In a democratic society governed by the rule of law, the ability of citizens to seek justice and safeguard their Fundamental Rights is paramount. The writ petition, a powerful legal tool, stands as a symbol of justice, accountability, and the protection of individual liberties within the ambit of the legal system.

This article tells you about the essence of writ petitions, exploring their significance and procedures. It sheds light on how writ petitions empower citizens to hold government bodies accountable, promote transparency, and ultimately contribute to upholding the rule of law and protecting the rights enshrined in the Constitution of India.

Related Law Note: 5 Types of Writs Under the Indian Constitution

What Is the Meaning of Writ Petition?

A writ petition is a formal written request addressed to a higher court, often the High Court or the Supreme Court, invoking its extraordinary jurisdiction to remedy Fundamental Rights violations or challenge government authorities’ actions, decisions, or policies.

It represents a cornerstone of the Indian legal system, providing a direct avenue for individuals, organizations, or entities to seek justice when their Fundamental Rights are threatened or when they seek redress against administrative actions that may be unlawful, arbitrary, or violative of constitutional principles.

The primary source of authority for writ petitions in India is the Constitution. The relevant articles are:

• Article 32 empowers individuals to directly approach the Supreme Court to enforce Fundamental Rights. The Supreme Court can issue writs for this purpose.
• Article 226: This grants High Courts the power to issue writs, orders, or directions for the enforcement of Fundamental Rights and any other purpose within their territorial jurisdiction.

Essentials of Filling Writ Petition

Filing a writ petition is a crucial legal process, often employed to protect Fundamental Rights and seek remedies from the courts. While the specific requirements may vary depending on the court and jurisdiction, here are nine general essentials to consider when filing a writ petition in India.

1. Grounds for Filing

Identify the grounds for filing the writ petition. This typically involves violating Fundamental Rights, statutory rights, or challenging administrative actions.

2. Jurisdiction

Determine the appropriate court with jurisdiction over your case. For issues related to Fundamental Rights, the Supreme Court or the High Court may have jurisdiction, depending on the specific rights involved.

3. Locus Standi

Ensure you have the legal or locus standi to file the writ petition. You must be personally affected by the issue or represent someone affected.

4. Verified Petition

The petition should typically be verified by an affidavit, which means the petitioner swears or affirms that the facts stated in the petition are true to their knowledge and belief.

5. Limitation Period

Be aware of the limitation for filing a writ petition. There are often specific time limits within which you must file the petition after the cause of action arises.

6. Fees and Court Fees

Pay the requisite court fees, if applicable. The fee structure varies depending on the court and the nature of the case.

7. Listing

After filing, the court will list the matter for hearing. Attend the hearings as required and comply with the court’s orders or directions.

8. Arguments

Prepare strong legal arguments to present before the court during hearings. Be ready to answer any queries or clarifications sought by the court.

9. Judgment

Await the judgment of the court. The court will issue necessary orders or directions if the writ petition is allowed.

Significance of Writ Petition

Their significance can be summarized as follows.

1. Protection of Fundamental Rights

One of the primary purposes of writ petitions is to protect and enforce Fundamental Rights guaranteed to citizens by the Constitution. Writs ensure that individuals are not deprived of their Fundamental Rights unlawfully or arbitrarily by the state or its agencies.

2. Check on Executive and Administrative Actions

Writs act as a check on the actions of the executive and administrative authorities. They allow individuals to challenge government decisions, orders, or actions perceived as arbitrary, unconstitutional, or ultra vires (beyond legal authority).

3. Swift Remedies

Writs provide a mechanism for seeking quick and efficient remedies. They are often heard on a priority basis, ensuring justice is not delayed, especially in cases where Fundamental Rights are at stake.

4. Protection of Minorities and Vulnerable Groups

Writs can be filed on behalf of minority groups, disadvantaged sections of society, or individuals who may not have the means to challenge state actions through traditional litigation. This promotes social justice and equality.

5. Environmental Protection

Public Interest Litigations (PILs), a form of writ petition, have been instrumental in addressing environmental issues, leading to landmark judgments favouring environmental conservation and sustainable development.

6. Transparency and Accountability

By allowing citizens to question government actions, writ petitions contribute to transparency and accountability in governance. They ensure that public authorities act within the confines of the law.

The Difference Between a Writ Petition and a Writ Appeal

A writ petition and a writ appeal are two distinct legal remedies used in India to seek judicial intervention through writs.

A writ petition is the initial legal action taken by an aggrieved party to approach a court, either the Supreme Court or a High Court, seeking the issuance of a writ to protect their rights, enforce the law, or challenge a governmental action. It is the first recourse to remedy a perceived injustice or violation of rights, typically invoking provisions like Article 32 (Supreme Court) or Article 226 (High Courts) of the Indian Constitution.

On the other hand, a writ appeal comes into play when a party is dissatisfied with the decision or order passed by a lower court or tribunal in a writ petition. In this case, the aggrieved party appeals to a higher court to review and potentially overturn the decision.

While both writ petitions and writ appeals involve writs like mandamus, certiorari, etc., they serve distinct stages in the legal process, with the petition initiating the proceedings and the appeal challenging or affirming the decisions made at lower levels.

Related Law Note: How to File a Writ Petition in Court in India

Meaning, Essentials, and Significance of Writ Petition
Suhani Dhariwal

The posts mentioned explicitly in the Constitution of India are known as constitutional posts. Constitutional posts are those whose formation is mandated by the Indian Constitution. The method of their appointment and removal is also mentioned.

The President has the authority to make various constitutional appointments under the Constitution. However, he only exercises this power on the recommendation of the Cabinet.

Posts such as President, Vice-President, Prime Minister, Governor and more are the Constitutional posts of India.

