Constitution II Unit 1 to 3 Sem 2- LLB 1st year

UNIT 4 to 6 Notes WIP

✅ Unit 1: Anti-Defection Law – Easy Notes

📌 What is Defection?

When a member of a political party switches to another party or votes against their own party, it is called defection.
This weakens democracy and creates political instability.

📌 Why was the Anti-Defection Law Needed?

Defections became common for personal gain (like ministerial positions).
This erodes voters' trust and the fairness of elections.

📜 Introduction of Law

Anti-Defection Law was introduced through 52nd Amendment Act, 1985.
Added the 10th Schedule to the Constitution.

🧾 Grounds for Disqualification (Para 2)

A member is disqualified if:

Voluntarily resigns from their party.
Votes/abstains against party direction without prior permission and is not condoned(Agree) within 15 days.
An independent candidate joins a political party after the election.
A nominated member joins a party after 6 months of becoming a legislator.

🔄 Exceptions & Merger (Para 4 & 5)

Old Para 3 – Split (Now Removed)

Earlier, if at least one-third of the members of a legislature split from their party, they were not disqualified under the anti-defection law.

This was called "split" and allowed members to break away without punishment.

Merger: If 2/3 members of a party agree to merge with another, no disqualification.
Exemptions: Speaker, Deputy Speaker, Chairman, etc., are not disqualified if they quit their party for the role and don’t rejoin later.

🏛️ Who Decides Disqualification? (Para 6)

The Speaker or Chairman of the House decides.
If the Speaker is involved, a member elected by the House will decide.

🚫 Court Jurisdiction (Para 7)

Originally, courts couldn't interfere in defection matters.
BUT in Kihoto Hollohan Case (1992), the Supreme Court ruled that speaker's decision can be reviewed by courts.

https://youtube.com/shorts/0EdJYYj8Hbo?si=jE2hzVQTNW-r5mNK

📚 Important Case Laws: Simplified

🔸 Ravi Naik v. Union of India
➤ Resignation can be inferred from conduct, not just written letter.
🔸 G. Vishwanathan v. Speaker, TN Assembly
➤ If a member is expelled and joins another party, it's considered voluntary defection.
🔸 Kashinath v. Goa Assembly
➤ A speaker cannot review their own decision once made under the Anti-defection law.
🔸 Avtar Singh Bhadana Case
➤ Media reports can be used as evidence for defection.

✅ Advantages of the Law

Prevents frequent change of parties.
Encourages stability and party loyalty.

❌ Disadvantages

Limits freedom of speech of legislators.
Reduces accountability by forcing members to toe party lines.

______________

📘 Definition: What are Parliamentary Privileges?

Parliamentary privileges are special rights, immunities, and exemptions enjoyed by:

Members of Parliament (MPs), and
Each House of Parliament (Lok Sabha & Rajya Sabha)

These privileges ensure that MPs can perform their duties freely and independently, without fear of legal action or outside pressure.

📜 Constitutional Basis

Article 105 (for Parliament)
Article 194 (for State Legislatures)

📌 Until Parliament defines them by law, privileges are the same as those of the British House of Commons before the 44th Amendment.

🧾 Key Privileges of MPs (with simple examples)

Freedom of Speech in Parliament (Art. 105(1))
- MPs can say anything in Parliament without being sued for defamation or prosecuted.
Immunity from Legal Proceedings (Art. 105(2))
- MPs can’t be sued for anything said, voted, or published under Parliament’s authority.
Freedom from Arrest (Civil cases only)
- MPs can’t be arrested during session and 40 days before/after for civil matters.
- ⚠️ No immunity for criminal cases or contempt of court.
Right to regulate internal proceedings
- Parliament can make its own rules and control its functioning.
- Courts can’t interfere in these matters.
Right to punish for contempt
- Parliament can punish members or outsiders who disrespect it.
Right to exclude strangers and hold secret sessions
- It can keep sessions private in special situations.
Right to prohibit publication of proceedings
- Unauthorized publication (especially of expunged statements) is a breach of privilege.

⚖️ Important Case: P.V. Narasimha Rao v. State (1998)

Issue: MPs took bribes to vote a certain way in Parliament.
Held: MPs are immune under Art. 105(2) if they actually vote/speak in Parliament.
BUT if they take bribes and don’t vote, no protection is given.

