CONSTITUTIONAL LAW-I

Date-25.07.2022, Monday, Day-1

Constitutional Law regulates relationship between government and individuals, this is public
law and other laws are private laws which regulate relationship between individuals.
It is the supreme law because all other laws have to conform to the constitution.
7th Schedule- Separation of powers- 3 lists- federal system. It gives power to other authorities
to make other laws.
3rd Schedule- Fundamental rights are central for the human development and existence.
Without these rights one cannot grow to its full potential of a human being. They are
fundamental to the human existence. Only those rights which are important to the growth of
human beings’ full potential are fundamental rights. Fundamental rights are sacrosanct to an
individual. Ex. Not everyone is going to meet with an accident and hence the tort law is not a
fundamental right. Constitutional law gives validation to all other laws and hence it is the
supreme law of the land.
12 landmark judgements have given shape to art. 12 which talks about “state”.
The study of constitutional law carries the study of landmark judgements because the text is
silent in certain aspects and hence it is dynamic and changes according to the circumstances.
The nature of Indian federation was fragile (due to partition and princely states) and in order
to have a structure of government the states have been explained in detail.
It is said that the American civil war was not fought to save the union but rather to save the
slave industry.
In India it was foreseen that chaos was to happen, and hence the constitution was written and
the federation was set up in such a way that would suit the prevalent conditions. The central
govt. has been made more powerful. In order to save the union, the centre was given powers
beforehand.
This semester will cover the framing of constitution, fundamental of the constitutions (rule of
law, separation of power, structure- parliamentary)
Parliament is not supreme over constitution in India, but the parliament is supreme in
England.
The rule of law and equality before law are different in India and UK.
Date- 26.07.2022, Wednesday, Day-3
Things to be known before learning constitutional law:
1. Constitutional and ordinary laws
2. Law of the Constitution
3. Concepts of Law
4. Landmark Judgements
5. Critical Thinking- Analysing, trying to understand the reasoning behind the
conclusion
 6. Fundamentals Rights- Fundamentals of writ jurisdiction -Fundamentals of writ
remedies. A.12- Vertical Application of fundamental rights. Habeus corpus can also
be filed against an individual and this is horizontal application. One of the aims of the
framers of the constitution was to get rid of the caste system and have a classless
society.
Radiating Effect Theory- the constitutional values should radiate outside in such a
way that they shall though light upon other ordinary laws as well. This theory started
with the Luth case of the German Constitution. People in Germany don’t trust the
parliament, and hence the constitution was given the most powers and hence today
Germany has the world’s most powerful and strong judiciary.
Date- 29. 07.2022, Friday
1. Constitutional v other laws
a. Legislative competency
- 7th schedule
- You must have the competency to frame laws
b. These laws should not conflict with Constitutional Article 13 (2)
c. All ordinary laws seek validation from the constitution

2. Law of the Constitution

3. Concepts of law
4. Landmark judgments
a. Constitutional issues
b. Contentions of the parties (petitioners and respondents)
c. Majority and minority opinions
5. Critical thinking
a. Article 12 is the vertical application of FRs
b. 17, 15(2), 20- horizontal application- enforceable even against other fellow
citizens.
c. The first case of horizontal application of FR came from the Lume case in
Germany – evolved the radiating effect theory

ARTICLE 370

Maharaja Hari Singh signed the Instrument of Accession which entitled india to make laws
regarding-
1. Defence
2. Foreign affairs
3. Communications
The rest of the powers were with the State of J&K.

If the union wants to make any decision for matters other than the above-mentioned topics, it
needs to consult the State government.

If the union wants to make any Act of the Indian Constitution applicable to the State of J&K
they’ll need the concurrence of the State.
It was a temporary solution.

On the recommendation of the constituent assembly, the President has the authority to
abrogate Art 370.

Many presidential orders were issued after 1956 in order to abrogate Art 370 but the
constitutional assembly could not be consulted as it had already dissolved itself.

In 2019, the parliament first amended the article and said that the phrase “constitutional
assembly” should be read as “legislative assembly”

