05/02/2024 Hasebe and Pinnelli

1. The first reading evolves around constitution and constitutionalism and the core issues
surrounding them- issues that will come up on when cases are discussed. This raises
the questions:- what is a constitution? Why do we even need a constitution?

2. The argument of “framework” and “ideals” that the parliament must abide by, is flawed
because it just speaks of the existence of those ideas itself, but not whether the ideas
are accepted or not.

3. The framework can be about respecting certain necessities that the government must
protect and respect- this is talking the language of limitation of the parliament. This is
protection of what an individual should be guaranteed by virtue of being a human being.
It is not the “task” of any authorities to grant this right, which is innate.

4. An argument might be made that the constitution, through inhibiting the parliament-
elected by the people- is inhibiting the will of the people. This is a shallow argument- an
elected parliament can be the representative of the majority, and eventually can
disregard the rights of the minority, going against what is vested in them by virtue of
being humans, and thus being anti democratic.

5. The constitution recognises certain rights of humans, it is not a conferring of rights but
rather a political recognitions of such.

6. Constitution, constitutionalism, rule of law are countermajoritarian measures. One is

ruled by laws not by individuals.

7. Is constitution against self governance? Can a population be bound by the will of the
past generations?

The fact that there is no mass political organisation against provisions implies consent
to be under the rule of the constitution.
 06/02/2024 Hasebe and Pinneli
1. How to read? To keep in mind the various debates and understanding of the
philosophical concept of the constitution- see if those differences can be mapped.

2. There is no one meaning/accepted relationship between the concept of constitution and

how it relates to constitutionalism and history.

3. The first meaning- a constitution is what it contains, its composition.

The second meaning- a constitution is the process of building it-regardless of the

contents, as long as a certain process is gone through while making it.

4. A society’s constitution is a constitution as long as it has been made through a due

process regardless of the contents.

5. There is also an argument that if a constitution is not in the best interest of the people- it
is not a constitution.

6. Gandhi:- there is no obligation to follow an unjust law because it is not law.

7. People with procedural argument- the moral content of law is relevant to decide whether
a law is just- it is not relevant to decide whether the law is a law.

8. Rebuttal:- one cannot have a very formal understanding of whether the law is law,
cannot divorce the process of law from morality.

9. The former being a substantial/organic understanding stems from the fact that the
content of constitution is always evolving.

10. The 1789 Declaration of Human Rights evolved the content of basic inalienable human
rights, and was the rise of the organic understanding.

11. Critiqued by Dicey for the lack of remedies, to prove the superiority of the British system.

12. The focus was on declaration of rights rather than enforcement and remedies of those
rights.

13. An act defining a procedure enforcing a rights is better than a ‘grand declaration’.

14. A constitution is essentially what a constitution does, rather than simply what it is. It can
have grand declarations of rights, progressivism and civil liberties while obfuscating the
ground realities.
15. This critique doesnt account for how elected representatives under the guise of “what
the people want” are working for own interests and own powers.

07/02/2024- Hasebe and Pinneli

1. The second section reflects on the source of the constitution and its amendment
procedure and distinguishes between their flexibility and rigidity.
2. Flexible:- when amendments to the constitution are as easy as other laws
3. Rigid:- constitution making body is not a simple legislative body but something whose
power has a different connotations.
4. In India, parliament while making ordinary law is using its legislative power while its
constituent power is made use of when it comes to constitutional amendments.
5. The scope of review when it comes to constitutional amendments is less than ordinary
legislation.
6. What contributes to the stability of the constitution when it is flexible? This was due to
balance of social and economic forces, which was supporting the stability of constitution.
Bryce challenged Montesquieu’s explanation. They differ to the cause attributing to the
paradox. Montesquieu thought that some people have cornered power in society, and
said that it is in their interest to not abuse it.
7. For Montesquieu, it was a self preservation argument, while for Bryce it was a larger
societal argument.
8. The rigid constitution can be created due to fears of invasion/abuse of power and to
protect from that. This choice has to deal with two opposing tendencies- on one hand the
society starts to accept and respect what is in the constitution, while subsequent
generations might not find the constitution appropriate for the changed position.
9. Maddison’s argument: precommitments as opposed to viewing it as binding a future
generation, which are good for future generations and laying down some frameworks.
10. Jefferson wants the ability of the future generations to experiment with democracy and
considers

08/02/2024 - Hasebe and Pinnelli

1. Debate with respect to public and private spheres of law, is a v deep question when it
comes to constitutionalism.
2. On what grounds the state can interfere in the private sphere.
3. In the vertical conception of rights, distinction between the public and private sphere is
considered.
4. Inviting the state into the private sphere in certain contexts might raise the question of
the state interfering in other contexts.
5. Eg raised:- marriage equality, domestic violence, marital rape, porn, child porn, abortion,
sex selective abortion.
 6. When state uses its high hand to solve social problem, the state soon gains control of
the narrative as to what is a social problem.
7. Courts to balance between rights to privacy/freedom and the interests and rights of other
individuals or interests of few people and collective interests of others
8. Thin conception of rule of law:- one is governed by a set of laws and not the fancies of
the people at the top. It doesnt talk about the conception of law.
9. A thicker version of rule of law is also a guarantee on what values the laws must
embody.
10. On one hand a law is passed by the representatives of the people, on the other hand
that is struck down by the courts on basis of constitutional safeguards.
11. Constitutionalism stands as a countermajoritarian force, aims to limit the power of the
majority.

12/02/2024- Pitkin
ARE CONSTITUTIONS MADE OR ARE THEY FOUND?

Are constitutions mere reflections of what exists or do we construct and manufacture those
values?

To find something it needs to exist in the first place so is our constitution an invention or is it a
discovery?

If it were a discovery, is it true that it would lose its sense of sanctity?

Which inventions and creations receive social legitimacy and which don’t?

Even though an aspect of the constitution or anything is a creation whether it will be embraced
by the society or not is a result of complex social and economic factors- Uday Mehta Reading.
Just because something is a creation, it doesn’t mean that it will be outright rejected by the
society.

Which is the deciding factor by which we determine what values and aspects form the core of
our constitutional values and what values end up in the periphery. Ex: The Value of Equality in
India is different from the value of speech. That is an inter-disciplinary understanding.

Does the constitution of India represent a continuity with the past or does it represent a rupture?

Is it a discovery of who we were in 1950 or is it an invention?

Ex: Art. 17 was completely at odds with the social mores of the nation during 1950— Hence
invention by the constitution makers, so is it undemocratic. When asking if it is undemocratic,
you’re asking it with a certain underlying assumption of what democratic is and that cannot be
our idea of what a democracy is. Everything cannot be decided by a poll. Democracy is as much
about democratic values as is about self-governance.

Should constitutions only reflect what was prevalent and practiced at that time or higher ideals?

Is India a nation-state or a state-nation?

Nation in the sense of who we are, our culture, history, language, and general ethos. State in
the sense of a government.

Is India a political result of the 1950 constitution or did the nation pre-exist?

Did we create the state through the nation or did we create the nation through the state?

Ambedkar’s speech in the Consti. Assembly where he talks about “The India Project”

He says that there needs a deepening of our understanding of what a democracy is. You can’t
always just go by numerical values. We specifically chose to break away and discontinue
certain things because it was crucial to the creation of India internally and externally
(International Standing)

13/02/2024- Mehta
1. The constitution maintained a deafening silence regarding the partition and the violent
contexts during the time of its making.
2. Whether the constitution reflected the aspirations of the nation or rather what should be
such
3. For the drafters, the constitution was an opportunity to break from the past and forge a
united national identity.
4. This led to tensions as to the steps taken to attain unity and how much priority this unity
holds. Job of the constitution is to be pivotal to it, and unity lies in the heart of the
political movement.
5. The provisions of the constitution, reflect this burden of forging national unity of the
nation.
6. Eg:- Article 22, where the police finds loopholes in 22(2) where they change the formal
date of arrest.
7. Very curious that a constitution addresses preventative detention, and thus no argument
can be made regarding unconstitutionality of the same.
8. There are some push and pull matters relating to unity that the Constitution is grappling
with.
9. PD is tremendous power given to the state, rather than the parliament using its
discretion to legislate regarding that.
10. THE CONSTITUTIONAL CONTENT IS DETERMINED BY THE ROLE BEING
ATTRIBUTED TO IT.
 14/02/2024- Mehta
1. Unity of nation becomes not a social, but a political process. It is not something the
society must achieved, the constitution conveys that it must be political. It mandates a
top down approach where the state and central government is tasked with achieving
unity. When it comes to fissures in the case of caste, class, religion etc, the state is
given the responsibility to resolve it.

2. The argument is that constitutions must not just be to limit state power.

3. The american constitution exemplifies the limiting power of the government.

4. The purpose of the article is to argue that we cant understand constitutionalism with the
lens of limiting state power, it might also be about facilitating state power.

5. Both Whittington and Mehta give different perspectives on constitutionalism.

6. Three types of constitutionalism- normative, conceptual and empirical

7. Whittington is trying to show how constitutionalism can be viewed in different ways.

8. Normative constitutionalism is concerned about reconciliation of democracy and

constitutionalism. It need not be that constitutionalism is incompatible with democracy.

9. Originalism v Living Tree constitution:- The constitution is always evolving. If there is

protection against cruel and unusual punishment, the definition of what is cruel and
unusual will change. The originalists would ask the judges to interpret this on basis of
the intent of the founders.

10. There are 4 general approaches-

originalist theories (judicial deference to intention of the constitution) have moved from
trying to find the intent of the founders, and rather that judges must look at the original
meaning of the text and give effect to that meaning. This evolving of meaning means a
tension between democracy and constitution, as the evolution has not been
democratically mandated. This tension can only be resolved with effect to just
implementing the original meaning.

Eg:- brown case

If we stick to original meaning, nothing prevents segregation or the doctrine of “seperate

v equal”
 The first strategy here is “democratic authorisation” as the original constitution was
approved by a certain body. Originalist and Non Originalist Democratic Authorisation

Ackermann:- The idea of dualist democracy- there are large scale changes and there is
normal politics. If you were talking of large scale changes, you might require a high
degree of democratic process. But, if it is about normal policies, a lesser level of
democratic approach is sufficient.

15/02/2024- Whittington
1. proceduralist approach:- Eli’s theory was as long as judges were being proactive in
protection of rights, there must be no countermajoritarian difficulties- that the judges are
imposing their own sense of values, that haven’t been decided by a democratic process.

This countermajoritarian difficulties while imposing and interpreting rights will not be a
problem as long as they are enabling rights that guarantee participation in the procedure
of democracy. It is a proceduralist understanding of constitution as you are saying that
judges can limit state power to keep them from limiting rights of people to participate in a
democracy.

criticism:- when eli says that just by ensuring people participate in a democracy protest
a) what does it mean that one must be able to do so b) what are the conditions needed
to do so.

There is a considerable depth as to eli and habermas’s interpretation of that.

2. substantive approach

Dworkin- Judges must give effect to the underlying principles in the constitution.

On facing issues where there are no clear answers in the constitution, the direction in
resolving this is for the judges to identify various moral values that underlie in the
constitution.

Trumping constitutionalism over democracy is a significant deviance from the previous 2

 approaches.

3. democracy trump all:-

Waldron: balance of constitutionalism and democracy must be tilted in the side of

democracy, which needs to be of a certain quality to be able to trump constitutionalism.

Various debates surrounding majoritarian, countermajoritarian methods etc also relate

to some extent to “quality of democracy”.

When one says democracy, one may have many types, concepts and levels of
democracy.

16/02/2024- Loughlin
1. Loughlin’s work is an introduction to constitutionalisation.

2. The distinction between constitutionalism refers to the way of life and

constitutionalisation which is a certain set of norms evolving post world war, fascism,
apartheid etc.

3. What ideas in constitutions informs politics? And the manner in which state exercise
powers?

notion of some rights that are innate to a person by virtue of personhood

Equality, liberty, fraternity, Universal adult suffrage, secularism, federalism, sovereignty,
affirmative action, judicial independence/seperation of powers, liberty, democracy

4. When it comes to constitutional values, there is contestation on its scope, desirability,

their content, and the variation on their influence on politics and society.

5. These values are not just limitations, but also ideals that the government must attain.

6. Constitutionalisation isnt about less government, but also to set an ideal which the
government must actively pursue.

7. There is a gap between the governance and constitutionalisation, which is filled by the
courts interpreting and applying the constitution.
8. Governance is constitutionalised as opposed to the notion of constitutionalism being
merely a limitation in the government powers.

9. It is asking the government to do more, but also give them limited spheres within they
can act. (This is the argument by Loughlin with regards to how the thinking evolved from
the classical constitutionalism line of thought)

10. Classical Constitutionalism thinking is that the constitution is to limit the sphere of
government. The allure lies in the protection from nonsense the state gets up to.

20/02/2024
AMBEDKAR’S SPEECHES, 4th Nov, 1948
1) What does he mean by constitutional morality?
2) He does not use it in the sense of constitutional values or moral values of the
constitution. For ambedkar it is that all political power must be exercised within the
framework of the constitution. Political power must be exercised within the constitutional
framework. Commitment to the morality of following the constitution.
3) He cites Grote’s definition which says that obedience to these forms shall be followed
only if they follow the constitutional values. Everybody agrees to the fact that they will
play by the rules of the constitution to an equal extent, committing to the constitution in
all forms is constitutional morality. All political players agree to deriving their power from
the constitution.
4) A collective political commitment that the source of their power and commitment to
following their power shall enforce obedience only if they follow the morality of the
constitutions.
5) Why does the constitution of India have the details of the administrative set up of the
government?
6) There has to be congruence between the constitution and how it is given effect by the
bureaucracy.
7) It is possible to pervert the constitution by changing the form of administration or set up
of bureaucracy
8) Unless a people or a nation have fundamentally internalised the value of constitutional
morality, it is dangerous not to prescribe this administrative machinery. (Part 14 of the
constitution)
9) Acknowledging the criticism against the inclusion of western notions of state and
administration and have not reflected ancient hindu polity. In answering this criticism, he
says that there is a harking back to a romantic notion of village panchayats, there is a
survival tendency of these panchayats and looking at their narrow interests and that
becomes a sphere where things don’t get changed. The more localised it is the more it
entrenches the local power structures, therefore they are not interested in the larger
project of social reform.
10) Whether we will be able to build a national identity would depend on how the majority will
treat the minority. That these differences melt away is highly dependent on this. This
pertains to religious identities
11) Connection between building of a national identity is a future project, that it isn't
something that can be created suddenly (Uday Mehta).
12) Criticism of the rights that they are meaningless as they have been drafted along with so
many wide restrictions, we should have done what the american constitution by giving
absolute rights
13) Unlike the US experience where the court had to invent grounds, police powers are
inherent to any state and therefore there are restrictions to rights.
14) Even if we gave absolute rights, a later legislature or judiciary will have to find grounds to
restrict those rights. It's better to enshrine these restrictions now rather than leave it to a
future time.
15) On the questions of there being more centralisation, there is a fundamental political
disagreement on what would unify the nation
16) For schedule 5 and schedule 6 areas there is an entirely different administrative set up
17) Article 370 for UTs and schedule 5 and schedule 6
18) Within the union there are different federal arrangements and the how do we keep this
arrangement, would more centralisation or distribution of power help?
19) Various themes that were worrying the constitution makers at that time. What choices
did they make and for what reasons
2nd speech
20) Why the constitution is not a completed project, that most o fits success is a wager
(Mehta). Making it is just one part, one cannot predict what it will amount t in the future,
success depends on the nature of the people
21) On the question of whether one generation can bind the another, ambedkar says that
amendment procedure is flexible enough to accomodate th eneed for change and if
there isn’t a majority then the change isn’t something that reflects the people’s will
22) Concern over the questions of unity has been addressed in this speech as well. The
tension between centralisation and provincial autonomy, how to balance the two as to
maintain the unity of the nation
23) Democracy in India is only a top-dressing on an Indian soil, which is essentially
undemocratic. Mere political democracy cannot be the sole meaning of the democracy,
there has to be social democracy
24) Ambedkar has concerns about the type of democracy that would be practiced in the
future. Cannot use the methods of disobedience that were used pre- independence,
have to abide by constitutional morality
25) Should not sacrifice liberty for gratefulness, bhakti. Essentially taking on Gandhi. There
are no Gods
26) Fraternity is at the core of constituting the nation where everyone will feel that they are
equally committed to that common bond. Without fraternity, equality and liberty could ot
become a natural course of things
27) In order to maintain and sustain the top soil political democracy, it is necessary to
maintain the deeper social democracy
28) Fraternity and solidarity works both ways
29) The people of india did not give the image of a united nation whereas the indian nation
conveyed that the people were one and had a single national identity. Constituted india
as a political nation but to build that sense that you are a nation of the social and
psychological sense is a work for the future. Ambedkar is saying that as far as the
political domain is concerned demcoracy has been achieved but there remains much to
be done in the social sphere and lawmakers need to reflect on quality of political
democracy

20/02/2024 - Elangovan
1. Aravind Elangovan to look at nature of constituent assembly, how representative it was,
how unified it was, the jostling of power within the assembly. Various factors outside,
which were also influencing the assembly.
2. Were there political interests within the assembly being pursued? but also some
apolitical goals were negotiated.
3. The author is cautioning the logic of anti british nationalism to constitution making. He
considered the logic and dynamics of constitution making and the freedom struggle as
different. THERE ARE THREE REASONS WHY CONSTITUTIONAL ASSEMBLY IS
VIEWED IN TANDEM WITH
4. The timing of decolonisation and the framing of the constitution is mapped in such a
manner that it gets characterised as a consequence of the british leaving, ad
5. People in the constituent assembly were freedom fighters
6. A lot of demands made by freedom fighters were incorporated in the 1935 Government
of India act which was borrowed into the constitution.
7. The Indian constitution is considered as a culmination and extension of the Indian
nationalist movements, also because the assembly adopted it unanimously.
8. Sociopolitical tensions arose post constitution and it had to be amended multiple times
due to that.
9. Aditya Nigam:- There were three absences in the assembly- no Gandhi and the
marginalization of his ideas (a central leader of the nation making process was not part
of constitution making process), no Muslim League and how its absence was interpreted
by the assembly,
10. Arvind wants to view the constitution making process as a series of conflicts- resolved
and unresolved, and to understand what and how the conflicts were resolved and also
the unresolved conflicts- the whats and the hows of how they impact indian politics.
11. Compare sen and granville austin who have similar premise but different
characterisation of the constitution.

21/02/2024 - Elangovan
1. Mukherjee:- the idea that nationalism involved all the people in the country, and the
consensus that existed, is untrue and focuses on the state, which was a political entity.
2. The british had to develop a discourse regarding law, that they were colonising India to
pursue certain goals. The legal framework to govern that wasnt just based on British
interests. They claimed to have brought “law” to us, giving us the experience of being
governed by the rule of law, and bringing values like justice which are supranational.
Laws like IPC, CrPC etc were considered part of the “civilizing mission”.
3. There is a certain relationship between constitution, people and the power of the state-
where the state is being given the power to materialize certain necessities and address
certain issues for the people. In ensuring this, the freedom of the people has been

22/02/2024 - Elangovan
1) Disagreement between K. M. Munshi and Rao, Munshi was of the view that
representatives of the constituent assembly are not reps of a community, but rather the
unified sovereign nation. All of these ideas go on to feed into a narrative of nation-
making and constitution-making being the same thing.
2) In the relationship between coloniser and colonised, the law is also being used to
negotiate between various groups of colonised people.
3) According to Rao, exclusion of certain groups, is a mark on the legitimacy of the
constitution itself.
4) Every individual is a decontextualised person, just an individual and not a representative
of anyone.
5) When talking of Fundamental Rights, acc to Munshi one has rights by virtue of being a
individual- regardless of
6) Ambedkar views the role of fundamental rights in addition to the protection of individual
rights he also wants to protect people from a group perspective. An individual carries
with themselves group affiliations, they cannot be decontextualised.
7) Absence of Muslim League was seen as a fissure in consti making acc to Elangovan
and Nigam.
8) The constitution is not just authored by the constituent assembly, but rather by things
happening outside the assembly as well.
9) Constituent assembly is an event- a break on what is happening till then,
10) It becomes an event because it is produced by the coming together of different
perspective, opinions approaches etc which merge into the making of this event.
11) The event has multiple players who have multiple perspectives (disunity) however it
culminates into an EVENT because the various players and their interest have resulted
in some kind of unity (not to be understood with absolute agreement). This unity is very
fragile, in context of the constituent assembly this can be proved by constitutional
amendments in the first few decades.

23/02/2024- Nigam
1) When you talk of an event, there are multiple consciousnesses of their own logic, and its
not that all of them become a whole and lose their characteristics, what Nigam says
happens is akin to a ‘polyphonic novel’.
2) Because of nationalism a lit of these voices which came together and agreed on an
inauguration of a ‘new, unitary logic’ did not lose their characteristics, neither did they
remain untouched by the force of nationalism.
3) The drafting of a constitution is a contestation when the political interest groups dealing
with a different kind of power, a new unitary thing, but underlying this is a lot of
disagreement of each power group trying to secure their interest.
4) Nationalism demanded that various force groups had to give up part of their interests in
the interest of national struggle and the framing of the constitution.
5) Three big absences in the CA showed that the situation was so precarious that even the
very absence of the nation was at risk at time of the worth of the nation.
6) Acc to Gandhi, there was a ‘political’ and a ‘daily’, and focus was on the ‘daily’. He
thought that the people must know how to live w each other on a daily basis. Once that
has been achieved, the state must be built on that foundation of social unity. While
according to INC, the nation state was at the core of social cohesion.

25/02/2024- Nigam
1) He is disagreeing w the claim that the authors of the constitution were guided by a
“particular set of values” made by Rajiv Bhargava- that we need to uncover. There was
no one singular authorial voice that was choosing one set of values over another.
2) Gandhi was the core contributor to the idea that the nation must be undivided through
class/caste/religion lines, in opposition to Ambedkar’s idea of various interests being
contextualised for the constitution.
3) Liberal constitution:- citizenship is decontextualised and is only in relation to the state
and not any other interest.
4) Ambedkar’s view point was that a united hindu society is not possible, he thinks that
dalits will always be discriminated against. Gandhi disagreed and had a view of
community unity and his decision to oppose seperate electorates came from the idea
that they would disrupt the community unity.
5) Even though the leaders are trying to position themselves as they are putting principles
arguments, they are inherently representing some interests of communities that do
originate from their backgrounds. – Aditya Nigam.
6) Drafting the constitution is a contestation, a new unitary thing having coherence.
Underlying that, there lies a power struggle but the commitment to create the constitution
allows power groups to get influenced and lose some interests and give them up
because of the demands of nationalism (these are the various groups jostling for power
but at the end had to agree on something and constitution to be created but they still are
present.)
7) The participants of the Indian freedom struggle had to concede themselves to the
national unitary logic.
8) The point of view of the new dispensation of power would establish the logic of Gandhi
and Nehru as unwarranted and how they “chose wrongly” thus leading to their rapid
marginalization.
9) The idea of a liberal constitution (citizen is a detached idea, it is not related to any
contention other than the interest of the public) read with the nationalistic tendencies.
10) Both Gandhi and the INC want to build, Unity in India. But the understanding of unity is
diff. For Gandhi, it is to rehabilitate relations and unity of the community but the same of
INC is to put everything In the realm of politics and use the state to bring that unity.
11) The nationalists projecting the “divisive” powers as divisive for the “nation”, and the
assertion of power by the power groups (ML or SCF) then leads to what the content of
the constitution will look like. It was not an authority choosing what values will supersede
and what not but.
12) K.M Munshi – and the Modernizing Agenda – The idea of the nation for the nationalists
was conflicting with what they had envisaged what it looks like, - the walkout of ML and
Munshi’s statement.
13) Citizenship for instance may not work for minorities, as any articulation of
communitybased discrimination even if positive was deemed illegitimate in this very
context to portray “a homogenous state”. – Read with Govind Ballabh Pant’s Quote
14) The nationalist discourse was about how the association was not dependent on what
community you belonged to but only your association with the nation itself (citizenship
discourse). Any divisive power (caste, religion etc.) should be proportionately negotiated
through the state and then put up in the demographic realm.
15) Even the language and the procedure or the content of the CA were predetermined by
the history of the country rather than the CA being an authority as a whole. • Some
ethical framework B.S from 2112
16) De-contextualized citizenship was not only a contention to win power but a genuinely
believed idea for the formation of a nation-state. The subordinate groups were not
assured that this contention only would be able to provide for the necessary safeguards
and thus wanted a better one in the constitution.
17) You are a subject who does not have any community attachments so you are there to
either just to present your intellectual position You are not there to represent the interest
of a divisive group (linguistic group, caste group, religious group or any of you are not
there as a representative of community attached) you are there as a disengaged
subject(De-contextualized citizenship)
18) You have a model position or you have an order from your intellectual position that has
nothing to do with anything else. It is almost presented as an independent position
influenced by other interests or rights that is a disengaged subject and the embedded
subject is taking your view that even if I have an ethical view on something even if I have
a principled view on something on equality or democracy or representation the point is
that even your intellectual position is the result of your social location
19) The chapter in constitution, that separate elctorates are not a choice, and various
choices like that have been made much prior to the formation of the constituent
assembly.
20) Various reforms, and restsnace during the British Raj contributed to the contents of the
constitution.
21) The point of the nationalist discourse was that various cultures and their interests should
be negotiated through the state.

