5 provisions under which Parliament can legislate on a subject.

There are 5 provisions under which Parliament can legislate on a subject included in state list:

Article 249  if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force.
Article 250 Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List.
Article 252 If legislatures of two or more states pass a resolution, it shall be lawful for the parliament to legislate on that subject enumerated in state list for the states that passed the resolution.
Article 253  Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body
Article 356 (b) the President may by Proclamation declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.

Sources of the Constitution :

Sources of the Constitution

1. Government of India Act of 1935: Federal Scheme, Office of governor, Judiciary, Public Service Commissions, Emergency provisions and administrative details.

2. British Constitution: Parliamentary government, Rule of Law, legislative procedure, single citizenship, cabinet system, prerogative writs, parliamentary privileges and bicameralism.

3. US Constitution: Fundamental rights, independence of judiciary, judicial review, impeachment of the president, removal of Supreme Court and high court judges and post of vice-president.

4. Irish Constitution: Directive Principles of State Policy, nomination of mem-bers to Rajya Sabha and method of election of president.

5. Canadian Constitution:  Federation with a strong Centre, vesting of residuary powers in the Centre, appointment of state governors by the Centre, and advisory jurisdiction of the Supreme Court.

6. Australian Constitution:  Concurrent List, freedom of trade, commerce and inter-course, and joint sitting of the two Houses of Parliament.

7. Weimar Constitution of Germany: Suspension of Fundamental Rights during Emergency.

8. Soviet Constitution (USSR, now Russia): Fundamental duties and the ideal of justice (social, economic and political) in the Preamble.

Unitary Features of Indian constitution:

Unitary Features of Indian constitution:

1.     The States of Indian Don’t have their own constitution as in the states of USA and Australia have their own constitution.

2.     Uniform and single Citizenship in India (Australia and USA have double citizenship).

3.     Parliament can make the changes of territorial extent of a State without its consent.

4.     Parliament has full control over the Union list subjects as well as residuary power vests with the centre.

5.     With the two-third majority, Rajya Sabha can authorize Parliament to make laws on any State subject (Article 249).

6.     If there is any national emergency, Parliament has the right to make laws with respect to State subjects automatically (Article 250).

7.     On the request of two or more states, Parliament can legislate on particular State subject (Article 252).

8.     parliament can make laws on State Lists to comply with the international agreements (Article 253).

9.     In the case of president’s rule in state all the powers will be handed over to Parliament (Article 356).

10.  The governor of the state is appointed by the President and the former is not responsible to the State Legislature (Article 155).

11.  Parliament can give some financial orders or can order to reserve money bills passed by states (Article 160).

12.  Centre can give administrative directions to the States (Article 256).

13.  The all Indian services official are appointed by centre but salary are paid and controlled by States (Article 312).

14.  Judges of High Courts are appointed by the President of India (Article 216), and states don’t play any role in this.

Federal Features of Indian Constitution

The main federal features of the Indian Constitution are as follows:

1. Written Constitution: The Indian Constitution is a written document containing 395 Articles and 12 schedules, and therefore, fulfils this basic requirement of a federal government. In fact, the Indian Constitution is the most elaborate Constitution of the world.

2. Supremacy of the Constitution: India’s Constitution is also supreme and not the hand-made of either the Centre or of the States. If for any reason any organ of the State dares to violate any provision of the Constitution, the courts of laws are there to ensure that dignity of the Constitution is upheld at all costs.

3. Rigid Constitution: The Indian Constitution is largely a rigid Constitution. All the provisions of the Constitution concerning Union-State relations can be amended only by the joint actions of the State Legislatures and the Union Parliament. Such provisions can be amended only if the amend­ment is passed by a two-thirds majority of the members present and voting in the Parliament (which must also constitute the absolute majority of the total membership) and ratified by at least one-half of the States.

4. Division of Powers: In a federation, there should be clear division of powers so that the units and the centre are required to enact and legislate within their sphere of activity and none violates its limits and tries to encroach upon the functions of others. This requisite is evident in the Indian Constitution.

The Seventh Schedule contains three Legislative Lists which enumerate subjects of administration, viz., Union, State and Concurrent Legislative Lists. The Union List consisted of 97 subjects, the more important of which are defence, foreign affairs, railways, posts and tele­graphs, currency, etc.

The State List consisted of 66 subjects, including, inter-alia public order, police, administration of justice, public health, education, agriculture etc. The Concurrent List embraced 47 subjects including criminal law, marriage, divorce, bankruptcy, trade unions, elec­tricity, economic and social planning, etc.

4. Division of Powers: In a federation, there should be clear division of powers so that the units and the centre are required to enact and legislate within their sphere of activity and none violates its limits and tries to encroach upon the functions of others. This requisite is evident in the Indian Constitution.

The Seventh Schedule contains three Legislative Lists which enumerate subjects of administration, viz., Union, State and Concurrent Legislative Lists.

5. Independent Judiciary: In India, the Constitution has provided for a Supreme Court and every effort has been made to see that the judiciary in India is independent and supreme. The Supreme Court of India can declare a law as unconstitutional or ultra Vires, if it contravenes any provisions of the Constitution. In order to ensure the impartiality of the judiciary, our judges are not remov­able by the Executive and their salaries cannot be curtailed by Parliament.