Why it is not constitutional-

1. There was president’s rule in the State; hence, no legislative assembly present.

Date- 01.08.2022, Monday

CONSTITUTIONALISM-
Legislature- Make Law- get power from 7 th Schedule- Legislative Competence. They cannot
make laws that go against fundamental rights which is constitutional limitation.
Executive- Implementation of Law- Transparency and Accountability (Good Governance)
Judiciary- Adjudicate the Law
There are certain constitutional goals enshrined in the preamble.
All these three organs shall exercise their power in the limits of the constitution and upheld
the objectives and goals of the constitution. This is called as constitutionalism.
CONSTITUTIONAL MORALITY-
There shall be certain limitations over the powers of judiciary because it is the judiciary that
is responsible for the interpretation of constitutional. And so, while interpretating they shall
uphold the constitutional values.
B R Ambedkar- in one of his constitutional debates had explained about constitutional
morality, which upheld those individual rights of the citizens.
For same sex marriages to be legal, there is a need of some codified law that would govern
same sex marriages. There is also no law banning same sex marriages, just that there is no
legal status to same sex marriages as according to general public it goes against public
morality.
Elements of constitutional morality-
1. Rule of Law
2. Individual Liberty
3. Right to Equality
 4. Freedom of Choice
5. Preamble
6. Freedom of Expression
7. Social Justice
8. Procedure Established by law
9. Due process of the law
10. Individual Autonomy
11. Equality without discrimination
12. Recognition of identity with dignity
13. Right to privacy
There can be more, it is basically adherence to core principles of democracy.
Constitutional Morality shall always override Social Morality, this can be inferred from
the concept of Sabarimala Temple.
In the Kesavanand Bharti case- constitutional morality of basic structure.
Naaz Foundation Case- decriminalized s. 377, as it violates fundamental rights.
Significance of constitutional morality:
1. It ensures the establishment of rule of law while integrating the changing aspirations
and ideals of the society.
2. It highlights the need to preserve the trust of the people in institutions of democracy.
3. Use the laws and the forms to impact and change the persisting social morality.
4. Recognises plurality and diversity in the society and tries to make the individuals and
communities in the society more inclusive.
No where has the SC defined constitutional morality defined in any of their judgements as it
keeps on changing with the time and is subjective. It shall be left to the interpretation of the
judges. A good constitution is one that is in consistency with the growth and
development of the nation, which supports the ideals of the progressive society. It
establishes the principle of judicial supremacy over parliamentary supremacy, ex. The case of
Sec. 377.
Date- 02.08.2022, Tuesday
CONSTITUIONAL DEVELOPMENTS IN INDIA (1600-1950)-
In 1600- Queen Elizabeth she brought in a charter to establish the East India Company. The
co. was established with the help of Emperor Jehangir. Later when Aurangzeb died, the
Mughal empire fell weak, after which the EIC did conquest in Bengal and Bihar.
EIC was granted Diwani was Emperor Shah Alam for Bengal Bihar and Odisha.
EIC became richer and richer, due to which the British Parliament got interested in it as EIC
has got territorial jurisdiction, and hence there was a need to pass a law that would regulate
the relationship between EIC and the British Parliament. Hence several regulating acts were
passed.
In 1773- the Regulating Act.
Pitts EIC Act -to supervise the British territorial possessions of EIC.
1793, 1813, 1833- several regulating acts were passed.
1833 onwards many more acts were passed to regulate and share power between parliament
and EIC.
After the Govt. of India 1858 the Indians lost all the powers to the British Crown.
Indian Council Act, 1861- deals with the internal administration of India.
Indian High Courts Act, 1861- 3 HCs created in Calcutta, Bombay and Madras.
Other Indian Council Acts passed in 1874 and 1892.
Montague-Chelmsford Reforms- Edwin Montague was Secretary for State of India and
member of House of Lords and Lord Chelmsford was the viceroy of India, these reforms
were brought in through Govt. of India act, 1919, the aim was to bring a progressive
realisation of govt. in India, and to make India an integral part of British empire.
Govt. of India Act, 1935 brought in the powers of the governor’s provinces. Basically, It was
division of power. The governor was given the sole power to make the laws on particular
subjects only. These subjects were called as transfer subjects. The other subjects were
reserved subjects upon which the governor could make law with consultation.
In the instrument of accession, it was mentioned that certain matters of national importance
will only be dealt by the Central Govt.
The princely states then were under the suzerainty of the British Crown and did not directly
come against it, and hence not all laws were applicable to them.
In the instrument of accession- Item no. 1 to 47 the power was with the parliament to make
the law. Due to this the princely states did not accede to this and hence this govt. of India act.
1935 was in a way not enacted as the princely stated did not adhere to this instrument of
accession.
Cabinet Mission Plan- as the govt. of India act 1935 could not fulfil the aspirations, in 1942
the queen brought in the cabinet mission plan, that was a proposal for the future set up of
India. It was not successful because there was this Quit India movement. The aim of this
movement was to:
1. To end the British Rule
2. to create independent India
3. to create provisional govt. for free India
4. to make India ally of UN
1945- when labour party came to power
1946- another cabinet mission was sent, which said that there shall be a constituent assembly
of 381 members which composed of members both from British territories and princely
states. It was said that the central would have powers for defence, finance, and foreign affairs.
The first meeting was boycotted as certain areas were to be partitioned on the basis of
religion. Also, there were riots in several parts of India.
On 20th Feb. 1947 said that there shall be transfer of power to Indians not later than June
1948.
Lord Pathick Lawrence, in his speech on 25th Feb 1947 said that it was not possible for
Britishers to rule the country after 1948.
In 1945 3rd June, lord Mountbatten said there shall be a plan for complete transfer of power.
The plan was modified to do partition. Two constituent assemblies were created.
On 15th August 1947- India got independence
INTEGRATION OF PRINCELY STATES:
More than 500 princely states.
India’s relationship with the British Commonwealth-
It was agreed that India will be a part of it and accept king.
Date- 03. 08. 2022, Wednesday
PREAMBLE TO THE COSNTITUTION OF INDIA:
It is like a window that carries the philosophy and goals of the constitution. It was passed
considering the objective resolution. It is the introduction written on the behalf of the people
implying that it is the people who has brought the constitution. The preamble was drafted in
oct. 1949 after taking into consideration the objective resolution presented by Pt. Jawaharlal
Nehru. These resolution lays down certain grounds upon which the structure of the
constitution is to be build. It carries the fundamentals for the future constitution.
Fundamentals found in preamble-
1. Nature of the political system that will be followed.
2. Territorial boundaries.
3. Division of power between the units and the constituent units.
4. Supremacy of the People as the source of authority.
5. Social Justice to All
6. Safeguard the interest of the minorities.
These objective resolutions were laid down on 13 th December, 1946 and adopted on 22nd
January, 1947.
There are 8 objective resolutions (find it on internet) (copy past it later)
What is the Preamble?
The initial preamble did not have the word secular and socialist.
The preamble present intention of the framers, and the core values and principles of nation,
source of the constitution, history behind its creation, nature of the Indian state, statement of
its objectives.
The draft order was completed on 7th Oct. 1949.
Component of the preamble:
A)
1. Source of authority of the constitution which lies with the people.
2. The preamble declares India as a sovereign socialist secular and democratic republic
3. the objective is to secure justice liberty and equality to all citizen
4. and promote fraternity to
5. maintain unity and integrity of the nation

B)
1. ‘We the people of India’ indicates that the ultimate sovereignty (independent
authority of the state which is not subjected to any external power) lies with the
people.
2. The word socialist- mixed economy.
3. Secular- all religions are treated and protected equally, don’t have a state religion.
4. Democratic- India has established its own form of constitution and it gets it
authority from the will of the people in the form of election.
5. Republic- the head of state is elected by the people. In India it is indirectly elected
by the people. It is the representatives elect the head of the state.
Objectives of the Indian Constitution:
1. Supreme Law of Land
2. Helps to maintain integrity in society
3. To promote unity amongst the citizens to build a large nation.
4. Promote harmony
Justice- social justice, economic justice, political justice (free and fair right to participate in
political opportunities)
Equality- No particular section of society will have special privileges, equal opportunities to
everyone.
Liberty- freedom to choose their own way of life, political views, behaviour.
Fraternity- Feeling or spirit of brotherhood and emotional attachment to the country. It helps
to promote dignity and unity in the country.
All of these words are related to each other. No one can prevail without the other.
Status of the preamble today:
Beruberi case.
Kesavanand Bharti case- said that preamble is a part of the constitution. It is basic structure.
1995- Union govt. v. LIC- preamble is an integral part of the constitution, but it is not directly
enforceable in any part of law.
Amendment of the preamble-
Secular, Socialist and integrity was included- but the basic structure cannot be disturbed
Art. 394- Art. 5, 6, 7, 8, 9, 60 ,384, 367, 379, and 394 came into force on 26th Nov. 1949.
Words like liberty, equality are taken from the French Revolution.
Salient features of Constitution:
1. Written Constitution
2. Rigidity and Flexibility
3. Federal Polity
4. Parliamentary democracy
5. Fundamental rights and duties
6. DPSP
7. Single Integrated judiciary system
8. Independence of the Judiciary
9. Single Citizenship
10. Universal Adult Franchise
11. Emergency Provisions