26/02/2024- Shefali Jha

1) Problem w proportionate representation:- states who have implemented population
control will get a disadvantage.
2) We have a single membership model with territorial representation.
3) Question:- What does a representative represent? 2 Options- Preferences of the people
who elected you or the interests of all the ppl in your constituency.
4) FPTP:- the person who gets the highest in the constituency wins the election.
5) Depending on one’s idea of representation, it also needs to be design of the election
process.
6) Having a single representative territorial representation model based on UAF represents
a certain understanding of representation. There is a choice being made through the
design of the process and through it you are paucity a certain view.
7) It is not a part of part 3 and instead in Part 15, it is then a constitutional question whether
the right to vote is a fundamental right or not and the SC says no. UAF Art 326.

27/02/2024- Shefali Jha

1) Who can represent Whom.
2) Politics of presence and the politics of Ideas, and in representation, both of these have a
role. There is an interest of powers among different groups. Who is occupying positions
also matters.
3) Women are also entitled to there presence in public life and its power. Manels
everywhere do not show an equitable distribution of power.

29/02/2024
1) Ultra vires:- beyond your power
2) Questions that arise wrt admin action:- do you have the power, how was it exercised,
were all relevant considerations taken into account etc etc
3) Judicial review bw admin and consti law, how do they overlap is a question.
4) In India, in Admin law review, it can ve traced back to Article 14 so there is already
overlap.
5) One level of JR is testing legislative action and the other is testing administrative action.
So there are many overlaps but the action of exercising judicial review over both of them
has many differences.
6) There can be a test of constitutional compliance which do not fall under Part 3 review or
legislative competence.
7) The nature of legislative power of the parliament is different to its constituent power.
8) Article 13 limits itself to the rights granted in PART 3.
9) Q:- when the constitution itself is being amended can it be held under 13(2).
10) If Part III is itself being restricted through amendment does it amount to abridgement.
11) The democratic nature of parliamentary law making is overstated
The anti democratic nature of rights review is also overstated.
12) We often ascribe a purity of democratic processes to elections that dont exist, just based
on the social and physical capital that is needed to merely be able to fight an election.
13) When courts give effect to rights by striking down they are enhancing democracy as the
mere Existence of rights are themselves democratically established.

05/03/2024- Narasu Appa Mali

1) State of Bombay v Narasu Appa Mali v The State of Bombay (July 1951), in a division
based of the high court. Chagla and Gajendragadkar
2) Challanged Section 4 and 5 of the Maharastra Hindu Bigamous Marriage Act.
3) Section 4:- If a marriage is contracted within the state, or outside the state with either of
the party being a domicile, it is void
 06/03/2024 - Narasu
1) This judgement explains the Scope of Article 13, whether personal laws come under
article 13 of the constitution and as such are
2) Art 13 declares anti part 3 laws are declared void only to the extent that they violate it,
only those sections.
3) In Narasu Appa Mali, essentially through a challenge to Section 4 and 5, the whole act is
under
4) Two arguments being made:- Petitioner believes that the provision by criminalises
bigamy, is infringing on Freedom of religion as Hinduism allows for bigamy, equality
argument:- why is this law only for hindus not for muslims and gender discrimination
argument.
5) It was held that state has an interest in marriage, this came back to haunt us in Supriyo.

07/03/2024- Narasu
1) Three different arguments being addressed:- that Muslims are being excluded from the
act (Hindu bigamy bad Muslim bigamy ok), it is not discriminatory as it is a reform
measure, within the sphere of 494 IPC the bombay legislation creates a differential
treatments among muslims and other communities, that a muslim man can marry
multiple times but a muslim woman can’t is a
2) Chagla’s response:- makes a distinction and justifies why is it ok for the state to impose
reforms territory/community wise, it is dangerous to say that discrimination is only when
a bad thing is done to a community, special measures are needed as the extra steps are
needed given how acceptable it is within the community,

11/03/2024- Sabrimala
1) Three to five-judge (4:1 with Indu Malhotra dissenting, Nariman and DYC having own
opinions and Deepek mishra and —---- wrote a joint decision) bench and there was a
review petition against the decision of the five judge bench.
2) Despite upholding the claims of the petitioner 4:1, it was decided 3:2 with Nariman and
DYC dissenting, for it to go to the 9 Judge bench. A review petition is not an intra court
appeal, not a second level of appeal, a prima facie error needs to be showed.
3) Sequence of Opinions:- Misra, Khanwilkar; Nariman; Chandrachud; Indu Malhotra
4) Women of menstruating age were not allowed entry in Sabrimala Temple
 5) Question:- Is this exclusionary practice discriminatory.
6) At the heart of thie question is the Kerala Places of Hindu worship Act, and the 1965
rules under this act.
7) Proviso clause (where provided that is used) insert a comma in your head;
8) The prohibition that is being adjudicated is not in the custom but rather Rule 3 of the
Rules read with the Section 3 of the Act.
9) Plurality of opinion:- There is a shifting majority from question 1 to question 2
Q1:- whether personal law can be reviewed under article 13
Q2:- whether women can be prohibited from the rules plus the act from entering
sabrimala
10) On question 1, Chandrachud is alone in answering that, and in that sense it does not
form a majority opinion.
11) On question 2 however, the 4:1 split occurs with Indu Malhotra moving into the minority
with DYC, Nariman, Misra, Khanwilkar being the majority,
12) The judges have taken the narrow view of the rule being unconstitutional, instead of
saying that the custom of not allowing women was unconstitutional.
13) Only DYC addresses the question of whether women can be prohibited from entering by
some other custom/law than the rules that are overturned.
14) The logic of the judges being that the state, by making the rules enabled the custom,
that is the problem. They leave the question of whether the temple authorities can apply
custom to restrict entry again.
15) Question is whether the prohibition of women traced back to the rule or the custom.
16)

12/03/2024- Shankari Prasad and Sajjan Singh

and Golaknath
1) The constituent power of the parliament, is an exercise in its sovereignty, can it change
whatever it wants without the restriction of the same like ordinary legislation.
2) If amendments are subject to fundamental rights, the same questions regarding
democracy, self government etc can arise. Reducing the scope of amendments if they
are subject to Article 13, there is only a certain amount of changes that can be made.
3) Are amendments to the constitution subject to the limits of the constitution itself?
4) Article 368 amended version clarifies that the parliament has constituent power.
5) Shankari Prasad case relates to the 1st amendment act, and teh insertion of articles 31A
and 31B, and the question of land reforms.
6) Conflict between what legislatures were trying to do and what the constitution was trying
to achieve in the context of right to property. The question was that was the land reform
ultra vires the right to privacy guaranteed by the constitution.
7) What 31A and 31B are saying that Law that give effect to 39B and C, and such directive
principles will be placed in schedule 9 of the constitution and such are beyond judicial
review.
8) It was held that there is no limits on the power of the parliament to amend the
constitution as the action of doing so is exercise of constituent power.
9) You cannot subject Constitutional Amendment to Part III review.
10) The issue, unlike Shankari Prasad, in Sajjan Singh, the amending power of the
constitution was not the major question.
11) The minority judgement of Hidayutaullah and considered it nonsensical that in exercise
of amending powers the constitution can be entirely recreated. Madholkar considered
the basic features to not be just rights, but also had a Broader concern.
12) Golak Nath was reconsidering Shamkari Prasad, and had a 6-5 majority. Amending the
constitution is like normal legislative action and is subject to part III review.
13) Disagree with distinction between constituent and legislative power.
14) K Subba Rao:- even if amending the constitution you have to respect its boundaries.
According to him Art 368 is not the provision where power to amend is located but it only
lays down procedure of amending the constitution. It is in Entry 97 of Schedule 3, and
Articles 245 and 246.

14/03/2024- Behram Murshid and KM Menon

1) Behram Khurshid case and K M Menon:- on the words “void” as per 13(1) and 13(2),
and consequences of a law being voided.
2) Keshavan Menon:- January 1951, 3 opinions between 7 Judges and 5:2 ratio with Fazal
and Ali dissenting.
3) Petitioner claimed that the Indian Press Emergency Powers Act is violative of Article
19(1)a, it is a 1931 act and is preconstitutional. The publication of the pamphlet was in
1949 which was also preconstitution. His argument was that after constitution, a law
which both parties accept as being void, he claims he cannot be punished under this act
now as 13(1) has a retrospective effect.

4) Das and Ali agree that there is no retrospective actin of the constitution so acts that have
been concluded before the constitution cannot be reopened.
5) Ali and Mukharjee, if proceedings are pending when constitution came into force, those
proceedings under a law “unconstitutional” under Art 13, they cannot be continued. The
rest who joined Das claimed that because the actio n was done when these laws were in
force one has to pay the consequences of that act.
6) Logic of repeal:- anything that has been done under the law that has been repealed
continues.
7) Question:- Should the same logic be applied to preconstitutional law?
8) When the act was committed? Was the law valid at that time or not?
9) The constitution is treated as a normal legislation in the judgements.
10) Behram Khurshid Pesikaka:- It is an important case that
 18/03/2024 CBI v RR Kishore ; State of Guj v
Ambika Mills
1) Unlike what happens in preconstitutional law, post constitutional provisions foul of 13(2),
2) DPSE:- CBI
3) Meaning of void in 13(1) and 13(2) is different, acc to 13(1), the law wasnt void ab initio
4) S Swamy v CBI declared 6A unconstitutional, 6A established procedure for initiating
proceedings
5) During the proceedings in Kishore, 6A was made unconstitutional.
6) The voidness of a postc constitutional provision goes to the beginning, and it is as
though that the provision was never available at all. Void in 13(2) means void ab initio.
7) Reading down means saving the provisions, but delineating the scope of the provision to
save its constitutionality. The reading given to 377 was that it cannot be applied to
consensual acts between
consenting adults. 377 continues to be available because rape law in India are not
gender neutral.
8) There is a presumption of constitutional validity for a legislation, and it is on the petitioner
to prove that there are constitutionality concerns regarding that. The courts can read
down, sever (remove part of),
9) The phrase “other authorities” in Art 12 has created a lot of jurisprudence.
10) Economic imagination of states post 1991, how it changed post LPG.

19/03/2024- PK Biswas
1) Ruma Paul’s structure:- setting up, objects and purpose, management, financial
relationship with the state
2) The central government is taking special care of research and stuff.
3) Q:- If it is set up by statute, but is performing a commercial activity, is that state?
4) Req:- what really matters to determine whether you are state of not includes
constitutional and statutory authorities on whom power has been put by the law.
5) The benches in RD Shetty and Sukhbir singh should have judged acc to Rajastan case,
and there is more than a slight decision that the broader test laid down in this were obitur
dicta of the case. It is only in Ajay Hasia that it had gotten adopted and became the ratio.
6) How did the test in Sukhdev/RD Shetty/Hasia mutate from what had been laid down in
Rajasthan State Electricity Board? To understand the criteria they developed. If the
same test as in RSEB
20/03/2024- RD Shetty, Hasia and PK Biswas
RD SHETTY VS AIRPORT AUTHORITY OF INDIA -
AAI issued a notice inviting tenders for the establishment of 2 snack bars and a restaurant and
laid down certain eligibility conditions for the same. One of the clauses also mentioned that the
director of AAI is free to reject any tender w/o giving any rational justification.
Appellant in the present case failed to satisfy the eligibility criteria and hece was not considered
for tender acceptance but another respondent ( 4) despite being non eligible acc to the
conditions stipulated were given the tender.
Appelant is raising the ques of violation of FR by AAI on the grounds that there was denial of
equal opportunity by AAI as both respondent 4 and the appelant did not fulfil the eligibility
criteria yet respondent 4 was chosen.
The respondents replied- 1. That eligibility criteria was looking for experience( 2 grade hotel etc-
anyways given to hotels and not ppl working there+ Para 8 wherein it was stipulated that the
director of AAI was free to reject any tender w/o any rational justification 2. eligibility criteria had
not statutory force- so any departure from the same does not warrant any judicial action. -

COURT FINDING
1. In accordance wd the principles of rule of law, no executive action should be arbitrary and
devoid of reason. Therefore, in the present case, the eligibility standard held by AAI should be
strictly followed and any deviation should be allowed only on account of acceptable reasoning.
The court followed the rule given by justice frankfurter in itralli vs saton-it is a well-settled rule of
administrative law that an executive authority must be rigorously held to the standards by which
it professes its actions to be judged and it must scrupulously observe those standards on pain of
invalidation of an act in violation of them.
2. It was agreed by the court that in case a corp receives a certain amount of financial
assistance ( large not common) by the state; or some financial control+ unusual degree of
control on management and policies; or monopoly status of corp conferred by the state= state
under art 12
3. The court has laid down another test in determing if the corp fall under the definition of state
under art 12- nature of function of the corp. Corps engaged in matters of high public imp-
activities too fundamental to the society- govt functions.
4. The decision about a corp being a govt instrumentality - is a cumulative effect of relevant
factors and not a single factor only.
5. AAI state under art 12 of the constitution on the basis of the test laid above. 6. The court has
broadened the test laid down in RSEB in the sense that it has included other provisions as well.
Any of these tests if applied can satisfy the requirement of it being classified as state. So there
is not only one single test but many tests which can be used to determine if it is state.

IT IS ADVISABLE TO MENTION PARAGRAPHS OF THE JUDGEMENT WHEN MENTIONING

ANY STATEMENT OF A JUDGEMENT.- which para for which point- imp to note
- Are the only such ( formed under a statute) authorities, the only authorities according to art
12.
- Discussion on the term “other authorities” under art 12.
 - Struggle to make a argument that there is a broader reading of the term “other authorities”-
coz it says that if it says that if powers are conferred to you by law, u are state.
- Does it mention that only this is state a s other authorities??????
- Are they only deciding about if a corp is state only when it is formed by a statute?are they
excluding non statutory corp????
- Whether it is closing the door on a broader reading of the term”other authorities” is uncertain. -
Whether entities not created by statute can be also in the meaning of other authoritiesthe bench
did not need to answer this ques as the authorities in ques were statutory authorities only- the
broader rule laid down ij those cases became obiter dictum- not necessary to solve the present
ques.
- Questions to answer in ajay hasia 1. What is the approach in deciding the meaning of “other
authorities” 2. How is Sabhajit Tiwari distinguished from Ajay Hasia?
Approach is diff from ajay hasia as situation is a bit diff
- To understand the conflict, - In sabhajit tiwari, the body in ques does not have aclaim under
art 311- u cant claim against the state
- Ajay hasia response to this- para 20 of pradeep kumar biswas- entities coming under part 3
definition of state which might not come under other provisions of other constitutional article(
309,310,311 etc)
- coz definition of state under art 12 i broad and only applicable i relation to FR
. - Definition adopting of state- only applicable to part 3 and 4 of the cost and not any other part.
- Para 27- Pradeep Kumar Biswas
1. Share capital( how much ownership thru shares)
2. Extent of financial assistance
3. Monopoly( eg railways)- state conferred ; state protected
4. The extent of state control
5. What are its functions- whether of public imp /closely related to govt functions 6. Whether
govt department transferred to a corporation - Complexity is not in determination of these
factors- very diff from what is laid down in RSEB.
- The question - IF I WERE TO DECIDE THE ENTITY IS OTHE AUTHORITY - DO I NEED TO
CHECK ONLY ONE OF THE BOXES OR SOME BOXES ARE MORE IMP THAN OTHER
BOXES- IS THAT ENOUGH- DO I NOT NEED TO SHOW ANYTHING ELSE?? ARE CERTAIN
BOXES ESSENTIAL OR SOME ARE CONTRIBUTORY? - COMPLICATION- WHAT DO YOU
DO WD THE FACTORS- WHAT REQUIREMENTS ARE BEING IMPOSED BY THESE
FACTORS- WHAT IS THE CONSTITUTIONAL APPROACH TO LOOKING AT EACH OF
THESE FACTORS- IS ANYONE FACTOR TRUMP FACTOR- IS IT THAT EVEN ONE FACTOR
CAN NEVER BE ENOUGH? IS THAT THE POSITION?- NO DEFINITE ANSWERS

21/03/2024- PK Biswas
1) Rules laid down in Hasia isnt tight and rigid principles, one needs to look at them and
also be specific to the entity whose status is in question, and look at it wrt those 6
aspects.
 2) Cumulatively look at the 6 factors and whether that entity is financially administratively
and functionally under control of the government.
3) Art 12 is not to be read by Ejusdem Generis. If it was, it would be a very narrow
understanding and would be difficult for entities like RSEB to be considered as state.
4) The agency v instrumentalty question is not enough to answer question under art 12.
5) All the preceding cases, what has happened in Art 12 juris is that once something is
determined as an agency v instrumentality
6) Applying the 6 tests in Ajay Hasia can only tell if a body is an instrumentality/agency of
the state and not an authority. He draws distinction between agency and instrumentality
and for it to be an “other authority”, the authority should have a statutory flavor and have
power to make laws within Article 13(2).

27/03/2024- Judiciary as state

1) Distinction between court’s judicial and administrative functions.
2) Adjudication on a dispute between parties is in front of the court, it is a judicial function.
In a review petition, it is not making those rules in exercise of its adjudicating powers.
In an

28/03/2024- Zee Telefilms v BCCI

1) Zee telefilms was contending that the rescinding of the tender by the BCCI is arbitrary
and violative of Article 14
2) In a writ two things- does one have locus standi, is the petition maintainnable
3) Sinha does distinguished the case before him to PKB. He doesn’t make the point that
Pradeep Kumar Biswas is wrong due to him sitting in a smoller bench. He considers that
Pradeep Kumar Biswas doesn’t apply due to a different set of circumstances.
4) The nature of BCCI is different from the nature of CSIR and hence what is said in PKB is
limited to the kind of entities before the court.
5) The major question for Sinha is that in the 14 years of LPG, the state is getting out of
many things, and thus the test needs to be changed. That is relevant for some kind of
entities but not the sole and only test used for Article 12.
6) CENTRAL QUESTION:- is the entity performing a public function
7) What should guide us on a liberal/stricter approach to Article 12.
1/04/23 - Judiciary as state
Can a judicial order be proceeded against under article 32?
- MIRAJKAR case- a judicial order cant violate FR- cant be moved under art 32
- Can't treat a judicial decision as violative of FR
- can't have a writ remedy against judicial orders
- can't mean to say that you can't challenge a judicial order
- u can file an appeal. - Writ remedies are not available against judicial orders
- u may choose other ways.
- SLP( special leave petition)
- you have no right to be heard
- the SC has the discretion to decide whether to give you leave
- if the court admits the petition
- only agrees to hear the case
- does not agree with the contenting party
- SLP is about admission
- merely allowing the SLP does not mean that ur appeal will succeed.
1. - Both parties could appeal the decision of the court- on diff grounds tho- can be on
much broader legal grounds
2. There is no ques of a court reviewing a judicial decision and granting a writ petition
against it
3. . majiority opinion- holds true till this day. \
4. Hidaytullah dissent- why do we think judicial orders can't violate FR? If they do, why do
we need to create this fiction in law that judicial orders can't violate FR? It need not only
bee in outcomes but in processes as well- what is about judicial orders that we need to
take tis position that they cant violate FR?
5. - what do u do if rights are indeed violated- y exclude the writ remedy and y necessarily
rely on other pathways.- minority opinion
- HURRAH case,
6. . Violation of PNJ- principles of natural justice 2. Bias by Judge 3. Abuse of process
where in judgments of the Supreme Court, u can show any of these, u can are entitled to
file a curative petition
7. if a Supreme Court order falls in any of those cases- the court has also said it is not an
exhaustive list
8. in what context does the SC exercise its curative jurisdiction- the idea of curative petition
is very ambiguous-nothing clearly defined; against the 9 judge bench decision in
mirajkar- list provided is not exhaustive.
9. Y are we so apprehensive that jurisprudence of more than 56 years that judicial orders
cant violate FR? The fact that it does or does not is not a ques in consideration Why do
we need to maintain that judicial position? Or maybe is it a view that since one can
appeal against every decision?
10. Appeal and writ are very different- writ= rights violation; appeal= not really related to
rights violation- majorly related to other facets of a case.
 11. In Appeal can also file for review- have to show there is error on the face of the
recordthis is a standard for criminal cases and also given separately for civil cases(
order 47). - Going from appeal
12. review- curative= the court cant escape potential FR violation, thereby carbing out these
remedies
13. Would have been better and cleaner to adopt a writ remedy. - Consequence of hurrah
case-Certain kinds of FR violations get remedies, but other kinds of FR violations are left
unremedied- curative petition recognizes only certain cases.

2/04/24- Judiciary as state

1. HORIZONTAL APPLICATION OF RIGHTS - VERTICAL APPLICATION- When people
claim the violation of rights against the actions of states.

2. - HORIZONTAL APPLICATION- when FR in constitution- ques is is there horizontal

application of rights?- ie. can they seek violation as against other people- can they be
applied horizontally?

3. - This ques examining against the background in context of the discussions that have
been held till now.

4. - In relation to article 17 and 23 and 24

5. - Going to look at const provisions that speak to some sense of horizontality. -

6. Is the abolition of untouchability under Article 17- is it a conception of horizontal

application of rights? Is it saying only the state shall only practice untouchability?is it a
horizontal application or a vertical application? The second sentence in Article 17 might
be an instruction to the state to criminalize the act, you can come to the court stating that
the state has violated its obligation of criminalizing the action, imposed by the
constitution. But there cannot be prosecution based on article 17 because there is no
punishment prescribed. Article 17 cannot be used as a writ remedy horizontally.

7. -The use of word ‘any form’ and ‘ forbidden’ suggest that one wuld look at various forms
of untouchability and the complete blanket ban shows that it can be used as a writ but
not for criminal prosecution.
 8. The difference in wording of article 17 and 23- Prohibited v Prohibited, is Article 23 a
form of horizontal application of rights?

9. In Module 2, we have chipped against the idea of rights being enforced only against the
state. It might not be ridiculous to think that horizontal application of these rights is
possible.

