• Political scientists have classified governments into unitary and federal on the basis of the nature of relations between the national government and the regional governments.
• By definition, a unitary government is one in which all the powers are vested in the national government and the regional governments, if at all exist, derive their authority from the national government.
• A federal government, on the other hand, is one in which powers are divided between the national government and the regional governments by the Constitution itself and both operate in their respective jurisdictions independently.
• Britain, France, Japan, China, Italy, Belgium, Norway, Sweden, Spain and so on have the unitary model of government while the US, Switzerland, Australia, Canada, Russia, Brazil, Argentina and so on have the federal model of government.
• In a federal model, the national government is known as the Federal government or the Central government or the Union government and the regional government is known as the state government or the provincial government.
|Federal Government||Unitary Government|
|1. Dual Government (that is, national government and regional government)||1. Single government, that is, the national government which may create regional governments|
|2. Written Constitution||2. Constitution may be written (France) or unwritten (Britain)|
|3. Division of powers between the national and regional government||3. No division of powers. All powers are vested in the national government|
|4. Supremacy of the Constitution||4. Constitution may be supreme (Japan) or may not be supreme (Britain)|
|5. Rigid Constitution||5. Constitution may be rigid (France) or flexible (Britain)|
Federal Features of the Constitution
The federal features of the Constitution of India are explained below:
1. Dual Polity
• The Constitution establishes a dual polity consisting the Union at the Centre and the states at the periphery.
• Each is endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.
• The Union government deals with the matters of national importance like defence, foreign affairs, currency, communication and so on.
• The state governments, on the other hand, look after the matters of regional and local importance like public order, agriculture, health, local government and so on.
2. Written Constitution
• The Constitution is not only a written document but also the lengthiest Constitution of the world.
• It specifies the structure, organisation, powers and functions of both the Central and state governments and prescribes the limits within which they must operate.
• Thus, it avoids the misunderstandings and disagreements between the two.
3. Division of Powers
• The Constitution divided the powers between the Centre and the states in terms of the Union List, State List and Concurrent List in the Seventh Schedule.
• The Union List consists of 100 subjects (originally 97), the State List 61 subjects (originally 66) and the Concurrent List 52 subjects (originally 47).
• Both the Centre and the states can make laws on the subjects of the concurrent list, but in case of a conflict, the Central law prevails.
• The residuary subjects (i.e., which are not mentioned in any of the three lists) are given to the Centre.
4. Supremacy of the Constitution
• The Constitution is the supreme (or the highest) law of the land.
• The laws enacted by the Centre and the states must confirm to its provisions.
• Otherwise, they can be declared invalid by the Supreme Court or the high courts through their power of judicial review.
• Thus, the organs of the government (legislative, executive and judicial) at both the levels must operate within the jurisdiction prescribed by the Constitution.
5. Rigid Constitution
• The division of powers established by the Constitution as well as the supremacy of the Constitution can be maintained only if the method of its amendment is rigid.
• Hence, the Constitution is rigid to the extent that those provisions which are concerned with the federal structure (i.e., Centre-state relations and judicial organisation) can be amended only by the joint action of the Central and state governments.
• Such provisions require for their amendment a special majority4 of the Parliament and also an approval of half of the state legislatures.
6. Independent Judiciary
• The Constitution establishes an independent judiciary headed by the Supreme Court for two purposes: one, to protect the supremacy of the Constitution by exercising the power of judicial review; and two, to settle the disputes between the Centre and the states or between the states.
• The Constitution contains various measures like security of tenure to judges, fixed service conditions and so on to make the judiciary independent of the government.
• The Constitution provides for a bicameral legislature consisting of an Upper House (Rajya Sabha) and a Lower House (Lok Sabha).
• The Rajya Sabha represents the states of Indian Federation, while the Lok Sabha represents the people of India as a whole.
• The Rajya Sabha (even though a less powerful chamber) is required to maintain the federal equilibrium by protecting the interests of the states against the undue interference of the Centre.
Unitary Features of the Constitution
Besides the above federal features, the Indian Constitution also possesses the following unitary or non-federal features:
1. Strong Centre
• The division of powers is in favour of the Centre and highly inequitable from the federal angle.
• Firstly, the Union List contains more subjects than the State List.
• Secondly, the more important subjects have been included in the Union List.
• Thirdly, the Centre has overriding authority over the Concurrent List.
• Finally, the residuary powers have also been left with the Centre, while in the US, they are vested in the states.
• Thus, the Constitution has made the Centre very strong.
2. States Not Indestructible
• Unlike in other federations, the states in India have no right to territorial integrity.
• The Parliament can by unilateral action change the area, boundary or name of any state.
• Moreover, it requires only a simple majority and not a special majority.
• Hence, the Indian Federation is “an indestructible Union of destructible states”.
• The American Federation, on the other hand, is described as “an indestructible Union of indestructible states”.
3. Single Constitution
• Usually, in a federation, the states have the right to frame their own Constitution separate from that of the Centre.
• In India, on the contrary, no such power is given to the states. The Constitution of India embodies not only the Constitution of the Centre but also those of the states.
• Both the Centre and the states must operate within this single frame.
4. Flexibility of the Constitution
• The process of constitutional amendment is less rigid than what is found in other federations.
• The bulk of the Constitution can be amended by the unilateral action of the Parliament, either by simple majority or by special majority.
• Further, the power to initiate an amendment to the Constitution lies only with the Centre.
• In US, the states can also propose an amendment to the Constitution.
5. No Equality of State Representation
• The states are given representation in the Rajya Sabha on the basis of population.
• Hence, the membership varies from 1 to 31.
• In US, on the other hand, the principle of equality of representation of states in the Upper House is fully recognised.
• Thus, the American Senate has 100 members, two from each state.
• This principle is regarded as a safeguard for smaller states.
6. Emergency Provisions
• The Constitution stipulates three types of emergencies—national, state and financial.
• During an emergency, the Central government becomes all powerful and the states go into the total control of the Centre.
• It converts the federal structure into a unitary one without a formal amendment of the Constitution.
• This kind of transformation is not found in any other federation.
7. Single Citizenship
• In spite of a dual polity, the Constitution of India, like that of Canada, adopted the system of single citizenship.