Date- 05.08.2022, Friday

17th March 1947- B. N. Rao decided that India will follow a parliamentary form of govt.
7th June 1945- Joint meeting of the constitutional committee and the provisional constitutional
committees.
Federal system will be followed to suit the geographical set up.
Theory of Parliamentary Democracy-
- Elected Representatives
- System of parties
- Cabinet that guides the parliament
- Idea of Representation
Parliamentary democracy
- Effective representation of electorate
- Relationship between organs of govt.
- Executive- effective leadership
- Limits arbitrary use of power.
Art. 74 and 74 for parliament and A.163 and 164 for the state legislatures.
Outstanding features of a parliamentary system of govt.:
1. No strict separation of powers- fusion of legislature and executive
2. Executive > President of India- aided by council of Ministers, > Prime Minister-
heads the cabinet
3. Executive- drawn from the legislature
4. Ministers that form the cabinet- members of parliament
5. Executive- formulate policies- legislative enact them into laws.
Example- question hour- Adjournment motions, debate, confidence and no confidence
motions, scrutiny of budget and implementations, public account, audit, etc.
6. Existence of a constitutional Rule.
7. Absence of separation of powers.
8. Main Role of the lower house in Ministry formation.
9. Executive is made responsible to legislature- 1. Collective responsibility, 2. Individual
responsibility
10. Intimate relationship between Executive and legislature.
11. Leadership of Prime Minister
12. Existence of a strong opposition.
13. Cabinet Dictatorship
- Formulate policies
- Guide legislature to make law
- Controls and directs administration department
- Coordinate activities with govt.
- Prepare draft budget after consulting with the PM
- Advise the constitutional head (President)

Fusion of Legislature and Executive-

- Executive- governing groups- leader- representative of parliament
- Cabinet (executive)- directly responsible to the legislature and indirectly to the
electorate
- Urge the legislature to adopt policies formulating the cabinet and defend their policies
- Accountable for their official conduct
- Policies official conduct- commands the support of the majority in the parliament.
- Continue to hold office
- Collective responsibility to the legislature
- Ministerial responsibility- and their work department
- Legislature- must clearly manifest its want of confidence in the country
- Through a vote of confidence
- Ministry resigns office
- Dissolve the chamber to which it own its responsibility
- Order a new election.
Merits and Demerits of Parliamentary form-
Merits
1. Works smoothly. Less of an occasion to be in conflict with each other. (executive and
legislature)
2. There is no division of responsibility
3. The presence of the opposition keeps the party in office on the right path.
4. If the ministry is defeated the leader of opposition will take over.
 5. It provides a constant training ground for statemen who can carry on a peaceful
contest for the leadership of the electorate
Demerits
1. The principle of separation of power is ignored completely.
2. The system is mainly based on the party system.
3. The independence of executive is destroyed as the ministers are distracted from their
duties.

According to the Sri Lankan prime minister, In parliamentary system- Stability is ensured,
there is efficiency, and a coordinate policy can be better achieved.
Why india choose a parliamentary system of govt.?
- Ultimate source of sovereignty- people of India
- Paramount place of individualism under the Constitution
- Demarcation between state and society- holf social fabric together, power to bring
about social change and reform, social welfare, secularism, new social order based on
justice.
- Periodical elections based on universal adult franchise
- State accomplish goals of a welfare state
- Justifiable fundamental rights
- Rule of law- formulation of an independent judiciary
- Judiciary- protects supremacy of constitution and citizens rights
- Federal political framework -as the constitution contributes
-
PRESIDENTIAL
Executive is independent from legislature
Feature:
1. Real head of the state is the real executive
2. There is separation of power- the executive is not responsible to the legislature, the
executive cannot dissolve the legislature and the judiciary is independent
3. There is a principle of checks and balances
4. There is a superior position of the president.
5. There is a political homogeneity, it is not necessary for all the members to be from the
same party.
Merits:
1. Stable govt. which brings efficiency
2. Doctrine of separation of powers, so can check on despotism and ensure the citizens
rights and liberties are not encroached
3. Suitable in emergency, the president can take faster decisions.
4. The govt. is usually by able men, the president can generally make appointment by
portfolios despite of the party.
Demerits
1. There may be autocratic and he can solely take a decision.
2. The president may veto and the bill may not be passed fast.
3. The checks and balances is antithetical to economic planning
4. The rigidity of the constitution is also criticised because flexibility is needed to cope
with the changing circumstances
5. These is less chances of enactment of a good law because there is less harmony
between the executive and the legislature.