10. Horizontal application- only in relation to enforcement through a writ petition- not
considering criminal prosecution. While there is no definite answer, the text of these
articles leaves open the possibility that part 3 might not only be available against the
state- they open up the possibility of horizontal application of rights. Just looking at the
textual options that the constitution opens up

03/04/2024- Kaushal Kishore

1) Can statements made by then sitting ministers be restricted in a different way than
speech by non political representatives?
2) Whether principle of collective responsibility imvolving cabinet/council of ministers
attaches itself to speeches made by ministers speaking of governance matters.
3) Do 19 21 have horizontal application? Does the state have an obligation to prevent the
loss of life and liberty when threatened by private individuals?
4) The case is in its fullness, is stark in saying that Art 19 and 21 have horizontal
application.
5) Does the state have to take proactive action to protect art 21 right even if it means
violating art 19 rights of someone else.
6) Both the judges agree on this point.
7) There is a long history of constitutional jurisprudence on whether article 21 casts only a
negative duty on the state, but here the court imposed a positive duty on the state to
take proactive measures.
 Fundamental rights

common law
rights

8) There is discourse that there are rights only because the constitution gave them, but
because they exist beyond that acc to nagarathna.
9) As a private citizen, Nagarathna thinks that even if the right is common, one cant invoke
the writ jurisdiction of the court, however you must invoke in common law.
10) For all other rights except for right to life, one must use common law provisions (eg:
being illegaly detained by private individuals, haebus can be used)
11) 226 might be invoked, which is jurisdiction of high court instead of just writ like 32 is for
SC

Ambedkar notes

 Dr Ambedkar discusses the constitution of India highlighting its formidable nature with
315 Articles and 8 Schedules, making it one of the bulkiest constitutions globally. The
document has been publicly available for eight months, allowing for ample feedback
from various stakeholders, including friends, critics, and adversaries.
 He talks of address criticisms, which may stem from misunderstandings or inadequate
understanding of its provisions.
 He tries to answer two questions every constitution must address: the form of
government and the structure of the constitution itself. In the Draft Constitution, the head
of the Indian Union is titled the President, akin to the President of the United States, but
the form of government proposed is fundamentally different, aligning with a
parliamentary system rather than the presidential system prevalent in America.
 He contrasts the American system of governance and says that India has a
parliamentary one unlike the USA which will have the president as a figurehead only.
 Dr. Ambedkar addresses the form of the Constitution, distinguishing between unitary
and federal constitutions. He defines a unitary constitution as characterized by the
supremacy of the central polity and the absence of subsidiary sovereign polities, while a
federal constitution establishes a dual polity where both the central and subsidiary
polities are sovereign in their respective fields.
 He asserts that the proposed Indian Constitution establishes a federal system with a
dual polity comprising the Union and the States, each endowed with sovereign powers
delineated by the Constitution. He emphasizes that despite the dual polity, Indian
citizenship remains singular, with every Indian having equal citizenship rights regardless
of state residency.
 He discusses the flexibility of the proposed federation, noting that during times of war,
the Constitution can function as a unitary system under a presidential proclamation,
granting extensive powers to the Union. He highlights the unique features of the Indian
federation, including its ability to transition between federal and unitary structures, which
distinguishes it from other federations.
 There are inherent weaknesses of federalism, such as rigidity and legalism, but notes
that the Indian Constitution introduces mechanisms to overcome these challenges. He
elaborates on the provisions granting Parliament the power to legislate on provincial
subjects during national emergencies, with stringent conditions ensuring consensus
among states or provinces before central intervention.
 Dr. Ambedkar discusses the provisions for amending the Constitution as a means to
avoid rigidity and legalism. He explains that the Constitution divides its articles into two
groups for amendment purposes. The first group comprises articles related to legislative
powers, state representation in Parliament, and the powers of the courts. Amendments
to these articles require both a two-thirds majority in each house of Parliament and
ratification by the states. The second group includes the remaining articles, which can be
amended by Parliament alone with a two-thirds majority in each house, without requiring
state ratification.
 Dr. Ambedkar asserts that this system ensures flexibility and prevents rigidity and
legalism in the Indian federation. He highlights the Constitution's efforts to balance
federalism with uniformity by establishing a single judiciary, uniform fundamental laws,
and a common All-India Civil Service. Unlike in the United States, where federal and
state judiciaries are separate, India's dual polity does not result in a dual judiciary.
Instead, the High Courts and the Supreme Court form a single integrated judiciary,
providing remedies for all cases arising under constitutional, civil, or criminal law to
eliminate diversity in remedial procedures.
 Dr. Ambedkar discusses the efforts made to ensure uniformity in laws governing civic
and corporate life in India. He highlights the inclusion of major civil and criminal laws
such as the Civil Procedure Code, Penal Code, and others in the Concurrent List of the
Constitution to maintain necessary uniformity without compromising the federal
structure.
 Dr. Ambedkar addresses criticisms that the Draft Constitution lacks originality, stating
that given the established scope and fundamentals of constitutions worldwide,
similarities are expected. He refutes accusations of blind imitation, asserting that the
Drafting Committee introduced variations to accommodate the country's needs.
 Dr. Ambedkar defends the inclusion of provisions from the Government of India Act,
1935, stating that borrowing fundamental ideas involves no plagiarism and is justified by
necessity, although he expresses regret over the inclusion of administrative details in the
Constitution.
 He quotes Grote, emphasizing the importance of constitutional morality for the
functioning of a free and peaceful government, even in the face of powerful minority
opposition.
 He argues that constitutional morality must be cultivated and questions whether it is
sufficiently prevalent in Indian society. Dr. Ambedkar suggests that due to the lack of
widespread constitutional morality, it is prudent to incorporate administrative details into
the constitution rather than entrust them to the legislature.
 He addresses criticisms of the Draft Constitution for not representing the ancient polity of
India and rejecting the idea of drafting it based on the ancient Hindu model of
governance. Dr. Ambedkar dismisses romanticized notions of village communities,
arguing that they have historically contributed little to the country's progress and have
been a hindrance to its development due to their insular and communal nature. He
supports the Draft Constitution's focus on the individual as the primary unit of
governance, rejecting the notion of the village as a viable model for modern India.
 Dr. Ambedkar addresses criticisms of the Draft Constitution related to safeguards for
minorities and fundamental rights. Regarding minorities, he asserts that both majorities
and minorities have followed a wrong path, with majorities denying minority existence
and minorities perpetuating themselves. He advocates for a solution that recognizes
minority existence while fostering unity between majorities and minorities.
 Dr. Ambedkar highlights the importance of minority protection, citing Europe's history as
evidence of the explosive potential of minority discontent. He contrasts this with India,
where minorities have accepted the rule of the communal majority. Dr. Ambedkar
emphasizes the majority's duty not to discriminate against minorities, suggesting that
their continued existence depends on the majority's habit of non-discrimination.
 Regarding fundamental rights, Dr. Ambedkar acknowledges criticism that Article 13,
which defines fundamental rights, contains numerous exceptions that undermine those
rights. Critics argue that fundamental rights must be absolute to be considered
fundamental. They point to the American Bill of Rights as an example of genuine
fundamental rights because they are not subject to limitations or exceptions. However,
Dr. Ambedkar does not directly address these criticisms but rather acknowledges them.
He neither defends nor refutes the exceptions in Article 13 but acknowledges that critics
perceive them as undermining fundamental rights.
 In this paragraph, Dr. Ambedkar delves into the intricacies of criticisms leveled against
the Draft Constitution regarding its provisions on fundamental rights. He begins by
addressing a common misconception about the nature of fundamental rights,
emphasizing that their distinction from non-fundamental rights lies not in their
 absoluteness but in their origin: fundamental rights are bestowed by law, whereas non-
fundamental rights arise from agreements between parties.
 Dr. Ambedkar then challenges the notion that fundamental rights in the United States
are absolute, countering this belief by referencing a landmark Supreme Court case,
Gitlow v. New York, which upheld limitations on free speech. He rebuts the idea that the
American Constitution delegates the imposition of limitations on fundamental rights to
the judiciary, clarifying that Congress holds this authority.
 Further, Dr. Ambedkar contrasts the approach taken by the American Constitution,
which imposed limitations indirectly through the doctrine of police power, with the
approach of the Draft Constitution, which allows for direct imposition of limitations by the
state. He stresses that both methods ultimately result in fundamental rights not being
absolute, with the distinction lying in the manner in which limitations are imposed—either
directly by the state or indirectly through judicial interpretation.
 Dr. Ambedkar highlights that Directive Principles, a novel feature in a Constitution
framed for Parliamentary Democracy, are similar to the Instrument of Instructions issued
under the 1935 Act. He notes that these principles are instructions to the Legislature and
the Executive, providing guidance on the exercise of power.
 Dr. Ambedkar acknowledges that Directive Principles may not have legal force, as
explicitly stated in the Constitution. However, he argues that this does not render them
entirely devoid of binding force. While they may not be enforceable in a court of law, they
carry moral and political weight, impacting governmental actions and decisions.
 Despite lacking legal enforceability, Dr. Ambedkar asserts that adherence to Directive
Principles is essential for those in power. While politicians may not face legal
repercussions for disregarding them, they must answer to the electorate during
elections. Thus, Directive Principles serve as a yardstick by which the performance of
elected representatives is measured.
 He acknowledges the debate over the placement of Directive Principles within the
Constitution. While some argue for their inclusion in Schedules III A & IV as Instrument
of Instructions, Dr. Ambedkar suggests their proper place is amidst provisions with
positive obligations. However, he concedes that this is a matter of arrangement and
does not affect their significance.
 He addresses concerns about the strength of the Centre, emphasizing the necessity of
striking a balance. While acknowledging the inevitability of centralization due to modern
conditions, he warns against excessive centralization that may lead to instability. He
advocates for a Centre with sufficient strength but cautions against granting excessive
power that it cannot effectively manage.
 Dr. Ambedkar acknowledges criticism regarding the disparate treatment of Indian States
compared to Provinces in their constitutional relations with the Centre. He points out that
Indian States have autonomy in certain matters, such as not being bound to accept
subjects in the Union List beyond Defence, Foreign Affairs, and Communications.
Additionally, they are permitted to maintain their own armies, a provision Dr. Ambedkar
views as retrograde and potentially harmful to India's unity and stability.
 He expresses concern that the existing disparity between Indian States and Provinces
may Dr. Ambedkar expresses concern that the existing disparity between Indian States
 and Provinces may undermine the efficacy of the Centre's authority, particularly in critical
matters such as national defense. He warns that such disparities could jeopardize the
unity and functioning of the State, especially in times of war.
 He highlights the rapid integration of Indian States with Provinces or among themselves
since August 15, 1947. He urges the remaining States to align themselves with
Provinces and become full units of the Indian Union, thereby strengthening the nation
and avoiding the need to establish separate Constituent Assemblies and draft their own
constitutions.
 He addresses objections to describing India as a "Union of States" in Article 1 of the
Draft Constitution. He explains that while South Africa, a unitary state, is also referred to
as a Union, the term Union does not contradict the federal nature of India's constitution.
Instead, it emphasizes the indivisible nature of the Federation and rejects the idea of
States having the right to secede.
 He clarifies that the deliberate use of the term "Union" in the Draft Constitution aims to
assert that India's Federation is not the result of an agreement among States and is
therefore indivisible. He draws parallels with the American Civil War, where the federal
government's victory established the indivisibility of the Union. The Drafting Committee
sought to avoid ambiguity or disputes by explicitly stating the unity and indivisibility of the
Indian Federation from the outset.
 Critics argue that the amending provisions in the Draft Constitution make it difficult to
amend. They propose that the Constitution should be amendable by a simple majority,
particularly highlighting the difference in the electoral mandate of the Constituent
Assembly compared to the future Parliament.
 He refutes this criticism by asserting that the amending provisions in the Draft
Constitution are simpler compared to those in the American and Australian
Constitutions. He explains that the Constituent Assembly, unlike the future Parliament,
has no partisan motives and aims solely to create a good and workable constitution.
Therefore, it can be trusted to pass the Constitution by a simple majority.
 He emphasizes the distinction between the Constituent Assembly and the future
Parliament. While the Constituent Assembly is impartial and focused on constitutional
matters, the future Parliament may have partisan interests and seek amendments to
facilitate the passing of party measures.
 He asserts that he has addressed all adverse criticisms leveled against the Draft
Constitution as settled by the Drafting Committee. He expresses confidence in the
Constitution's workability, flexibility, and strength to hold the country together in both
peace and war.
 Constitution has been discussed in several Provincial Assemblies, where serious
objections were raised regarding financial provisions and specific articles. However,
overall, no serious objections were raised against the majority of the Constitution's
articles.
 He considered the draft a good starting point and said that he thinks that the failings in
future would be human instead of because of the constitution.
25th November 1949
In this excerpt from Dr. Ambedkar's speech to the Constituent Assembly, he provides a
comprehensive overview of the Assembly's work, the Draft Constitution, the role of the
Drafting Committee, and criticisms leveled against the Constitution. Here are detailed
notes:

The Constituent Assembly has held eleven sessions over a period of nearly three years.
Initial sessions focused on passing the Objectives Resolution and considering reports of
various committees on fundamental rights, union and provincial constitutions, minorities,
etc. Later sessions were devoted to the consideration of the Draft Constitution.

The final Draft Constitution comprises 395 articles and 8 schedules. Approximately
7,635 amendments were tabled, out of which 2,473 were actually moved in the house.
Criticism of the Drafting Committee's work is acknowledged, with Mr. Naziruddin Ahmed
condemning it as below par.

Dr. Ambedkar expresses surprise at being elected to the Drafting Committee and
subsequently as its Chairman. Initially focused on safeguarding Scheduled Castes'
interests, he found himself in more significant roles.
The existence of the Congress Party in the Assembly ensured order and discipline.
Party discipline facilitated the Drafting Committee's work by providing a sense of
predictability in Assembly proceedings.
Dr. Ambedkar acknowledges rebels within the Assembly, such as Mr. Kamath, Dr. P.S.
Deshmukh, and others. Their ideological challenges enriched Assembly proceedings
and provided opportunities for Dr. Ambedkar to expound on constitutional principles.

Dr. Ambedkar emphasizes the importance of people and political parties in the working
of the Constitution. Regardless of the Constitution's quality, its effectiveness depends on
the conduct of those tasked with implementing it.

Criticism of the Constitution primarily comes from the Communist and Socialist Parties.
The Communist Party opposes the Constitution for its parliamentary democracy,
advocating instead for the Dictatorship of the Proletariat. Socialists desire unrestricted
powers for nationalization and criticize Fundamental Rights' limitations to ensure the
freedom to criticize and potentially overthrow the State.
Dr. Ambedkar acknowledges the existence of overriding powers granted to the Centre
but emphasizes that they are reserved for emergencies only. He suggests that before
condemning the Constitution for these powers, certain considerations must be taken into
account
Dr. Ambedkar cites a quote from "The Round Table" magazine, highlighting the
complexity of political systems and the issue of ultimate allegiance during a crisis. The
fundamental question is posed: to whom does the citizen owe allegiance in a moment of
crisis - the Centre or the States? Dr. Ambedkar argues that in times of emergency, the
citizen's loyalty should lie with the Centre, as it can work for the common good and the
nation's interests as a whole. He justifies giving the Centre overriding powers in
emergencies based on the need for a unified response and the Centre's capacity to
address national concerns effectively.
Dr. Ambedkar expresses concerns about India's future independence, questioning
whether it will be maintained or lost again. He reflects on India's past loss of
independence due to the betrayal of some of its own people, expressing anxiety about
the possibility of a similar occurrence in the future.
Dr. Ambedkar expresses deep concern about the possibility of history repeating itself,
particularly regarding the loss of India's independence. He highlights the potential threats
posed by internal divisions, such as caste and creed, as well as the emergence of
diverse and opposing political parties.
Dr. Ambedkar questions whether Indians will prioritize the interests of the country over
their personal or ideological affiliations. He emphasizes the need for Indians to defend
their independence with unwavering determination, suggesting that placing creed above
the country could jeopardize independence.
Dr. Ambedkar reflects on India's historical familiarity with democratic principles, citing
examples of ancient republics and parliamentary procedures observed by Buddhist
assemblies. He acknowledges the risk of democracy giving way to dictatorship,
especially in a country like India where democracy is relatively new and vulnerable
Dr. Ambedkar outlines steps to safeguard democracy, advocating for the abandonment
of violent or unconstitutional methods in favor of constitutional means. He warns against
placing excessive trust in charismatic leaders, emphasizing the importance of preserving
individual liberties and institutions.
Dr. Ambedkar calls for the expansion of democracy beyond the political realm to
encompass social and economic equality. He identifies the glaring inequalities present in
Indian society, both socially and economically, and warns that the persistence of these
disparities could undermine political democracy.
Dr. Ambedkar highlights the contradiction between political equality and social-economic
inequality that India will face upon becoming a democratic republic. He urges prompt
action to address these inequalities, warning that failure to do so could threaten the very
foundation of political democracy
Dr. Ambedkar defines fraternity as a sense of common brotherhood among all Indians,
emphasizing its role in fostering unity and solidarity in society. He recounts a story from
the United States where the term "nation" was deemed too divisive, illustrating the
challenges of achieving national solidarity.
Dr. Ambedkar acknowledges the difficulty of establishing a sense of nationhood in India,
particularly due to the prevalence of caste divisions. He argues that the existence of
thousands of castes impedes the formation of a unified Indian nation and calls for a
realization of this challenge.
Dr. Ambedkar asserts that caste divisions are anti-national because they create social
separation and breed animosity among different caste groups. He stresses the necessity
of overcoming caste divisions to achieve true fraternity and national unity.
Dr. Ambedkar highlights the need to address the monopoly of political power held by a
few and the marginalization of the masses. He warns against the potential
 consequences of ignoring the aspirations of the downtrodden, emphasizing the
importance of establishing equality and fraternity in all aspects of life.
Dr. Ambedkar reminds the Assembly of the responsibilities that accompany India's
independence, emphasizing that blaming the British for any shortcomings is no longer
an option. He warns of the changing times and ideologies that may threaten the
principles of democratic governance, urging proactive measures to preserve the
Constitution and uphold the ideals of government by the people.
Dr. Ambedkar concludes by urging the Assembly not to underestimate the challenges
ahead and to remain vigilant in addressing the issues that may undermine democracy.
He emphasizes that serving the country requires a commitment to recognizing and
addressing existing evils and ensuring that the principles of government by the people
are upheld.

Representation and its discontents

1. H. V. Kamath urged the Constituent Assembly to vote according to the people’s wishes
and not their own, yet with lakhs of voters being deleted from the rolls before the 2004
elections, it does not seem that the electoral process translates into this promise.
2. Democracy was paramount for the makers, and even with various ideals, they were
established in India in a way that would further democracy in India.
3. Different members of the Constituent assembly had a different view of democracy- eg
Dr. Ambedkar thought of a “state socialism” without which one will sacrifice fundamental
rights for bread and butter.
4. Question:- do elections lead to representation? Was a representative supposed to
represent interests or preferences? Are they elected by virtue of being chosen in
elections, accountability in next or ideological agreements.
5. BURKE:- elected representative a statesman concerned with interests of the whole
nation rather than the district’s preferences.
6. MILL:- representative someone who will relay voters pov into legislature.
7. First draft on fundamental rights guaranteed a conditional right to vote rather as part of
right to freedom, and was retained in the next draft as well, but was considered by the
minorities sub-committee which mandated Election Commission to be an ‘independent
quasi-judicial body’. This part was later moved from fundamental rights to
8. Ambedkar wanted UAF to be a fundamental right.
9. He was however assured that these articles would be mentioned in the constitution.
10. In 1948, Loknath Misra proposed Article 8A- Right to Suffrage and Election. Was
discarded as prior discussions had taken place.
11. The provisions were scattered through Articles through the constitution.
12. Representation as an issue was deliberated upon by many committees.
13. 2 questions:- preferences v interests of the ppl, how to ensure everyone’s preferences
or interests. Bc legitimacy of democracy lies in most povs getting a say.
14. It was debated to add “In the name of god” as part of the preamble as most of the people
in the country are religious. Assmuption is that the preferences of the people are to be
mirrored acc to Kamath and Pt. Govind Malviya. The people cant be present in
 lawmaking so they elect representatives who align w their preferences. Kamath’s view of
representation wasnt contested rather his assumption of homogeneity in preferences.
15. This choice based on the same view as Kamath of representation- principle of territorial
representation with the location the locus of the relationship between the voter and the
voted and a close relationship between the representative and voter.
16. On this basis, differentiation of rura/urban constituencies was proposed as those living in
rural areas do not have the same preferences as those living in urban areas, in order for
single member district reps to be able to mirror the preferences of the people in a good
way.
17. Even scale of representation was a contention- how was representation to exist when
one member have to rep 750000 citizens.
18. Loknath Misra suggested this to be resolved through indirect representation
750 contiguous villages→ 5 Panchayat —> representatives. However one representative
still couldnt cover even a village of 1000 ppl as they will have to
19. Alternative:- Democracy is the representation of interests and not preferences. This idea
is a criticism on elections as a ruse to befool the masses, as they serve to sway the
voter through propaganda beyond his state of mind.
20. Thus, even the majority party representatives are not the representative of the normal
mind of the masses and are not a representative of the masses, particularly when you
take into account the differences between interests and preferences.
21. If to comparing interests and preferences we argue that democracy is about the national
interest which is not merely aggregating individual interests.
22. In Nehru’s defence of the objectives resolution, he talked about associating with as
many people as possible, but also that the future comprises all 400 million people of
India. Representation for him was just getting elected from a certain place, and not that
the representatives should agree with who elected him. They were not to think of their
voters but of India.
23. Robust representation system must ensure that as many interests as possible are being
listened to. With regard to this an idea was proposed that representatives be elected
population wise and not area wise. This was criticised as this would lack representation
to people who inhabit areas with low population who will be merged with areas which
might have different interests.
24. New idea:- Only a person who matched a community based on an ascriptive idea, who
can be trusted by the community be chosen. Esp with regard to minorities that a person
not of their community might not be able to represent their interests, however he would
be considered a due representative of them if voted in. Can be ensured by getting
atleast 35% of votes of the minorities (As per a amendment by S Nagappa).
25. Another way the problem could be solved is through the proportional representation-
which begins with multi member constituencies. The candidates do not win based on the
plurality of the votes or as per the first past the post system. This can be done through
the Party List system and the Single Transferable Vote method (Hare method)
26. Hare method:- parties would get seats acc to proportion of votes rather than votes in one
constituency// Depending on percentage of votes for a party, percentage of candidates
gets elected.
27. It was argued in the constituent assembly that Proportional Representation gives a close
line between representatives and their voters.
28. Tried to give info on various perspective on representation
29. Many who advocated for or against plurality shared similar views regarding
representation- representation was considering the preferences of the voters.
30. Minorities were not assured of equal representation through this and wanted some
additional safeguards- reserved seats, electorates etc. This can be because of close link
argument that the minorities felt safeguarded into demanding this. Also the Pluralism
enthusiasts sound hollow as if the representation was ab gearing the people heard why
shouldnt minorities be worried about that. Even if a national v Sectional interest
argument is made, isnt supported by the electoral mechanism.
31. Preceding vote on issue, there is debate which would be useless if they bound by local
mandates. This debate needs to assume a common interest ad all positions on that must
be represented in the assembly and compromised/accomodated. Even if they are to vote
acc to Local Mandate, it is important for diversity of views for legitimacy purposes.
32. Essentially there were two goals of the CA- hear as many groups as possible, but also
avoid sectarianism, yet while many electoral mechanisms were rejected on basis of
sectarianism, there is no denying that the current system excludes many voices.
Making of the Indian Constitution