• There is only Indian Citizenship and no separate state citizenship.
• All citizens irrespective of the state in which they are born or reside enjoy the same rights all over the country.
• The other federal states like US, Switzerland and Australia have dual citizenship, that is, national citizenship as well as state citizenship.
8. Integrated Judiciary
• The Indian Constitution has established an integrated judicial system with the Supreme Court at the top and the state high courts below it.
• This single system of courts enforces both the Central laws as well as the state laws.
• In US, on the other hand, there is a double system of courts whereby the federal laws are enforced by the federal judiciary and the state laws by the state judiciary.
9. All-India Services
• In US, the Federal government and the state governments have their separate public services.
• In India also, the Centre and the states have their separate public services.
• But, in addition, there are all-India services (IAS, IPS, and IFS) which are common to both the Centre and the states.
• The members of these services are recruited and trained by the Centre which also possess ultimate control over them.
• Thus, these services violate the principle of federalism under the Constitution.
10. Integrated Audit Machinery
• The Comptroller and Auditor-General of India audits the accounts of not only the Central government but also those of the states.
• But his appointment and removal is done by the president without consulting the states.
• Hence, this office restricts the financial autonomy of the states.
• The American Comptroller-General, on the contrary, has no role with respect to the accounts of the states.
11. Parliament’s Authority Over State List
• Even in the limited sphere of authority allotted to them, the states do not have exclusive control.
• The Parliament is empowered to legislate on any subject of the State List if Rajya Sabha passes a resolution to that effect in the national interest.
• This means that the legislative competence of the Parliament can be extended without amending the Constitution.
• Notably, this can be done when there is no emergency of any kind.
12. Appointment of Governor
• The governor, who is the head of the state, is appointed by the President.
• He holds office during the pleasure of the President. He also acts as an agent of the Centre.
• Through him, the Centre exercises control over the states.
13. Integrated Election Machinery
• The Election Commission conducts elections not only to the Central legislature but also to the state legislatures.
• But this body is constituted by the President and the states have no say in this matter.
• The position is same with regards to the removal of its members as well.
• On the other hand, US has separate machineries for the conduct of elections at the federal and state levels.
14. Veto Over State Bills
• The governor is empowered to reserve certain types of bills passed by the state legislature for the consideration of the President.
• The President can withhold his assent to such bills not only in the first instance but also in the second instance.
• Thus, the President enjoys absolute veto (and not suspensive veto) over state bills.
• But in US and Australia, the states are autonomous within their fields and there is no provision for any such reservation.
• The Constitution of India, being federal in structure, divides all powers (legislative, executive and financial) between the Centre and the states.
• However, there is no division of judicial power as the Constitution has established an integrated judicial system to enforce both the Central laws as well as state laws.
• Though the Centre and the states are supreme in their respective fields, the maximum harmony and coordination between them is essential for the effective operation of the federal system.
• Hence, the Constitution contains elaborate provisions to regulate the various dimensions of the relations between the Centre and the states.
Legislative Relations between Centre and states
• Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations between the Centre and the states.
• Like any other Federal Constitution, the Indian Constitution also divides the legislative powers between the Centre and the states with respect to both the territory and the subjects of legislation.
• Further, the Constitution provides for the parliamentary legislation in the state field under five extraordinary situations as well as the centre’s control over state legislation in certain cases.
1. Territorial Extent of Central and State Legislation
• The Constitution defines the territorial limits of the legislative powers vested in the Centre and the states in the following way:
(i) The Parliament can make laws for the whole or any part of the territory of India.
• The territory of India includes the states, the union territories, and any other area for the time being included in the territory of India.
(ii) A state legislature can make laws for the whole or any part of the state.
• The laws made by a state legislature are not applicable outside the state, except when there is a sufficient nexus between the state and the object.
(iii) The Parliament alone can make ‘extra-territorial legislation’.
• Thus, the laws of the Parliament are also applicable to the Indian citizens and their property in any part of the world.
• However, the Constitution places certain restrictions on the plenary territorial jurisdiction of the Parliament.
• In other words, the laws of Parliament are not applicable in the following areas:
(i) The President can make regulations for the peace, progress and good government of the four Union Territories—the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli and Daman and Diu.
• A regulation so made has the same force and effect as an act of Parliament. It may also repeal or amend any act of Parliament in relation to these union territories.
(ii) The Governor is empowered to direct that an act of Parliament does not apply to a scheduled area in the state or apply with specified modifications and exceptions.
(iii) The Governor of Assam may likewise direct that an act of Parliament does not apply to a tribal area (autonomous district) in the state or apply with specified modifications and exceptions.
• The President enjoys the same power with respect to tribal areas (autonomous districts) in Meghalaya, Tripura and Mizoram.
2. Distribution of Legislative Subjects
• The Constitution provides for a three-fold distribution of legislative subjects between the Centre and the states, viz., List-I (the Union List), List-II (the State List) and List-III (the Concurrent List) in the Seventh Schedule:
(i) The Parliament has exclusive powers to make laws with respect to any of the matters enumerated in the Union List.
• This list has at present 100 subjects (originally 971 subjects) like defence, banking, foreign affairs, currency, atomic energy, insurance, communication, inter-state trade and commerce, census, audit and so on.
(ii) The state legislature has “in normal circumstances” exclusive powers to make laws with respect to any of the matters enumerated in the State List.
• This has at present 61 subjects (originally 662 subjects) like public order, police, public health and sanitation, agriculture, prisons, local government, fisheries, markets, theatres, gambling and so on.
(iii) Both, the Parliament and state legislature can make laws with respect to any of the matters enumerated in the Concurrent List.
• This list has at present 52 subjects (originally 47) like criminal law and procedure, civil procedure, marriage and divorce, population control and family planning, electricity, labour welfare, economic and social planning, drugs, 42nd Amendment Act of 1976 newspapers, books and printing press, and others.
• The transferred five subjects to Concurrent List from State List, that is, (a) education, (b) forests, (c) weights and measures, (d) protection of wild animals and birds, and (e) administration of justice; constitution and organisation of all courts except the Supreme Court and the high courts.
• The power to make laws with respect to residuary subjects (i.e., the matters which are not enumerated in any of the three lists) is vested in the Parliament.