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UNIT 2

🇮🇳 Is the Indian Constitution Federal?

📘 Meaning of Federalism:

A federal Constitution is one in which:

Power is divided between Centre and States,
Each has independent authority,
The Constitution is written, rigid, and supreme,
There’s an independent judiciary to interpret the Constitution.

🧠 Examples: USA, Canada, Australia

📜 What the Indian Constitution Says:

The word "federal" is not used in the Constitution.
Instead, Article 1 states:

“India, that is Bharat, shall be a Union of States.”

This indicates that:

The Union is indestructible,
States have no right to secede.

🧾 B.R. Ambedkar’s view:
India is federal in structure, but with a strong unitary bias.

⚖️ What the Supreme Court Says

In S.R. Bommai v. Union of India (1994):

“Federalism is a part of the basic structure of the Constitution.”

✅ So, Indian Constitution is federal in spirit, but not completely.

🧩 Federal Features of Indian Constitution

1. 🗺️ Dual Government (Centre + States)

Powers are divided between Union and State Governments.
Each has its own executive and legislative machinery.

2. 📘 Written Constitution

The Indian Constitution is written, longest in the world, and clearly describes powers.

3. ⚖️ Supremacy of Constitution

The Constitution is the supreme law.
Both Union and States must function within its limits.

4. 📦 Division of Powers – 7th Schedule

Three Lists:
- Union List (e.g., defence, foreign affairs)
- State List (e.g., police, agriculture)
- Concurrent List (e.g., education, marriage)
This ensures separation of authority.

5. ⚖️ Independent Judiciary

Supreme Court is the guardian of the Constitution.
Has power to resolve disputes between Centre and States under Article 131.

6. 💸 Bicameralism (Two Houses of Parliament)

Rajya Sabha represents the States.
Important federal feature as States have a say in law-making.

🔁 Unitary Features (Central Bias)

Despite federal features, India also has unitary characteristics:

1. 🔧 Strong Centre

Union List has more subjects (97) than State List (66).
In Concurrent List, Union law prevails over State law (Art. 254).

2. 🧾 Single Constitution

Unlike the USA, States do not have separate constitutions, except Jammu & Kashmir (before Article 370 was abrogated).

3. ⚠️ Emergency Provisions (Articles 352, 356, 360)

During emergencies, India becomes completely unitary.
Parliament can legislate on State subjects.
State governments can be dismissed (President’s Rule).

4. 🧍‍♂️ Governor as Centre’s Agent

Appointed by the President, not by the state.
Has power to reserve bills, recommend President’s Rule, and influence state politics.

5. 🔗 Integrated Judiciary

Unlike the US, India has a single unified judiciary, not separate courts for Centre and States.

✅ Conclusion – What to Write in Exam

The Indian Constitution is federal in structure, but unitary in spirit. It combines the best features of federalism and unitary systems.

It is a "Quasi-Federal" Constitution – neither fully federal nor fully unitary.

📚 K.C. Wheare, a constitutional expert, called it “Quasi-Federal”.

📚 Key Case Laws to Mention

Case Name	What it said about Federalism
S.R. Bommai v. Union (1994)	Federalism is part of basic structure
State of West Bengal v. Union of India (1963)	India is not a traditional federation; states are not sovereign
Kesavananda Bharati (1973)	Federalism is part of basic structure doctrine

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📘 Governor: Powers and Position

🧾 Who is a Governor?

The Governor is the constitutional head of a state, similar to the President at the central level.
Article 153, every state must have a Governor.
He/she is the nominal head, while the real executive power lies with the Chief Minister and the Council of Ministers.

📜 Appointment, Tenure & Qualification

Appointed by: The President of India [Article 155]
Tenure: Holds office for 5 years, but can be removed anytime by the President [Article 156]
Qualifications:
- Must be an Indian citizen
- Must be at least 35 years old
- Must not hold any office of profit

🔑 Powers of the Governor

1. ⚙️ Executive Powers

All executive actions of the state are taken in the name of the Governor.
Appoints key functionaries of the state:
- Chief Minister and other Ministers [Article 164]
- State Advocate General [Art. 165]
- State Election Commissioner
- Chairpersons & Members of State Public Service Commission (SPSC) [Art. 316]
- District Judges (in consultation with High Court)
- Vice-Chancellors of State Universities

📌 Note: Governor appoints ministers on the advice of the CM.