1. Lack of historiography, regarding the constitution and its formation.

2. Indian constituent assembly and the origin of the constitution has been viewed in tandem
with the history of Indian nationalism- being considered as a logical/twin accompaniment
to decolonization and making of Indian nation state in 1947. There are three reasons
that connect to it
a) The process of the constitution coincided with the process of decolonisation which left
an imprint of continuity from colonial to post colonial state.
b) Many stalwarts of the INC, who were freedom fighters were involved in the making of
the constitution.
c) Many provisions from the constitution are borrowed from the 1935 GOI Act, which had
conceded to many demands from freedom fighters.
Also the members of the constituent assembly passed the constitution unanimously.
3. These factors overlook the conflict prone path that was the framing of the constitution-
the amendments can prove this post 1950 to reflect the changing socio political realities
of India, and the fact of Dr Ambedkar publically disavowing the constitution.
4. GRANVILLE AUSTIN:- primary academician looking at constituent assembly through a
lens of nationalism. It was a defining moment, as Indians could shape their own destiny-
a task that was approached with idealism and a sense of purpose. The Constitutional
Assembly was trying to achieve social revolution through the constitution, showed by
UAF, Fundamental Rights. The diverse assembly was united on social justice and
nationshood and was essentially a tribute to the Indian national movement. Due to lack
of scholarship on the matter his word was seen as the last, and the constitution
considered an extension of nationalism. U. K. Tripathi considered that the Indian
 constitution makers took nationalism and constitutionalism from the west and defied
imperialism to create the constitution. No mainstream critique of him.
5. Sarbani Sen largely agrees with him but her arguments are somewhat different. For her,
the constitution was a break for the people, and a extension of past nationalist
revolutionary movement against the British. It wasn’t an abrupt moment in time of
revolutionary leaders coming together but a deep rooted interaction with anti Imperialism
through popular politics. It translated popular politics to institutinalisation. Constitution
making for her is the process having a destination of social justice, like Austin. It was an
exercise in rational discourse and assertion of sovereign will to create national identity
and principles of governance.
6. In 1980s, there was scholarship which began to criticise this trend and interrogated the
rle of marginalised people in making of the nation and delinked the formation of the
nation state from nationalism through experiential history instead of what the state says.
7. Upendra Baxi critically examines H.L.A. Austin's arguments regarding the making of the
Indian constitution. Baxi challenges Austin's portrayal of the constitution-making process
as driven by a benevolent Congress oligarchy and celebratory nationalism, arguing
arguing that such views oversimplify political dynamics and ignore the complexities of
Indian society
8. Baxi also questions Austin's assertions about the anti-colonial roots of constitutional
principles, suggesting that they fail to consider the diverse social practices in India.
Additionally, Baxi suggests that deeper inquiry might reveal a story beyond consensus,
highlighting the complex decision-making structures underlying the constitution.
9. Similarly, Aditya Nigam and Mithi Mukherjee offer critiques that displace nationalism
from the narrative of constitution-making. Nigam emphasizes the polyphonic nature of
constitution-making, while Mukherjee explores the influence of colonial legal traditions
and the idea of justice in shaping the constitution. These scholars argue for a nuanced
understanding of Indian constitutional history that moves beyond nationalist narratives
and acknowledges the socio-historical context and diverse perspectives involved in the
constitution-making process.
10. Mukherjee's work, "India in the Shadows of Empire," offers a nuanced analysis of the
making of the Indian constitution. She expands the focus beyond the Constituent
Assembly to include the broader legal and juridical traditions fostered by British colonial
rule in India.
11. Mukherjee argues that colonialism involved both violent subjugation and the
development of a legal framework based on "a supranational deterritorialized discourse
of justice under natural law." The idea of justice, encompassing equity and liberty,
shaped colonial governance and also inspired anticolonial movements led by the Indian
National Congress. At the time of framing the constitution, Congress leaders, influenced
by the concept of justice as equity, ensured that principles of freedom, equality, religion,
and social amelioration were pursued within a framework of justice.
12. Mukherjee's work redirects attention from the people to the state as the primary focus of
the framers of the constitution. Nationalism is not credited for the framing of the
constitution; instead, Mukherjee highlights the longer history of engagement with the
idea of justice.
13. Mukherjee's work coincides with a growing scholarly interest in the history of the Indian
constitution. Scholars have explored various aspects of constitution-making, revealing
the complex nature of Indian constitutional history.
14. Pratap Mehta's essay, "What is Constitutional Morality," emphasizes the importance of
examining the processes involved in constitution-making. He argues that a constitution is
a relationship between abstract personae bound together by abstract rules, rather than a
relationship between concrete individuals. Mehta questions the process of constitution-
making, highlighting the need for sustained association and unanimity over substantive
objectives.
15. Uday Mehta's Perspective: Mehta highlights an irony during the moment of constitution-
making. He argues that while freedom dominated anti-colonial discourse, post-
independence concerns shifted towards issues like national unity, social upliftment, and
international recognition. This shift meant that the idea of freedom became subject to
broader socio-political imperatives, influencing the framing of the constitution. Unlike
Austin's view of fundamental rights as expressions of liberalism accompanying social
revolution, Mehta suggests a need to question the relationship between freedom and the
constitution at that time.
16. De challenges the notion that the people were excluded from the conversation on the
constitution.He argues that non-elite groups engaged with the constitution through
litigation, challenging rules that restricted their rights and businesses. De's essay
highlights how the people became part of the conversation on the constitution,
suggesting that the framing process was not exclusively elite.
17. Baxi's sociological critique, Nigam's emphasis on politics, Mukherjee's expansive
historical focus, Pratap Mehta's philosophical examination, Uday Mehta's theoretical
insight, and De's social history analysis offer diverse approaches to understanding
constitution-making. These perspectives challenge the dominant nationalist framework
and enrich our understanding of the constitution's foundation.
18. The essay emphasizes rethinking the foundational moment of constitution-making to
better understand its functioning in the postcolonial period. By considering departures
from the nationalist framework, the essay aims to highlight fractures in the constitution-
making process. Two primary document examples regarding the inclusion of the Muslim
League in the constituent assembly and ideas of fundamental rights are mentioned as
instances of these fractures.
Text without Authors
Perspectives on Constitution-Making:
Various Authors, One Text: Constitutions, including the Indian Constitution, are products
of societal upheavals, where multiple voices contribute to their formation.
Crystallization of Aspirations: They represent the culmination of societal aspirations and
struggles, legitimizing the new order established after significant historical conflicts.
Establishing New Power: Constitutions codify and institutionalize the power dynamics of
emerging regimes, replacing old power structures with new ones.
Indian Constitution: A Deeper Analysis:
Unlike traditional texts, the Indian Constitution lacks a singular authorial voice. It's the
product of diverse societal forces rather than individual authorship.
Dislocating from Constituent Assembly: While the Constituent Assembly debates provide
valuable insights, focusing solely on them overlooks critical pre-assembly developments.
Viewing the assembly as an event highlights its transformative nature, marking a break
from the past and bringing together diverse ideologies.
Understanding 'Event': Draws parallels with historical events like the French Revolution,
which institute new modes of historical action, transcending the pre-existing situation.
Polyphonic Nature: Contrasts with Bakhtin's concept of the polyphonic novel, where
multiple voices coexist without merging, suggesting that events require a merging of
diverse perspectives.
Diverse Perspectives: Recognizes the multitude of voices and influences that shaped
the Indian Constitution, going beyond the singular narrative often associated with
constitution-making.
Historical Context: Emphasizes the need to understand the broader historical context in
which the constitution emerged, including pre-assembly developments and diverse
societal forces. Interdisciplinary Approach: Draws upon insights from history, literature,
and philosophy to enrich our understanding of constitution-making as a complex and
multifaceted process.
Complexity of Authorship: The text explores the notion of texts without singular authors,
emphasizing the merging of diverse perspectives in constitution-making.
Resonance with Nationalism: Draws parallels between the merging of consciousnesses
and the emergence of nationalism, suggesting a convergence of diverse voices into a
unified national identity.
Pre-Assembly Polyphony: Highlights a period before the Constituent Assembly's
formation characterized by the coexistence of diverse voices, contrasting with the
subsequent merging of identities into a national consciousness.
The situatin in the formation of the constituent assembly was very chaotic, marked by
absences like the Muslim League, representatives of Indian states, and Mahatma
Gandhi.
Examines the reversal of fate between Gandhi and Ambedkar, illustrating broader shifts
in power dynamics and alliances during the nationalist struggle. Explores Gandhi's vision
of communal harmony and his critique of the nation-state logic, suggesting a utopian
ideal that clashed with mainstream nationalist discourse. Gandhi's marginalization as the
logic of the nation-state gained dominance, leading to his gradual exclusion from
mainstream political discourse.
Integrates insights from history, political theory, and philosophy to offer a nuanced
understanding of constitution-making and nationalist struggles.
Challenges conventional interpretations of the Indian nationalist movement and
Gandhi's role within it, offering alternative perspectives on power dynamics and
ideological tensions.Historical Contextualization: Emphasizes the importance of situating
constitutional debates within their specific historical context, shedding light on the
complexities of the nationalist struggle and its aftermath.
Nehru's Strategic Outlook:
 Anticipating Power Dynamics: Nehru foresaw the Constituent Assembly's formation as
a catalyst for consolidating power, particularly in the face of British rule and internal
dissent.
 Compulsion of Events: Nehru believed that the assembly's establishment would create
an unstoppable force in India, compelling various factions to align with the emerging
power structure.
 Strategic Maneuvering: Nehru's approach involved leveraging the assembly's potential
power to influence the behavior of entities like the Indian states, the Muslim League, and
Ambedkar's Scheduled Castes Federation (SCF).
Gandhi's Influence and Marginalization:
 Gandhi's Moral Authority: Gandhi's role in shaping the constitution through moral
influence, such as his fasts and negotiations, demonstrated his significant sway over the
nationalist movement.
 Moral Stand vs. Political Realities: Gandhi's insistence on communal harmony
conflicted with emerging political exigencies, leading to his marginalization as power
dynamics shifted.
 Gandhi's Legacy: Gandhi's decisions in earlier years, such as the Poona Pact of 1932,
laid the groundwork for the liberal constitution, but his refusal to engage with power
dynamics ultimately isolated him from the evolving nationalist agenda.
 The alliance between the Muslim League and the SCF posed a challenge to Congress's
nationalist narrative, prompting strategic responses from leaders like Sardar Patel.
 Patel's attempts to negotiate with Ambedkar reflected the Congress's efforts to break
the ML-SCF alliance and consolidate its own power base. The fluidity of alliances and
power dynamics underscored the complexities of nationalist politics, requiring leaders to
navigate changing landscapes to maintain relevance and influence.
 The process of drafting the constitution was shaped by decades of struggle against
colonial rule and internal divisions within the nationalist movement. Landmarks in the
freedom struggle, from colonial reforms to constitutional deliberations, contributed to the
evolving narrative of the constitution's creation. The nationalist movement was marked
by internal divisions and competing assertions of selfhood, reflected in the diverse
positions articulated during constitution-making.
 Analyzing Nehru's strategic vision and Gandhi's moral influence provides insights into
the complexities of constitution-making and power dynamics during the nationalist
movement. The shifting alliances and strategic maneuvers of nationalist leaders have
lasting implications for India's political landscape and governance structures.Integrating
historical, political, and sociological perspectives enriches our understanding of the
multifaceted forces that shaped India's constitutional evolution.
 By July 1947, Pakistan was on the brink of formation, signifying a significant shift in the
political landscape of India. While some, like K M Munshi, expressed relief at the
removal of perceived obstacles to nation-building, others, like M Ananthasayanam
Ayyangar, harbored reservations about the partition solution.
 The dominant sentiment among Constituent Assembly members favored a centralized
state, evident in discussions on governance structures and provincial autonomy.Nehru's
explanation for the absence of the term 'democratic' in the Aims and Objects Resolution
 hinted at a deliberate omission, reflecting broader concerns and aspirations.Concerns
about maintaining unity amid diverse states and unresolved issues prompted a cautious
approach toward decentralization.
 Despite centralizing tendencies, there was a widespread belief in parliamentary
democracy among assembly members. Influential figures like Granville Austin suggested
that most members espoused Fabian and socialist ideals, viewing democracy as integral
to social and economic progress.
 The desire for a centralized state was not solely driven by communal or partisan
interests but also by a vision of modernizing India into a homogeneous nation-
state.Nationalism portrayed itself as a modernizing force, positioned against perceived
backwardness and separatism, particularly among minorities.
 Liberal language in nationalist discourse often obscured exclusionary practices,
particularly concerning minority rights. Emphasis on individual citizenship, as advocated
by figures like Govind Ballabh Pant, served to suppress communal identities and
aspirations.The debate on Urdu education highlighted tensions between individual and
community rights, with Pant dismissing linguistic concerns in favor of a homogeneous
national culture.
 Nationalist discourse aimed at creating a homogeneous national culture, often at the
expense of minority rights and identities. The new nation-state was seen as the agent of
cultural homogenization, particularly through educational institutions.
 Nationalist elites resisted colonial reforms in cultural affairs, asserting sovereignty over
internal affairs. The nationalist movement and Constituent Assembly debates were
characterized by conflicting ethical visions. Mainstream nationalism advocated
centralization for a homogeneous state, while minorities sought safeguards through
federalism.Ethical justifications for constitutional measures were contingent on specific
life-contexts and perspectives, lacking a transcendental basis.
 Much scholarship assumes a unified will behind the Indian Constitution, overlooking the
diversity of voices and interests within the Constituent Assembly (CA). The notion of a
single will can be understood in two problematic ways: either as a prior community of
interests or as a consensus emerging from rational-critical discourse.
 Reconsidering the role of subjectivity in constitution-making, acknowledging existential
and community attachments as constitutive of ethical being. Communities articulate their
visions of the future based on their position in terms of power, cultural autonomy, and
difference.
 The CA can be seen as a site where diverse groups negotiate a settlement under the
logic of power, aspiring to nationhood but facing the fragility of unity. Indian society is not
a pre-existing totality evolving into a nation but rather disparate entities coming together
into an articulated whole. The state harmonizes different temporalities, fusing diverse
pasts into a common national tradition while eradicating other national pasts.

We the People
 The debates of the Indian Constituent Assembly (ICA) offer critical insights into the
factors shaping India's constitutional principles.Vikram Raghavan emphasizes the need
to consider documents beyond the debates themselves, recognizing the complexities
and contradictions of the historical context surrounding the ICA.
 Elangovan argues that the ICA was deeply influenced by political negotiations at the
highest levels of colonial administration and among Indian political leadership.Late
colonial politics, marked by division and conflict, challenged the notion of a unified
people, complicating the ideal of "We the People."
 Scholars like Sarbani Sen and Granville Austin highlight the influence of popular
sovereignty on the Indian Constitution. Despite its faults, the Indian Constitution is often
perceived as a product of the people's
 : Dipesh Chakrabarty explores the tension between liberalism and democracy in colonial
India, where liberal governance coexisted with authoritarian rule. The conflicts and
negotiations surrounding the Act shaped the political landscape and influenced the
formation of the ICA.
o The profound differences between the Indian National Congress and the Muslim
League underscore the challenges faced by the ICA in representing diverse
interests. Elangovan suggests that viewing the ICA as a normative body may be
wishful thinking, given the complexities of historical developments.
 The end of World War II raised hopes for political and constitutional progress in India,
despite the Congress leadership still being in prison and inconclusive talks between
Gandhi and Jinnah.
 Viceroy Wavell, amidst ongoing British reluctance to settle the Indian political issue,
proposed a conference between the Congress and the League to reconstitute the
Executive Council and hold elections for provincial assemblies as initial steps toward
establishing a constitution-making body.

 Wolpert suggests that this period accelerated the demise of the British Empire in India,
with the British aiming to withdraw as swiftly as possible.
 Moore contends that the British Government attempted to reconcile the conflicting views
of the Congress and the League, attributing the eventual partition to the inflexibility of
Indian political parties rather than British attitudes.
 Nationalist historians view this period as crucial for the transition from colonial to
postcolonial India, highlighting the role of the Congress and the League in shaping the
two nations, India and Pakistan. The conflict between the Congress and the League
significantly influenced the process of constitution making in India.
 The divergent political views and aspirations of the Congress and the League shaped
discussions and negotiations within the Constituent Assembly. The formation of two
separate nations, India and Pakistan, was a direct outcome of the failure to reconcile the
differences between the Congress and the League, impacting the constitutional
framework of both countries.
 In June 1945, Viceroy Wavell called for a conference to reconstitute the Executive
Council of the Viceroy, aiming to address India's constitutional and political issues.
Wavell proposed equal representation of Hindus and Muslims in the Executive Council,
 with certain portfolios reserved for Indian representatives. However, ultimate authority
would still reside with the British Parliament and the Viceroy.
 Both the Congress and the League expressed reservations about the conference.
Jinnah was skeptical about the representation of the League, while Azad opposed the
idea of the League exclusively nominating Muslim members.The main sticking points
were communal parity and the organization of the Executive Council, with Wavell
insisting on procedural fairness while the Congress and the League sought specificity in
both process and substance.
 Formal and informal sessions saw heated debates, with Azad and Jinnah maintaining
their positions on communal parity. Despite efforts to reach agreement, Jinnah's demand
for extraconstitutional safeguards for Muslims proved insurmountable, leading to the
failure of the conference. The failure intensified tensions between the Congress and the
League, highlighting the irreconcilable visions of a united India and Pakistan.
 The failure of the Simla Conference exacerbated political tensions, making it clear that a
constitutional settlement would have to navigate the conflicting demands of a unified
India and a separate Pakistan. Amidst this political turmoil, the Constituent Assembly
faced the daunting task of charting a course for constitution making in a deeply divided
political landscape.
 The idea of a constituent assembly for India emerged as early as 1922, gaining traction
within the Congress by 1934.In June 1934, the Congress Working Committee officially
recognized the need for a sovereign constituent assembly elected on the basis of adult
suffrage. The demand intensified after the enactment of the Government of India Act in
1935, which was seen as inadequate by Indian nationalists.
 Congress leaders acknowledged the need to address communal issues alongside the
demand for a constituent assembly. Congress members emphasized the inclusivity of
the constituent assembly, seeking to allay the fears of minority communities, particularly
the Muslim League.
 Initially, Nehru envisioned a constituent assembly representing the masses and
sidelining communal issues. However, by the 1940s, he acknowledged the necessity of
addressing minority concerns. While Congress accepted the principle of minority
representation in the constituent assembly, it hesitated to guarantee parity, a key
demand of the Muslim League.
 The divergence between the Congress and the Muslim League over the question of
minority representation complicated the path to constitution making. Nehru's
acknowledgment of the risk of conflict highlighted the Congress's reluctance to engage
directly with the issue of minority representation in constitution making.
 Introduced separate electorates, allowing minorities to have their own representatives in
legislatures. Saw separate electorates as a means to assert its representation of
Muslims and challenge Congress's claim to represent all of India. Congress's
overwhelming victory challenged League's electoral performance, particularly in
provinces where it performed poorly.
 Despite Congress's victory, it failed to capture Muslim seats as expected, undermining
its claim to represent Indian Muslims. Despite electoral setbacks, the League's political
viability remained intact, enabling it to pursue separatist politics.: League's strategy
 shifted towards negotiating with other Muslim groups and engaging in provincial politics
to secure its position.
 Jinnah opposed Congress's demand for a constituent assembly, questioning its authority
and dismissing it as a Hindu-dominated body. Argued that only a sovereign authority
could call a constituent assembly, which Congress lacked. Linked his opposition to the
constituent assembly with the broader goal of safeguarding Muslim interests against a
Hindu-dominated Congress.
 Congress and League remained sharply divided over the constituent assembly,
reflecting competing visions of Indian politics. The constituent assembly became
secondary to the larger question of addressing communal tensions and safeguarding
minority interests. The British government's approach, as exemplified by Cripps's offer,
prioritized maintaining control and addressing communal tensions over genuine
constitutional reform.
 The Muslim League's opposition to the constituent assembly stemmed from its
fundamental disagreement with the Congress on the political settlement for India. The
League saw the constituent assembly as a means through which the Congress could
assert its dominance and impose its vision of India's future, which the League perceived
as detrimental to the interests of Muslims.
 Jinnah, the leader of the Muslim League, articulated his opposition to the constituent
assembly in various forums. In the League's sessions in Lucknow in October 1937 and
Lahore in March 1940, Jinnah expressed skepticism about the Congress's authority to
call for a constituent assembly. He argued that the Congress did not represent all of
India and therefore lacked the legitimacy to convene such a body. Moreover, Jinnah
questioned the practicality of a constituent assembly in resolving the complex communal
and political issues facing India.
 Despite the Congress's insistence on the constituent assembly, the League remained
steadfast in its opposition. This opposition was driven by Jinnah's vision of a separate
Muslim state, which he believed could only be achieved by negotiating directly with the
British authorities rather than through a Congress-dominated constituent assembly.

 During the negotiations with the Cabinet Mission in 1946, the League continued to reject
the idea of a constituent assembly as the primary mechanism for deciding India's future.
Instead, it advocated for a separate state for Muslims, which eventually led to the
creation of Pakistan.
Retrospective Effect and Article 13
CBI v RR Kishore
Retrospective and Prospective Effect of Judicial Decisions:

1. **Retrospective Effect:** A judicial decision or interpretation is said to have a

retrospective effect when it applies to cases or situations that arose before the decision
was made. In other words, it affects past actions or events.

2. **Prospective Effect:** Conversely, a judicial decision has prospective effect when it

applies only to cases or situations that arise after the decision has been made. It does
not affect past actions or events.

Article 20 of the Indian Constitution provides protection against retrospective criminal

laws and double jeopardy. It states:

- **Clause (1)**: "No person shall be convicted of any offence except for violation of a
law in force at the time of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence."

- **Clause (2)**: "No person shall be prosecuted and punished for the same offence
more than once."

In the case you presented, the issue revolves around the retrospective or prospective
effect of the declaration that Section 6A(1) of the DSPE Act is violative of Article 14 of
the Constitution. The Constitution Bench's decision didn't explicitly state whether its
ruling should have retrospective or prospective effect.

The determination of whether a judicial decision applies retrospectively or prospectively

often depends on various factors, including legislative intent, the nature of the right
affected, and the impact on parties' rights and obligations.

1. **Legislative Intent:** If the legislative intent suggests that the law should apply
retrospectively or prospectively, courts may interpret accordingly.

2. **Nature of Right:** Courts consider whether the right affected is substantive or

procedural. Substantive rights often have retrospective effect, while procedural changes
may apply prospectively.

3. **Fairness and Equity:** Courts may consider the fairness and equity of applying a
decision retrospectively, especially if it would unfairly prejudice parties.

4. **Public Interest:** The court may consider the public interest and the broader
implications of its decision on society.
In the context of the case you've presented, the issue of whether the declaration of
Section 6A of the DSPE Act as unconstitutional would have retrospective or prospective
effect is a crucial one. Here's a detailed analysis based on the information provided:

Article 13(1) and (2) of the Indian Constitution deal with the effect of laws inconsistent
with or in derogation of fundamental rights.

- **Article 13(1)**: This clause renders pre-existing laws void to the extent of their
inconsistency with Part III of the Constitution.

- **Article 13(2)**: This clause prohibits the State from making any law that takes away
or abridges the rights conferred by Part III, and declares any such law void to the extent
of the contravention.

The term "void" as used in Article 13 has been interpreted by various Constitution
Benches and regular Benches of the Supreme Court. It signifies that a law is not legally
valid or binding.