• This residuary power of legislation includes the power to levy residuary taxes.
• In case of a conflict between the Central law and the state law on a subject enumerated in the Concurrent List, the Central law prevails over the state law.
• But there is an exception:
• If the state law has been reserved for the consideration of the president and has received his assent, then the state law prevails in that state.
• But it would still be competent for the Parliament to override such a law by subsequently making a law on the same matter.
3. Parliamentary Legislation in the State Field
• The above scheme of distribution of legislative powers between the Centre and the states is to be maintained in normal times.
• But, in abnormal times, the scheme of distribution is either modified or suspended.
• In other words, the Constitution empowers the Parliament to make laws on any matter enumerated in the State List under the following five extraordinary circumstances:
a) When Rajya Sabha passes a resolution:
• If the RS declares that it is necessary in the national interest that Parliament should make laws on a matter in the State List, then the Parliament becomes competent to make laws on that matter.
• Such a resolution must be supported by two-thirds of the members present and voting.
• The resolution remains in force for one year; it can be renewed any number of times but not exceeding one year at a time.
• The laws cease to have effect on the expiration of six months after the resolution has ceased to be in force.
• This provision does not restrict the power of a state legislature to make laws on the same matter.
• But, in case of inconsistency between a state law and a parliamentary law, the latter is to prevail.
b) During a National Emergency
• The Parliament acquires the power to legislate with respect to matters in the State List, while a proclamation of national emergency is in operation.
• The laws become inoperative on the expiration of six months after the emergency has ceased to operate.
• Here also, the power of a state legislature to make laws on the same matter is not restricted.
• But, in case of repugnancy between a state law and a parliamentary law, the latter is to prevail.
c) When States Make a Request
• When the legislatures of two or more states pass resolutions requesting the Parliament to enact laws on a matter in the State List, then the Parliament can make laws for regulating that matter.
• A law so enacted applies only to those states which have passed the resolutions. However, any other state may adopt it afterwards by passing a resolution to that effect in its legislature.
• Such a law can be amended or repealed only by the Parliament and not by the legislatures of the concerned states.
• The effect of passing a resolution under the above provision is that the Parliament becomes entitled to legislate with respect to a matter for which it has no power to make a law. On the other hand, the state legislature ceases to have the power to make a law with respect to that matter.
• Some examples of laws passed under the above provision are Prize Competition Act, 1955; Wild Life (Protection) Act, 1972; Water (Prevention and Control of Pollution) Act, 1974; Urban Land (Ceiling and Regulation) Act, 1976; and Transplantation of Human Organs Act, 1994.
d) To Implement International Agreements
• The Parliament can make laws on any matter in the State List for implementing the international treaties, agreements, or conventions.
• This provision enables the Central government to fulfil its international obligations and commitments.
• Some examples of laws enacted under the above provision are United Nations (Privileges and Immunities) Act, 1947; Geneva Convention Act, 1960; Anti-Hijacking Act, 1982 and legislations relating to environment and TRIPS.
e) During President’s Rule
• When the President’s rule is imposed in a state, the Parliament becomes empowered to make laws with respect to any matter in the State List in relation to that state.
• A law made so by the Parliament continues to be operative even after the president’s rule.
• But such a law can be repealed or altered or re-enacted by the state legislature.
4. Centre’s Control Over State Legislation
• Besides the Parliament’s power to directly legislate on the state subjects under exceptional situations, the Constitution empowers the Centre to exercise control over the state’s legislative matters in the following ways:
(i) The governor can reserve certain types of bills passed by the state legislature for the consideration of the President.
• The president enjoys absolute veto over them
(ii) Bills on certain matters enumerated in the State List can be introduced in the state legislature only with the previous sanction of the president.
• For example, the bills imposing restrictions on the freedom of trade and commerce
(iii) The President can direct the states to reserve money bills and other financial bills passed by the state legislature for his consideration during a financial emergency.
• Articles 256 to 263 in Part XI of the Constitution deal with the administrative relations between the Centre and the states.
Distribution of Executive Powers
• The executive power has been divided between the Centre and the states on the lines of the distribution of legislative powers, except in few cases.
• Thus, the executive power of the Centre extends to the whole of India:
(i) to the matters on which the Parliament has exclusive power of legislation (i.e., the subjects enumerated in the Union List); and
(ii) to the exercise of rights, authority and jurisdiction conferred on it by any treaty or agreement.
• Similarly, the executive power of a state extends to its territory in respect of matters on which the state legislature has exclusive power of legislation (i.e., the subjects enumerated in the State List).
• In respect of matters on which both the Parliament and the state legislatures have power of legislation (i.e., the subjects enumerated in the Concurrent List), the executive power rests with the states except when a Constitutional provision or a parliamentary law specifically confers it on the Centre.
• Therefore, a law on a concurrent subject, though enacted by the Parliament, is to be executed by the states except when the Constitution or the Parliament has directed otherwise.
Obligation of States and the Centre
• The Constitution has placed two restrictions on the executive power of the states in order to give ample scope to the Centre for exercising its executive power in an unrestricted manner
• The executive power of every state is to be exercised in such a way
(a) as to ensure compliance with the laws made by the Parliament and any existing law which apply in the state and
(b) as not to impede or prejudice the exercise of executive power of the Centre in the state
• In both the cases, the executive power of the Centre extends to giving of such directions to the state as are necessary for the purpose. The sanction behind these directions of the Centre is coercive in nature.
• Thus, Article 365 says that where any state has failed to comply with (or to give effect to) any directions given by the Centre, it will be lawful for the President to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
• It means that, in such a situation, the President’s rule can be imposed in the state under Article 356.
Centre’s Directions to the States
• In addition to the above two cases, the Centre is empowered to give directions to the states with regard to the exercise of their executive power in the following matters:
(i) the construction and maintenance of means of communication (declared to be of national or military importance) by the state
(ii) the measures to be taken for the protection of the railways within the state
(iii) the provision of adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups in the state and
(iv) the drawing up and execution of the specified schemes for the welfare of the Scheduled Tribes in the state
• The coercive sanction behind the Central directions under Article 365 (mentioned above) is also applicable in these cases
• Like in any other federation, the Centre and the states also have their separate public services called as the Central Services and the State Services respectively.