Date- 08.08.2022, Monday

SEPARATION OF POWERS
Plays an essential role in a democratic setup, the purpose of it is to avoid overlapping of
powers, and to avoid having too many powers in the hand of one person as it would lead to
arbitrary use of power and curbing liberty.
Baron De Montesquieu- in 1748 he proposed the theory of separation of powers. If legislature
and executive powers are in the hand of one person it would result in the curbing of liberty,
arbitrariness, corruption.
- Legislature
- Executive
- Judiciary
1. To safeguard the liberty of the citizens and to guard them against tyranny. ‘
2. To have checks and balances to avoid arbitrary and excessive use of powers that
would curb the liberty of the citizens.
UK and Indian Separation of power-
UK- has three organs. The executive is the crown and govt. headed by PM. The legislature is
the crown, house of commons and house of lords, the judiciary is of judges in the different
court. The functions and roles of all these are similar to that of India. The problems that
happened in 2004 led to the changes in 2005 according to which the legislature was separated
from the judiciary.
Separation of powers is different from the doctrine of devolution of power or distribution of
powers. Separation of power is at horizontal level; in the distribution it is not done equally it
is in vertical form and is applicable to a unitary system of govt. which is followed in UK.
In US the laws have clear demarcation of powers, which is not in UK as UK does not have a
written constitution.
In 2005 in UK the Constitutional Reform Act was passed. It separated the judiciary from the
legislature. The lord chancellor has no role to play in the Judiciary now. The lords sitting the
Supreme Court has no place in the Executive or Legislature now.
Rai Sahib Ram Jawaya v. State of Punjab, 1955, SC 5 Judge Constitutional Bench-
These people were engaged in business of printing textbooks for primary and secondary
school state board books. The education dept. issued notice saying that to trade, print and
publish books only govt. can do it and not the pvt. Individuals. The petitioners filed petition
under art. 32, FR’s violated Art. 19 (1)(g). the notification was issued without any legislative
backing.
Issues:
1) Whether the notification violated the FR of the petitioner under Art. 19?
2) Whether legislative backing are required for this purpose?
Contentions:
1) The state govt. has got no legal background to carry on this trade business activity,
and they just want to establish their monopoly without law.
2) For this monopoly to take place there has to be a law, and this law has to pass the test
of reasonableness.
3) The constitution imposes certain obligation upon govt. to come up with a law if it
wants to put restrictions
Court:
Art. 53- Powers of the executive
Art. 73- extent of these executive powers
Art. 162-
The notification issued was not constitutional as it entirely fits under Art. 73. The executive
powers cover subject matters regarding trading and business. In India we have doctrine of
separation of functions and not separations of powers. no fundamental rights are violated
hence.
The govt. can monopolise trade. But a law is needed under it which shall fit under Art. 73.
The petition was dismissed by the SC.
Date- 12.08.2022, Friday
RULE OF LAW
The state must be governed by certain codified law and the functioning of the govt. should be
governed by law as well.
The representatives ruling the country shall be governed by laws and their powers shall be
governed and restricted.
Indira Gandhi v. Raj Narain – Rule of Law
Rule of law also means a good governance, transparent.
One of the essential attribute of constitutionalism is Rule of Law.
Rule of law- powers shall be divided.
Rule of law started from Plato and Aristotle, 500 BC
Plato- “when law is subject to some other authority and has none of its own the collapse of
the state in my view is not far off, but if the law is the master of the govt. and govt. its slaves
then the situation is full of promise and men can enjoy all the blessings that the gods shower
on the state.”
Aristotle- “the law should govern and those who are in power should be restrained by the
law.”
Rule of law, French definition of principle of legality which is la Principe legalie, means the
government shall be based on principle of law.
A govt. that adheres to the constitutional supremacy is govt. based on good governance.
Its foundation is based on the recognition that the govt. and the governed must be equal
before the law and the govt. must also acknowledge that their powers are limited by law and
there cannot be any arbitrary exercise of power.
Fundamental ideals of Rule of Law:
- equality before law
- equal treatment between the govt. and governed
- independence of the judiciary
- transparency, consistency and accountability in the administration of the law
- notions of equity, justice and fairness
it originated in England by Sir Edward Coke- No man is above the law and all are subject to
the jurisdiction of the ordinary courts of the law, irrespective of their ranks and position, no
person must be subject to arbitrary treatment of the govt. Sir Edward Coke said that king is
also under God and Law.
His ideas were later improved by A. D. Dicey 1855- according to him the principles of Rule
of Law were:
- Supremacy of the law- no wide discretionary powers to the govt.- every act of the
govt. should be controlled by the law or else it will lead to arbitrariness- something
that cannot be changed easily and shall be rooted in moral principles.
- Equality before law- equal subjection of all classes to the ordinary law of the land
administered by ordinary law course.
- Predominance of legal spirit- general principles of the constitution is the result of
judicial decisions which determines the rights of the persons is the dominance of legal
spirit.
Rule of Law also signifies that no one is to deprived of their life and liberty by administrative
actions. Administrative authority must act in accordance with law and not arbitrary and laws
also cannot be unconstitutional and abusive, judicial control of administrative actions,
judicial supremacy.
Due process of law is also rule of law- law and order- observance of principles of natural
justice- elimination of discretionary powers- preference for judges and ordinary course of
law- judicial review of administrative actions.
In Indian constitution rule of law is also found in the preamble as part of justice, equality and
liberty. Also in case of violation there can be a remedy sought. Art. 226 and 32 are a part of
it. Art. 13(2), Art. 14- rule of law.
Govt. must work within framework of recognised rules and principles which restrict
discretionary powers.
Delhi Declaration- 1959- confirmed in lagos- Rule of law is an essential element of
constitutional law in law- implies that functions of the govt.---------- (find it in delhi
declaration)
Kesavanand Bharti v. State of Kerala- SC observed that Rule of Law is one of the most imp
doctrine of Basic Structure of the constitution
Indira Nehru Gandhi v. Raj Narain
Maneka Gandhi v.UOI
Benani v. Kerala electricity board
Yashwantrao v. Balasaheb Patil
(refer to legal services india notes, Blog ipleaders, public health notes.com)
FEDERAL CONSTITUTION
CITIZENSHIP
CAA 2019
FUNDAMENTAL OF THE WRIT JURISDICTION

Date- 16.08.2022, Tuesday

FEDERALISM-
James Wilson defined the term Federalism, according to him the following three features are
important:
Feature-
- There must be provision for more than one level of govt. to act simultaneously on the
same territory and for the same citizens.
- Each govt. must have its own authority and sphere of power though they may overlap.
- Neither level of govt. can abolish the other.
American Federalism: Pre-federalism (1775- 1789).
1776- Declaration of Independence
1777- Articles of Confederation were written. Gave idea to a continental congress. League of
states formed and accepted these articles of confederation. But there were certain loopholes in
these Articles. As it limited that power of the national govt., the power regarding taxes were
with the state and the army, defences, war was with the national govt. there was no executive
to administer the affairs of the national govt. also there was no power regarding trade with the
national govt. there was a need of a strong federation.
1787- Articles of Confederation were reconsidered as there was a economic depression,
instability, rebellion.
1787- they wrote a new constitution to form a perfect union that gave power to centre
regarding taxes, foreign relations, etc. Created United States of America. Legislature,
Executive and Judiciary created. Senate created. Legislatures members came from the states,
two senates in every state. Publius- publication by supporter of federalism which put forth the
ideology, but then anti-federalist published their ideas in form of Bruto + Cato.
1789- ratification of the constitution was done by three quarter of the states, which is a
requirement in USA.
1789- 1865: Dual Federalism
1790- Federal govt. took the responsibility of war, economy, relations.
1791- 10th Amendment introduced, that protected the rights of the states, all the powers that
have not been expressly given to the centre will be remaining with the states. Art. 1 has the
enumerated powers of the state, all those not mentioned in this will be with the states.
1791- idea of a national bank.
1811- this charter of national bank expired. Anti-federalist group did not allow the charter to
be renewed.
1798- 1800- passing of many federal laws and imposed on the state. Under the doctrine of
nullification that existed in certain state, the states could nullify a law made by the centre and
it won’t be applicable in that state’s territory.
1803- National Govt. started taking over projects like roads etc. and in a way entered the
domain of state.
1815- the convention of Hartford- to protect the rights of the citizens and curb the acts of the
congress which it is not authorised for.
McCulloch v. Maryland- 1860 the charter of national bank was renewed for another 20 yrs.
He branches was established in the state of Maryland. The main branch is at Washington. The
state of Maryland passed a law that imposed taxes on the bank. The cashier culloch refused to
pay the taxes. Case was filed. The decision was in favour of state of Maryland. Appeal was
filed by McCulloch. The court said that as in Art. 1 the national govt. has the authority to
mint coins and currency and as they will have to create a bank for this. The national govt. did
have the authority to do so. CJ John Marshall gave a unanimous decision in favour of the
congress that the national govt. had the power to pass such laws that are required to carry on
the powers and functions that are given to it under the constitution.
Gibbons v. Ogden- there was a law passed by NY state legislature that gave right to a steam
boat co. to operate in the Hudson River. The federal govt. also passed a law and gave license
to Ogden to operate in Hudson River. So as the powers of the interstate commerce was upon
the congress. According to Art. 6 federal laws will prevail over state laws.
Calhoun’s Theory- the state is empowered to nullify a centre’s law.
Prigg v. Pennsylvania- Fugitive slave act was passed by federal govt. that supported slavery.
So if any slave eloped from southern state and move to northern slave were to be caught by
police and returned to owner. Pennsylvania was one such state that passed law against
slavery. One slave ran to Pennsylvania. The court said that the fugitive state act is the
supreme law over the law of the state according to Art. 6.
1850- Federal govt. passed again the fugitive state act. As they were afraid that there would
be a disintegration of the union as there was tension between northern and southern states
over the laws upon slavery.
The civil war addressed two central issues:
- What is the role of federal govt.?
- What is the nature of the union?
To avoid conflict between laws of central and state, the Indian constitution has Art. 254.