- **Precedents**: Several cases, such as Keshavan Madhava Menon, Behram Khurshed

Pesikaka, M.P.V. Sundararamier and Co., and Deep Chand, have addressed the
interpretation of the term "void" in the context of Article 13. These cases have
established that a law declared unconstitutional is considered unenforceable and void
from its inception.

In the case at hand, the Constitution Bench in Subramanian Swamy v. Director, CBI,
declared Section 6A of the DSPE Act unconstitutional on the grounds of violating Article
14 of the Constitution. As per the interpretation of Article 13(2) and the precedents
discussed:

- The declaration renders Section 6A void ab initio, meaning it is considered null and
void from the moment of its enactment.

- This means that Section 6A was never legally valid or enforceable, and any actions
taken under it would be deemed to have no legal effect.

The question arises whether the declaration of Section 6A as void applies retrospectively
(affecting past actions) or prospectively (affecting future actions).

- **Retrospective Application**: Given the nature of the declaration and the interpretation
of Article 13, it is likely that the declaration applies retrospectively. This means that any
actions taken under Section 6A, even before the declaration, would be considered void.
- **Prospective Application**: However, if there are compelling reasons or if the court
finds that prospective application would serve justice better, it may decide otherwise.

Section 6A mandates prior approval from the Central Government for the Delhi Special
Police Establishment to investigate corruption offenses involving certain government
officials. The constitutionality of this provision was challenged, leading to a declaration
by the Supreme Court that it violated Article 14 of the Constitution.

The discussion also delves into the retrospective application of the Supreme Court's
judgment declaring Section 6A unconstitutional. It draws on various legal precedents to
argue that when a law is declared unconstitutional, it is considered void ab initio,
meaning it was void from the moment it was enacted and has no legal force or effect.
Therefore, the declaration of unconstitutionality has a retrospective effect, rendering
Section 6A null and void from the date of its insertion in 2003.

The text concludes by suggesting that the matters be placed before the appropriate
bench for further consideration and decision on their merits.

State of Gujarat v Ambika Mills

Here are detailed notes on the case of State of Gujarat v. Ambika Mills:

**Case Summary:**

- The case revolves around the Bombay Labour Welfare Fund Act, 1953, which aimed to
promote the welfare of labor in the State of Bombay.
- After the bifurcation of the State of Bombay, the State of Gujarat enacted the Bombay
Labour Welfare Fund (Gujarat Extension and Amendment) Act, 1961, amending certain
provisions of the 1953 Act.
- One of the key provisions under scrutiny was Section 6A(1), which deemed unpaid
accumulations as abandoned property, to be taken over by the Board constituted under
the Act.
- The High Court held certain provisions of the Act unconstitutional, primarily on the
grounds that they violated the fundamental rights of citizen-employers and employees
under Article 19(1)(f) of the Constitution of India.
- The High Court also questioned the definition of 'establishment' under Section 2(4) of
the Act, alleging discrimination.

**Key Legal Issues:**

1. Constitutionality of provisions under the Bombay Labour Welfare Fund Act, 1953, as
amended by the Gujarat Extension and Amendment Act, 1961.
2. Validity of the definition of 'establishment' under Section 2(4) of the Act.

Held
1. The Supreme Court upheld the validity of the provisions challenged by the
respondents.
2. The Court reasoned that unpaid accumulations represent the obligations of employers
to employees and are deemed abandoned property under the Act. The State's
appropriation of these accumulations, after a period of inactivity by the employees, does
not infringe on their constitutional rights.
3. Additionally, the Court clarified that corporations, as non-citizen employers, cannot
claim violations of fundamental rights under Article 19(1)(f) since they do not possess
fundamental rights themselves.
4. Regarding the definition of 'establishment,' the Court held that the classification made
by the legislature was reasonable and did not violate Article 14 of the Constitution, as it
aimed to address the specific needs and difficulties of different types of establishments.

1. The State's appropriation of unpaid accumulations does not violate the constitutional
rights of employees or employers, as long as reasonable notice provisions are provided.
2. Corporations, as non-citizen entities, cannot claim violations of fundamental rights
under Article 19(1)(f) of the Constitution.
3. Legislative classifications must be reasonable and aim to address specific needs
without unduly discriminating against any particular group.
4. Courts should exercise restraint in overturning legislative classifications unless they
are clearly arbitrary or discriminatory.

WS Hooker- Golaknath and retrospective effect

The excerpt you've provided delves into the concept of prospective overruling in
jurisprudence, particularly in the context of Indian constitutional law. Let's break down
some key points:

1. **Judicial vs. Legislative Functions**: Traditionally, the judiciary interprets and applies
the law, affecting both past and future cases, while the legislature makes changes in the
law that only affect future actions. Prospective overruling is an exception to this, allowing
the judiciary to mitigate unjust outcomes resulting from past errors or changes in law.

2. **Introduction of Prospective Overruling**: The doctrine was introduced in Indian

jurisprudence through the landmark case of Golak Nath v. State of Punjab by Chief
Justice Subba Rao. It aims to balance the need for justice in individual cases with fidelity
to legal precedent.

3. **Role of Precedent in Different Legal Systems**: Common law countries like India
and the United States heavily rely on precedent, whereas civil law countries may
prioritize examining each case on its merits rather than past interpretations. The
introduction of prospective overruling reflects a trend towards recognizing the utility of
civil law theories.
4. **Conflicting Views of Justice**: The concept of justice involves situational aspects,
such as fairness, as well as higher goals or values. For example, the debate over
whether slavery should be declared unjust involves considerations of equality and
fairness versus

1. **Traditional Roles of Judiciary and Legislature**:

- In English jurisprudence, the judiciary traditionally interprets the law for both past and
future cases, while the legislature primarily makes changes to affect future actions only.
- Prospective overruling is an exception to this tradition, allowing the judiciary to
address situations where strictly following precedent would lead to unjust outcomes.

2. **Evolution of Prospective Overruling**:

- Some courts have developed the doctrine of prospective overruling to meet the ends
of justice in cases where adherence to precedent would be unjust due to past errors or
changes in the law.
- Chief Justice Subba Rao introduced this principle into Indian jurisprudence in the
landmark case of Golak Nath v. State of Punjab.

3. **Reasons for the Need of Prospective Overruling**:

- In countries like India and the United States, where British theories of political
institutions are influential, the judiciary holds a high position and maintains principles of
independence and judicial review.
- While precedent is highly regarded in such countries, there's recognition of situations
where strict adherence to precedent may lead to injustice.

4. **Conflict Between Situational and Higher Goals of Justice**:

- The text presents a hypothetical scenario to illustrate the conflict between situational
aspects of justice (such as fairness) and higher goals or values.
- It discusses the dilemma faced by judicial decision-makers when balancing the need
for equality and fairness against historical acceptance of certain practices, like slavery.

5. **Application of Prospective Overruling in Various Legal Contexts**:

- The concept of prospective overruling extends beyond constitutional law to other
branches of law where past decisions may need reconsideration to facilitate future
development.
- It allows for a balance between rectifying past errors and maintaining stability in the
legal system.

6. **Benefits of Prospective Overruling**:

- Prospective overruling allows courts to correct past errors without causing chaos by
uprooting past legal decisions.
- It provides resilience to the legal system, enabling it to adapt to changing societal
needs while preserving stability.
1. **Acceptance of Prospective Overruling**:
- Prospective overruling has been widely accepted and followed in American courts,
both state and federal, as a practical solution to implementing legal changes without
disrupting past transactions or reliance interests.

2. **State Courts' Use of Prospective Overruling**:

- State courts have employed prospective overruling primarily to protect vested rights
arising from contracts or property transactions and to address changes in governmental
responsibilities.
- The limitation on the application of substantive rights through prospective overruling
has faced criticism as potentially violating due process rights embedded in the
Fourteenth Amendment of the United States Constitution.

3. **Federal Courts' Application**:

- Federal courts have also embraced prospective overruling, particularly in non-
constitutional matters and in diversity-of-citizenship situations.
- In cases involving federal constitutional rights, such as school desegregation cases,
the Supreme Court has recognized the need for a gradual implementation of new
rulings, balancing the need for change with practical considerations and potential
disruptions.

4. **Restraint and Imagination**:

- Courts have exercised restraint and imagination in applying prospective overruling,
particularly in cases involving significant legal changes that affect multiple parties and
require substantial reorganization, like school desegregation.
- The application of prospective overruling requires consideration of various factors,
including reliance interests, the scope of the new ruling, and the practical implications of
its retroactive application.

1. **Reynolds v. Sims and Reapportionment Cases**:

- In Reynolds v. Sims, the Supreme Court held that the equal protection clause
prohibits unequal voting districts.
- The court advised that judicial relief would be appropriate when legislatures fail to
reapportion "in a timely fashion," akin to the approach taken in school desegregation
cases.

2. **Mapp v. Ohio and the Federal Exclusionary Rule**:

- Following Mapp v. Ohio, which ruled that illegally seized evidence is inadmissible,
there were suggestions to apply the decision prospectively only, particularly due to
concerns about the large number of criminal convictions affected retroactively.

3. **Linkletter v. Walker and Subsequent Cases**:

- Linkletter v. Walker established a test considering the purpose of the overruling
decision, reliance on prior law, and the effect on the administration of justice.
 - Subsequent cases like Tehan v. United States and Johnson v. New Jersey expanded
and modified the Linkletter approach, denying retroactive application based on various
factors, including the purpose of the decision and reliability of convictions.

4. **Miranda v. Arizona and Police Procedures**:

- Miranda v. Arizona raised questions about retroactive application and the potential
conflict between court decisions and law enforcement procedures.
- There's debate over whether limitations on prospective overruling are appropriate,
particularly in cases where law enforcement practices were rationalized based on
existing legal standards.

1. **Introduction of Prospective Overruling**: The Golak Nath decision introduced the

doctrine of prospective overruling in Indian law, marking a significant change in the
nature of judicial decision-making. The text suggests that the decision-maker, Chief
Justice Subba Rao, may not have fully explored the background of Indian law when
introducing this doctrine.

2. **Relevance of English Jurisprudence**: The text discusses the relevance of English

jurisprudence to Indian law, noting that while traditional British principles may have
influenced constitutional decision-making in India, there has been flexibility in English
jurisprudence in recent years.

3. **Interpretation of Article 13(2)**: The text examines the interpretation of the term
"void" in Article 13(2) of the Indian Constitution and its relationship to prospective
overruling. It discusses cases such as Deep Chand v. Uttar Pradesh and Bengal
Immunity Co. v. Bihar to illustrate different perspectives on the voidness of laws.

4. **Consideration of Vested Rights**: The text explores the concept of vested rights and
their significance in limiting the retroactive effect of legislative enactments. Cases like
Rai Ramkrishna v. Bihar and Maharana Jayvantsinghji v. Gujarat are discussed to
highlight the importance of protecting vested rights in legal decision-making.

Overall, the text delves into the complexities of introducing and applying the doctrine of
prospective overruling in the Indian legal system, considering its implications for past,
present, and future judicial decisions.

The excerpt you provided delves into the concept of prospective overruling in the context
of the Golak Nath case, particularly analyzing whether it serves as an example of
expendable rights or a remedial limitation. Prospective overruling refers to the practice
by courts to apply a new legal principle only to future cases, rather than retroactively
applying it to past cases. This approach is seen as a remedial limitation, designed to
address the conflict between a new legal principle and the existing body of law without
causing undue disruption or injustice.
The analysis explores various aspects of prospective overruling, including its judicial
function, the factors influencing its application, and its implications for fundamental
rights. It discusses the rationale behind the Golak Nath decision, which involved the
interpretation of Parliament's power to amend fundamental rights enshrined in the Indian
Constitution. The central purpose of the decision was to preserve the power of judicial
review, ensuring that Parliament could not unilaterally abridge fundamental rights without
scrutiny.

The excerpt also considers the potential impact of prospective overruling on stability,
efficiency of administration, and the integrity of the judicial process. It suggests that while
rendering past amendments unenforceable might pose challenges, it could serve the
broader purpose of upholding constitutional principles and protecting individual rights.

Overall, the analysis provides a nuanced examination of the Golak Nath case and the
concept of prospective overruling, highlighting its role in balancing legal principles,
institutional interests, and individual rights within the framework of constitutional law.
The text you provided delves into the legal and procedural intricacies surrounding the
Golak Nath case in India, particularly focusing on the doctrine of prospective overruling
and the concept of acquiescence. Here's a summary of the key points discussed:

1. **Prospective Overruling**: Golak Nath established that all legislative actions would
be subject to judicial review, affirming the judiciary's role in interpreting and upholding
constitutional rights. The author discusses the integrity of the judicial process and the
balance between preserving past legislative actions and ensuring justice.

2. **Limitations on Prospective Overruling**: The text evaluates the limitations imposed

by Chief Justice Subba Rao on the future use of prospective overruling. It questions
whether these limitations are wise or legally binding, particularly regarding their
application only to constitutional matters and the exclusive jurisdiction of the Supreme
Court.

3. **Acquiescence Doctrine**: Justice Hidayatullah's opinion introduces the concept of

acquiescence, suggesting that past constitutional amendments might be considered
valid if they have been accepted for a long time. The text examines the validity and
applicability of this doctrine, drawing parallels with American jurisprudence.

4. **Critique of Acquiescence**: The author critiques the application of the acquiescence

doctrine in the Golak Nath context, arguing that it may not be a suitable test for
upholding constitutional amendments. They raise concerns about its compatibility with
Indian legal principles and its ability to justify limitations on fundamental rights.

Overall, the text provides a detailed analysis of the legal principles and considerations
surrounding Golak Nath, offering insights into the complexities of constitutional
interpretation and judicial review in India.
The excerpt you provided seems to discuss the legal concept of acquiescence in the
context of constitutional amendments and fundamental rights, particularly referencing
the case of Golak Nath. It examines how the notion of acquiescence, as discussed by
Mr. Justice Hidayatullah, might impact the interpretation and application of constitutional
provisions.

Additionally, the passage delves into the use of prospective overruling by Mr. Chief
Justice Subba Rao in Golak Nath, suggesting that it was an appropriate exercise of
judicial discretion given the complexities of the case. Prospective overruling, as applied
in Golak Nath, aimed to preserve the power of judicial review without causing disruption
by invalidating past laws and amendments.

Furthermore, the text anticipates the broader application of prospective overruling in

future cases, noting that it provides the judiciary with a tool of general application,
especially in situations where substantial changes in the law warrant such an approach.

Overall, the passage underscores the nuanced considerations involved in judicial

decision-making regarding constitutional matters and suggests that prospective
overruling may become more common in addressing legal complexities and ensuring
justice in the future.

Constitutional Amendment as Law

Sankari Prasad
Justice Patanjali Sastri is addressing petitions challenging the Constitution (First
Amendment) Act, 1951, which aimed to rectify perceived defects in the Constitution,
particularly in response to agrarian reform legislation that was being challenged in
various High Courts. Here's a breakdown of his points:

1. **Background**:
- The Amendment Act was prompted by agrarian reform measures undertaken by the
ruling political party, which faced legal challenges from aggrieved zamindars.
- The High Courts had issued conflicting judgments on the constitutionality of these
reform Acts, with Patna High Court ruling against them while Allahabad and Nagpur High
Courts upheld their validity.

2. **Purpose of the Amendment Act**:

- The Union Government sought to address the ongoing litigation and perceived flaws
in the Constitution by proposing amendments.
- The Amendment Act was swiftly passed by the Parliament to remedy these issues.

3. **Petitioners' Arguments**:
- The petitions challenging the Amendment Act under Article 32 of the Constitution
argue:
 - The power to amend the Constitution under Article 368 was vested in the two
Houses of Parliament, not in the provisional Parliament.
- Even if the power was vested in Parliament, the provisional Parliament, being a
single-chamber body, was not competent to exercise this power under Article 379.
- The cooperative action of both Houses of Parliament was required for amending the
Constitution, which the provisional Parliament could not fulfill.

The continuation of Justice Patanjali Sastri's argument addresses several key points
raised by the petitioners challenging the Constitution (First Amendment) Act, 1951:

1. **Validity of Adaptation by the President**:

- The petitioners argue that the adaptation of Article 368 by the President through the
Constitution (Removal of Difficulties) Order No. 2 was beyond the President's powers
conferred by Article 392.
- They contend that the adaptation provision was meant to address difficulties in the
actual working of the Constitution during the transitional period, not to make changes to
the Constitution itself.

2. **Procedural Compliance with Article 368**:

- The petitioners claim that Article 368 is a complete code in itself and does not provide
for amendments to be made to the bill after its introduction in the House.
- Since the Bill was amended during its passage through the House, the Amendment
Act is argued to be passed not in conformity with the prescribed procedure in Article 368.

3. **Violation of Fundamental Rights under Article 13(2)**:

- The petitioners assert that the Amendment Act, insofar as it takes away or abridges
fundamental rights conferred by Part III of the Constitution, violates Article 13(2).
- They argue that fundamental rights were intended to be immune not only from
ordinary laws but also from constitutional amendments.

4. **Interpretation of "Law" in Article 13(2)**:

- Justice Sastri considers the argument that "law" in Article 13(2) should include
constitutional amendments, making fundamental rights immune from such amendments.
- However, he suggests that constitutional law, made in exercise of constituent power,
differs from ordinary law made by legislative power.
- He argues that the Constitution-makers likely intended to protect fundamental rights
from infringement by laws made through legislative power rather than constitutional
amendments made through constituent power.

5. **Conclusion**:
- Justice Sastri concludes that in the context of Article 13, "law" should be interpreted
to mean rules or regulations made in exercise of ordinary legislative power, not
amendments to the Constitution made in exercise of constituent power.
- As a result, Article 13(2) does not affect amendments made under Article 368.
 - The petitions challenging the Amendment Act are dismissed with costs.

Sajjan Singh v State of Rajasthan

Chief Justice P.B. Gajendragadkar discusses the challenge against the Constitution
(17th Amendment) Act, 1964, brought forth by six writ petitions under Article 32 of the
Constitution. The key points addressed in his statement include:

1. **Provisions of the Impugned Act**:

- The Constitution (17th Amendment) Act, 1964, consists of three sections.
- Section 2(i) adds a proviso to clause (1) of Article 31-A regarding the acquisition of
estates by the State.
- Section 2(ii) substitutes a sub-clause in clause (2) of Article 31-A, expanding the
definition of "estate."
- Section 3 adds 44 entries to the 9th Schedule of the Constitution.

2. **Procedure for Amending the Constitution**:

- Parliament can amend any provision of the Constitution, but certain provisions
require ratification by the Legislatures of at least half of the States.
- Fundamental rights enshrined in Part III are not covered by this requirement.

3. **Interpretation of Article 368 and Article 13(2)**:

- In Sankari Prasad case [1951 SCC 966 : (1952) SCR 89], it was argued that
amendments affecting fundamental rights should be tested under Article 13(2).
- However, the court rejected this argument, stating that Article 13(2) applies to laws
made in exercise of legislative power, not amendments made under Article 368.
- The court emphasized the distinction between ordinary legislative power and
constituent power exercised to amend the Constitution.

4. **Concurrence with Previous Decision**:

- Chief Justice Gajendragadkar expresses full concurrence with the decision in Sankari
Prasad case, affirming that constitutional amendments made under Article 368 are not
subject to Article 13(2).
- The court provides reasons for agreeing with the conclusion reached in the previous
case.

Chief Justice Gajendragadkar's statement upholds the validity of constitutional

amendments made under Article 368, affirming that they are not subject to Article 13(2)
and emphasizing the distinction between legislative power and constituent power.
Justice M. Hidayatullah provides his perspective on the validity of the 17th Amendment
to the Constitution, presenting his agreement with the decision rendered by Chief Justice
P.B. Gajendragadkar. However, Justice Hidayatullah also introduces some reservations
regarding the reasoning laid out in the Shankari Prasad case [1951 SCC 966 : (1952)
SCR 89], emphasizing the need for a more nuanced interpretation. Key points from
Justice Hidayatullah's statement include:
1. **Interpretation of Article 13(2)**:
- While the court in Shankari Prasad case concluded that Article 13(2) does not control
constitutional amendments made under Article 368, Justice Hidayatullah expresses
doubts about this conclusion.
- He suggests that the word "law" in Article 13(2) should be interpreted broadly to
include constitutional amendments. He argues that if an amendment can be considered
a "law," then fundamental rights become immutable, akin to provisions in other
constitutions like the Japanese Constitution.
- Justice Hidayatullah indicates that the restrictive interpretation of "law" in Article 13(2)
prevents fundamental rights from being truly inviolable.

2. **Significance of Constitutional Provisions**:

- Justice Hidayatullah highlights the importance of various constitutional provisions,
such as Article 32 (remedies for enforcement of rights) and the Preamble, in
safeguarding fundamental rights.
- He questions whether the guarantees provided in these provisions should be subject
to easy alteration through constitutional amendments without adequate safeguards.

3. **Reflections on Constitutional Amendments**:

- Justice Hidayatullah raises concerns about the potential abuse of constitutional
amendments to reverse the fundamental principles of the Constitution.
- He suggests that Article 13 may have been intended to ensure that all laws, including
constitutional amendments, adhere to the basic requirements of Part III (fundamental
rights).

In summary, Justice Hidayatullah's statement supports the validity of the 17th

Amendment but introduces critical reflections on the interpretation of Article 13(2) and
the broader implications of constitutional amendments on fundamental rights. He
advocates for a careful consideration of constitutional provisions to prevent potential
erosion of fundamental rights.

Justice J.R. Mudholkar weighs in on the debate surrounding the interpretation of Article
13(2) and the scope of amending fundamental rights enshrined in Part III of the
Constitution. Here are the key points from his statement:

1. **Importance of Fundamental Rights**:

- Justice Mudholkar emphasizes the significance of fundamental rights, especially
those guaranteed by the Constitution, such as the right to move the Supreme Court for
enforcement (Article 32). He questions whether these rights should be more easily
abridged or restricted compared to other constitutional provisions.

2. **Interpretation of Article 368**:

 - He scrutinizes Article 368, which outlines the procedure for amending the
Constitution. While acknowledging that Parliament has the power to amend the
Constitution, he raises doubts about whether this power extends to altering fundamental
rights.
- Justice Mudholkar argues that an amendment to the Constitution must comply with
constitutional requirements and should not transgress any of its provisions. He suggests
that judicial review should determine whether an amendment is valid.

3. **Role of the Preamble**:

- Justice Mudholkar considers the preamble of the Constitution and its significance in
interpreting the basic features of the Constitution. He suggests that the preamble may
serve as an indication of the permanency of certain fundamental principles.

4. **Consideration of Basic Features**:

- He raises questions about whether certain fundamental features of the Constitution,
such as democracy and republicanism, could be amended without undermining the
essence of the Constitution. He suggests that certain provisions may be so fundamental
that they are beyond the scope of ordinary amendments.

5. **Reluctance to Form a Definite Opinion**:

- In light of these considerations, Justice Mudholkar expresses reluctance to offer a
definitive opinion on whether Article 13(2) excludes amendments to fundamental rights
or whether Parliament can amend Part III of the Constitution.

In summary, Justice Mudholkar's statement underscores the importance of fundamental

rights and raises fundamental questions about the extent to which they can be amended.
He advocates for a cautious approach to constitutional amendments, especially
concerning provisions related to fundamental rights and the basic structure of the
Constitution.