This law note talks about the appointment, oath and removal of the President, Vice President, Prime Minister, Governor, Chief Justice, Attorney General and Comptroller and Auditor General of India.

President

The President is the head of India. The executive power of the Union is vested in the President. The President exercises his executive power as per the Constitution of India or through officers subordinate to him. The appointment, oath and removal of the President are as follows.

Appointment

The President of India is appointed via election, but the people do not directly elect him. According to Article 54 of the Constitution of India, the President is elected by the Electoral College.

The Electoral College consists of the elected members of both Houses of Parliament, i.e., Lok Sabha and Rajya Sabha, and the elected members of the Legislative Assemblies of the state. Further, the nominated members of the Houses of Parliament and Legislative Assemblies do not have voting rights in the election of the President.

Qualifications

Article 58 of the Indian Constitution provides for the qualification of the President of India. The qualifications that a person must possess to be elected to the office of President of India are:

1. He must be a citizen of India.
2. He must have completed the age of 35 years.
3. He must be qualified for election as a House of the People member.
4. He must not hold any office of profit under the Government of India or the Government of any state or any local or other authority in control of any of the said Governments.

Oath by the President

An oath of office is an affirmation or commitment a person takes before undertaking the duties of a particular position. As given under Article 60 of the Indian Constitution, the President has to take an oath or affirmation before entering his office. The President takes oath in the presence of the Chief Justice of India and, in his absence, in the presence of the senior-most Judge of the Supreme Court.

Impeachment of the President

Article 61 of the Indian Constitution provides the procedure for removing the President from his office. The President can be removed from his office by impeachment for violating the provisions of the Indian Constitution. The charge for impeachment against him must be initiated by either House of Parliament.

Further, the charge must be in the form of a proposal contained in a resolution signed by not less than 1/4th of the total number of the House members, and it must be moved after a 14-day prior notice is given. Such a resolution must be passed by a majority of at least 2/3rd of the total membership of the House. The other House then investigates the charge. In such an investigation, the President has the right to appear and be represented. After the investigation, if the other House passes a resolution by a 2/3rd majority declaring that the charge is proven, the President will be removed from office as of the day the resolution is passed.

Vice-President

The Vice-President has the second-highest position in the country. He is the ex-officio chairman of the Rajya Sabha. The appointment, oath and removal of the Vice-President are as follows.

Appointment

The provision related to the appointment of the Vice President is given under Article 66 of the Constitution of India. Accordingly, the Vice President is elected indirectly by an Electoral College rather than through a direct election. The Vice President is chosen by secret ballot by members of both Houses of Parliament in a joint session, using a proportional representation system with a single transferable vote.

Further, the Vice President should not be a member of the Lok Sabha or any state’s House of Legislature if a member of either House of Parliament or a State Legislature is elected as Vice President. In such a case, he is regarded as having relinquished his position in that House on the day he assumes office as Vice President.

Qualifications

Article 66 of the Indian Constitution provides for the qualification of the Vice-President of India. The qualifications which a person must possess for being elected to the office of Vice-President of India are:

1. He must be a citizen of India.
2. He must have completed the age of 35 years.
3. He must be qualified for election as a member of the Council of States, i.e. Rajya Sabha
4. He must not hold any office of profit under the Government of India or the Government of any state or any local or other authority in control of any of the said Governments.

Oath by the Vice-President

Article 69 of the Constitution of India states that the Vice President has to take an oath or affirmation before entering his office. The President administers the oath of office and secrecy to the Vice President. In his absence, the person appointed by him on his behalf administers the oath to the Vice President.

Removal of the Vice-President

Article 67(b) of the Indian Constitution provides for removing the Vice President from his office. Accordingly, the Vice President can be dismissed by a Rajya Sabha resolution voted by an effective majority (majority of all members at the time) and approved by the Lok Sabha with a simple majority. However, no such resolution may be introduced until at least 14 days prior notice has been given.

Prime Minister

The Prime Minister is the head of the government of India. Although the President is the constitutional head of the state, all the executive power is vested in the Prime Minister and the Council of Ministers chosen by him. The appointment, oath and removal of the Prime Minister are as follows.

Appointment

As provided by Article 75 of the Constitution of India, the President appoints the Prime Minister. The President can barely use his discretion in appointing the Prime Minister because we have embraced English conventions. The Prime Minister can be chosen from the Lok Sabha or the Rajya Sabha members. If he is not a member of either House, he must be elected to either House of Parliament within six months of his appointment.

Oath by the Prime Minister

Article 75 of the Constitution of India states that the Prime Minister must take an oath or affirmation before entering his office. The President administers the oath of office and confidentiality to the Prime Minister in accordance with the forms prescribed in the Third Schedule for this purpose.

Governor

The Governor is the executive head of the state and the executive power is vested in him. However, the real power lies with the Chief Minister of the states and his Council of Ministers. He can exercise his executive power directly or indirectly through his subordinate officers. The appointment, oath and removal of the Governor are as follows.

Appointment

Article 155 of the Constitution of India provides for the appointment of the Governor. Accordingly, the Governor of the state is appointed by the President. He is not directly elected by the people or indirectly elected by a specially formed Electoral College, as is the case with the President. He is the central government’s choice.

Qualifications

According to Article 157 of the Indian Constitution, a person to be appointed as the Governor of the state must possess the following qualifications:

1. He must be a citizen of India.
2. He must have completed the age of 35 years.

Oath by the Governor

Article 159 of the Constitution of India states that the Governor must take an oath or affirmation before entering his office. The Governor is required to take an oath before entering his office in the presence of the Chief Justice of the High Court or, in the absence of the Chief Justice of the High Court, in the presence of the seniormost Judge of the High Court.