• In addition, there are all-India services – IAS, IPS and IFS.
• The members of these services occupy top positions (or key posts) under both the Centre and the states and serve them by turns.
• But they are recruited and trained by the Centre.
• These services are controlled jointly by the Centre and the states. The ultimate control lies with the Central government while the immediate control vests with the state governments.
Public Service Commissions
• In the field of public service commissions, the Centre-state relations are as follows:
(i) The Chairman and members of a state public service commission, though appointed by the governor of the state, can be removed only by the President.
(ii) The Parliament can establish a Joint State Public Service Commission (JSPSC) for two or more states on the request of the state legislatures concerned. The chairman and members of the JSPSC are appointed by the president.
(iii) The Union Public Service Commission (UPSC) can serve the needs of a state on the request of the state governor and with the approval of the President.
(iv) The UPSC assists the states (when requested by two or more states) in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.
• Article 280 provides for a Finance Commission as a quasi-judicial body. It is constituted by the President every fifth year or even earlier.
• It is required to make recommendations to the President on the following matters:
• The distribution of the net proceeds of taxes to be shared between the Centre and the states, and the allocation between the states, the respective shares of such proceeds.
• The principles which should govern the grants-in-aid to the states by the Centre (i.e., out of the Consolidated Fund of India).
• The measures needed to augment the Consolidated fund of a state to supplement the resources of the panchayats and the municipalities in the state on the basis of the recommendations made by the State Finance Commission.
Articles 268 to 293 in Part XII of the Constitution deal with Centre–state financial relations. Besides these, there are other provisions dealing with the same subject. These together can be studied under the following heads:
The Constitution divides the taxing powers between the Centre and the states in the following way:
• The Parliament has exclusive power to levy taxes on subjects enumerated in the Union List (which are 15 in number).
• The state legislature has exclusive power to levy taxes on subjects enumerated in the State List (which are 20 in number).
• Both the Parliament and the state legislature can levy taxes on subjects enumerated in the Concurrent List (which are 3 in number).
• The residuary power of taxation (that is, the power to impose taxes not enumerated in any of the three lists) is vested in the Parliament. Under this provision, the Parliament has imposed gift tax, wealth tax and expenditure tax.
In 1983, the Central government appointed a three-member Commission on Centre–state relations under the chairmanship of R S Sarkaria.
The Commission did not favour structural changes, but emphasised on the need for changes in the functional or operational aspects.
The Commission made 247 recommendations to improve Centre–state relations. Important recommendations:
1. A permanent Inter-State Council called the Inter-Governmental Council should be set up under Article 263.
2. Article 356 (President’s Rule) should be used very sparingly, in extreme cases as a last resort.
3. The institution of All-India Services should be further strengthened and some more such services should be created.
4. The zonal councils should be constituted afresh and reactivated to promote the spirit of federalism.
5. The procedure of consulting the chief minister in the appointment of the state governor should be prescribed in the Constitution itself.
6. The governor cannot dismiss the council of ministers so long as it commands a majority in the assembly.
7. The governor’s term of five years in a state should not be disturbed except for some extremely compelling reasons.
8. The surcharge on income tax should not be levied by the Centre except for a specific purpose and for a strictly limited period.
9. Steps should be taken to uniformly implement the three language formula in its true spirit.
10. No change in the role of Rajya Sabha and Centre’s power to reorganise the states.
Central government has implemented many of the recommendations. The most important is the establishment of the Inter-State Council in 1990.
The Second commission on Centre-State Relations was set-up by the Government of India in April 2007 under the Chairmanship of Madan Mohan Punchhi, former Chief Justice of India.
The Commission made over 310 recommendations. Important recommendations:
1. The Union should be extremely restrained in asserting Parliamentary supremacy in matters assigned to the states. Greater flexibility to states in relation to subjects in the State List and “transferred items” in the Concurrent List is the key for better Centre-state relations.
2. The Union should occupy only that many of subjects in concurrent or overlapping jurisdiction which are absolutely necessary to achieve uniformity of policy in demonstrable national interest.
3. The period of six months prescribed in Article 201 for State Legislature to act when the bill is returned by the President can be made applicable for the President also to decide on assenting or withholding assent to a state bill reserved for consideration of the President.
4. Parliament should make a law on Entry 14 of List I (treaty making and implementing it through Parliamentary legislation) to streamline the procedures.
5. While selecting Governors, the Central Government should adopt the following strict guidelines:
(i) He should be eminent in some walk of life
(ii) He should be a person from outside the state
(iii) He should be a detached figure and not too intimately connected with the local politics of the states
(iv) He should be a person who has not taken too great a part in politics generally and particularly in the recent past
6. Governors should be given a fixed tenure of five years and their removal should not be at the sweet will of the Government at the Centre.
7. The procedure laid down for impeachment of President, mutatis mutandis can be made applicable for impeachment of Governors as well.
8. In respect of bills passed by the Legislative Assembly of a state, the Governor should take the decision within six months whether to grant assent or to reserve it for consideration of the President.
9. On Governor’s role in the appointment of the Chief Minister in the case of a hung assembly, these guidelines may be followed as Constitutional conventions:
(i) The party or combination of parties which commands the widest support in the Legislative Assembly should be called upon to form the Government.
(ii) If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.
(iii) In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated here.
(a) The group of parties which had pre-poll alliance commanding the largest number
(b) The largest single party staking a claim to form the government with the support of others
(c) A post-electoral coalition with all partners joining the government
(d) A post-electoral alliance with some parties joining the government and the remaining supporting the government from outside
10. On the question of dismissal of a Chief Minister, the Governor should invariably insist on the Chief Minister proving his majority on the floor of the House for which he should prescribe a time limit.
11. The Governor should have the right to sanction for prosecution of a state minister against the advice of the Council of Ministers.
12. The convention of Governors acting as Chancellors of Universities and holding other statutory positions should be done away with.
13. When an external aggression or internal disturbance paralyses the state administration creating a situation of a break down of the Constitutional machinery, all alternative courses available to the Union for discharging its paramount responsibility under Article 355 should be exhausted to contain the situation and the exercise of the power under Article 356 should be limited strictly to rectifying a “failure of the Constitutional machinery in the state”.