Date- 17.08.2022, Wednesday

AMERICAN FEDERALISM
Dual Federalism
Dred Scoff v. Sandford 60 US 393 (1857)- Dred Scoff is a slave from Africa and was
purchased in the state of Missouri. The owner of Dred Scoff migrated to another state where
slavery was illegal, after which they came back to Missouri, there was a Missouri agreement,
where it compromised with other states that have recognised the fact that slavery is illegal.
Dred scoff filed a case, stating that as he was taken in a state where the slavery was illegal, he
shall be set free. An appeal was made by dred scoff in the supreme court, where it dismissed
the case on the basis that slaves in America do not have a locus standi as they are a property.
By this time the 14th amendment had not come in place as it was not ratified by all states. It
was 9 judge benches. 5 majority and 4 dissenting.
Dual Federalism: Phase II: 1865-1901: the continental congress starting passing too many
laws one of which was Sherman Antitrust Act, 1890. There was also Inter-state congress
commission act, 1887. The Sherman Antitrust Act stated, the federal govt. could take action
against trust act that were made by the states, as it was disturbing the commerce laws. The
states were not happy with this. The second act interstate commerce commission act,
regulated the rail and road industry as some of the states were taking control over it, which
led to a disturbance in the smooth flowing of commerce, and hence this act was brought.
After the civil war there were amendment: 12 th amendment- separate electoral college for the
election of president and vice president
13th amendment- abolition of slavery
14th amendment- citizenship to black slaves also talks about equal protection clause.
These three amendments regulate economy, business and civil rights.
Slaughter House Cases- 83- US- 36 (1873)- there were a no. of cases clubbed. In the state of
Luciana passed a law that would improve sanitary conditions, and there were many slaughter
houses and they used to throw the waste in the river leading to cholera. The law passed said
that the slaughter houses would be transformed into one single slaughter house. Butches’
association stated that it violated their privilege and immunity clause. So this law was
challenged in the state and hence it was in favour of state. Appeal was filed in the SC. The
state is trying to monopolise the business, but has not followed the due process of law. The
court said that the privilege and immunity clause was only made for the black slaves who
move from one state to another and are then discriminated.
Bradwell v. Illinois 83 US 130 (1872)- The govt. passed law that said the females with law
degree cannot practice at bar. The SC dismissed the case stating that the civil rights in the
constitution do not apply to the states.
Plessy v. Ferguson 162 US 537 (1896)- In the state of New Orleans passed the law separate
cars act. Whites and the black could not use the same compartment in the trains. A mixed
white and black person went and sat in the 1st class meant for white, he was arrested, the court
said that the law is not violative, as there is no discrimination, both have been given the same
opportunity. Appeal was filed in the SC. The doctrine of separate but equal treatment was
evolved. John Marshall in his dissenting opinion said that the constitution is colour blind. The
majority opinion was still the same that the law is constitutional.
Brown v. Board of Education of Topeka, Kansas 347 US 843 (1954)- States stated passing
laws that separated things for blacks and white at the same time giving both of them
opportunity. Schools were also separated. Brown wanted to send his daughter to school and
the nearest school was a white school, the black school was very far, the white school
dismissed the application. He filed case; the court dismissed. The SC finally said the laws
actually violate the equal protection law brought in by the 14th amendment. Overruled the
doctrine of separate but equal. It was a big change which overrules Plessy v. Fergusson.
Co-operative Federalism- 1901- 1960: greater cooperation state and the central govt.
especially during the great depression, where the help of states was needed. The 16 th
Amendment, gave powers to the federal govt. to tax income of all citizens, this collected tax
was then distributed to all the states. The federal govt. started giving grant-in-aid system.
President Woodrow Wilson brought this amendment.
1960-1965- Creative Federalism- expanded the role of national govt. to remove poverty or
eliminate hunger, more funds were given to state
Contemporary Federalism- 1965-2000: New Federalism- more revenue sharing- 8 federal
purposes- this was just the first phase, the second phase had the concept of state community,
phase three- house republican contract with America- help states in America.
New your v. US- Law passed by federal govt.- low level radio active waste policy
amendment act, 1985- the radio active waste was dumped in the river- the federal govt.
wanted the states to cooperate- so the govt. gave sites to the states to dump this waste. The
court upheld this federal law
1995- US v. Locus- federal govt. passed law- drug free school law act, 1990- within 1000
metres of any school, university, if weapon is found it is a federal crime- states challenged the
law- court gave a decision favouring the state govt. stating that such laws are to be imposed
only by the state.
Printz v. US- the federal govt. passed law brady hand gun violence protective act, 1993- act
empowers the attorney general to check the background of the prospective hand gun
purchasers. The medical history of that person would be checked. If the person is going
through some mental problems, the person wouldn’t be sold the gun. The states challenged
the law. The court said that the Federal cannot impose laws on state.

Date- 24. 08.2022, Wednesday

JUDICIAL REVIEW
Marbury v. Madison (1803) US (Supreme Court)-
it is based on this case that the Indian constitution Has Art. 226 and 32. 2 days before the exit
of the govt. the Judiciary Act, 1789 was passed, it allowed to appoint 60 judges- circuit
judges or justices of the peace. Commission has to be signed by the president and the
secretary of the state for the approval of these recommendations and appointments. They
were known as the mid night judges. Some of the commissions were not delivered to certain
judges as there were only 2 days, one of them was William Marbury, he requested to deliver
the commission. Madison refused to deliver the commission.
Constitutional Issues in this case-
1) Locus standi- aggrieved party- did William Marbury has locus standi in the case.
2) Whether Marbury has any legal right?
3) Whether the court has the jurisdiction?> The case is filed in the original jurisdiction
and filed writ of mandamus under Art. 2, this writ can be issued only to the
ambassadors, or officers, he also exercised S. 13 of the judiciary act, 1789.
4) Is there a law and remedy that supports the rights that it claimed to be violated?