Removal of the Governor

The President can remove the Governor from his office, and the Cabinet has the power to advise the President in this regard. However, the Governor can also resign by writing to the President. Governors cannot be dismissed arbitrarily because the Central Government has lost confidence in them or because the Governor disagrees with their policies and ideology.

Chief Justice

The Chief Justice of India is the highest-ranking officer of the Indian federal judiciary and the Chief Judge of the Supreme Court of India. The appointment, oath and removal of the Chief Justice of India from his office are as follows.

Appointment

The Chief Justice shall be appointed amongst the senior-most judges of the Supreme Court who are considered qualified to hold the position.

Further, according to Article 126 of the Constitution of India, when the office of Chief Justice is vacated, or when the Chief Justice is unable to fulfil the responsibilities of his office due to absence or otherwise, the President may appoint one of the other judges of the court to fill the vacancy (Acting Chief Justice). In short, the Chief Justice of India is appointed by the President of India.

Oath by the Chief Justice

The Chief Justice has to take an oath or affirmation before entering his office. The President administers the oath of office to the Chief Justice.

Removal of the Chief Justice

Article 124(4) of the Constitution of India sets out the procedure for removing a Supreme Court judge, which also applies to Chief Justices. Once designated, the Chief Justice serves until he reaches the age of 65 or six years, whichever comes first. However, the Chief Justice may resign by writing to the President.

Further, the President can also remove the Chief Justice from his office for proven misbehaviour or incapacity. The President’s order can only be passed after it has been addressed to both Houses of Parliament in the same session. The address must be supported by a majority of the total membership of the Houses and by a majority of not less than two-thirds of the members of the Houses present and voting.

Attorney General

The Attorney General of India is the chief legal advisor of the government of India and advises the Union Government on all legal matters. The Attorney General is the government’s primary advocate before the Supreme Court. According to Article 76 of the Indian Constitution, he is the highest law officer in India. The appointment, oath and removal of the Attorney General of India are as follows.

Appointment

The President appoints the Attorney General of India. The person appointed as the Attorney General must be qualified to be appointed as a Judge of the Supreme Court. As the President appoints him, he holds his office at the pleasure of the President.

Qualifications

The qualifications which a person must possess to be elected as Attorney General of India are:

1. He must be a citizen of India.
2. He must have served as a judge in the High Court of any Indian state for five years or as an attorney for ten years.
3. He must also be an eminent jurist in the opinion of the President.

Oath by the Attorney General

Although the Constitution of India does not contain a provision related to the oath of the Attorney General, the President administers the oath or affirmation to the Attorney General of India.

Removal of the Attorney General

The Constitution of India does not provide the procedure or grounds for removing the Attorney General. However, the President can remove him at any time. The Attorney General can also resign from his office by writing to the President of India.

Comptroller and Auditor General

The Comptroller and Auditor General of India is responsible for auditing the national and state government’s receipts and expenditures. He is popularly known as CAG. He is also known as the “Guardian of the Public Purse.” The appointment, oath and removal of the CAG are as follows.

Appointment

The President of India appoints the Comptroller and Auditor General of India. He serves or maintains his office for a period of six years or till he attains the age of 65 years, whichever comes first.

Oath by the CAG

The Comptroller and Auditor General of India must take an oath or affirmation before entering his office. The President of India administers the oath to the CAG.

Removal of the CAG

The President can dismiss the CAG from his position in the same manner a Supreme Court judge is removed. He can be removed on proven misbehaviour and incapacity. Accordingly, the President’s order related to the removal of the CAG can only be passed after it has been addressed to both Houses of Parliament in the same session. The address must be supported by a majority of the total membership of the Houses as well as by a majority of not less than two-thirds of the members of the Houses present and voting.

Appointment, Oath, and Removal of Constitutional Posts in India
Subhashini Parihar

Law and society operate hand-in-hand. If society’s needs and opinions change, the law needs to change. Therefore, a provision for amending the Indian Constitution has been made to overcome the difficulties that may be encountered in the future in the Constitution’s workings.

The Constitution of India is neither flexible nor rigid — it is a mixture of both. According to Article 368 of Part XX, the Parliament can amend it, keeping in mind that the Constitution’s ‘basic structure’ does not change.

Several amendments have been made to it to date. This article covers the important parts of all the amendments made to the Indian Constitution from 1951 till today.

1. The Constitution (First Amendment) Act, 1951

The Constitution (First Amendment) Act, 1951, was proposed by Jawaharlal Nehru, the then Prime Minister of India, on May 10, 1951. On June 18, 1951, the Indian Parliament passed it.

The 1st Amendment has amended Articles 15, 19, 85, 87, 174, 176, 341, 342 and 376. It also inserted the 9th Schedule and two new Articles, i.e., Articles 31A and 31B, into the Indian Constitution. A book titled “Sixteen Stormy Days” was written by Tripurdaman Singh and is about the Constitution (First Amendment) Act, 1951.

2. The Constitution (Second Amendment) Act, 1952

Article 81(1)(b) of the Constitution of India, which dealt with the representation of states in Parliament, was amended under the Second Amendment.

3. The Constitution (Third Amendment) Act, 1954

The Constitution (Third Amendment) Act, passed in 1954, amended Entry 33 of the Concurrent List and expanded its scope. Parliament brought this amendment because the country’s food situation was difficult, and essential commodities were in short supply.

4. The Constitution (Fourth Amendment) Act, 1955

This amendment clarified the difference between clauses (1) and (2) of Article 31 and amended Article 31(2) of the Constitution of India.

According to the amended provision, the compensation was only payable in the event of compulsory acquisition. It also broadened the scope of Article 31A and included more statuses in the 9th Schedule of the Constitution. Further, it also amended Article 305 of the Indian Constitution.