I C Golaknath v State of Haryana

Chief Justice K. Subba Rao presided over the consideration of three writ petitions
challenging the validity of the Constitution (Seventeenth Amendment) Act, 1964. Here's
a breakdown of the key arguments and positions presented in the case:

**Petitioners' Contentions:**
1. **Permanent Nature of the Constitution**: The petitioners argue that the Constitution
is meant to be permanent and cannot be amended in a manner that would undermine its
essential character.
2. **Definition of Amendment**: They assert that the term "amendment" implies
improvements or changes within the framework of the original document, not its
destruction.
3. **Fundamental Rights as Basic Structure**: Petitioners contend that fundamental
rights are part of the basic structure of the Constitution, and any amendment should
preserve rather than destroy them.
4. **Implied Limits on Amendment Power**: They argue that Article 368 implies
limitations on the amending power, and the wide language used in other articles
suggests that only modifications within the constitutional framework are permitted.
5. **Intention of the Constituent Assembly**: Petitioners cite debates in the Constituent
Assembly to support their claim that amending Part III of the Constitution was never
intended.
6. **Self-Contained Code**: They argue that Part III of the Constitution is a self-
contained code and sufficiently flexible to adapt to changing circumstances without
requiring amendments.
7. **Source of Amending Power**: Petitioners suggest that the power to amend is
derived from various sources, including Article 368 itself and other relevant constitutional
provisions.
8. **Interpretation of Article 13(2)**: They interpret Article 13(2) to include amendments
to fundamental rights, making them void if they infringe upon those rights.
9. **Effect on High Court Jurisdiction**: Petitioners argue that the amendments affect the
jurisdiction of the High Court under Article 226 and the legislative powers of the States.

**Union and States' Counterarguments:**

1. **Sovereign Power to Amend**: They assert that constitutional amendments are made
through the exercise of sovereign power, not legislative power, and thus partake the
quality of the Constitution itself.
2. **Rigid vs. Flexible Constitution**: Counterarguments differentiate between rigid and
flexible constitutions, arguing that the Indian Constitution allows for amendments to
express the will of the people over time.
3. **Clarity of Article 368**: They emphasize that Article 368 provides clear and
unequivocal procedures for amending the Constitution, without room for implied
limitations.
4. **Importance of Amendments**: Union and States stress the importance of
amendments to address evolving needs and challenges, positioning them as a means to
prevent revolution or violent change.
5. **Absence of Basic Features**: They reject the notion of basic and non-basic features
in the Constitution, arguing that everything in the Constitution is subject to amendment
for the country's progress.
6. **Disregard for Constituent Assembly Debates**: Counterarguments dismiss the
relevance of debates in the Constituent Assembly for interpreting Article 368.
7. **Interpretation of Article 13(2)**: They argue that Article 368's clear language
overrides any implications from Article 13(2) regarding amendments to fundamental
rights.
8. **Enforcement of Directive Principles**: Amendments are defended as necessary for
enforcing Directive Principles and advancing the country's development.
9. **Effect on High Court Jurisdiction**: Union and States contend that the amendments
do not affect High Court jurisdiction or State legislative powers.

Chief Justice Subba Rao's analysis includes a discussion of Article 13(2) and its
interpretation in relation to the amending power conferred by Article 368. He scrutinizes
the procedural steps laid down in Article 368 and rejects the argument that they imply a
distinct power to amend beyond Parliament's legislative authority. Instead, he
emphasizes Parliament's plenary power to make any law, including amendments to the
Constitution, subject to the limitations therein.
In this judgment by Chief Justice K. Subba Rao, several key points regarding the
amending power of Parliament under Article 368 of the Indian Constitution are
elucidated. Here are the key points:

1. **Nature of Amending Power**: The judgment asserts that the power to amend the
Constitution is legislative in nature and falls within the purview of Parliament's legislative
authority.

2. **Legislative Process for Amendment**: It is highlighted that amendments to the

Constitution are made through the same legislative process as ordinary laws, with the
necessary majority in Parliament.

3. **Definition of "Law" under Article 245**: The judgment clarifies that amendments to
the Constitution are considered "law" within the meaning of Article 245 of the
Constitution.

4. **Role of President in Amendments**: The President's power under Article 392 to

remove difficulties in the Constitution is distinguished from the amending power of
Parliament. The President's power is temporary and intended for smooth transitions,
while amendments under Article 368 must follow the prescribed legislative process.

5. **Interpretation of Constitutional Provisions**: The judgment emphasizes the

importance of interpreting constitutional provisions in a manner that harmonizes
conflicting articles and ensures the integrity of the Constitution.

6. **Judicial Review of Amendments**: It rejects the argument that the amending

process involves political questions beyond the scope of judicial review. Instead, it
asserts that the court's jurisdiction depends on whether Parliament is acting within the
scope of its amending power.

7. **Limits on Amending Power**: While the judgment does not explicitly address the
positive and negative aspects of the amending power, it suggests that Parliament cannot
use its amending power to destroy the basic structure of the Constitution. However, it
leaves this question open for future consideration.
8. **Validity of Constitution (Seventeenth Amendment) Act, 1964**: The judgment
declares that the Constitution (Seventeenth Amendment) Act, 1964, is void to the extent
that it infringes upon fundamental rights under Article 13(2) of the Constitution.

In conclusion, the judgment dismisses the petitions challenging the validity of the
Seventeenth Amendment Act but declares it void to the extent that it impinges upon
fundamental rights. The judgment is rendered without costs.

The excerpt you provided seems to be a detailed discussion on the interpretation and
scope of Article 368 of the Indian Constitution, which pertains to the amendment of the
Constitution. Here's a summary:

1. **Article 368**: It outlines the procedure for amending the Indian Constitution. The
argument revolves around whether this article provides the power to amend the
Constitution or just the procedure for doing so.

2. **Interpretation of Article 368**:

- The provision for amending the Constitution, including both the power and the
procedure, is contained within Article 368 itself.
- The phrase "the Constitution shall stand amended in accordance with the terms of
the Bill" in Article 368 signifies the power to amend the Constitution after following the
prescribed procedure.
- The power to amend the Constitution cannot be solely derived from the residuary
power of Parliament under Article 248 read with Item 97 of List I.

3. **Nature of the Amendment Power**:

- The power to amend the Constitution is not ordinary legislative power but constituent
power specifically for amending the Constitution.
- Amendments made under Article 368 result in fundamental law, not ordinary
legislation. They cannot be challenged on the basis of violating fundamental rights or
other constitutional provisions like ordinary laws can be.

4. **Scope of Amendment Power**:

- There are no implied limitations on the power to amend under Article 368. It extends
to every provision of the Constitution, including Part III (Fundamental Rights).
- No express provision in Article 368 or Article 13(2) limits the power of amendment
concerning fundamental rights.

5. **Interpretation of "Law" in Article 13(2)**:

- The term "law" in Article 13(2) refers to ordinary legislative enactments and does not
include amendments to the Constitution made under Article 368.
- Article 13(2) prohibits the State from making laws that abridge or take away
fundamental rights but does not apply to constitutional amendments.
Overall, the discussion elucidates the nature, scope, and interpretation of the
amendment power under Article 368 of the Indian Constitution, emphasizing its
distinction from ordinary legislative power and its broad scope in amending constitutional
provisions.

The passage you've provided discusses the interpretation and application of Article 368
of the Indian Constitution, which deals with the power to amend the Constitution,
particularly regarding the protection of Fundamental Rights outlined in Part III of the
Constitution.

1. **Interpretation of Article 368 and Article 13(2)**: The passage explores the
relationship between Article 368, which grants the power to amend the Constitution, and
Article 13(2), which prohibits the state from making laws that abridge or take away the
rights conferred by Part III of the Constitution (Fundamental Rights). There is a
contention about whether Article 13(2) imposes limitations on the amending power
conferred by Article 368.

2. **Scope of the Amending Power**: The argument revolves around whether the power
to amend the Constitution under Article 368 is unfettered, allowing for any kind of
amendment, or if there are implied limitations, particularly concerning Fundamental
Rights. The petitioners argue that while Article 368 grants the power to amend Part III, it
only allows for amendments that enlarge rights, not diminish them.

3. **Fundamental Rights and Social Document**: The passage highlights the

significance of Fundamental Rights in the Indian Constitution, portraying it as a social
document that establishes the relationship between society, individuals, and the
government. It emphasizes the importance of Fundamental Rights as paramount, even
above the amending power of Article 368.

4. **Distinction between Ordinary Law and Constitutional Law**: The distinction between
ordinary law and constitutional law is discussed, suggesting that the amendment of the
Constitution is not fundamentally different from ordinary legislative processes,
challenging the notion that Article 368 is a code with special restrictions.

5. **Illustration with Amendments**: The discussion includes examples of amendments

made to Fundamental Rights since the adoption of the Constitution, particularly focusing
on the 1st and 7th Amendments, which modified Articles 15 and 19. It examines how
these amendments affected the rights of citizens, particularly concerning reservations
and special provisions for backward classes.

6. **Limits on Amending Power**: Finally, the passage touches upon the limitations
imposed on the amending power, suggesting that while there are different methods for
amendment, Article 13(2) serves as a barrier, restricting legislative action, including
amendments to the Constitution.
Overall, the passage delves into the intricate balance between the power to amend the
Constitution and the protection of Fundamental Rights, addressing the complex interplay
between Article 368 and Article 13(2) of the Indian Constitution.

The passage you provided delves into the interpretation and application of Article 368 of
the Indian Constitution, which deals with the power to amend the Constitution. Here are
the key points:

1. **Scope of Amendment Power**: The passage explores the scope of the amending
power under Article 368 and argues that the power to amend the Constitution is not
unlimited. It suggests that while the Constitution provides for its own amendment, certain
restrictions and limitations exist.

2. **Definition of "Law"**: The passage discusses the definition of "law" as used in Article
13 of the Constitution, which includes ordinances, orders, bye-laws, rules, regulations,
notifications, customs, or usages having the force of law. However, it clarifies that while
the term "law" in its generic sense may include the Constitution and constitutional
amendments, within the Constitution, it typically refers to ordinary statutes or legislative
acts.

3. **Amendment Procedure**: It highlights the differences between the amending

process under Article 368 and the ordinary legislative process. While both processes
require the passage of a bill by each house of Parliament and assent by the President,
the amending process under Article 368 has additional requirements, such as a two-
thirds majority in each house and, in some cases, ratification by the legislatures of the
states.

4. **Dynamic Nature of the Constitution**: The passage emphasizes the dynamic nature
of the Constitution, noting that while certain rights may be fundamental and guaranteed,
they are not immune from amendment. It argues that the Constitution evolves with the
progress of time and that Article 368 provides the means for dynamic changes in the
Constitution.

5. **Conclusion**: The passage concludes by asserting that the petitions challenging the
constitutionality of certain amendment acts should be dismissed. It affirms that the
Constitution provides for its own amendment and that the amendments in question are
valid under the Constitution.

Overall, the passage provides a detailed analysis of the amending power under Article
368 and addresses various arguments regarding the limitations and scope of this power.

K. Bharati v Union of India

 The judges’ opinions on Article 13(2) in the context of the Keshavananda Bharti v. State
of Kerala case are as follows:
 S.M. Sikri, C.J.: Asserted that Article 13(2) does not affect amendments made under
Article 368, implying that constitutional amendments are not considered “law” within the
meaning of Article 13(2).
 J.M. Shelat and A.N. Grover, JJ.: Concluded that the word ‘law’ in Article 13(2)
includes constitutional amendments, meaning that the Constitution is amended by
enacting Amendment Acts, which are considered “law”.
 K.S. Hegde and A.K. Mukherjea, JJ.: Discussed whether Fundamental Rights can be
abridged by Parliament under Article 368, suggesting that the power to amend the
Constitution is legislative in character and the resulting
 The opinions of the remaining judges on Article 13(2) in the Keshavananda Bharti v.
State of Kerala case are as follows:

 - **Justice H.R. Khanna**: Opined that the power to amend does not include the power
to abrogate, and therefore, the fundamental aspects or the 'basic structure' of the
Constitution cannot be altered by an amendment under Article 368⁵.
 - **Justice A.N. Ray**: Argued that the power of amendment was wide and unlimited,
and the term 'law' in Article 13(2) did not include amendments made under Article 368³.
 - **Justice K.K. Mathew**: Took a nuanced view, suggesting that while the power to
amend is wide, it does not extend to altering the basic structure or framework of the
Constitution³.
 - **Justice M.H. Beg**: Emphasized that the amending power is a constituent power,
having the widest amplitude, covering all the Articles including the Preamble, but it
should not destroy the 'basic structure' or 'essential features' of the Constitution³.
 - **Justice Y.V. Chandrachud**: Held that every provision of the Constitution could be
amended provided the basic foundation and structure of the Constitution remains the
same³.
 - **Justice S.N. Dwivedi**: Stated that the amending power under Article 368 is plenary
and can be used to amend all the Articles of the Constitution, but the 'basic structure' of
the Constitution should not be destroyed³.
 - **Justice P. Jaganmohan Reddy**: Asserted that the amending power is subject to
inherent limitations, and Parliament cannot use its amending power under Article 368 to
alter the basic structure or framework of the Constitution³.
 These varied opinions from the judges contributed to the development of the 'basic
structure doctrine', which holds that certain fundamental features of the Constitution
cannot be altered by a constitutional amendment.
Janhit abhiyan v UOI
The excerpts you provided are from the case Janhit Abhiyan v. Union of India (EWS
Reservation), (2023) 5 SCC 1 : 2022 SCC OnLine SC 1540. The case revolves around
the issue of reservation based on economic criteria and its compatibility with the basic
structure of the Constitution of India. Here are the key points for determination as
outlined in the excerpts:
1. **Inclusion vs. Economic Criteria**: The court is tasked with determining whether
reservation, traditionally seen as a means for the inclusion of socially and educationally
backward classes into mainstream society, violates the basic structure of the
Constitution when structured solely on economic criteria. (See excerpt 37.1)

2. **Article 368 and Basic Structure**: The court discusses the implications of Article
368, especially in light of the basic structure doctrine established in the Kesavananda
Bharati case. It notes that while Article 13 declares void laws inconsistent with or
derogating from fundamental rights, Article 368 carves out an exception for constitutional
amendments. (See excerpt 43)

3. **Basic Structure Doctrine and Judicial Review**: The court refers to the
Kesavananda Bharati case, where the basic structure doctrine was outlined. It highlights
the court's authority to review constitutional amendments to ensure they don't violate the
fundamental architecture of the Constitution. The case involved a challenge to the
Kerala Land Reforms Act and several constitutional amendments, including those
relating to judicial review and land reform enactments. (See excerpt 57)

4. **Sustainability of Economic Criteria for Affirmative Action**: The central argument

against the amendment in question is that reservation, as provided by the Constitution,
is intended for socially and educationally backward classes, not solely based on
economic disadvantage. The court is tasked with examining the validity of this argument.
(See excerpt 116)

These points frame the issues to be addressed by the court regarding the compatibility
of reservation based solely on economic criteria with the principles enshrined in the
Constitution of India.

These additional excerpts from Janhit Abhiyan v. Union of India (EWS Reservation)
shed further light on the case's arguments and the court's reasoning:

1. **Poverty Alleviation and Constitutional Framework**: The court recognizes poverty as

a significant issue and discusses international efforts towards its eradication,
emphasizing the importance of addressing poverty in all its forms. It suggests that
provisions for reservation based on economic criteria within the constitutional framework
are aimed at combating poverty and should be viewed as part of broader efforts to
eradicate poverty. (See excerpt 117)

2. **Constitutional Objectives and Distributive Justice**: The court rejects the argument
that reservation is exclusively reserved for socially and educationally backward classes,
asserting that the constitutional scheme aims to secure justice, social, economic, and
political for all citizens. It argues that providing reservation based on economic criteria
aligns with the principle of distributive justice. (See excerpt 130.2)
 3. **Exclusion of Certain Classes from EWS Reservation**: The court discusses the
introduction of clause (6) to Articles 15 and 16 by the 103rd Amendment, allowing for
reservation for economically weaker sections (EWS) while excluding certain classes
already covered under Articles 15(4), 15(5), and 16(4). It addresses the challenge that
this exclusion violates the constitutional scheme and constitutes hostile discrimination,
ultimately concluding that the exclusion is logical and necessary for the effective
operation of the EWS reservation scheme. (See excerpts 136 and 137)

These excerpts provide insight into the court's deliberations on the constitutionality of
providing reservation based on economic criteria and the exclusion of certain classes
from EWS reservation benefits.

Amendment of Rights- Gae

 Fundamental Rights: The document discusses the importance of fundamental rights as
the cornerstone of democracy, highlighting their paramountcy for the people of India.
 Directive Principles: It outlines the directive principles of state policy, emphasizing their
role in guiding the governance of the country, despite not being enforceable in court.
 Amendment Process: The text details the three kinds of constitutional amendments:
simple majority, special majority, and special majority with state ratification.
 Judicial Interpretations: It reviews judicial decisions and their impact on property
rights, leading to constitutional amendments to facilitate agrarian reforms and socio-
economic measures.
Certainly! Here’s a summary of the key sections from the document on the amendment
of fundamental rights:
 Fundamental Rights and Directive Principles: Discusses the importance of
fundamental rights as the cornerstone of democracy and their relationship with directive
principles of state policy, which reflect the socio-economic goals of the Constitution-
makers.
 Three Kinds of Amendments: Outlines the three methods for amending the
Constitution: simple majority, special majority as per Article 368, and special majority
with ratification by state legislatures for certain entrenched provisions.
 Amendment by Simple Majority: Explains certain constitutional provisions that can be
amended by a simple majority, which are not considered “amendments” to the
Constitution for the purposes of Article 368.
 Amendment by Special Majority: Covers amendments that require a special majority,
detailing the process and the distinction from ordinary law-making procedures.
 Fundamental Rights and Amendments to Property Rights: Reviews the historical
context and judicial decisions that led to the First, Fourth, and Seventeenth Amendment
Acts, which affected the right to property to facilitate socio-economic reforms.
Personal Laws as Laws
Young Lawyers Association v State of Kerala
egal case concerning the entry of female devotees between the ages of 10 to 50 years
to the Lord Ayyappa Temple at Sabarimala, Kerala. The writ petition under Article 32 of
the Constitution seeks directions against various authorities to ensure the entry of
female devotees to the temple, challenging Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules, 1965, as unconstitutional.

A three-Judge Bench analyzed the issues involved and referred the matter to a
Constitution Bench. The questions framed for reference include whether the
exclusionary practice based on biological factors violates Articles 14, 15, and 17,
whether it constitutes an essential religious practice, and whether the temple has a
denominational character.

The respondents argue that the exclusion of women from the Sabarimala Temple is a
custom independent of the Act and the 1965 Rules, contending that it flows from the
character of the deity as a Naishtika Brahmachari. During the proceedings, there was a
discussion on the scope of Article 13 of the Constitution, particularly regarding the
definition of "laws in force" and its application to customs, usages, and personal laws.

The case references the decision of the Bombay High Court in State of Bombay v.
Narasu Appa Mali, where the constitutional validity of a law permitting polygamy under
personal law was challenged. The court considered whether personal laws were
included in the definition of "laws in force" under Article 13(1) of the Constitution, with the
Chief Justice opining that customs or usages would be included in this definition.

Chagla, C.J., in the Narasu Appa Mali case, rejected the contention that personal law is
included in the expression "laws in force" in Article 13(1). He emphasized that custom or
usage deviates from personal law and is not personal law itself. Thus, personal law is
not considered part of "laws in force" under Article 13(1).

On the other hand, Gajendragadkar, J., disagreed with the view that custom or usage
falls within the ambit of Article 13(1). He argued that if custom or usage were included in
"laws in force," then the specific provision of Article 17, which abolishes untouchability,
would be unnecessary. Gajendragadkar, J., also held that personal laws are not based
on custom or usage having the force of law.

The passage further discusses the overlap between fundamental rights guaranteed
under Part III of the Constitution. It highlights the interconnectedness of these rights,
suggesting that they must be construed broadly to uphold individual dignity. It argues
against the narrow interpretation of Article 13(1) and asserts that personal laws are
indeed part of "laws in force."

The judges in the Narasu case relied on Section 112 of the Government of India Act,
1915, which dealt with matters of inheritance, succession, and contracts based on
personal law or custom. However, the passage ultimately challenges the reasoning of
the Narasu case, asserting that excluding custom and usage from "laws in force" under
Article 13(1) is doctrinally unsustainable and goes against precedent.

Chagla, C.J., in his interpretation of Article 13 of the Indian Constitution, highlighted the
deliberate omission of "personal law" from the purview of Article 13 by the Constituent
Assembly. He argued that the use of "personal law" and "custom having the force of law"
in a disjunctive manner indicates the intention to exclude personal law from Article 13.
Chagla, C.J., pointed out that despite the legislative precedent of the Government of
India Act, 1915, which saved "all the law in force," personal law was not explicitly
mentioned.

The definition of "law" and "laws in force" in Articles 13(3)(a) and 13(3)(b) has an
inclusive nature. The use of the word "includes" enlarges the meaning of the defined
terms. This inclusive definition encompasses practices having the force of law in the
territory of India.

In the case of Sant Ram v. Labh Singh, the Supreme Court emphasized the expansive
meaning imported by the use of "includes" in the definition clauses of "law" and "laws in
force." The Court clarified that the definition of "laws in force" is intended to include laws
passed by a competent legislature, even if they are not in operation at all or in particular
areas. Thus, customs and usages having the force of law are considered part of "laws in
force."

The Drafting Committee's note regarding the insertion of a separate definition for "laws
in force" indicates the intention to ensure that laws passed by the legislature, regardless
of their operational status, would attract the operation of Article 13(1).

Therefore, Gajendragadkar, J.'s view in the Narasu case that "laws in force" only
encompass statutory laws cannot be considered correct in light of the inclusive definition
and the intention behind the amendment.

The excerpts you provided touch upon significant legal and constitutional debates,
particularly concerning the interpretation and application of personal laws within the
framework of the Indian Constitution. Here's a breakdown of the key points:

1. **Triple Talaq and the Muslim Personal Law (Shariat) Application Act, 1937**: In the
Shayara Bano case, the majority held that triple talaq, a form of divorce practiced under
Muslim personal law, is not legally valid. Justice Nariman, writing for the majority, argued
that the Muslim Personal Law (Shariat) Application Act, 1937, which codified various
practices of Muslim personal law, including triple talaq, falls within the definition of "laws
in force" under Article 13(3)(b) of the Constitution. Therefore, if any provision of this law
is found to be inconsistent with the Constitution, it would be void to the extent of such
inconsistency.

2. **Transformative Vision of the Constitution**: The excerpts discuss the transformative

vision of the Indian Constitution, which aims to create a society free from discrimination,
inequalities, and social prejudices. This vision emphasizes individual dignity, equality,
and liberty as fundamental principles. The Constitution seeks to transform social
relations and eliminate systemic forms of domination and disadvantage based on
various grounds, including race, gender, and religion.

3. **Exclusion of Practices from Constitutional Scrutiny**: The text challenges the notion
that certain practices, particularly those rooted in personal laws or customs, should be
immune from constitutional scrutiny. It argues that practices contradicting the
constitutional vision of dignity, equality, and liberty should not be shielded from judicial
review. The exclusion of such practices from scrutiny undermines the primacy of
individual dignity and equality enshrined in the Constitution.

4. **Reconsideration of Previous Judicial Decisions**: The excerpt calls for a

reconsideration of previous judicial decisions, such as the Narasu Appa Mali case, which
held that personal laws are immune from constitutional scrutiny. It argues that personal
laws, customs, and usages should not be exempt from constitutional review, as they are
integral to the legal landscape and may perpetuate discrimination and inequality.

5. **Role of the Constitutional Court**: The text underscores the role of the constitutional
court in transformative adjudication, which involves not only providing remedies in
individual cases but also addressing underlying social and legal structures that
perpetuate discriminatory practices. Subjecting personal laws to constitutional scrutiny is
seen as a crucial step towards achieving substantive equality and justice.