2. 📜 Legislative Powers

Summons, prorogues and dissolves the State Legislative Assembly [Art. 174]
Can address the first session after elections and the first session of the year.
Can send messages to the legislature.
Gives assent to bills passed by state legislature or reserves them for President’s consideration [Art. 200]
Can nominate 1 Anglo-Indian to Legislative Assembly (if not adequately represented).

3. 🧾 Financial Powers

Money Bills can be introduced only with the prior recommendation of the Governor.
Ensures the State Budget is laid before the Assembly.
Operates the State Contingency Fund.
Receives reports of State Finance Commission and State Auditor General.

4. ⚖️ Judicial Powers

Governor is consulted by the President while appointing High Court judges.
Can grant pardons, reprieves, respites, or remissions under Article 161 (but not for death sentences or court-martial cases).

5. 🧠 Discretionary Powers (Special and Unique)

These are powers the Governor exercises without the advice of the Council of Ministers, such as:

Appointing a CM when no party has clear majority.
Recommending President’s Rule in the state (Article 356).
Reserving a bill for the President’s assent.
Dismissing a ministry when it loses majority.

✅ Article 163: Says that the Governor can act at his discretion in certain matters.

🏛️ Position of the Governor

The Governor is the nominal executive head of the state.
Performs functions similar to the President at the central level.
Acts on the advice of the Council of Ministers, except in matters requiring discretion.
The role becomes active and powerful during:
- Political instability (e.g., hung assembly)
- President's Rule recommendations
- When using Article 200 and 201 for bill reservation

📚 Important Notes

The Governor represents the Centre in the State.
Can be transferred from one state to another.
Can act as Governor of two or more states at the same time (Art. 153 proviso).

⚖️ Example Case: Rameshwar Prasad v. Union of India (2006)

The SC held that the Governor's report to dissolve the assembly in Bihar was unconstitutional. It emphasized that Governor’s discretionary powers are not absolute and are subject to judicial review.

🧠 Memory Trick for Powers – “JELF-D”

J – Judicial Powers
E – Executive Powers
L – Legislative Powers
F – Financial Powers
D – Discretionary Powers

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Unit 3

📘 Amendment of the Indian Constitution

https://www.youtube.com/watch?v=Z7Re17ZlF-I&ab_channel=RupaliSharma

🧾 What is Constitutional Amendment?

A constitutional amendment is a formal change in the text of the Constitution made by the Parliament to:

Add new provisions,
Modify existing ones, or
Remove outdated provisions.

It reflects the Constitution’s flexibility and allows it to evolve with time.

🔹 Necessity of Amendment

🕒 To keep the Constitution updated with changing social, political, and economic conditions.
🏛️ To implement new policies or reforms (like GST, reservation policies, cooperative societies, etc.).
🧑‍⚖️ To clarify or correct judicial interpretations (like post-Kesavananda Bharati and Golaknath).
🛡️ To protect and expand Fundamental Rights (e.g., 86th Amendment for Right to Education).
🇮🇳 To strengthen federal structure (e.g., State Reorganisation Act, 1956).

📜 Article 368 – Procedure for Amendment

The power to amend the Constitution is provided under Article 368.

There are 3 Types (or Methods) of Amendments in India:

1️⃣ Amendment by Simple Majority of Parliament

✅ Not under Article 368.
Used for minor changes, like:
- Creation of new states
- Change in names or boundaries of states
- Admission of new states
- Salaries of MPs

🧠 Easy to pass – just like passing an ordinary law.

2️⃣ Amendment by Special Majority of Parliament [Article 368(2)]

Requires:
- Majority of total membership of each House AND
- 2/3 majority of the members present and voting

📝 Used for:

Amendment of Fundamental Rights
Amendment of Directive Principles
Amendment of Union and State relations (not affecting state consent)
Preamble, etc.

3️⃣ Amendment by Special Majority + Consent of Half the States [Article 368(2)]

First, passed by special majority in Parliament.
Then, ratified by at least 50% of state legislatures.