5. The Constitution (Fifth Amendment) Act, 1955

Under this amendment, Article 3 of the Constitution of India was amended. The amended Article provided a time limit within which the states had to express their views on the Bill. If they failed to express their views within the specified time, the Bill could be passed by the Parliament.

6. The Constitution (Sixth Amendment) Act, 1956

The 6th Amendment made changes in Seventh Schedule Entry 92 of List I and Entry 54 of List II of the Indian Constitution. It also added clause (3) to Article 286 of the Constitution of India, restricting the state’s power to tax important goods or commodities in inter-state trade.

7. The Constitution (Seventh Amendment) Act, 1956

The 7th Amendment has amended Articles 1, 80, 81, 82, 131, 170, 171, 216, 220, 224, 230, 232, 239, 240, 298, 371, the 1st Schedule and the 4th Schedule of the Constitution. Also, it inserted new Articles 285A, 290A, 350A, 350B, 372A and 378A.

8. The Constitution (Eighth Amendment) Act, 1960

This amendment amended Article 334 of the Constitution of India and extended the reservation period of seats in the Legislatures for Scheduled Castes (SCs), Scheduled Tribes (STs) and Anglo-Indians from 10 years to 20 years.

9. The Constitution (Ninth Amendment) Act, 1960

The 9th Amendment redefined the boundary of the state of West Bengal and made necessary changes to the 1st Schedule. It gave Pakistan control of the Indian region of Berubari, which is located in West Bengal, in accordance with the Indo-Pakistan Agreement.

10. The Constitution (Tenth Amendment) Act, 1961

With retroactive effect, this amendment expanded the list of Union Territories in the 1st Schedule of the Indian Constitution to include two new territories of Dadra and Nagar Haveli.

11. The Constitution (Eleventh Amendment) Act, 1961

A new clause (4) was added to Article 71 of the Indian Constitution. The 11th Amendment made it explicit that no vacancy in the electoral college, as mentioned in Articles 54 and 55 of the Constitution, may be used to challenge the election of the President or the Vice President.

12. The Constitution (Twelfth Amendment) Act, 1962

This amendment added the territories of Goa, Daman and Diu as a Union Territory in the 1st Schedule.

13. The Constitution (Thirteenth Amendment) Act, 1962

Article 371A was added to the Constitution of India through this amendment. Through this amendment, Nagaland acquired the status of a state, and Article 371A consists of special provisions for Nagaland.

14. The Constitution (Fourteenth Amendment) Act, 1962

This amendment added the territory of Pondicherry as a Union Territory in the 1st Schedule of the Indian Constitution. It also amended Article 240 and inserted a new Article, i.e., Article 239A, into the Constitution.

15. The Constitution (Fifteenth Amendment) Act, 1963

This amendment amended Article 217 of the Constitution of India and increased the retirement age of the High Court judge from 60 to 62. Articles 124, 128, 217 (3), 222, 299, 311 (2), 316, and the 7th Schedule were also amended under the 15th Amendment. This amendment also inserted a new Article, i.e., Article 224A, and a new clause (1A) into Article 226 of the Constitution of India.

16. The Constitution (Sixteenth Amendment) Act, 1963

The 16th Amendment has amended clauses (2), (3) and (4) of Article 19. It also amended Articles 84, 173 and the 3rd Schedule.

17. The Constitution (Seventeenth Amendment) Act, 1964

The scope of Article 31A of the Indian Constitution was broadened by the 17th Amendment. This amendment also added 44 new Acts to the 9th Schedule of the Constitution of India.

18. The Constitution (Eighteenth Amendment) Act, 1966

The scope of Article 3 of the Indian Constitution was broadened by the 18th Amendment.

19. The Constitution (Nineteenth Amendment) Act, 1966

This amendment amended Article 324 of the Constitution, and the Election Commission could no longer appoint election tribunals to resolve election disputes between the members of Parliament and the State Legislature.

20. The Constitution (Twentieth Amendment) Act, 1966

The 20th Amendment inserted a new Article 233A into the Constitution of India and validated district judges’ appointments, postings, promotions, transfers, and judgments.

21. The Constitution (Twenty-first Amendment) Act, 1967

The 21st Amendment amended the 8th Schedule of the Indian Constitution and recognised “Sindhi” as a constitutionally recognised language in India.

22. The Constitution (Twenty-second Amendment) Act, 1969

The 22nd Amendment inserted two new Articles to the Constitution of India, i.e., Articles 244A and 371B. It also added a new clause (1A) to Article 275(1) of the Constitution.

23. The Constitution (Twenty-third Amendment) Act, 1969

This amendment amended Article 334 of the Indian Constitution and extended the reservation period for the Scheduled Castes and Scheduled Tribes for a further period of ten years, i.e. 1980.

24. The Constitution (Twenty-fourth Amendment) Act, 1971

This amendment reversed the judgment of Golaknath’s case. According to the 24th Amendment, the Parliament has the power to amend the Fundamental Rights of any part of the Constitution. Under Article 368, the Parliament can alter or amend any provision of the Constitution.

25. The Constitution (Twenty-fifth Amendment) Act, 1971

This amendment amended clause (2) of Article 31 and inserted a new clause (2A) into Article 31 of the Indian Constitution. It also inserted a new Article 31C into the Constitution of India.

26. The Constitution (Twenty-sixth Amendment) Act, 1971

The 26th Amendment omitted Articles 291 and 362 from the Indian Constitution. Further, a new Article, i.e. Article 363A, was added to the Indian Constitution.

27. The Constitution (Twenty-seventh Amendment) Act, 1971

This amendment amended Articles 239A and 240. And two new Articles, i.e. Article 239B and Article 371C, were inserted into the Indian Constitution.