14. On the question of invoking Article 356, suitable amendments are required to incorporate the guidelines set forth in the landmark judgement of the Supreme Court in S.R. Bommai V. Union of India (1994).
15. It is necessary to provide a Constitutional or legal framework to deal with situations which require Central intervention but do not warrant invoking the extreme steps under Articles 352 and 356. Providing the framework for “localised emergency” would ensure that the state government can continue to function and the Assembly would not have to be dissolved while providing a mechanism to let the Central Government respond to the issue specifically and locally. The imposition of local emergency is fully justified under the mandate of Article 355 read with Entry 2A of List I and Entry 1 of List II of the Seventh Schedule.
16. Suitable amendments to Article 263 are required to make the Inter-State Council a credible, powerful and fair mechanism for management of inter-state and Centre-state differences.
17. The Zonal Councils should meet at least twice a year.
18. The Empowered Committee of Finance Ministers of States proved to be a successful experiment in inter-state co-ordination on fiscal matters. There is need to institutionalise similar models in other sectors as well.
19. New all-India services in sectors like health, education, engineering and judiciary should be created.
20. Factors inhibiting the composition and functioning of the Second Chamber as a representative forum of states should be removed or modified even if it requires amendment of the Constitutional provisions.
21. A balance of power between states inter se is desirable and this is possible by equality of representation in the Rajya Sabha. This requires amendment of the relevant provisions to give equality of seats to states in the Rajya Sabha, irrespective of their population size.
22. Devolution of powers to local bodies to act as institutions of self-government should be constitutionally defined through appropriate amendments.
23. The royalty rates on major minerals should be revised at least every three years.
24. The current ceiling on profession tax should be completely done away with by a Constitutional amendment.
25. Steps should be taken for the setting up of an Inter-State Trade and Commerce Commission u/a 307 read with Entry 42 of List-I. This Commission should be vested with both advisory and executive roles with decision making powers.
SUPREME COURT OF INDIA
- The Supreme Court of India came into being on 28th January 1950
- It replaced both the Federal Court of India and the Judicial Committee of the Privy Council
- The first CJI of India was Shri H. J. Kania
Composition of Supreme Court [Article 124]
- Supreme Court of India consists of
- Chief Justice of India and not more than 7 other judges
- Parliament may by law
- prescribe a larger number of judges
Explanatory Notes from DLA
- The number of other judges was increased by Parliament to
- 25 in 1986, 30 in 2008 and 33 in 2019
- Presently, the number of judges in the Supreme Court is 34.
APPOINTMENT OF SUPREME COURT JUDGES [Article 124(2)]
- A judge of the Supreme Court shall be appointed by the President
- after consultation with such SC judges and HC judges
- as the President deems necessary
- For appointment of a judge other than the Chief Justice
- Chief Justice of India shall always be consulted
Explanatory Notes from DLA
Judicial interpretation on appointment to the Supreme Court
- The opinion of the Chief Justice of India has primacy in the matter of recommendation for appointment to the Supreme Court
- This opinion has to be formed in consultation with a collegium of Judges.
- The collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court.
- No one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the Chief Justice of India.
This procedure for appointment to the Supreme Court was laid down in the following two judgments of the Supreme Court:
(1) Supreme Court Advocates-on-Record Association v. Union of India: 1993
(2) Re Special Reference No. 1 of 1998
99th Constitutional Amendment, 2014
- Amended articles 124, 217 and 222, Added articles 124A, 124B and 124C
- Provided for establishment of the National Judicial Appointments Commission for appointment of Supreme Court Judges
Effect of the 99th Amendment:
- A Judge of the Supreme Court shall be appointed by the President
- on recommendation of the National Judicial Appointments Commission
Composition of the National Judicial Appointments Commission: Article 124A
- It comprised of the following 6 members:
(a) Chief Justice of India: Chairperson, ex officio
(b) two other seniormost Judges of Supreme Court: Members, ex officio
(c) Union Minister in charge of Law and Justice: Member, ex officio
(d) two eminent persons, to be nominated: Members
99th Amendment Act : unconstitutional
The 99th Amendment Act was declared unconstitutional by the Supreme Court in 2015 in the case of Supreme Court Advocates-on-Record-Association v. Union of India on the following grounds:
- Article 124A does not provide an adequate representation to the judicial component in the NJAC and therefore is insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges. The same is, accordingly, violative of the principle of “independence of the judiciary” which is a basic feature of our Constitution.
- Clause (c) of Article 124A(1) impinges upon the principles of “independence of the judiciary” as well as “separation of powers”.
Current Legal Status
- Appointment of Judges to the Supreme Court
- shall continue to be governed by the original provisions
- as interpreted by the Supreme Court in 1993 and 1998
Age of superannuation
- A Supreme Court judge shall hold office till the age of 65 years
- He should be a citizen of India
- should have been a judge of High Court for at least 5 years or
- should have been an advocate of High Court for at least 10 years or
- should be a distinguished jurist in the opinion of the President
Removal of a Supreme Court Judge
- Proved misbehaviour or
- A Supreme Court judge can be removed from office by an order of President
- Such an order can be passed only when each House passes a resolution by a majority of
- total membership of that House, and
- a majority of not less than 2/3rd of the members present and voting
- Procedure for investigation and proof of misbehaviour or incapacity
- shall be regulated by Parliament by law
The Judges Inquiry Act
- The Parliament passed the Judges Inquiry Act in 1968 under this provision.
- The notice of motion must be signed
- by not less than 100 members, in case of the House of People
- by not less than 50 members, in case of the Council of States
- If the motion is admitted, the Speaker/Chairman shall constitute a committee for making an investigation
- If the Committee returns a finding of not guilty
- no further steps shall be taken in either House of Parliament
- If the Committee returns a finding of guilty
- the motion shall be taken up for consideration by the Houses
- If the motion is adopted by each House of Parliament
- misbehaviour or incapacity of the Judge shall be deemed to have been proved
The first-ever removal attempt
- The first-ever removal motion against a SC judge, Justice V. Ramaswami was signed by 108 Lok Sabha MPs in 1991
- A year later, an inquiry found Ramaswami “guilty of wilful and gross misuses of office
- Only 196 members of Lok Sabha, less than the required majority of the total membership of the House, voted for his ouster. So the motion failed.
