Supremacy of the Constitution

 Rule of law
 The principle of Separation of Powers
 The objectives specified in the Preamble to the Constitution
 Judicial Review
 Articles 32 and 226
 Federalism
 Secularism
 The Sovereign, Democratic, Republican structure
 Freedom and dignity of the individual
 Unity and integrity of the Nation
 The principle of equality, not every feature of equality, but the quintessence of equal
justice;
 The “essence” of other Fundamental Rights in Part III
 The concept of social and economic justice — to build a Welfare State: Part IV in toto
 The balance between Fundamental Rights and Directive Principles
 The Parliamentary system of government
 The principle of free and fair elections
 Limitations upon the amending power conferred by Article 368
 Independence of the Judiciary
 Effective access to justice
 Powers of the Supreme Court under Articles 32, 136, 141, 142
 Legislation seeking to nullify the awards made in exercise of the judicial power of the State
by Arbitration Tribunals constituted under an Act.
 These provisions are given by the interpreter of the constitution, the Supreme Court.
Can Preamble be amended under Article 368
Almost in every constitution there is a preamble , which provides the objectives,purposes,
nature, scope of the constitution. The Preamble of the Indian Constitution is nothing but in short
an introduction of the Indian constitution and therefore, it is treated as a part of the Constitution
. The Preamble is used to interpret the provisions of the constitution in case of disputes.
368. Power of Parliament to amend the Constitution and procedure therefor
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent
power amend by way of addition, variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this article
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each House by a majority
of the total membership of that House present and voting, it shall be presented to the President
who shall give his assent to the Bill and thereupon the Constitution shall stand amended in
accordance with the terms of the Bill: Provided that if such amendment seeks to make any change
in
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature
of not less than one half of the States by resolution to that effect passed by those Legislatures
before the Bill making provision for such amendment is presented to the President for assent
(3) Nothing in Article 13 shall apply to any amendment made under this article
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting
to have been made under this article whether before or after the commencement of Section 55
of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court
on any ground
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on
the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND
SPECIAL PROVISIONS

Can Preamble be Amended under Article 368 ??

 The question was raised for the first time before the supreme Court in the
historic case of Keshavanand Bharati Keshav Nand Bharti vs State of Kerala. In this case the
Attorney General argued that by virtue of the amending power in Article 368 even the Preamble
can be amended. It was said that since the Preamble was a part of the Constitution it could be
amended like any other provisions of the constitution. The petitioner however, contented that
be amending power in article 368 is limited. Preamble creates an implied limitation on the power
of amendment. The Preamble contains the basic elements or the fundamental feature of our
constitution. Consequently, amending power cannot be used so as to destroy or damaged these
basic features of mentioned in the Preamble. It was argued that preamble cannot be amended
as it is not a part of the constitution. The supreme court however, held that the Preamble is part
of the constitution and therefore, on this point the Beruberi opinion was wrong.

On the question whether the Preamble can be amended the majority held that since
the Preamble is the part of the Constitution it can be amended but subject to this condition that
the" basic features" in the Preamble cannot be amended. The Court said, "the edifice of our
constitution is based upon the basic elements mentioned in the Preamble . If any of these
elements removed the structure will not survive and it will not be the same constitution or it
cannot maintain its identity .

The Preamble declare that the people of India resolved to constitute their country into a
sovereign democratic Republic. No one can suggest that these words and expressions are
ambiguous in any manner. An amending power cannot be interpreted so as to confer power on
the Parliament to take away any of these fundamental and basic characteristics of policy." It is
submitted that this view of the court is correct. The amendment power cannot change the
constitution in such a way it is ceases to be a sovereign, democratic, republic, it can only be done
by wrecking constitution.

FUNDAMENTAL RIGHTS
1. Right to Equality
2. Right to Freedom
3. Right against Exploitation
4. Right to Freedom of Religion
5. Cultural and Educational Rights
 6. Right to Constitutional Remedies
RIGHT TO EQUALITY
All persons are equal
Before the law.
This means that all persons
Shall be equally protected by the laws of the country.
RIGHT TO FREEDOM
the right to freedom of speech and
Expression, the right to form associations, the right to move freely and reside in any part of the
country, and the right to practice any profession, occupation or business.
3. Right against Exploitation
The Constitution prohibits
Trafficking, forced labor, and children working under 14 years of age.
Religious freedom is provided to all
citizens. Every person has the right to practice, profess and propagate the religion of their choice.
The Constitution states that all
minorities, religious or linguistic, can set up their own educational institutions in order to
preserve and develop their own culture.
This allows citizens to move the
court if they believe that any of their Fundamental Rights have been violated by the State.

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

Vidhan Sabha, the Rajya Sabha and the Lok Sabha.

Given below are the differences between the Vidhan Sabha, the Rajya Sabha and the Lok
Sabha.

Definition/Other Names/Mode of elections

 Vidhan Sabha or the Legislative Assembly is the lower house (in states with
bicameral) or the sole house (in unicameral states) of the state legislature. The
upper house in the seven states with a bicameral legislature is called the
Legislative Council, or Vidhan Parishad. They are Andhra Pradesh, Bihar,
Jammu and Kashmir, Karnataka, Maharashtra, Telangana, and Uttar Pradesh.
The members of a Vidhan Sabha are elected by the general public through the
state elections. They are known as MLAs or Members of Legislative Assembly.
 Rajya Sabha is the Upper house of the Parliament of India. It is also known as
the Council of States as its members are elected not by the general public but
by the members of the state legislative assembly. They are known as Rajya
Sabha MPs.
 Lok Sabha is the Lower house of the Parliament of India. It is also known as the
House of People as its members are directly elected by the general public
through the general elections. They are known as Lok Sabha MPs.
Number of Members/Seats
  In a Vidhan Sabha, there cannot be more than 500 and less than 60 members.
It can have less than 60 members only through an Act of Parliament as is the
case in Goa, Sikkim, Mizoram and the Union Territory of Puducherry.
 In Rajya Sabha, there can be a maximum of 250 members, according to our
Constitution but current Indian laws have provision for 245 members. Out of
these, the President can appoint 12 members for their contributions to art,
literature, science, and social services.
 In Lok Sabha, there can be a maximum of 552 members of which 530 are from
the states, 20 are from the Union Territories and 2 are from Anglo-Indian the
respective http://distribution.is community are basically people with a mix of
Indian and British ancestry. Current Indian laws have provision for 545 seats
of which 530,13 and 2 Anglo-Indian community who can be appointed by the
President. People from
Minimum Qualification Required

 Each member of the Vidhan Sabha, the Rajya Sabha and the Lok Sabha should
not have a criminal record, shouldn’t be mentally unsound and shouldn’t be
bankrupt.
 When it comes to the minimum age requirement, members of both the Vidhan
Sabha and the Lok Sabha should be at least 25 years old while that of the Rajya
Sabha should be at least 30 years old.
Term Period

 The term of a Vidhan Sabha is 5 years but during the State of Emergency, its
term may be extended for a maximum period of 6 months or it may be
dissolved by the Governor on the request of the Chief Minister.
 The members of the Rajya Sabha sit for staggered 6 years with one-third of the
members retiring every two years.
 The term of a Lok Sabha is 5 years but during the State of Emergency, it can be
extended by law up to one year.
Chief Presiding Officer

 The Speaker of the State Legislative Assembly is the chief presiding officer of
the Vidhan Sabha.
 The Vice President of India acts as the Chairman of the Rajya Sabha.
 The Speaker elected as a leader by the elected government is the chief presiding
officer of the Lok Sabha.