28. The Constitution (Twenty-eighth Amendment) Act, 1972

A new Article, i.e. Article 312A, was inserted, and an existing Article, i.e. Article 314, was repealed by this amendment of the Indian Constitution.

29. The Constitution (Twenty-ninth Amendment) Act, 1972

The 29th Amendment has inserted two Kerala Land Reform Acts in the 9th Schedule of the Constitution of India.

30. The Constitution (Thirtieth Amendment) Act, 1972

The 30th Amendment of the Constitution amended Article 133 of the Indian Constitution. It changed the value criteria used to determine the basis for appeals in Supreme Court of India cases involving civil litigation to one involving a significant legal matter.

31. The Constitution (Thirty-first Amendment) Act, 1973

The 31st Amendment amended Article 81(1) of the Indian Constitution and increased the strength of the Lok Sabha from 525 to 545.

32. The Constitution (Thirty-second Amendment) Act,1973

The 32nd Amendment amended Article 371 and inserted two new Articles: Article 371D and Article 371E, into the Indian Constitution. It also amended the 7th Schedule.

33. The Constitution (Thirty-third Amendment) Act, 1974

The 33rd Amendment has amended Articles 101 and 190 of the Indian Constitution. The amendment outlined the process for state legislators to resign and the procedure for the house speaker to confirm and accept a resignation.

34. The Constitution (Thirty-fourth Amendment) Act, 1974

This amendment amended the 9th Schedule of the Constitution for the fourth time. It added 20 State Land Reforms Acts to the 9th Schedule.

35. The Constitution (Thirty-fifth Amendment) Act, 1974

This amendment added Article 2A to the Indian Constitution whereby ‘Sikkim’ got the status of an ‘Associate State’.

It also inserted the 10th Schedule to the Indian Constitution. Note: The 10th Schedule was inserted by the 35th Amendment Act and omitted by the 36th Amendment Act, and, then again inserted by the 52nd Amendment Act (Anti-deflection Law).

36. The Constitution (Thirty-sixth Amendment) Act, 1975

‘Sikkim’ became the full-fledged State of the Indian Union by this amendment. The 36th Amendment has amended the 1st Schedule of the Indian Constitution and included ‘Sikkim’ as the 22nd State of India. It also amended the 4th Schedule of the Constitution. A new Article 371F was also inserted into the Constitution of India through this amendment.

Further, Article 2A and the 10th Schedule, which was added to the Constitution by the 35th Amendment, were repealed.

37. The Constitution (Thirty-seventh Amendment) Act, 1975

The 37th Amendment has amended Articles 239A and 240 of the Indian Constitution. This amendment provided for the formation of a legislative assembly for Arunachal Pradesh.

38. The Constitution (Thirty-eighth Amendment) Act, 1975

This amendment has amended Articles 123, 213, 239B, 352, 356, 359 and 360 of the Indian Constitution. This amendment expanded the President’s and the Governor’s authority to enact ordinances.

39. The Constitution (Thirty-ninth Amendment) Act, 1975

The 39th Amendment of the Constitution has added a new Article 329A to the Indian Constitution. It also added some Central and State Laws in the 9th Schedule of the Constitution of India.

40. The Constitution (Fortieth Amendment) Act, 1976

The 40th Amendment has amended the 9th Schedule of the Constitution of India. Consequently, 64 new Central and State Land Reforms Laws are in the Schedule.

41. The Constitution (Forty-first Amendment) Act, 1976

This amendment amended the 5th Schedule of the Indian Constitution, and the retirement age of the Chairman and Members of the State Public Service Commissions was increased from 60 to 62 years.

42. The Constitution (Forty-second Amendment) Act, 1976

The 42nd Amendment Act is often regarded as the mini Constitution of India. It inserted two new Parts to the Constitution of India, i.e., Part IVA and Part XIVA.

• Part IV-A consists of one Article: Article 51A.
• Part XIV-A consists of two Articles: Articles 323A and 323B.

It added eleven Articles to the Indian Constitution- Articles 31D, 32A, 39A, 43A, 48A, 131A, 139A, 144A, 226A, 228A and 257A. It also substituted 36 Articles from the Constitution.

This amendment significantly changed the Indian Constitution’s Preamble by adding the words SOCIALIST, SECULAR, and INTEGRITY. It also amended Articles 31A and 39(f).

It further amended Articles 55, 81, 82, 170, 311, 312, 330, 332, 352, 353, 356, 357, 358, and 359 of the Constitution. It also amended Article 74, which made the President bound by the advice of the Council of Ministers.

Some important changes were made to the judiciary by the forty-second amendment. It added six new Articles: Articles 32A, 131A, 139A, 144A, 226A and 228A. It also amended four Articles: Article 145, 225, 227 and 228 of the Constitution of India.

It also added two new clauses (4) and (5) to Article 368 of the Indian Constitution.

43. The Constitution (Forty-third Amendment) Act, 1977

This amendment basically amended the 42nd Amendment Act. It omitted Articles 31D, 32A, 131A, 144A, 226A and 228A of the Constitution of India. And, Articles 145, 226, 228 and 366 were amended.

44. The Constitution (Forty-fourth Amendment) Act, 1978

The 44th Amendment has amended Articles 22, 74, 83, 103, 118, 172, 192, and 371F of the Indian Constitution. And, the Articles 18, 19, 21, 25, 31, 32, 34, 35, 54, 59, 132(2), 217(2)(c), 329-A, 352, 356, 358, 359, and 360 of the Constitution were omitted. This amendment included specific new Articles to the Indian Constitution, i.e. Articles 300A, 361A, 134A and 139A.