Oath of office
- A judge of Supreme Court shall make an oath
- before the President before he enters upon his office
Restriction on practice
- An ex-judge of the Supreme Court shall not plead or act
- in any court or before any authority in India
- Salaries, allowances and privileges of Supreme Court judges
- shall be determined by Parliament by law from time to time
- Salaries of Supreme Court judges were last revised in January 2018.
- After this revision, salary of the Chief Justice is Rs. 280000 per month and salary of a puisne judge is Rs. 250000.
Court of Record [ Article 129]
- The Supreme Court is a court of record
- It has the power to punish for contempt of itself
What is a court of record?
- A court of record is a court
- whose acts and proceedings are enrolled for perpetual memory and testimony
- which rolls are of such high and super-eminent authority that their truth is not to be called in question
The Contempt of Court Act 1971
- The Contempt of Courts Act specifies two categories of contempt of court:
- civil contempt and criminal contempt
- A contempt of court may be punished
- with simple imprisonment upto six months or fine upto 2000 rupees
Seat of Supreme Court [Article 130]
- Supreme Court shall sit in Delhi
- It may sit at any other place appointed by CJI, with approval of President
Original Jurisdiction [Article 131]
- Supreme Court has original jurisdiction in any dispute between
- Govt of India and one or more states
- two or more states
(1) For interpretation of Constitution [Article 132]
- An appeal shall lie to Supreme Court from a judgment, decree or final order of High Court
- if the High Court certifies that the case involves a substantial question of law as to interpretation of Constitution
(2) In civil matters
- An appeal shall lie to Supreme Court from a decree or final order of HC
- if the HC certifies that the case involves a substantial question of law of general importance and the said question needs to be decided by SC
(3) In criminal matters
- An appeal shall lie to Supreme Court from judgment or sentence of a HC
- if the HC
- reverses order of acquittal and awards death sentence
- after withdrawing trial to itself, has convicted the accused, and sentenced him to death
- certifies that the case is fit for appeal to SC
Special Leave to Appeal [Article 136]
- The Supreme Court may in its discretion
- grant special leave to appeal
- from any judgment, decree, sentence or order
- by any court or tribunal in India in any cause or matter
- This provision shall not apply
- to any court or tribunal under any law for armed forces
Review of Judgments [Article 137]
- Supreme Court has the power
- to review any judgment or order made by it
Law declared by Supreme Court [Article 141]
- Law declared by the Supreme Court
- shall be binding on all courts in India
Complete justice by Supreme Court [Article 142]
- Supreme Court may pass any orders
- for doing complete justice in any matter pending before it
Advisory jurisdiction [Article 143]
- President may refer to the Supreme Court
- any question of law or fact of public importance
- for its opinion
- Supreme Court may report to President its opinion thereon
Constitution Bench [Article 145]
- Minimum of 5 judges are required
- to decide a case involving a substantial question of law as to interpretation of Constitution
- for hearing a Presidential reference under article 143
- All judgments and opinion of Supreme Court
- shall be delivered in open court
A High Court for each State
- There shall be a High Court for each State
Court of Record [Article 215]
- Every High Court shall be a court of record
- It shall have power to punish for contempt of itself
- A court of record is a court whose acts and proceedings are enrolled
- for perpetual memory and testimony
- These rolls are of such high and super-eminent authority
- that their truth is not to be called in question
Constitution of High Courts
- Number of judges in a High Court shall be decided by President from time to time.
Appointment of Judges Article 217
- Judges of High Court shall be appointed by the President
- after consultation with
- Chief Justice of India
- Governor of State
- Chief Justice of High Court
- after consultation with
Change made by the 99th Amendment:
- Judges of High Court shall be appointed by the President
- on recommendation of the National Judicial Appointments Commission
Current Legal Status
- the 99th Amendment Act has been stuck down by the Supreme Court being unconstitutional, violating the basic structure of the Constitution
- A Judge of High Court shall hold office till the age of 62 years
- A Judge of High Court may address his resignation to the President
- A Judge of a High Court can be removed by the President
- in the same manner as a judge of the Supreme Court
- He should be a citizen of India
- He should have
- held a judicial office in India for 10 years or
- been an advocate of High Court for 10 years
Oath of office
- A High Court judge has to make an oath
- before the Governor of the State
Restriction on practice
- Ex-permanent judge of a High Court shall not plead or act
- in any court or before any authority in India
- except the Supreme Court and other High Courts
Salaries of judges
- Salaries, allowances and privileges of High Court judges
- are to be determined by Parliament by law
- Salaries of High Court judges were revised in January 2018.
- After this revision, salary of the Chief Justice is Rs. 250000 per month and salary of a puisne judge is Rs. 225000.
Transfer of judges [Article 222]
- Transfer of High Court judges from one High Court to another:
- by the President
- after consultation with the Chief Justice of India
Change made by the 99th Amendment Act:
- Transfer of High Court judges from one High Court to another:
- by the President
- on recommendation of the National Judicial Appointments Commission
Current Legal Status
- the 99th Amendment Act has been stuck down by the Supreme Court being unconstitutional, violating the basic structure of the Constitution
- President may appoint duly qualified persons as additional judges
- for a period not exceeding 2 years
- He does so
- on account of temporary increase in the business of High Court or
- by reason of arrears of work in High Court
Power to issue writs [Article 226]
- A High Court has power in the territories of its jurisdiction
- to issue directions, orders or writs
- to any person or authority or government
- for enforcement of fundamental rights and
- for any other purpose
- Writs may also be issued
- in relation to territories within which cause of action arises
- even when seat of government/authority or residence of such person
- is not within those territories
Superintendence over courts [Article 227]
- Every High Court shall have superintendence
- over all courts and tribunals in territories of its jurisdiction
- This power of superintendence does not extend
- to any court or tribunal constituted under any law for Armed Forces
Jurisdiction over UTs
- Jurisdiction of a High Court may be extended to any Union Territory by Parliament by law
Common High Court
- A common High Court for 2 or more States can be established by Parliament by law
High Courts for UTs
- Parliament may by law constitute a High Court for a Union Territory
- Appointments, postings and promotions of district judges
- shall be made by Governor in consultation with High Court
Control over courts
- Control over district courts and subordinate courts
- shall be vested in the High Court
- It includes posting and promotion
- of lower than district judge judicial service
• The concept of judicial activism originated and developed in the USA. This term was first coined in 1947 by Arthur Schlesinger Jr., an American historian and educator.