Art. 226 of HC
Art. 32 od the Supreme Court of India
Review of administrative action or legislations.
Lower Courts- Original Jurisdiction
High Courts- Original and Appellate jurisdictions
Supreme Court- Original jurisdiction- Art. 32, Appellate- 132, 133, 134, 136
It is implicit in the constitution that any law inconsistent with the constitution is to be
declared unconstitutional. But as there was no provision in the constitution that would declare
federal law as unconstitutional and hence the case was dismissed.
The cased was dismissed.
But if the court did not have the jurisdiction how did it decide the case.
Art. 226 (1)-
It can be used for any other purpose as well
To issue writ, orders and directions.
Hc- fundamental rights and legal rights
The judgement if one HC is not binding on the other HC the reason for this is that every state
has got its different state law and hence the judgement of one won't be binding on others.
Art. 32-
Art. 14 - 34 are those that can get violated and against which a writ can be filed under art. 31
which is also called enabling article. Art. 15 and its clauses are called as enabling provisions
as they enable the govt. To do something.
Art. 15 (2) and 17, 23 and 24 are exceptions for non-applicability if art. 12, and hence
reservation is also not a FR
Indian medical college v. UOI
The principle of res judicata does not apply to habeas corpus because life and liberty is of
utmost importance

Date- 26.08.2022, Friday

Concept of CITIZENSHIP under the Indian constitution Law
What is citizenship?
- Signifies relationship between the individual and state
- Citizens owe allegiance to the state. They enjoy all civil + political rights whereas
aliens don’t
- Idea of exclusion – excludes non-citizens
In citizenship- there are l2 well known principles:
1. Jus- Soli: confers citizenship on the basis of place of Birth
2. Jus-Sanguinis- gives recognition on the basis of blood ties
Motilal Nehru committee (1928)
- in favour of Jus-Soli
- racial ideas of Jus-Sanguinis- rejected by constituent assembly
Constitutional provisions- (Art. 5-11)
- Union list- exclusive jurisdiction of parliament
- Constitution don’t define citizenship
- Enforced on 26th November 1949
Article 5- on commencement of constitution
 - Domiciled + born in india
- Domiciled + born in India – parents born in India
- Ordinary resident for more than 5 yrs- apply for citizenship
Article 6- migration from Pakistan two India
- Before 19. 07. 1949 + parents or grandparents born in India
- After 19.07.1949- register for citizenship
Article 7- Migrants to Pakistan
- Migrated after 1. 03. 1947 – subsequently returned two India on resettlement permits.
Article 8- Persons of Indian Origin residing out of India
- Parents or grandparents- born in India
- Register with the Indian Embassy
Article 9- Voluntarily acquires citizenship of a foreign country – loses citizenship of India
Article 10- All Indians are subjected to the law made by the parliament on citizenship
Article 11- Parliament is empowered to make law on acquisition + termination of citizenship
ACTS + AMENDMENT:
Acquisition of citizenship- birth, descent, registration + naturalization
- BIRTH- After 26. 01.1950 before 1.7.1987
Born- 1.7.1987 – 2.12.2004- either parent are citizens of India at time of birth.
Born- 3.12.2004- after both parents- Indian citizens at time of birth or at least one is
Indian but if the other shall or be an illegal immigrant then the person will not be an
Indian Citizen
- BY REGISTRATION-
Person of Indian Origin- resident of India- 7 years
Person of Indian Origin- resident of any country outside India
Named to an Indian Citizen + resident in India- 7 yrs.
Minor Children of persons of Indian Citizen
- BY DESCENT-
Born outside of India- after 26. 01.1950 if father is an Indian citizen
Born outside – after 10.12.1992- before 3.12.2004- either parent – Indian citizen
Born outside India- after 3.12.2004
Minor- not foreign citizen + registered birth- at Indian Embassy (within 1 year)
- BY NATURALIZATION-
Ordinarily resident of India for 12 years.
AMENDMENT
1) 1986- prior to this the principle of jus soli was used.
2) 2003
3) 2005- infiltration of Bangladeshis
4) 2015
5) 2019
 CAA, 2019-
Please refer to the Drishti ias notes

Date- 29.08.2022, Monday

Fundamental of the Writ Jurisdiction:
1) Broad Fundamentals-
Territorial Limitations:
i) A. 226 of HC
There shall be a cause of action that has occurred in that state.
ii) A. 32 of SC
There is no territorial limitation as it is the apex court.
2) Discretionary Remedy-
3) Supervisory Remedy-
Principles regulating writ jurisdiction:
1. Alternative Adequate Legal Remedy.
A. 226- other purposes.

Date- 30. 08. 2022, Tuesday

State of UP v. Mohd. Nooh AIR 1958 SC 86
The court has also issued writs in case where there is an availability of alternate
remedy, this is not rule of law but rather rule of Policy
2. Delay- The court won’t entertain writ if there has been a delay. The court can accept
only when there is a convincing reason for the delay.
3. Suppression of facts- the petition can be rejected if the court is being misled.
Suppression of fact will lead to dismissal of petition
4. Futile writs- if the decision would have no implication. if the person file case after
getting admission in some other university.
5. Disputed Questions of facts-
6. Perpetuation of Illegality- it will be dismissed.
7. Dismissal in Limine- if the claim is frivolous, malafide, then it will be dismissed.
8. Joinder of parties-
9. Res Judicata- if the case is already filed in original jurisdiction the same case cannot
be again filed in the original jurisdiction in the HC or SC, you can only do an appeal.
Only exception is writ of Habeus Corpus.
10. Interim Relief- Court can issue it under 32 and 226.
11. Relief cannot be barred by statute
12. Writ cannot be issued to Legislatives
Fundamental Principles Regulating writ of Habeus corpus:
1. The writ of Habeus corpus is for unlawful confinement or wrongful detention.
2. The writ of Habeus corpus is issued in the form of an order asking the authority to
establish lawful detention.
3. Habeus Corpus can be filed by anyone on the behalf of the detinue.
4. It is necessary for Habeus corpus application to have a supporting affidavit describing
the nature and the circumstances of the detention.
5. Application for decree nisi
6. Broadly speaking Detention is not prima facie illegal if the following conditions are
satisfied:
i) If the detention is in accordance to procedure established by law-
a) Law must be valid
b) Law must have procedures
c) Procedure must be complied with
d) Procedure must be right, just and fair
ii) It must not infringe any of the conditions laid down in Art. 22.
iii) The law under which the person is detained, the legislature must have the
competency to make the law.
7 A person is not entitled to get a Habeus corpus if the restraint is not illegal.
8 A writ of Habeus corpus would lie against the authority if there is a malafide intention
9 A Writ of Habeus corpus is not applicable to punitive detention.
10 A person cannot file a writ of Habeus corpus under successive applications before
different judges in the same bench.
11 An appeal for writ of Habeus corpus can lie before Sc under Art. 132, 133, 134, 136
12 A writ of Habeus corpus also applies to private unlawful confinement.
13 If there is an application of Habeus corpus in the HC the houses of legislatures cannot
raise a preliminary objection.
14 If there is an order for the writ of Habeus Corpus, the fact that the person got released
is false than the person will get a monetary compensation.