Danial Latifi v Union of India

In these passages, the focus is on the legal and social implications of the Muslim
Women (Protection of Rights on Divorce) Act, 1986, which was enacted following the
controversial Shah Bano case. Here are the key points:

1. **Background of the Shah Bano Case**: The Shah Bano case involved a divorced
Muslim woman seeking maintenance from her former husband under Section 125 of the
Code of Criminal Procedure (CrPC). Despite opposition, the Supreme Court ruled in
favor of Shah Bano, stating that Muslim husbands are obligated to provide maintenance
to their divorced wives beyond the iddat period.
2. **Parliament's Response**: Following the Shah Bano case, there was a significant
public and political uproar. In response, Parliament enacted the Muslim Women
(Protection of Rights on Divorce) Act, 1986, seemingly to nullify the Supreme Court's
decision and limit the liability of Muslim husbands to provide maintenance.

3. **Interpretation of the Act**: The Act aimed to protect the rights of Muslim women who
have been divorced by providing for maintenance and other matters related to divorce. It
defined the rights and entitlements of divorced women, including provisions for
maintenance, property rights, and mahr (dower).

4. **Entitlement to Maintenance**: The Act stipulated that a divorced woman is entitled

to a reasonable and fair provision for maintenance from her former husband. This
provision is not limited to the iddat period but extends throughout the divorced woman's
life unless she remarries.

5. **Comparison with Section 125 CrPC**: The provisions of the Act were compared with
Section 125 of the CrPC, which also deals with maintenance. It was argued that the
purpose of both provisions is to prevent vagrancy by compelling those who are able to
support others to do so. Therefore, the Act's provisions, which provide for maintenance
beyond the iddat period, were considered in line with the objectives of Section 125
CrPC.

Ahmedabad Women’s action group v Union of India

These passages outline the reliefs sought in three separate writ petitions related to
personal laws in India:

1. **WP (C) No. 494 of 1996**:

- Challenge the validity of Muslim Personal Law allowing polygamy and unilateral
Talaq, and seeking to declare them void under Articles 14 and 15 of the Constitution.
- Seek declaration that polygamy constitutes cruelty under the Dissolution of Muslim
Marriages Act, 1939.
- Challenge the Muslim Women (Protection of Rights on Divorce) Act, 1986, as
infringing Articles 14 and 15.
- Challenge Sunni and Shia laws of inheritance for discriminating against females,
violating Articles 14 and 15.

2. **WP (C) No. 496 of 1996**:

- Challenge various provisions of the Hindu Succession Act, 1956, Hindu Marriage Act,
1955, Hindu Minority and Guardianship Act, and Guardians and Wards Act, alleging
violation of Articles 14 and 15.
- Specifically, Section 2(2), 5(ii) and (iii), 6, and Explanation to Section 30 of the Hindu
Succession Act, 1956 are targeted.

3. **WP (C) No. 721 of 1996**:

 - Challenge Sections 10 and 34 of the Indian Divorce Act, and Sections 43 to 46 of the
Indian Succession Act.

However, the court suggests that these petitions do not warrant a decision on their
merits. Instead, it indicates that such matters are primarily within the realm of legislative
policy and not typically within the court's purview. The court refers to previous rulings
emphasizing the role of the legislature in determining social reform.

The court also highlights the distinct nature of personal laws for different religious
communities, noting that they are based on their respective religious texts and historical
backgrounds. It mentions the Directive Principle under Article 44 of the Constitution,
which aims for a Uniform Civil Code but acknowledges the existence of separate
personal laws for different communities.

Ultimately, the court suggests that if there's discrimination or disparity in the laws, it's not
solely based on religion but may have reasonable grounds, considering the differences
in religious perspectives on marriage and divorce. Therefore, it implies that the judiciary
may not be the appropriate forum for addressing these issues, and legislative action
might be more suitable.

In this excerpt, Justice Gajendragadkar offers a concurrent opinion on the matter at

hand:

1. **Discrimination Concerning Hindus in Reference to Christian and Parsi Citizens**:

- He addresses whether the impugned Act, which subjects Hindus alone to severe
provisions regarding bigamy, discriminates against Hindus compared to Christians and
Parsis.
- Justice Gajendragadkar suggests that the legislative intent behind these provisions
might have been to address the prevalent practice of bigamy among Hindus, considering
the social and cultural context.
- He argues that since Hindu marriage is considered a sacrament and divorce was
historically not permissible among Hindus, the legislature might have deemed it
necessary to introduce special provisions.
- Furthermore, he suggests that the legislature could have believed that Hindus were
more receptive to social reforms compared to other communities.

2. **Application of the Act to Muslims**:

- There's a discussion about whether the Act should have been made applicable to
Muslims as well.
- Justice Gajendragadkar notes that while it might be argued politically or legally that
the Act should apply universally, it's ultimately up to the legislature to decide.
- He emphasizes that the legislature's decision to apply the Act initially to Hindus might
not violate Article 14 of the Constitution as long as the classification is based on
reasonable and rational considerations.
 - He suggests that the legislature might have deemed Hindus more ready for the
proposed reforms compared to Muslims, given the historical and cultural contexts of
marriage and divorce in both communities.

3. **Application of Part III of the Constitution to Personal Laws**:

- Justice Gajendragadkar opines that personal laws, including those pertaining to
marriage, divorce, etc., are recognized by the Constitution in the Concurrent List.
- He suggests that the framers of the Constitution intentionally left personal laws
outside the ambit of Part III (Fundamental Rights) to prevent their provisions from being
challenged on constitutional grounds.
- Therefore, he agrees with the view that personal laws do not fall within the scope of
Article 13(1) of the Constitution.

Ultimately, the judgment declines to entertain the writ petitions, citing earlier decisions of
the court and the pendency of the issue regarding the Muslim Women (Protection of
Rights on Divorce) Act, 1986, before a Constitution Bench. As a result, the writ petitions
are dismissed.

Rajasthan State Electricity Board v Mohan Lal

1. Electricity Board of Rajasthan constituted under Electricity Supply Act 1948 in 1957,
prior to which it was managed by Electrical and Mechanical Department of which the
respondents were workers of. They were put at the disposal of the board and allowed to
accept new service conditions/continue with old except discipline rules/ fuck off and
claim retirement stuff
2. No new service conditions however were framed. Mohan Lal was deputed to the PWD
by order of the state government. Then it was directed that the board was to frame its
own but it wasnt done till the time of the litigation arose. Then it was ordered that
Mohanlal + Resp 4 to 14 were to be treated as on deputation to the board. In 1962,
PWD sent ML back to parent department but later extended its period with him by 7
months, after which Mohan Lal had been posted as foreman. Meanwhile respondents 4
to 14, some who were junior to Mohan Lal had become assistant engineers.
3. Mohan Lal filed a writ petition alleging that he was entitled to promotion.
4. The Board claimed that 1- Mohan Lal was never a permanent servant of the Board and
2- They are not “state” as per article 12.
5. The HC rejected these claims and quashed the promotions.
6. The HC erred in interpreting the ejusdem generis while interpreting other authorities as
there should be a distinct category running through the bodies already named in the
article.
7. . The term "other authorities" encompasses all governmental or quasi-governmental
bodies as per its broad dictionary definition. Therefore, there's no need to limit its scope
as it covers all such bodies within India or under Indian government control.
 8. In both Ujjam Bai and K S Ramamurthi Reddiar the courts argued for a wider
interpretation of “other authorities”
9. Other authorities include all constitutional and statutory authorities on which law gives
power. State also includes bodies to promote educational and economic interests of the
people. The board had power to issue directions whose disobedience amounted to
crminal offence. As such, it is clearly an authority that can be termed as “state”
10. The board has authority vested in it by statute. The functions ascribed to it by the act are
the sovereign power of the state delegated to it. However not every constitutional or
statutory authority is other authority. Those which are not vested sovereign power do not
fall under state as per article 13

Board of Control for Cricket in India v. Cricket Association of Bihar, (2015)

1. Two writ petitions by CAB before Bombay HC asking for taking back of order regarding
probe panel of 2 retd madras HC judges among other reliefs. The reliefs granted except
reconstitution of the panel.
2. CAB:- society registered under Society’s registration act 1860 while BCCI under TN Reg
of Societies act 1975 with its president being VC and MD of a India Cements public ltd
company,
3. In 2007, IPL was conceptualized and was to be governed by IPL Governing Council. In
2007, tenders for grant of IPL Franchises was invited and CSK (IC) and RR (Jaipur ipl
cricket) were formed.
4. Once N Srinivasan was elected bcci sec, IPL etc were removed from BCCI’s scope.
5. In 2013 there were allegations of match fixing and members of RR team were arrested,
so were NS’s son in law. Then there was a committee by BCCI comprising of 2 retd hc
members and Sanjay Jagdale who eventually resigned. NS too resigned from BCCI as it
was his son in law being investigated.
6. The petition also asked for csk and rr franchise agreement bw BCCI and the teams,
suspension of N Srinivasan and prohibition to stand for BCCI president elections.
7. BHC agreed that probe commission was not validly constituted but declined to create a
committee by itself. Both BCCI and CAB appealed, former for constitutionality of the
probe and latter due to refusal to grant further relief.
8. n September 27, 2013, the Supreme Court allowed BCCI's Annual General Meeting and
the election for the post of President to proceed, with the condition that if Mr. N.
Srinivasan was elected, he wouldn't assume office until further orders.

9. Despite Mr. Srinivasan's election as President, the Supreme Court deemed a probe into
the betting and spot-fixing allegations necessary.
10. Consequently, on October 8, 2013, the Supreme Court ordered the constitution of a
Probe Committee, chaired by Justice Mukul Mudgal, with the consent of the parties involved. It
interviewed all parties involved.
11. The report was considered by the court and probe committee was empowered to hold
enquiry against people named in it and created an investigation team to assist. It found thet the
son in law had indulged in betting but no evidence regarding match fixing.
12. All involved parties were sent copies of report, and notice of 2 weeks to respond.
13. Now the question arose of whether BCCI is state as per article 12 or not, and if not is it
amenable to writ jurisdiction of HC under article 226.
14. Its statehood makes no fundamental difference as BCCI discharges several important
public functions, taken with the tacit concurrence of the GOI and state governments.
15. Its functions fall under the ambit of public action, but it is an autonomous body which the
state is allowing to take such functions, it cant be said that this entity is not answerable to
judicial review standards.

Ajay Hasia v Khalid Mujib Sehravardi

1. Challange validity of admissions to Regional Engineering College, Srinagar.
2. In the BE entrance exam, those who succeeded were those who had gotten very low in
written component but unfairly high in viva voce. The petitioners on the other hand had
vice versa. They presented a writ petition challenging validity of the admissions, which
the college objected to by virtue of being a society registered under the J&K Societies
Registration Act, and as such out of the ambit of Art 12.
3. The College can only be “other authority” as per the article, if it was it would be
applicable to part 3 of the constitution. As such, its interpretation should not be narrow
as FRs are guarantees for the ppl of india.
4. Corporations to fulfil some state functions became necessary with the expansion of the
welfare state, which are accountable to the government or the public and hence should
be under the ambit of Part 3.
5. Tests gathered from International Airport Authority case :- if entire share capital of corp
held by government, whether it enjoys monopoly status granted by the government,
existence of deep and pervasive state control, if functions are of public importance, if a
govt departnemnt transferred to the corporation
6. Question of establishment irrelevant, test of whether it is an instrumentality or agency of
the state.
7. State under Art 12 doesnt mean state under part 14.
8. Composition of society running the college is representatives of the government and it
recieves its funds from J&K and Indian government. It’s review committee is also under
the State (w approval from) the central govt.
9. Hence central govt has full control over the college and the society is an authority within
the meaning of Art 12.

Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi

AN RAY- CJ FOR YVC AND GUPTA
1. Two questions:- whether order of removal which is contrary to ONGC act, LIC act, IFC
act enable employees to a declaration against the statutory corp or only a claim for
damages, whether these corporations are state as per Art 12. Are regulations under
these statutes law.
2. The state considered regulations under these acts binding in form of contracts rather
than law, as employee t&c are not a matter of statutory obligations.
3. Employees:- Regulations are made under the statute, and as such are self binding in
character and have the force of law.
4. Rule v Regulations:- both are subordinate legislation under powers conferred by the
statute. They are needed to ensure regular conduct w an attitude towards it as being
standard.
5. Unlike a contract, a regulation does not have a personal element to it, and any breach is
enforced by courts is declaring the action to be void.
6. In Rajasthan… case, power to create rules that can be enforced was used to strengthen
argument of it being a state, which is granted to ONGC and IFC.
7. Acc to the state they were not granted leave from taxation.
8. These bodies hence have state status and their employees enjoy statutory status.
9. The test propounded in REBC sits true well as far as ONGC is concerned. It is authority
established as per the ONGC act, which authorises ongc personnel entry into any land
for lawful ongc work, and its workers are public sector workers. Both LIC and IFC Act
allow for penal provisions against members of public.
10. Hence rules made by them have the backing of law, and these entities are state as per
Art 12 and 13
KK Matthew
11. The test propounded in RSEB is satisfied in ONGC as it can issue binding directions to
landowners and property to not resist ONGC entering their premises, and since
disobeying this is punishable under the pena code, the employees are also public
servants.
12. There is also a larger question regarding the two there are no provisions fr issuing
binding directions to parties having penal consequences, are they state by being set up
to carry business of public importance be considered state as per Article 12?
13. Article 12 does not define state, it just tells what is the authorities part of the state. The
question of whether a statutory corporation is state, depends on other considerations.
14. The state is now seen as a service corporation and not coercive authority.
15. As per Art. 298, the state can use its executive power in trade. There is nothing strange
in the notion of the state making a corporation an agency or instrumentality of itself as it
is an abstract entity and can operate through persons and juridical entities.
16. With the advent of the welfare state, and the distrust of the civil service developed a
policy of administration through seperate corporatins that would run through business
principles and be accountable through different ways.
17. This motive plays a larger part in underdeveloped countries than developed ones. The
state increasingly takes over the economic welfare f the people as can be seen in GOI’s
resolutions in Industricl Policy.
18. The constitution was built on an assumption of limited power of the state, which is alone
competent to wield power. But the problem of liberty and equality persists however and
whenever harmed. Thus, constitution must be read to apply against arbitrary power
against ppl by any authority.
19. Justice Harlan, in Civil rights cases expanded the concept of state action to include
certain activities of private entities that are deemed to serve a public function or are
regulated by law in a manner that imbues them with public responsibilities.
20. What is the amount of state help/finance that makes a body ‘state’? In US a private
agency supported by public fund was considered as state but in most such cases there
was an amount of control on them. State control however is also not a solid ground as
state exercises power over all bodies through police etc.
21. Another metric could be important public function. Combination of fund plus function
could lead to a entity being a state agency. If function is very important, the condition of
funding might even be irrelevant. If function is not at all in such a description state
money is irrelevant.
22. Non financial aid too:- eminent domain, tax exemption, monopoly etc.
23. The difficulty in differentiating state and non state functions- governmental services
which are private and private activities which are governmental.
24. Modern state operates a multitude of public enterprise and commercial activity on behalf
of state dpesmy deprive them of the state characters.
25. In case of LIC abd IFC, the Central Government has contributed the original capital of
the Corporation, that part of the profit of the Corporation goes to that Government, that
the Central Government exercises control over the policy of the Corporation, that the
Corporation carries on a business having great public importance and that it enjoys a
monopoly in the business. Them having an independent character doesn’t take away
from their character as state.
26. Is a corporation agency/instrument of state by virtue of carrying out public interest
activities? Assets of corporation are divided between state and central governments-
benefit of income goes to them. An agent has legal personality of its own, but is under
the direction of the state in all important policy matters.
27. Scial corporation new type of institution which doesnt fit into old legal categories which
should evolve instead of being forced.
28. No apprehension about employees becoming government servants if these corps are
held state.
29. No opinion on private corporations, which won’t be state unless their regulations have
the force of law/ the employment is public employment. Even assuming the former
doesn't exist here, the employee will have status to obtain the declaration of discharge
being unlawful if it didn't follow the regulations.
30. Regulations and bases on which people were employed were made to be binding on
these corporations, which were statutory and created for public employment.
ALAGIRISWAMI (dissent)
31. Rule-making power to the central government in these cases irrelevant, important is the
regulation-making power of the three organisations. These regulations are not law and
rules for internal stuff. The employees on the other hand contend that the source of
power to make the regulations is the statute and the regulations are law.
32. General Clauses Act defines "rule" as regulation made under enactment powers and
explains that terms in notifications and orders have meanings as in the conferring Act or
Regulation. It notes "order" in India may denote certain subordinate legislation unlike in
England, and "regulation" refers to regulations by bodies other than the State. However,
the regulation-making power is nt the same as subordinate legislation or rule making
power under the act.
 33. The ONGC regulations regarding employment are administrative and relate to
employment contract which is prescriptive and not statutory.Mere regulations in respect
of the employees of a statutory organization doesnt meen they are statutory
34. These bodies have their free hand in framing employment terms, while they are bound
by the regulations they can frame their terms and conditions as they see fit.
35. The terms of service of public servants can be admin instructions or executive orders.
This can also be done by corporations and their regulations can be law in respect to
them. If applicable to other body they can be law but regulations made by a body which
can be amended and not necessary cannot have the effect of law.
36. The validity of the regulations should be applied to employees of the three corporations
and there is no reason why the logic should be different because they are statutory
/under a statute. Unless an entity is state as per article 12, no regulation under it can be
law.
37. Matthew’s judgement shows that he understands case law to not be in his favor. He
talks of labour and public services commissions is prescriptive and not necessarily
establishes that public service corporations owned by government be different from
other corporations.
Zee telefilms v Union of India
N SANTOSH HEGDE
1. The petitioner argues that the activities of the board come under Public Activities but a
strict reading of the article would not bring it under “public authorities”, a term whose
meaning has been expanded through various judgements.
2. During Constituent Assembly debates it was emphasised on the enforceability of
fundamental rights to be as wide as possible, and for treating authorities which have the
power to make laws, rules and regulations under article 12.
3. In Rajasthan State Electricity Board, it was held that a statutory body which has govt or
quasi govt functions is “other authorities”. Before that even a lot of statutory bodies were
not under Article 12’s ambit.
4. In Sukhdev Singh, ONGC, LIC and IFC were considered as state because of the
widening scope of the state. In PK Biswas it was held necessary that the term ‘other
authority’ be expanded because the state will establish corporations to avoid part 3
responsibilities.
5. The board does not stand by the PK Biswas guidelines and is not financially functionally
or administratively controlled by the government. The little control by government is not
pervasive in nature. The public duties or state actions argument also falls through as the
board does not as per the judgement in PKB carry out public duties.
6. It is contended that right to livelihood of cricketers is controlled by the board by its rules
and regulations and because this can be done only by the state, it should be considered
as such. But according to this, every employer who controls his employee would fall
under this. Merely assuming the violation of fundamental rights does not make BCCI a
state.
7. The board exercises duties that can be akin to public duties, and even if it is not state,
ubi jus ibi remedium would apply and if writ under 32 isnt applicable the etitioners can
seek remedy under Article 226.
 8. Treating BCCI as state would open a can of worms as then other sports federations and
bodies which represent india in many fields will also be considered as state and

P. K. Biswas v Indian Institute of Chemical Biology

In this case, the issue revolves around whether the Council of Scientific and Industrial Research
(CSIR) qualifies as a "State" within the definition provided by Article 12 of the Constitution of
India. The determination of this status is crucial because it impacts the applicability of
fundamental rights guaranteed by the Constitution to individuals working within or affected by
CSIR.

The majority opinion, penned by Justice Ruma Pal, emphasizes the significance of Article 12
within Part III of the Constitution, which deals with fundamental rights. The court underscores
the responsibilities and obligations placed upon the State to ensure the protection of individuals'
rights against any arbitrary or irrational actions. It notes that the interpretation of the term "State"
has evolved through judicial precedent, with an expanding scope to encompass entities beyond
traditional government bodies.

The court assesses various factors to ascertain whether CSIR falls under the definition of
"State" as per Article 12. These factors include financial, functional, and administrative control
exerted by the government over CSIR. The opinion highlights the extensive involvement of the
government in the establishment, governance, and financing of CSIR, as well as its control over
personnel and decision-making processes within the organization.

Ultimately, the court concludes that CSIR meets the criteria to be considered a "State" under
Article 12. It rejects the previous decision in Sabhajit Tewary case, which denied the
applicability of Article 12 to CSIR, and asserts that the error in the previous decision must be
corrected. Additionally, the court mentions a new development—the government's explicit
recognition of CSIR as an entity subject to the Administrative Tribunals Act, which further
supports its conclusion regarding the status of CSIR as a "State" under Article 12.

The majority opinion underscores the court's duty to rectify errors and uphold the principles of
justice and equality enshrined in the Constitution. It emphasizes the dynamic nature of legal
interpretation and the need to adapt to changing circumstances to ensure the protection of
fundamental rights.

2. **Purpose of Article 12**: The purpose of defining "the State" in Article 12 is to ensure that
fundamental rights are applicable not only to government bodies like the Central Government
and State Governments but also to other entities created by law, such as local boards,
municipalities, and other authorities.

3. **Expansive Interpretation**: The term "the State" in Article 12 is interpreted broadly to

include not only government bodies but also entities created by law that exercise governmental
functions or are significantly controlled by the government.

4. **Instrumentality or Agency of the State**: Entities that act as instruments or agencies of the
State, even if they are not explicitly mentioned in Article 12, are considered to fall within its
scope. These entities are subject to the same constitutional limitations as the State itself.

5. **CSIR Classification**: The discussion revolves around whether CSIR qualifies as an

"authority" under Article 12. It is argued that CSIR does not possess the characteristics of an
authority and does not discharge functions closely associated with the government or
fundamental to the life of the people.

6. **Overruling Previous Decisions**: The dissenting opinion disagrees with the view that CSIR
should be classified as "the State" within the meaning of Article 12 and overrules previous
decisions that held otherwise.

In summary, the excerpt presents a legal analysis of the criteria for determining whether an
entity such as CSIR should be considered part of "the State" as defined in Article 12 of the
Indian Constitution.

Jatya Pal Singh v UOI

The history of VSNL (Videsh Sanchar Nigam Limited) is outlined in three main phases:

1. **Origin of Overseas Communication Service (OCS):** On January 1, 1947, the Indian Radio
and Telecommunication Co. Ltd., a private company, was taken over by the Government along
with its employees. A department called Overseas Communication Service (OCS) was created
within the Ministry of Telecommunications to handle India's external telecommunication service.
This department operated until March 31, 1986.

2. **Conversion of OCS into VSNL:** The Ministry of Telecommunications decided to convert

the OCS Department into a public sector corporation. VSNL was established on April 1, 1986, to
take over all international telecommunication services previously handled by the government.
The employees of OCS were transferred to VSNL on the existing terms and conditions until their
absorption or otherwise was decided by VSNL. The process of absorption of OCS employees
into VSNL was completed by January 1, 1990.

3. **Disinvestment:** Between 1992 and 2000, the Government of India divested a portion of its
shareholding in VSNL through various methods, including equity sales to funds, banks, financial
institutions, and the general public. This led to VSNL being listed on stock exchanges in India,
London, and New York. In 2002, the government divested a significant portion of its shares to
Panatone Finvest Ltd., a Tata Group entity, and to VSNL employees. Subsequently, the Tata
Group increased its stake in VSNL. The disinvestment process led to VSNL losing its monopoly
in international long-distance services in 2004.

Regarding the legal aspect of VSNL/TCL's status as a public entity or performing a public
function:

1. **Status under Article 12 of the Constitution:** The Supreme Court examined whether
VSNL/TCL could be considered a "State" or other authority within the meaning of Article 12 of
the Constitution of India. It concluded that VSNL/TCL did not fall under this definition based on
various tests, including shareholding, government control, and performance of public functions.