• In India, the doctrine of judicial activism was introduced in mid-1970s.
• Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice Chinnappa Reddy and Justice D.A. Desai laid the foundations of judicial activism in the country.
Meaning of Judicial Activism
• Judicial activism denotes the proactive role played by the judiciary in the protection of the rights of citizens and in the promotion of justice in the society.
• In other words, it implies the assertive role played by the judiciary to force the other two organs of the government (legislature and executive) to discharge their constitutional duties.
• Judicial activism is also known as “judicial dynamism”. It is the antithesis of “judicial restraint”, which means the self- control exercised by the judiciary.
Judicial activism is defined as:
1. “Judicial activism is a way of exercising judicial power that motivates judges to depart from normally practised strict adherence to judicial precedent in favour of progressive and new social policies.”
2. “Judicial activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent, or are independent of, or in opposition to supposed constitutional or legislation intent”
• The concept of judicial activism is closely related to the concept of Public Interest Litigation (PIL).
• It is the judicial activism of the Supreme Court which is the major factor for the rise of PIL.
• In other words, PIL is an outcome of judicial activism. In fact, PIL is the most popular form (or manifestation) of judicial activism.
Justification of Judicial Activism
The reasons for judicial activism are as follows:
(i) There is near collapse of the responsible government, when the Legislature and Executive fail to discharge their respective functions. This results in erosion of the confidence in the Constitution and democracy amongst the citizens.
(ii) The citizens of the country look up to the judiciary for the protection of their rights and freedoms. This leads to tremendous pressure on judiciary to step in aid for the suffering masses.
(iii) Judicial Enthusiasm, that is, the judges like to participate in the social reforms that take place in the changing times. It encourages the Public Interest Litigation and liberalises the principle of ‘Locus Standi’.
(iv) Legislative Vacuum, that is, there may be certain areas, which have not been legislated upon. It is therefore, upon court to indulge in judicial legislation and to meet the changing social needs.
Activators of Judicial Activism
Upendra Baxi, an eminent jurist, has delineated the following typology of social / human rights activists who activated judicial activism:
1. Civil Rights Activists: These groups primarily focus on civil and political rights issues.
2. People Rights Activists: These groups focus on social and economic rights within the contexts of state repression of people’s movements.
3. Consumer Rights Groups: These formations raise issues of consumer rights within the framework of accountability of the polity and the economy.
4. Bonded Labour Groups: These groups ask for judicial activism is nothing short of annihilation of wage slavery in India.
5. Citizens for Environmental Action: These groups activate an activist judiciary to combat increasing environmental degradation and pollution.
6. Citizen Groups against Large Irrigation Projects: These activist formations ask the Indian judiciary the impossible for any judiciary in the world, namely, cease to and desist from ordering against mega irrigation projects.
7. Rights of Child Groups: These groups focus on child labour, the right to literacy, juveniles in custodial institutions and rights of children born to sex workers.
8. Custodial Rights Groups: These groups include social action by prisoners’ rights groups, women under state ‘protective’ custody and persons under preventive detention.
9. Poverty Rights Groups: These groups litigate issues concerning draught and famine relief and urban impoverished.
10. Indigenous People’s Rights Groups: These groups agitate for issues of forest dwellers, citizens of the Fifth and Sixth Schedules of the Indian Constitution and identity rights.
11. Women’s Rights Groups: These groups agitate for issues of gender equality, gender-based violence and harassment, rape and dowry murders.
12. Bar-based Groups: These associations agitate for issues concerning autonomy and accountability of the Indian judiciary.
13. Media Autonomy Groups: These groups focus on the autonomy and accountability of the press and instruments of mass media owned by the State.
14. Assorted Lawyer-Based Groups: This category includes the critically influential lawyers’ groups which agitate for various causes.
15. Assorted Individual Petitioners: This category includes freelance activist individuals.
Apprehensions of Judicial Activism
• The same jurist Upendra Baxi also presented a typology of fears which are generated by judicial activism.
• He described the following types of fears:
1. Ideological fears: (Are they usurping powers of the legislature, the executive or of other autonomous institutions in a civil society?)
2. Epistemic fears: (Do they have enough knowledge in economic matters of a Manmohan Singh, in scientific matters of the Czars of the atomic energy establishment, the captains of the Council of Scientific and Industrial Research , and so on?)
3. Management fears: (Are they doing justice by adding this kind of litigation work load to a situation of staggering growth of arrears?)
4. Legitimation fears: (Are not they causing depletion of their symbolic and instrumental authority by passing orders in public interest litigation which the executive may bypass or ignore? Would not the people’s faith in judiciary, a democratic recourse, be thus eroded?)
5. Democratic fears: (Is a profusion of public interest litigation nurturing democracy or depleting its potential for the future?)
6. Biographic fears: (What would be my place in national affairs after superannuation if I overdo this kind of litigation?) Judicial Activism vs. Judicial Restraint
Meaning of Judicial Restraint
• Judicial activism and judicial restraint are the two alternative judicial philosophies in the United States.
• Those who subscribe to judicial restraint contend that the role of judges should be scrupulously limited; their job is merely to say what the law is, leaving the business of law-making where it properly belongs, that is, with the legislators and the executives.
• Under no circumstances, moreover, should judges allow their personal political values and policy agendas to colour their judicial opinions.
• This view holds that the ‘original intent’ of the authors of the constitution and its amendments is knowable, and must guide the courts.
Assumptions of Judicial Restraint
The doctrine of judicial restraint is based on the following six assumptions:
1. The Court is basically undemocratic because it is non-elective and presumably non-responsive to the popular will.
• Because of its alleged oligarchic composition, the court should defer wherever possible to the ‘more’ democratic branches of government.