📝 Used for:

Election of President
Powers of Supreme Court and High Courts
Distribution of powers between Centre and States
Representation of states in Parliament

⚖️ Amendment of Fundamental Rights

📚 Can Fundamental Rights be Amended?

✅ Yes, they can — but not in a way that destroys their basic structure.

🔹 Important Case Laws:

1. Golaknath v. State of Punjab (1967)

Held that Fundamental Rights cannot be amended by Parliament under Article 368.
Viewed FRs as sacred and inviolable.

2. Kesavananda Bharati v. State of Kerala (1973)

Overruled Golaknath.
Held: Parliament can amend any part of the Constitution, including FRs,
BUT cannot destroy the "Basic Structure" (e.g., rule of law, separation of powers, FRs, etc.).

3. Minerva Mills v. Union of India (1980)

Reaffirmed that limited amending power exists.
Balance between Fundamental Rights and Directive Principles must be maintained.

✅ So in conclusion:

FRs can be amended, but:
- The basic structure must not be affected.
- Amendments must pass the special majority test.

📝 Summary Table for Revision

Type of Amendment	Procedure	Examples
Simple Majority	Like ordinary law	Formation of new states
Special Majority (Art. 368)	Total majority + 2/3 present & voting	Amend FRs, DPSPs, Preamble
Special Majority + Ratification by States	Plus 50% state approval	Supreme Court powers, federal structure

🧠 Quick Memory Aid:

"S-S-R" for 3 Types:

S = Simple Majority
S = Special Majority
R = Ratification by States

UNIT 4

📘 Basic Structure Theory – Explained

🧾 What is the Basic Structure Doctrine?

The Basic Structure Theory says that:

Parliament can amend any part of the Constitution, but it cannot alter or destroy its "basic structure".

It acts as a limitation on the Parliament’s amending power under Article 368.

⚖️ Origin: Kesavananda Bharati Case (1973)

This landmark judgment was delivered by a 13-judge bench of the Supreme Court.
The court held that:
- Parliament has wide powers to amend the Constitution.
- But it cannot damage or destroy the “basic structure” or essential features of the Constitution.
- If it does, the amendment is unconstitutional.

🧑‍⚖️ Why It Was Needed:

Before Kesavananda:

In Golaknath v. State of Punjab (1967), the SC said Parliament cannot amend Fundamental Rights.
To override Golaknath, Parliament passed the 24th Amendment (1971), giving itself power to amend any part of the Constitution, including Fundamental Rights.
This raised fears that Parliament might abuse its power.
So, the SC in Kesavananda Bharati drew a line: Parliament can amend, but not destroy the Constitution's core.

🧩 What Are the Basic Structure Elements?

The court didn’t define a fixed list, but over time, it has identified many features as part of the basic structure, including:

Basic Structure Components
Supremacy of the Constitution
Sovereign, secular, and democratic republic
Separation of powers
Rule of law
Judicial review
Free and fair elections
Federalism
Independence of the judiciary
Parliamentary system of government
Fundamental Rights (especially Part III)
Harmony between Fundamental Rights and Directive Principles
Unity and integrity of the nation

🧑‍⚖️ Important Cases Following Kesavananda:

Indira Nehru Gandhi v. Raj Narain (1975)
➤ SC struck down a law that removed judicial review of election disputes – said judicial review is part of basic structure.
Minerva Mills v. Union of India (1980)
➤ SC held that limited amending power and balance between FRs & DPSPs are part of the basic structure.
I.R. Coelho v. State of Tamil Nadu (2007)
➤ Any law placed in the 9th Schedule after 1973 is also subject to the basic structure test.

📝 Conclusion (What to Write in Exams)

The Basic Structure Doctrine is a judicial innovation to protect the core values of the Constitution.
It ensures that Parliament cannot convert democracy into dictatorship by misusing amendment powers.
This doctrine preserves the identity of the Constitution and is now a permanent part of Indian Constitutional Law.

🧠 Memory Trick – “SFR-JUPI” for Basic Structure

S – Supremacy of Constitution
F – Federalism
R – Rule of Law
J – Judicial Review
U – Unity of Nation
P – Parliamentary Democracy
I – Independence of Judiciary