6. Bicameral Legislature: A bicameral system is considered essential in a federation because it is in the Upper House alone that the units can be given equal representation. The Constitution of India also provides for a bicameral Legislature at the Centre consisting of Lok Sabha and Rajya Sabha.

Purpose and functions of a Constitution:

 • Lays out certain ideals that form the basis of the kind of country that we as citizens aspire to live in.
• Defines the nature of a country’s political system; plays a crucial role in laying out certain important guidelines that govern decision-making within these societies.
• Provides a set of basic rules that allow for minimal coordination amongst members of a society.
• Provides safeguards against the leaders who might misuse their authority—sets some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them.
• Constitution saves us from ourselves (This may sound strange but what is meant by this is that we might at times feel strongly about an issue that might go against our larger interests and the Constitution helps us guard against this.)
• It helps to protect us against certain decisions that we might take that could have an adverse effect on the larger principles that the country believes in. Therefore, the constitution sets authoritative constraints upon what one may or may not do.
• Enables the government to fulfill the aspirations of a society and create conditions for a just society.
• Constitution expresses the fundamental identity of a people.
• Protects minorities from tyranny of the majority (i.e. from inter-community and intra-
community domination)

Right against Exploitation 

Right against Exploitation

Art 23: Forced labor/ Traffic 

  • No forced labor – slavery – servitude
  • No trafficking
  • State can force for public interest
  • conscription
  • punishable

Art 24: Child labor 

  • Punishable
  • < 14 – no hazardous and non hazardous regulated by state
  • The government had brought a new law to govern child labour, known as the Child Labour (Prohibition and Regulation) Amendment Act, 2016, which put a blanket ban on employment of children below 14 years of age. However, it had made two exceptions in favour of child labour: children could work as child artistes (in the entertainment sector), and could “help” in their family enterprises.
  • New bill – ban until 14 yrs except family enterprise (shouldn’t be hazardous) and entertainment industry, that too after school hours and on vacations only. And 18 yrs ban for hazardous
  • Child welfare fund

Right to Freedom 

Right to Freedom

Art 19(1) – Democratic rights

  1. Speech and expression 
  • Art 19(1)(a) and Art 21 – inalienable disjunct
  • Express your view, right to listen, any communicable medium
  • Express others view
  • Right to know
  • Press freedom
  • Elect/reject candidate based on informed choices
  • Dissent – criticize govt
  • ITA 2000 – Sec 66A – chilling effect
  • Defamation – criminal and civil offense
    • Restrictions
      1. Security of state,
      2. sovereignty and integrity of India
      3. Relations with a foreign country
      4. Public order
      5. Morality And Decency
      6. Contempt of court
      7. Defamation

 

  1. Assemble
  • Corollary of 19(1)(a)
  • Assemble anywhere without arms – meeting and procession
  1. Association
  • Form association, cooperatives, union
  • Not avail to military, armed forces
  • Strike is illegal, but not hartal
  1. Movement
  • Whenever, wherever , however
  1. Settle/reside
  • Settle anywhere within country
  • Strengthen unity and territorial integrity and promote fraternity
  • ILPS for NE states – Arunachal Pradesh, Mizoram and Nagaland
  1. Property – repealed
  2. Occupation
  • Practice any occupation but with qualification
  • State can take over for public interest
  • Complementary of Art 301 – to anyone – co operative federalism

 

Art 20: Conviction for offense 

  • Ex post facto
    • No retrospective
    • Only for criminal and not for civil and tax
  • Double jeopardy
    • Only to criminal courts and tribunals and not to civil and exe
    • No punishing twice
    • Cri + civil – two diff punishments
  • Self incrimination
    • No compulsion of self evidence to police
    • Voluntary confession ok to judiciary
    • Specimens can be forced – doesn’t make difference
    • No lie detector, violates privacy

Art 21: Life 

  • Fundamental of all FR
  • Live with dignity
  • Principles of natural justice – basic str, eliminate arbitrariness, fairness
  • Procedure established with law
    • Available only against arbitrary action of exe and not legislative
  • Due process of law (American const)
    • Arbitrary action of both exe and legislature
  • Suicide is criminal offense  – decriminalized (mental health care bill)
  • Die with dignity
  • Euthanasia – passive and active – voluntary, involuntary, non voluntary
    • Passive – prolong life
    • Active – end life
    • Aruna Shanbaug case vs UOI 2014
    • Passive legal with court’s authority
    • Active illegal
  • Advance consent to practise euthanasia
  • Santhara

Art 21A : Education 

  • 6 to 14yrs – free and compulsory edu by state

Criticism:

  • Right to schooling but not RTE
  • Centre State uncertain over financial responsibility
  • Perf based evaluation – teachers not trained and skilled
  • Auto promotion to next std

Art 22: Protection against Detention 

  • Punitive
    • Know grounds
    • Official record
    • No suspicion detention
    • Access to legal dept
    • Court within 24 hrs
    • Not detain any more time than sentenced
  • Preventive
    • 3 months max
    • Need permission for further
  • Under trials
    • Fast track courts
    • Mitigation
    • Grant bail if half term over already