Date- 05.09.2022, Monday

Fundamental principles regulating the writ of certiorari:
1. - Its an order of the HC to the inferior courts or tribunals or authorities asking or
requesting them to transmit the record of the proceedings pending with them for the
purposes of scrutiny and if necessary to quash the same.
The first case was Crown v. Electricity commission, 1934 KB-
First Indian case that used the principles of the British laws was- Province of
Bombay v. Kushal das S Advani 1950 SC 222
- Can be issued to:
1. Anybody of person
2. Having legal authority
3. Having Power to question effecting right of subjects
 4. Duty to act judicially
Crown v. Electricity Commission- The writ of certiorari may be issued in case
where there must be the exercise of some rights or duty to decide, in order to provide
writ of certiorari
- When the statute mentions the duty to act judicially then the writ of certiorari can be
issued, but if statute is silent the writ cannot be issued. (Ex. The cases of Maneka
Gandhi where her passport was compounded, but the passport act did not mention
about the duty to judicially.
- Look at the judicial procedure of Act and the Rules Regulating it.
- Propositions:
i) A statute empowering an authority to determine dispute on claim opposed by
the authority (ex. Passport authority). Determine right of contesting parties-
duty lies on the authority to act judicially (Quasi-judicial power)
ii) There is a SA, which has power to do any act, that will prejudicially affect the
subjects, then the authority has the power to determine its act by a quasi-
judicial act and has duty to act judicially.
iii) If in the opinion of the provincial govt. it is necessary, it can acquire land and
use it for education purpose. (The writ of certiorari cannot be asked here).
- Kushal Advani Case- Chief Justice Kania in his dissenting opinion said, “whenever
the decision is coming from the authority which is likely to affect the rights of the
subjects, it has a duty to act Judicially”.
- Ridge v. Baldwin- Landmark case giving certiorari to administrative authorities.
(Maneka Gandhi case is a copy of this judgement.
Date- 06.09.2022, Tuesday
2. To determine the jurisdiction of Writ of Certiorari
Ridge v. Baldwin (1964) House of Lords
- Judicial character of duty is to be inferred from the nature of the duty itself and is not
required to be super added from the law that grants the power
- Distinction between administrative and quasi-judicial functions got blurred.
- First Indian cases:
i) Association cement companies ltd. v. P N Sharma (AIR 1965)
ii) Shri Bhagwan v. Ram Chand (AIR 1965)
iii) D L Boand v. Jaffar Iman (AIR 1964)
- A K Kraipak v. UOI (AIR 1969) SC
Principles of Law-
i) Nature of the Power conferred
ii) On whom the power is conferred
iii) Framework of law that confers the power
iv) Consequent ensuing from the exercise power
v) The manner in which the power was exercised
- Maneka Gandhi v. UOI (1978) SC
- Swadeshi Cotton Mills v. UOI (1981) SC
Principles of law- extent of urgency / immediacy depend on facts and circumstances
of the case.
 3. Remedy is discretionary
- Grounds for writ of certiorari:
a. Want/excess of jurisdiction
To correct errors of Jurisdiction
Error of fact or law – appellate jurisdiction
b. Violation of principles of natural justice
i) Audi Alteram Partem- Right to be heard
ii) Bias/ interest- no man should be a judge in his own case
- Justice must cannot only be done but it must manifest and undoubtedly see to be done.
- What is error of Law? – Manifest error on the face of the procedure ex. Disregard of
some provisions of law- patent / self-evident error of law.
- What is not error of law? – Examination / arguments or when there are more than two
views and the court took one and not the other.
Example of Error of law:
i) Erroneously refusing to admit admissible and material evidence
ii) Erroneously admitting inadmissible evidence which influenced finding of
court
iii) Finding of facts based on no evidence
Sufficient and inadequacy of evidence is not an error of law
4. Supervisory power
5. Judicial orders passed by HC cannot be quashed by writ of certiorari
6. Acts of Parliament or State legislature cannot be quashed by writ of certiorari
7. Supreme Court cannot quash proceedings of HC by writ of certiorari
Writ of Prohibition – commands a court/tribunal to whom it is issued from doing something
which is about to do judicial / quasi-judicial powers
- Ground- absence/excess of jurisdictions

Writ of Mandamus:
Judicial remedy which is in the form of an order of a Superior court to govt., court,
corporation / public authority to do/ forbid from doing some specific act which the body is
obliged to do under some law/ refrain from doing
1. Nature of duty- Public
2. Duty – imperative and not discretionary
3. Protected legal right
4. Cannot apply to private persons
5. Discretionary

Writ of Quo-Warranto:
To prevent a person who has wrongfully usurped an office from continuing to hold that
office. Holding of office without authority
 1. Public office- public has interest
2. Delay cannot be a ground to reject application
3. Discretionary
4. Cannot apply to private nature/ organisations.

Date- 07.09.2022, Wednesday

Difference between Article 226 and 227 of High Court-
- Case Laws:
1. Umaji Keshao Meshram & Ors. v. Smt. Radhikabai and Anr.
2. Surya Devi Rai v. Ram Chander Rai:
Principles of law:
i) The writ of certiorari is an exercise of its original jurisdiction (Art. 226 by the
HC), Exercise of supervisory jurisdiction (A. 227) is not an original
jurisdiction and in this regard, it is akin to appellant revisional of correct
jurisdiction.
ii) In a writ of certiorari, the record of proceeding having been certified and sent
up by the inferior court or tribunal to the HC, the HC if inclined to exercise its
jurisdiction may be simple annul or quash the proceedings and then do no
more. (A. 226)
iii) In exercise of supervisory jurisdiction (A.227), the HC may not only quash or
set aside the intuned proceedings, judgement or order but it may also make
such directions as the facts and circumstances of the case may warrant from
may be by the way of guiding the inferior court or the tribunal as to the
manner in which it would now proceed further or afresh as commended to or
guided by the HC.
iv) In appropriate cases the HC while exercising its supervisory jurisdiction may
substitute its impugned decision with the decision of its own as the inferior
court or tribunal should have made.
v) The jurisdiction under A. 226 of the HC is capable of being exercised on a
prayer made by on behalf of the party aggrieved but the power conferred
under Art. 226 vis-à-vis the supervisory jurisdiction is capable of being
exercised Suo moto as well.