Additionally, it amended Articles 123, 213, and 239B of the Indian Constitution by adding a clause (4). Articles 19(1)(f), 31 and 257A of the Constitution were repealed.

45. The Constitution (Forty-fifth Amendment) Act, 1980

The 45th Amendment has amended Article 334 and extended the reservation period of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and the State Assemblies from 30 to 40 years.

46. The Constitution (Forty-sixth Amendment) Act, 1982

This amendment has amended Articles 269, 286, 286(3), and 366 of the Constitution. It also inserted a new entry, 92B, in List I of the 7th Schedule of the Indian Constitution.

47. The Constitution (Forty-seventh Amendment) Act, 1984

The 47th Amendment has added 14 State Land Reform Acts in the 9th Schedule of the Constitution of India.

48. The Constitution (Forty-eighth Amendment) Act, 1984

The 48th Amendment has amended clause (5) of Article 356 of the Indian Constitution.

49. The Constitution (Forty-ninth Amendment) Act, 1984

The 49th Amendment has amended Article 244, the 5th Schedule and the 6th Schedule of the Indian Constitution. Tripura was recognised as a tribal state by the 49th Amendment.

50. The Constitution (Fiftieth Amendment) Act, 1984

The 50th Amendment to the Constitution amended Article 33 of the Indian Constitution.

51. The Constitution (Fifty-first Amendment) Act, 1984

This amendment has amended Articles 330 and 332 of the Constitution of India. It was also outlined that reservations for Scheduled Tribes should be made in Lok Sabha for Nagaland, Meghalaya, Mizoram, and Arunachal Pradesh, as well as in the legislative assemblies of Meghalaya and Arunachal.

52. The Constitution (Fifty-second Amendment) Act, 1985

The 52nd Amendment Act has amended Articles 101, 102, 190, and 191 and added the 10th Schedule to the Constitution of India. The 10th Schedule is known as the Anti-Defection Law.

53. The Constitution (Fifty-third Amendment) Act, 1986

The 53rd Amendment Act has inserted a new Article 371G and conferred the statehood to the Union Territory of Mizoram as the 23rd State of India.

54. The Constitution (Fifty-fourth Amendment) Act, 1986

Part D of the 2nd Schedule of the Constitution of India was amended by the 54th Amendment. It has also amended Articles 125 and 221 of the Constitution. And, the salary of CJI and other judges was increased.

55. The Constitution (Fifty-fifth Amendment) Act, 1986

The 55th Amendment Act has conferred statehood to the Union Territory of Arunachal as the 24th State of India. It added a new Article, i.e., Article 371H, to the Indian Constitution.

56. The Constitution (Fifty-sixth Amendment) Act, 1987

The 56th Amendment has added a new Article 371(I) to the Indian Constitution. It contains special provisions related to the State of Goa.

57. The Constitution (Fifty-seventh Amendment) Act, 1987

This amendment has amended Article 332 of the Indian Constitution and provided the provision for the reservation of seats for the Scheduled Tribes in the States of Arunachal, Meghalaya, Mizoram and Nagaland.

58. The Constitution (Fifty-eighth Amendment) Act, 1987

The 58th Amendment has provided the people of India with an authoritative text of the Constitution in the Hindi version.

59. The Constitution (Fifty-ninth Amendment) Act, 1988

Though the 63rd Amendment of the Constitution was repealed, this amendment amended Articles 352, 356, 358 and 359.

60. The Constitution (Sixtieth Amendment) Act, 1988

The 60th Constitution of India amended clause (2) of Article 276.

61. The Constitution (Sixty-first Amendment) Act, 1988

Article 326 of the Constitution of India was amended under this amendment. And, consequently, the voting age was reduced from 21 to 18 years in India.

62. The Constitution (Sixty-second Amendment) Act, 1989

The 62nd amendment has amended Article 334 of the Indian Constitution and extended the reservation of seats for SCs and STs in the Central and State Legislative Assemblies from 40 years to 50 years.

63. The Constitution (Sixty-third Amendment) Act, 1989

The 63rd Amendment Act has repealed the provisions of the 59th Amendment Act.

64. The Constitution (Sixty-fourth Amendment) Act, 1990

This amendment has amended clauses (4) and (5) of Article 356 of the Indian Constitution.

65. The Constitution (Sixty-fifth Amendment) Act, 1990

Article 338 was amended under the 65th Amendment of the Indian Constitution. The Constitution (Sixty-Fifth Amendment) Act, 1990, established the National Commission for Scheduled Castes and Scheduled Tribes and set forth its statutory authority.

66. The Constitution (Sixty-sixth Amendment) Act, 1990

The 66th Amendment has amended the 9th Schedule and inserted 55 more Land Reform Acts of various States into it.

67. The Constitution (Sixty-seventh Amendment) Act, 1990

Clause (4) of Article 356 was amended under this Constitution, and the period for Presidential rule or State Emergency was increased for a further period of 6 months.

68. The Constitution (Sixty-eighth Amendment) Act, 1991

The amendment has again amended Article 356(4), and the Presidential rule was increased from the period of 4 years to 5 years.

69. The Constitution (Sixty-ninth Amendment) Act, 1991

Two new Articles were added to the Constitution of India in the year 1991 through the 69th Amendment Act. Those Articles were Article 239AA and Article 239AB.

70. The Constitution (Seventieth Amendment) Act, 1992

This amendment has amended Article 54 of the Indian Constitution and stated that the word ‘state’ in this Article will also include the National Capital Territory of Delhi and the Union Territory of Pondicherry.

71. The Constitution (Seventy-first Amendment) Act, 1992

By the 71st Amendment, three more languages, i.e. Manipura, Nepali and Konkani, were recognised as official languages of India, and this was accomplished by amending the 8th Schedule of the Constitution of India.