2. The questionable origins of the great power of judicial review, a power not specifically granted by the Constitution.
3. The doctrine of separation of powers.
4. The concept of federalism, dividing powers between the nation and the states requires of the Court deference toward the action of state governments and officials.
5. The non-ideological but pragmatic assumption that since the Court is dependent on the Parliament for its jurisdiction and resources, and dependent on public acceptance for its effectiveness, it ought not to overstep its boundaries without consideration of the risks involved.
6. The aristocratic notion that, being a court of law, and inheritor and custodian of the Anglo-American legal tradition, it ought not to go too far to the level of politics—law being the process of reason and judgment and politics being concerned only with power and influence.
Supreme Court Observations
• While delivering a judgement in December 2007, the Supreme Court of India called for judicial restraint and asked courts not to take over the functions of the legislature or the executive, saying there is a broad separation of powers under the Constitution and each organ of the state must have respect for others and should not encroach on others’ domain.
• In this context, the concerned Bench of the court made the following observations:
1. The Bench said, “We are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. This is clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the state”.
2. The Bench said, “Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors.”
• The doctrine of judicial review originated and developed in the USA.
• It was propounded for the first time in the famous case of Marbury V. Madison (1803) by John Marshall, the then chief justice of the American Supreme Court.
• In India, on the other hand, the Constitution itself confers the power of judicial review on the judiciary (both the Supreme Court as well as High Courts).
• Further, the Supreme Court has declared the power of judicial review as a basic feature of the Constitution or an element of the basic structure of the Constitution.
• Hence, the power of judicial review cannot be curtailed or excluded even by a constitutional amendment.
Meaning of Judicial Review
• Judicial review is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments.
• On examination, if they are found to be violative of the Constitution (ultra vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the judiciary.
• Consequently, they cannot be enforced by the Government.
• The Supreme Court used the power of judicial review in various cases, as for example, the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills case (1980), and so on.
• In 2015, the Supreme Court declared both the 99th Constitutional Amendment, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 as unconstitutional and null and void.
Importance of Judicial Review
Judicial review is needed for the following reasons:
(a) To uphold the principle of the supremacy of the Constitution.
(b) To maintain federal equilibrium (balance between the Centre and the states).
(c) To protect the Fundamental Rights of the citizens.
Constitutional Provisions for Judicial Review
• Though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, the provisions of several Articles explicitly confer the power of judicial review on the Supreme Court and the High Courts.
• These provisions are explained below:
1. Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void.
2. Article 32 guarantees the right to move the Supreme Court for the enforcement of the Fundamental Rights and empowers the Supreme Court to issue directions or orders or writs for that purpose.
3. Article 131 provides for the original jurisdiction of the Supreme Court in centre-state and inter-state disputes.
4. Article 132 provides for the appellate jurisdiction of the Supreme Court in constitutional cases.
5. Article 133 provides for the appellate jurisdiction of the Supreme Court in civil cases.
6. Article 134 provides for the appellate jurisdiction of the Supreme Court in criminal cases.
7. Article 134-A deals with the certificate for appeal to the Supreme Court from the High Courts.9
8. Article 135 empowers the Supreme Court to exercise the jurisdiction and powers of the Federal Court under any pre-constitution law.
9. Article 136 authorises the Supreme Court to grant special leave to appeal from any court or tribunal (except military tribunal and court martial).
10. Article 143 authorises the President to seek the opinion of the Supreme Court on any question of law or fact and on any pre-constitution legal matters.
11. Article 226 empowers the High Courts to issue directions or orders or writs for the enforcement of the Fundamental Rights and for any other purpose.
12. Article 227 vests in the High Courts the power of superintendence over all courts and tribunals within their respective territorial jurisdictions (except military courts or tribunals).
13. Article 245 deals with the territorial extent of laws made by Parliament and by the Legislatures of States.
14. Article 246 deals with the subject matter of laws made by Parliament and by the Legislatures of States (i.e., Union List, State List and Concurrent List).
15. Articles 251 and 254 provide that in case of a conflict between the central law and state law, the central law prevails over the state law and the state law shall be void.
16. Article 372 deals with the continuance in force of the pre-constitution laws.
Scope of Judicial Review
The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court or in the High Courts on the following three grounds.
(a) it infringes the Fundamental Rights (Part III)
(b) it is outside the competence of the authority which has framed it and
(c) it is repugnant to the constitutional provisions
Comparison of Judicial Review in USA & India
• From the above, it is clear that the scope of judicial review in India is narrower than what exists in the USA, though the American Constitution does not explicitly mention the concept of judicial review in any of its provisions.
• This is because, the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ which is contained in the Indian Constitution.
• The difference between the two is: “The due process of law gives wide scope to the Supreme Court to grant protection to the rights of its citizens.
• It can declare laws violative of these rights void not only on substantive grounds of being unlawful, but also on procedural grounds of being unreasonable.
• Our Supreme Court, while determining the constitutionality of a law, however examines only the substantive question i.e., whether the law is within the powers of the authority concerned or not.
• It is not expected to go into the question of its reasonableness, suitability or policy implications”.
Judicial Review of the Ninth Schedule
• Article 31B saves the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the Fundamental Rights.
• Article 31B along with the Ninth Schedule was added by the 1st Constitutional Amendment Act of 1951.
• Originally (in 1951), the Ninth Schedule contained only 13 acts and regulations but at present (in 2016) their number is 282.
• Of these, the acts and regulations of the state legislature deal with land reforms and abolition of the zamindari system and that of the Parliament deal with other matters.
• However, in a significant judgement delivered in I.R. Coelho case (2007), the Supreme Court ruled that there could not be any blanket immunity from judicial review of laws included in the Ninth Schedule.
• The court held that judicial review is a ‘basic feature’ of the constitution and it could not be taken away by putting a law under the Ninth Schedule.
• It said that the laws placed under the Ninth Schedule after April 24, 1973, are open to challenge in court if they violated Fundamental Rights guaranteed under the Articles 14, 15, 19 and 21 or the ‘basic structure’ of the Constitution.
• It was on April 24, 1973, that the Supreme Court first propounded the doctrine of ‘basic structure’ or ‘basic features’ of the constitution in its landmark verdict in the Kesavananda Bharati case.