3. Radhe Shyam and Another v. Chhabi and Ors. - Constitutional Bench of SC. It
asked the court to decide if Surya dev rai was decided correctly.
The Hon'ble Court observed that:
“This Court unfortunately discerns (with Surya Devi Rai vs. Ram Chander
Rai) that of late there is a growing trend amongst several High Courts to entertain writ
petition in cases of pure property disputes. Disputes relating to partition suits, matters
relating to execution of a decree, in cases of dispute between landlord and tenant and
also, in a case of money decree and in various other cases where disputed questions of
property are involved, writ courts are entertaining such disputes. In some cases, the
High Courts, in a routine manner, entertain petitions under Article 227 over such
disputes and such petitions are treated as writ petitions. We would like to make it
clear that in view of the law referred to above in cases of property rights and in
 disputes between private individuals, writ court should not interfere unless there is
any infraction of statute or it can be shown that a private individual is acting in
collusion with a statutory authority.
We may also observe that in some High Courts there is a tendency of
entertaining petitions under Article 227 of the Constitution by terming them as writ
petitions. This is sought to be justified on an erroneous appreciation of the ratio
in Surya Dev and in view of the recent amendment to Section 115 of the Civil
Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that
as a result of the amendment, scope of Section 115 CPC has been curtailed. In our
view, even if the scope of Section 115 CPC is curtailed, it has not resulted in
expanding the High Court's power of superintendence. It is too well known to be
reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
Thus, we are of the view that judicial orders of civil courts are not amenable to
a writ of certiorari under Article 226. We are also in agreement with the view of the
referring Bench that a writ of mandamus does not lie against a private person not
discharging any public duty. Scope of Article 227 is different from Article 226."

- Art. 226- Original and Supervisory powers. (it is original jurisdiction)

- Art. 227- no original jurisdiction- supervisory jurisdictions:
i) It calls from returns from such courts
ii) It makes and issues general rules and prescribes forms for regulating the
practice and proceedings of such courts.
iii) It prescribes forms in which books, entries and accounts be kept by the offices
of any such courts.
iv) It settle tables of fees to be allowed to the sheriff and all clerks and officers of
such courts.
It is taken from S. 107 of Govt. of India Act, 1930
It is taken when there is grave injustice- ex.:
i) When the court or tribunal has assumed a jurisdiction which it does not have.
Want/excess of jurisdiction
ii) When the court or tribunal has failed to exercise the jurisdiction which it does
have so such failure occasioning in the failure of justice.
iii) The jurisdiction though available is being exercised in a manner which
tantamount to overstepping the limits of the jurisdiction

Date- 08.09.2022, Thursday

1774, 26th March- King George 3 established supreme court of judicature in west Bengal
2 types of writs- certiorari, Quo-Warranto
1823- 2 more SC were established at Bombay and madras.
The three HC’s- Bombay Madras and Calcutta- Chartered HC’s also started issuing writs
CrPC, 1861, SRA, 1877- HC’s started issuing writ of Habeus corpus.
S. 45, SRA, 1877- Writ of Mandamus was issued through this.
19th Century-
Art. 32 is a fundamental right itself as it is in Part III
Art. 226 falls in Part. 6, Ch.5 that deals with HC. As in emergency fundamental rights can be
suspended so it is kept outside.
Powers under 226 says that the 5 writs are illustrative writs only, there can me many more
orders passed under A. 226 as well, whereas under A. 32 only writ for FR’s can be passed.
Under 226 writs can be passed for any other purpose as well.
Art. 226 is the crowning glory of the constitution, if A. 32 is the soul.
Art. 139 empowers parliament if SC has to issue writs, authorisation
Art. 226 was initially prepared as A. 202- after debates on 7 th June, 1949 and 9th Sept. 1949, it
was finally decided that it would be drafted as A. 226. Constitution brought writ jurisdiction
to all the HC’s earlier it was only a power conformed to a few HCs.
Scope and Extent of A. 227- Bench of 7 Judges in L. Chandra Kumar Case- held that:
i) A.226 and A.227 are part of the basic structure of constitution along with A.32
ii) These powers cannot be taken away by any constitutional amendment or
parliamentary legislation.
Power under 227 is close to certiorari and 226. It is wider than 226 as it is not subject to
any technicalities or procedure which is found in writ jurisdiction.
The court also said that:
i) These powers under 227 cannot be taken away by any constitutional amendment
or parliamentary legislation
ii) 27 can be used to interfere even in interlocutory order,
iii) power to be used also to keep tribunals in the bounds of their boundaries so they
keep up with their objectives.
Certiorari is exercise of original jurisdiction whereas 227 is supervisory jurisdiction
In certiorari HC merely quashes it, in 227 it also gives direction
In certiorari, the petitioner directs the prayers the relief is granted on the basis of it, but in 227
the HC can also do it in Suo Moto.
Another feature of L. Chandra Kumar- A. 227 can be used in relation to all tribunals.
SVP v. Patel Engineering- A. 227 cannot be used to challenge the orders passed by the
Arbitral tribunal, however this was changed later.
Art. 227 is to correct mistakes especially for tribunals, then why not Arbitration Tribunal.
Can a writ be issued to HC under 226 and 227
Naresh Shridhar Mirajkar v. State of MH- could the writ of certiorari issued against
Bombay HC. It was held that a writ cannot be issued against a constitutional court. it would
flow only towards inferior courts which HC cannot constitute one.
Legacy of A. 226 judgements:
Emergency was a dark time. So could the fundamental liberty be taken away was an issue in
9 cases which is referred to as ADM Jabalpur. The HC held that Fundamental liberty cannot
be taken away however, the SC did not agree with these 9 HC’s and said that the liberty can
be taken away. Justice H R Khanna had given Dissenting opinion.
This judgement after 40 years in the privacy judgement was changed and was said that it
cannot be taken away.
NAAZ Foundation case- this judgement did not meet the approval of the SC, but recently it
said that S. 377 shall be decriminalized.
Election Commission v. Saka Venkata Rao- the objective of the constitution framers was to
remove all limitation and keep all HCs at the same power of the HCs of England and have all
kinds of Writ powers.
The writ can be issued by any HC which is meant to be issued against the authority which has
its presence in the territorial jurisdiction.
Whenever A. 226 Is invoked to challenge the constitutional validity of an act, then there shall
be a person aggrieved.