72. The Constitution (Seventy-second Amendment) Act, 1992

This amendment added a new clause (3B) to Article 332 of the Constitution and increased the number of seats for the Scheduled Tribes in Tripura’s Legislative Assembly.

73. The Constitution (Seventy-third Amendment) Act, 1992

This amendment inserted Part IX in the Constitution of India to deal with the Panchayati Raj System. The Part consists of sixteen new Articles and the 11th Schedule.

74. The Constitution (Seventy-fourth Amendment) Act, 1992

Part IXA, related to Municipalities, was added to the Indian Constitution by the 74th Amendment. The Part consists of eighteen new Articles and the 12th Schedule.

75. The Constitution (Seventy-fifth Amendment) Act, 1993

This amendment provided for the establishment of tribunals to regulate and manage tenancy issues. Subsequently, clause (h) was added to Article 323B of the Constitution of India.

76. The Constitution (Seventy-sixth Amendment) Act, 1994

The 9th Schedule of the Constitution was amended by the 76th Amendment Act, which raised the number of seats for backward classes in jobs and educational institutions.

77. The Constitution (Seventy-seventh Amendment) Act, 1995

This amendment added clause (4A) in Article 16 of the Constitution for the reservations of SCs and STs in government jobs.

78. The Constitution (Seventy-eighth Amendment) Act, 1995

The 78th Amendment amended the 9th Schedule of the Indian Constitution. It added 27 Land Reform Acts in certain states in it.

79. The Constitution (Seventy-ninth Amendment) Act, 1999

The reservation of seats for SCs, STs and Anglo-Indians in the Lok Sabha and the State Legislative Assemblies was increased from 50 to 60 years by amending Article 334 under the 79th Amendment Act.

80. The Constitution (Eightieth Amendment) Act, 2000

The 80th Amendment has amended Articles 269 and 270 and omitted Article 272 of the Indian Constitution.

81. The Constitution (Eighty-first Amendment) Act, 2000

This amendment inserted clause (4B) into Article 16 of the Constitution and ended the 50% ceiling for reservation of SCs, STs, and other backward classes. Parliament made a carry-forward rule of backlog vacancies for SCs and STs in India through this amendment.

82. The Constitution (Eighty-second Amendment) Act, 2000

The 82nd Amendment has amended Article 335 of the Indian Constitution and allowed the relaxation in qualifying marks and standards of evaluation in job reservation and promotion of SCs and STs.

83. The Constitution (Eighty-third Amendment) Act, 2000

By the 83rd Amendment, Article 243M of the Constitution of India was amended. It also added a new clause (3A), which exempted Arunachal Pradesh from the application of Article 243D of the Constitution.

84. The Constitution (Eighty-fourth Amendment) Act, 2001

Certain Articles of the Indian Constitution were amended under the 84th Amendment. These Articles are 55, 81, 82, 170, 330, and 332.

85. The Constitution (Eighty-fifth Amendment) Act, 2001

This amendment amended clause (4A) of Article 16 of the Constitution.

86. The Constitution (Eighty-sixth Amendment) Act, 2002

By the 86th Amendment, a new Article was added to the Indian Constitution. The newly added Article 21A provided the right to education for children aged 6 to 14 years. It also inserted a new Fundamental Duty into Part IV-A of the Constitution of India.

87. The Constitution (Eighty-seventh Amendment) Act, 2003

The 87th Amendment has amended Articles 81(3)(ii), 170(2), 170(3)(ii) and 230 of the Constitution of India.

88. The Constitution (Eighty-eighth Amendment) Act, 2003

This amendment added a new Article 268A and amended Article 270 of the Constitution of India. Through this amendment, the Union of India can levy service tax. Also, a new entry was inserted into the 7th Schedule through the 88th Amendment, i.e., entry 92C related to tax on service.

89. The Constitution (Eighty-ninth Amendment) Act, 2003

It amended Article 338 and inserted Article 338A into the Constitution. The Amendment provided for the separate establishment of National Commissions for the SCs and STs. It means a separate Commission for SCs and a separate Commission for STs.

90. The Constitution (Ninetieth Amendment) Act, 2003

This amendment has amended a new clause (6) to Article 332 of the Indian Constitution.

91. The Constitution (Ninety-first Amendment) Act, 2003

Two new clauses were inserted into Articles 75 and 164 by the 91st Amendment to the Constitution, i.e., clause (1A) and clause (1B). It omitted the 3rd paragraph of the 10th Schedule and added a new Article 361B in Part XIX of the Indian Constitution.

92. The Constitution (Ninety-second Amendment) Act, 2003

By the 71st Amendment, four new languages, i.e. Bodo, Dogri, Maithili and Santhali, were recognised as official languages of India, accomplished by amending the 8th Schedule of the Constitution of India.

93. The Constitution (Ninety-third Amendment) Act, 2005

Clause (5) was added to Article 15 of the Constitution by this amendment. Article 15 was amended to facilitate the establishment of a reservation (27%) for members of the Other Backward Class (OBC) in both public and private educational institutions.

94. The Constitution (Ninety-fourth Amendment) Act, 2006

This amendment has amended Article 164(1) and substituted the word ‘Bihar’ with the words ‘Chattisgarh and Jharkhand’.

95. The Constitution (Ninety-fifth Amendment) Act, 2009

The reservation of seats for SCs, STs and Anglo-Indians in the Lok Sabha and the State Legislative Assemblies was increased from 60 to 70 years by amending Article 334 under the 95th Amendment Act.

96. The Constitution (Ninety-sixth Amendment) Act, 2011

This amendment has amended the 8th Schedule of the Constitution and substituted the word ‘Oriya’ with ‘Odiya’.