2. **Performance of Public Function:** The Court analyzed whether VSNL/TCL was performing
a public function, emphasizing that merely continuing the functions of a previously government-
owned entity (OCS) does not automatically classify it as performing a public function. It
considered factors such as the nature of services provided, commercial considerations, and
absence of exclusive government control.

Ultimately, the Court determined that VSNL/TCL's functions were commercial in nature and did
not qualify as performing a public function. Therefore, the appellants' claims regarding the
termination of their services were dismissed, as they were deemed to be contractual matters
rather than breaches of public duty.

RD Shetty v Airports Authority of India

 IAAI is a corp body under alegis and had put out tenders for setting a restaurant. It has
accepted the tender of resp 4, but another tenderer put a writ in hc against the decision
of the IAAI to give the tender to resp 4. The writ was rejected by the court, then appeal
again to the diviosn bench, which again rejected the appeal, then special appeal to the
sc (this present case).
 App has challegend the tender to resp on the ground that they didnt have 5yrs
experience which is an essential condition of the tender (there was communication
between resp 4 and iaai for this and iaai was satisfied later) Respondent 1, being a State
within the meaning of Article 12 of the Constitution or in any event a public authority, was
bound to give effect to the condition of eligibility set up by it and was not entitled to
depart from it at its own sweet will without rational justification. And such a departure
from its own criteria without justification violates equal opportunity to the app
 Resp argued that -
 1) the para 1 was not eligibility criteria per se
 2) eligibility criteria was not biding as not made under admini rules or the statue etc
 3) app has no real interest in the case
  Now - thee sc says - Page 10 onwards till last - this is a very broad test - it doesnt havee
the aim of fitting a boody in a certain criteria and then say that this satisfies the test, it
rather provides the prongs in which the body may be seen to overall determine the
nature of it.
 In rd shetty one of the grounds fo rconsidering a body as state is that its entire funding is
by the state (however its individual satisfaction if this prong is not necessary to be
satisfactory for the consideration of state, but still if its entirely by the state, its relevant
factor - in this just see that j matthew in sukhdev singh holds that only funding is not
sufficient to call something state, rather some additional thing must be there, preferably
an element of control is what we seek).
 Wrt to importance iof public function - Another factor which might be considered is
whether the operation is an important public function. The combination of State aid and
the furnishing of an important public service may result in a conclusion that the operation
should be classified as a State agency. If a given function is of such public importance
and so closely related to governmental functions as to be classified as a governmental
agency, then even the presence or absence of State financial aid might be irrelevant in
making a finding of State action. If the function does not fall within such a description,
then mere addition of State money would not influence the conclusion.

Central Bank v Devi Ispat Ltd

It seems you've provided a legal case involving a dispute between a bank (referred to as the
appellant Bank) and a company (referred to as the respondent Company) regarding the return
of security documents and the issuance of a "no-objection certificate" and "no-dues certificate."
Here's a summary:

1. **Background**: The respondent Company had credit facilities with the appellant Bank and
requested an enhancement of these facilities. The bank agreed to review and enhance the
credit facilities. However, due to irregularities and fraud involving other entities, the bank
advised the respondent Company to shift its account to another bank.

2. **Fraud Allegations**: The bank alleged that there were irregularities and fraud involving
other companies, and funds were siphoned off to the account of the respondent Company.

3. **Settlement with Another Bank**: The respondent Company shifted its accounts to another
bank and settled a sum of Rs. 15 crores with that bank, which was acknowledged by the
appellant Bank.

4. **Legal Proceedings**: The respondent Company filed a writ petition before the Calcutta High
Court seeking the return of security documents and certificates. The High Court ruled in favor of
the respondent Company.

5. **Appeal**: The appellant Bank appealed the High Court's decision, arguing that the matter of
returning security documents is a civil dispute and should be dealt with by the Debts Recovery
Tribunal or a civil court.
6. **Decision**: The Supreme Court examined previous judgments and determined that while
disputes relating to the interpretation of contract terms should be resolved in civil court or
arbitration, the High Court could issue appropriate directions in certain circumstances,
especially when a public entity is involved. In this case, since the respondent Company had
settled its dues with another nationalized bank, and there were no outstanding dues, the High
Court's direction for the return of security documents was deemed appropriate.

7. **Legal Precedents**: The court referenced previous judgments to establish the

circumstances under which a writ petition under Article 226 of the Constitution is maintainable in
contractual matters involving public entities.

In summary, the Supreme Court upheld the High Court's decision to issue a writ of mandamus
for the return of security documents to the respondent Company.

In these paragraphs, the court discusses several legal precedents and principles relevant to the
maintainability of a writ petition in contractual matters. Here's a summary:

1. **Arbitration Clause**: If a contract includes an arbitration clause, typically, a writ court should
not exercise its jurisdiction under Article 226 of the Constitution.

2. **Alternative Remedy**: If there exists an effective alternative remedy provided in the contract
itself, this can be a reason for the court to decline exercising its extraordinary jurisdiction under
Article 226.

3. **Violation of Article 14**: If an action by the State or its instrumentality (such as a public
sector bank) is arbitrary, discriminatory, or violates Article 14 of the Constitution (which
guarantees equality before the law), a writ petition would be maintainable.

4. **Existence of Legal Right**: For a writ petition to be maintainable, there must be a legal right
and a corresponding legal duty on the part of the State or its instrumentality. Additionally, if the
action by the State is wholly unfair or arbitrary, writ courts can intervene.

5. **Conclusion**: In the case at hand, since the appellant Bank is considered a "State" under
Article 12 of the Constitution and the dues were settled through another nationalized bank, and
subsequent accounts showed a nil outstanding balance, the court found the High Court justified
in issuing a writ of mandamus for the return of title deeds.

6. **Judgment**: Consequently, the court dismissed the appeal of the bank and directed it to
return the title deeds deposited by the respondent Company within two weeks from the date of
the judgment.
In summary, the court emphasized that while writ petitions in contractual matters may not
always be maintainable, there are circumstances where they can be, particularly if the action of
the State or its instrumentality is arbitrary, unfair, or discriminatory.

M. C. Mehta v UOI
In these paragraphs, the court discusses the issue of whether Article 21 of the Constitution,
which guarantees the right to life and personal liberty, is applicable to private corporations,
specifically in the context of a corporation engaged in activities vital to public interest and
potentially affecting public health and safety.

Here's a summary of the key points:

1. **Arguments by Counsel for the Applicants**: Counsel for the applicants argued that Article
21 should apply to private corporations like Shriram, which is engaged in an industry vital to
public interest and is under active control and regulation by the government. They argued that
since the government intended to ultimately carry on this industry and it could vitally affect
public interest, the control of the government over Shriram's activities makes it subject to
constitutional restraints.

2. **Arguments by Counsel for Shriram**: Counsel for Shriram cautioned against expanding
Article 12 (which defines the term "State" for the purposes of fundamental rights) to include
private corporations. They argued that regulation of a private corporation by the state under
general statutory law does not convert the corporation's activities into those of the state. They
emphasized that control to deem a corporation an agency of the state must involve control over
management policies.

3. **Evolution of Criteria for Determining State Action**: The court traced the development of the
concept of "other authorities" under Article 12, which includes constitutional and statutory
authorities on whom powers are conferred by law. The court discussed various tests and
criteria, including the power to issue binding directions, financial assistance by the state, control
over management and policies, and the performance of public functions closely related to
governmental functions.

4. **Ruling of the Court**: The court emphasized the need for functional realism in determining
whether a corporation is an instrumentality or agency of the government. It stated that if the
government acts through the instrumentality or agency of a corporation, the corporation should
be subject to the same constitutional limitations as the government itself. The court clarified that
the manner in which a corporation is brought into existence (whether by statute or otherwise) is
immaterial; what matters is whether it functions as an instrumentality or agency of the state.

In summary, the court emphasized the need to ensure that corporations, even if privately
owned, are subject to constitutional limitations when they perform functions that are closely
related to governmental functions and when they receive significant assistance or control from
the state.
In these paragraphs, the court examines whether a private corporation like Shriram falls within
the scope of Article 12 of the Constitution, thereby making it amenable to the discipline of Article
21, which guarantees the right to life and personal liberty.

Here's a summary of the key points:

1. **Industrial Policy of the Government**: The court reviews the Industrial Policy Resolutions of
1956 and 1948, which classified industries into categories based on the level of state
involvement. Industries like heavy chemicals and fertilisers were deemed of vital public interest,
necessitating significant state control and regulation.

2. **Control and Regulation**: The court notes that Shriram, as a private corporation engaged in
manufacturing chemicals and fertilisers, is subject to extensive control and supervision by the
government under the Industries (Development and Regulation) Act, 1951, and other relevant
statutes. This control includes licensing requirements, pricing controls, and environmental
regulations.

3. **Potential Impact on Public Health and Safety**: Given the hazardous nature of the
chemicals produced by Shriram and their potential to affect public health and safety, the court
considers whether these factors, along with the extensive state control and support, are
sufficient to bring Shriram within the ambit of Article 12.

4. **Consideration of American Doctrine of State Action**: While the court acknowledges the
American doctrine of State action, it emphasizes that the Indian context and constitutional
provisions are different. However, it considers the principle behind the doctrine — that
significant state support and control may render private activity subject to constitutional
limitations — as relevant to the Indian context.

5. **Expansion of Human Rights Jurisprudence**: The court reflects on its role in expanding the
scope of Article 12 to inject respect for human rights and social conscience into the corporate
structure. It rejects the notion that including private corporations within the ambit of Article 12
would hinder private entrepreneurial activity, emphasizing the importance of advancing human
rights jurisprudence.

6. **Decision to Postpone Pronouncement**: Due to time constraints and the complexity of the
issue, the court decides not to make a definitive pronouncement on whether Shriram falls within
the scope of Article 12 at the present stage. Instead, it leaves the question open for further
consideration if necessary.

In summary, the court recognizes the potential implications of including private corporations
within the ambit of Article 12 and acknowledges the need for further deliberation on the matter.

K C Joshi v UOI
1. D.A. Desai, J., begins by characterizing the legal dispute between the Oil and Natural Gas
Commission (referred to as the "Corporation") and a storekeeper as an unequal fight,
highlighting what he perceives as the Corporation's unfair and vindictive approach.

2. The appellant, initially appointed as an assistant storekeeper in April 1962, later competed for
and secured the position of storekeeper in December 1963. However, his appointment was on a
temporary basis, lasting only for a short period, and subject to probation and termination with a
month's notice. Despite successful completion of his probation, the appellant faced challenges,
including a transfer and allegations of misconduct.

3. The appellant's active involvement in the Union's activities led to management concerns,
especially during a strike in September 1967. Following complaints of victimization, the
Corporation terminated the appellant's services in December 1967, citing the terms and
conditions of his employment.

4. The Allahabad High Court, while acknowledging the appellant's regular appointment status,
deemed him a temporary employee until his termination. It also ruled that the Corporation, not
being an industrial establishment under the Industrial Employment (Standing Orders) Act, was
not bound by its provisions. The High Court further rejected the appellant's contention regarding
the violation of the Corporation's regulations and his entitlement to constitutional protection
under Articles 14 and 16.

5. The Division Bench's decision was appealed, with the appellant challenging the termination of
his services. The Corporation did not contest its status as an instrumentality of the State, as
established by previous court decisions.

In essence, the case revolves around the appellant's termination from service by the Oil and
Natural Gas Commission and the legal arguments regarding the applicability of various laws
and constitutional provisions to his employment status and dismissal.
Thalappalam Service Coop. Bank Ltd. v. State of Kerala
In the case of **K.S.P. Radhakrishnan and Dr. AK Sikri JJ in Halappalam Service Coop. Bank
Ltd. v. State of Kerala**, the Supreme Court considered whether cooperative societies
registered under the Kerala Cooperative Societies Act, 1969 would be considered "public
authorities" under Section 2(h) of the Right to Information Act, 2005 (RTI Act), and thus
obligated to provide information under the RTI Act.

The case arose from conflicting views expressed by different benches of the Kerala High Court.
A Full Bench of the Kerala High Court, in **Mulloor Rural Coop. Society Ltd. v. State of Kerala**,
held that cooperative institutions under the administrative control of the Registrar of Cooperative
Societies are considered "public authorities" under the RTI Act. This decision was in contrast to
an earlier decision in **Thalapalam Service Coop. Bank Ltd. v. Union of India**, where it was
held that whether a cooperative society falls under Section 2(h) of the RTI Act depends on
factual circumstances, specifically whether it is substantially financed by the State Government.
The senior counsel representing some of the societies argued that the view expressed in
**Thalapalam Service Coop. Bank Ltd.** was correct. He emphasized that cooperative societies
are autonomous bodies, not owned, controlled, or substantially financed by the State
Government. He also contended that these societies do not perform public functions and
therefore do not fall under the definition of "State" under Article 12 of the Constitution of India.

The Supreme Court examined whether cooperative societies would fall within the definition of
"State" under Article 12 of the Constitution, making them subject to constitutional limitations. It
referred to precedents such as **U.P. State Coop. Land Development Bank Ltd. v. Chandra
Bhan Dubey** and **All India Sainik Schools Employees' Assn. v. Sainik Schools Society**,
where bodies were held to be "State" if they were significantly funded and controlled by the
government.

However, the Court distinguished between bodies created by statute and those governed by
statute after their creation. Cooperative societies, it noted, fall into the latter category. While they
are regulated by the Societies Act, they are not statutory bodies but corporate entities with their
own management structures. The final authority rests with the general body of members, not
with government authorities.

The Court also cited **Federal Bank Ltd. v. Sagar Thomas**, emphasizing that regulation under
an act does not necessarily make an entity subject to government control. Control over
cooperative societies by statutory authorities like the Registrar or the Government is not deep or
pervasive enough to render them "public authorities" under the RTI Act.

In conclusion, the Court held that cooperative societies governed by the Kerala Cooperative
Societies Act, 1969 are not "public authorities" under the RTI Act, as they are not sufficiently
funded, controlled, or performing public functions to be considered part of the "State" under
Article 12 of the Constitution.

Judiciary As State
 Mirajkar
 Summary in rupa hurra case - A Bench of nine learned Judges of this Court considered
the question whether the impugned order violated fundamental rights of the petitioners
under Article 19(1)(a) and if so whether a writ under Article 32 of the Constitution would
issue to the High Court. The Bench was unanimous on the point that an order passed by
this Court was not amenable to the writ jurisdiction of this Court under Article 32 of the
Constitution. Eight of the learned Judges took the view that a judicial order cannot be
said to contravene fundamental rights of the petitioners. Sarkar, J. was of the view that
the Constitution does not contemplate the High Courts to be inferior courts so their
decisions would not be liable to be quashed by a writ of certiorari issued by the Supreme
Court and held that this Court had no power to issue a writ of certiorari to the High Court.
To the same effect are the views expressed by Shah and Bachawat, JJ. Though, in his
 dissenting judgment Hidayatullah, J. (as he then was) held that a judicial order of the
High Court, if erroneous, could be corrected in an appeal under Article 136 of the
Constitution, he, nonetheless, opined that the impugned order of the High Court
committed breach of the fundamental right of freedom of speech and expression of the
petitioners and could be quashed under Article 32 of the Constitution by issuing a writ of
certiorari to the High Court as subordination of the High Court under the scheme of the
Constitution was not only evident but also logical.
 resp wanted prevention of publication of his evidence due to damagee to his business by
the petitioner. Judge orally pointed that it should not be published. Chari (petititoner’s
lawyer) contended that admini of justice should be open to the public and such
prevention of public reporting is oonly rare (ex sexual assult etc) + no protection to
witness on grounds of business damage + suggested a written order, which th judge
rejected the need of
 Petitioner then moved to bombay hc under art 226. Hc rejected as judicial order cannot
be challenged under writ provision of 226
 Then petitioner moved to sc under 32 for enforcement of art 19 (he was the one
reporting na)
 Petitionners argue that fr are absolute ( excepot to the extent of reasinablke restrictions)
and question the courts power to ban such a publication and say that the court has acted
in exceed of its jurisdiction. THEY BASOOCIALLY SAY THAT THE JUDICIAL ORDER
VIOLATED THIER FUNDAMENTAL RIGHTS.
 Resp argued that publication would lead too a failure of justice and the judge of the
district court shall have the discretion to decide that and thus doesnt violate fr + writ in 32
is being moved as the hc under 226 did not address u, but the hc can determine its
jurisdiction and issues regarding that are not amenable to 32.
 Petitioner says that 32 isvery wide and shall be enforced as fr itself as soon as violation
of other fr is shown (19 here). And the test for 32 application should be that if fr has been
vio then what kind of writ or direction shall be ordered, as fr are wide in their scope and
right to move too court for thier violation is not limited to the actions of legis or executive.
Actions by judiciary and indi citizen which violate the fr shall be amenable to be moved
to the court. Example fiven is that of art 17 which provides a wide sweep of action
including infi citizens. He also says that certain fr like 20, 21 and 22 are directed against
the judiciary (resp refuses thhis) nd in a wider context similarly 19 should be enforceable
too.
 Respp says that part 3 is no that wide and in application of 32, the meaning of 12 must
be seen. And state includes the gov and the parliament and local authorities and ‘other
authhorities’ and the specific mention of the government and the legis and the executive
says that the judiciary was intended to be excluded. And the rights of 17, 23 etc which
the petitioner says can be claimed against indi citizens can only be done so if there is
legis enactment for the vio of the same. Thiis fr cannot be exercised against indi and writ
against judicial orders cannot be executed.
 Court wishes to confine the matter to the issues raised by the petitioners.
 Now sc says that the district order was right in its capacity and the question is whether
the on moving to the hc it shoul have or shouldnt have given relief. This has 2 ques - 1)
whether fr violated? 2) if violated, whether writ can be sought?
 For first question sc says that in furtherance of fr, the petitioner was publishing, but
within competent juris and with proper procedure, the judge decided to not allow that.
Now can it be said that the order passed by the judge in interest of the trial and justice, is
violating fr?
 Sc answers that the argu of vio of fr is wrong as a judge makes a decision to the best of
its knowledge and ooractice.
 “ can be considered and decided if the party aggrieved by the decision of the Judge
takes the matter up before the appellate court. But it is singularly inappropriate to
assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in
relation to a matter brought before him for adjudication can affect the fundamental rights
of the citizens under Article 19(1)”.
 A judicial order whether collateral or whether core is of the same nature in the sense that
it is valid and has the force of law and judiciary. And an order passed in such a manner
even tho indirect, can it be validly said to have violated fr?
 In ak gopalan the court pointed out that the directness rather than the effect of the
measure must be seen in determining the violation of fr. (however kania who had argued
opposite, was rejected here but gained support later).
 Sc says that the test of pith and substance which tests something’s validity acc to the
direct effect and object of something can be applied to judicial decisions. And since the
order was made to carry out the trial in justice and fair manner and the incidental effect
of it was on the exercise of art 19 by the petitioner then it shall not be considered as a
consti infirmity.
 Petitioner cited a case where a judicial order was held invalid for vio of 14 and similarly
for vio of 19 this shall also be held invalid. But the court says that there the order was
examined by way of appeal under 132 (ie in appeal u examine a case again but under
writ u claim that order was vio of fr then u say that a competent court violated your fr,
hence when u contended vio of 14 by courts u cant say that court vio 14, rather its
application was not preferred by u and thus the law provides for provisions for review of
decision rather than contending that the judicial tribunal is arbitrary in itself.
 “s. The scope of the jurisdiction of this Court in exercising its writ jurisdiction in relation to
orders passed by the High Court was not and could not have been examined, because
the matter had come to this Court in appeal under Article 132(1); and whether or not
judicial decision can be said to affect any fundamental right merely because it
incidentally and indirectly may encroach upon such right, did not therefore call for
consideration or decision in that case. In fact, the closing observations made in the
judgment themselves indicate that this Court was of the view that if any judicial order
was sought to be attacked on the ground that it was inconsistent with Article 14, the
proper remedy to challenge such an order would be an appeal or revision as may be
provided by law. “ - the precedent of petitioner rejected for these reasons

 Ar antulay v rs nayak -
 Sabyasachi j -

 Rupa ashok hurra v ashok hurra -

 Majority -
 Issue is whether a a previous order by the court can be regarded as a nullity and a writ
petition be issued under 32 for the order, when request for its review petition has already
been rejected.
 For this question, the court first refers to the the various kinds of jurisdictions tahat the sc
has (including jurisdiction that be conferred on it by the parliament) and can be invoked
under art 32.
 The court examines the very history and nature of writs and says that these are
providing supervisory juris over inferior courts/ tribunals and cannot be used to direct a
court of equal or more authority. And since the hc is not constituted as an inferior to the
sc in our constitutional scheme, u cannot issue a writ against them (tho are liabkel to be
reviewed under the appellate jurisdiction).
 Also writs can only be issued when fr are violated and it is settled position in law (the
judgement claims that it is a settled position) that judicial orders do not violate fr.
 And also, superior courts of justice do not fall in the definition of art 12.
 Court relying on mirajkar and ar antulay says that an application under art 32 is not
allowed.
 Concurring -
 It is settled that any position of the court is not final and is subject to review tho that
cannot be achieved under art 32 and rather shall be routed through an appeal or review.
 “ In the event, however, a party stands aggrieved by reason of a rejection of review, the
question posed as to whether a litigant thereof is to suffer the onslaught for all times to
come and in perpetuity when on the face of the order it appears to be wholly without
jurisdiction or in violation of natural justice — a further factum of there being a bias or
gross or manifest injustice, which shocks the conscience of a reasonable man : needless
to record that the facts, as noticed above, are not only unwarranted but possibly in the
region of impossibility or more appropriately, improbable. 58. Mr K.K. Venugopal, the
learned Senior Counsel appearing in support of one of the matters before this Bench,
has been rather emphatic in his submissions as regards the apprehension of bias and it
is his contention that a mere likelihood of bias should prompt this Court to allow a further
consideration of the matter. “

 Shaukhat Hussain guru v state

 Hc confirmed the death sentecnes for 2 of these terrorists and dismissed thier appeals
(they further appealed in the sc), while iit allowed the appeaks and dismissed 2 others
(the state appealed this).
 The sc also held him guilty, upon which this person filed a review petition.
 Review petition on the grounds that there was no opportunity to say anything in his
defence, he was also notified really late about the charge having been filed, there was
vio of natural justice (opportunity to defend the charge oor represent against it).
 After review dismissed, curative petition filed contending that - this Court had acquitted
the petitioner on all charges framed against him but convicted him under Section 123
IPC, an offence with which he was not charged and in respect of which even the Public
Prosecutor did not advance any argument in this Court. Therefore natural justice
violated.
 Curative also dismissed.
 Then petition under art 32 filed for writ of haebueaus corpus for seeing that his detention
has been unlawful and in violation of art 21.
 The state contended that 123 is a minor charge and has common elements with other
charges which were duly argued. The petitioner says tha since no charge was framed,
no opportunity was given to defend against it. The argument was that without natural
justice, the judgement is a nullity and exercise of jurisdiction under art 32 is necessary.
 But the fact that review petition was rejected shows that the claim of the petitioner that
natural justice was violated has been rejected. Similarly the curative was rejected too.
 Thus inn the facts, there is no ground for art 32 violation + these petitions would mean
that previous judgement will have to be set aside as fr vio which in not permissible under
32.
 But doesnt this mean that u just said that the claim of natural justice is not met and
hence we deny your petitions. And then when u file fr vio foor this act, then that is
impermissible. But the guarantee of fr under 32 is the bery reason that the person was
filing a writ as we saw that when u contend on grounds of natural justice or something,
your petition can still be rejected, tho that wouldnt happen if it were fr as art 32 would
make a remedy compulsory.