97. The Constitution (Ninety-seventh Amendment) Act, 2011

It inserted Article 43B as a Directive Principle of State Policy. It amended Article 19(1)(c) and also added Part IX-B with 13 Articles in it. The amendment gave constitutional status to cooperative societies.

98. The Constitution (Ninety-eighth Amendment) Act, 2012

The 98th Amendment Act has added a new Article 371J to the Constitution of India.

99. The Constitution (Ninety-ninth Amendment) Act, 2014

It amended Articles 124(2), 127(1), 128, 217(1), 222(1), 224, 224A and 231. It also inserted Articles 124A, 124B and 124C into the Indian Constitution. Further, it omitted Article 231(2)(a) of the Constitution.

100. The Constitution (One-Hundredth Amendment) Act, 2015

The 100th Amendment Act amended the 1st Schedule of the Indian Constitution. Consequently, Bangladesh has acquired certain territories of India.

101. The Constitution (One Hundred and First Amendment) Act, 2016

The 101st Amendment Act added Articles 246A, 269A, 270(1A), 270(1B) and 279A to the Indian Constitution. GST was imposed in India by this amendment. It further omitted Articles 268A and 286(3) of the Constitution.

It also amended Articles 248(1), 249(1), 250(1), 268(1), 269(1), 270(1), 271, 286(2) and 368(2) of the Indian Constitution. This amendment also amended the 8th Schedule and the 7th Schedule of the Constitution.

102. The Constitution (One Hundred and Second Amendment) Act, 2018

The 102nd Amendment Act has amended Article 366 and added Articles 338B and 342A to the Constitution of India. The National Commission for Backward Classes acquired constitutional status through this amendment.

103. The Constitution (One Hundred and Third Amendment) Act, 2019

The 103rd Amendment Act added clause 6 in Articles 15 and 16, respectively. To the economically weaker sections (EWS) who are not already a reserved category under the SC, ST, and socially and economically backward classes, the amendment offers a 10% reservation in government jobs and colleges.

104. The Constitution (One Hundred and Fourth Amendment) Act, 2019

The 104th Amendment has extended the period of reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and state assemblies from 70 to 80 years, thus keeping it intact for the next 10 years.

However, this amendment did not extend (and thus removed) the Indian President’s power to nominate 2 members of the Anglo-Indian community to the Lok Sabha and State Legislative Assemblies.

Read Article 334 to understand more.

105. The Constitution (One Hundred and Fifth Amendment) Act, 2021

Article 342A of the Constitution is amended by the 105th Constitutional Amendment Act. It restored the President’s power to designate the socially and educationally disadvantaged classes in the Centre List of the Central Government.

106. The Constitution (One Hundred and Sixth Amendment) Act, 2023

The 106th Indian Constitutional Amendment Act’s motto is to allocate 33 per cent of seats in the directly elected Lok Sabha and state legislative assemblies for women. It received the assent of the President of India, Smt Droupadi Murmu, on 28 September 2023.

The provisions of this new amendment will come into effect when the central government notifies about it.

You can read the full and official 106th Amendment Act PDF here.

Get Full and Updated Constitution PDF

All 106 Amendments of the Indian Constitution Briefly Explained
Subhashini Parihar

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”- George Orwell

Yuval Noah Harari mentions in his book Sapiens that humans rose to the top of the chain quickly because they could tell each other believable stories. We could communicate and spread our ideas, and this communication resulted in what Harari calls ‘flexible cooperation.’

Speech and expression appear to have played a massive role in the journey of humankind. It is, therefore, no coincidence that democracies guarantee freedom of speech and expression to their populace.

In one of its judgements, the US Supreme Court, highlighting the need for different opinions, said that “Compulsory unification of opinion achieves only the unanimity of the graveyard.”

The entire idea behind free speech is that the consent of the governed is never muzzled by the State and that authority must be controlled by opinions and not opinions by authority.

Thus, for obvious reasons, freedom of speech and expression was conferred upon the Indian citizens as a Fundamental Right under Article 19(1)(a) of the Indian Constitution. It guaranteed freedom of speech and expression under Article 19(1)(a) to all citizens. As exceptions, it allowed the legislature to impose restrictions on the grounds of libel, slander, defamation, contempt of court, and any matters offending decency or morality or which undermine the security of/tend to overthrow the State.

This article traces the Indian experience of the right to freedom of speech and expression.

Road to the First Amendment: The 3 ‘Triggering’ Cases

Article 19(2), containing reasonable restrictions that could be imposed on the rights under Article 19(1), was first amended as early as 1950. Some free speech cases decided by the courts are seen as its immediate cause.

Case 1. Romesh Thappar vs State of Madras (1950)

1st March 1950, a little over a month after the Constitution had come into force, the Supreme Court was confronted with questions about the domain of free speech in Romesh Thappar vs the State of Madras.

Romesh Thappar was an editor of ‘Cross Roads,’ a weekly magazine based in Bombay. The magazine was a staunch critique of the then Prime Minister, primarily his foreign policies. Coincidentally, the communist movement was on the rise at the same time in India, and Thappar was accused of being a communist and having ulterior motives behind his publications.

Thus, the Madras state government prohibited the circulation of ‘Cross Roads’ in the State, citing the Madras Maintenance of Public Safety Act, 1950. The Act allowed the government to restrict the distribution of publications for public safety and the maintenance of public order. This move was challenged directly before the apex court, and by a majority of 5-1, the court struck down the section in question.

The rationale behind the court’s verdict was that the terms ‘public safety’ and ‘public order’ were vague and cannot be construed as reasonable restrictions. [It must be noted that prior to the first amendment, these were no grounds for reasonable restrictions that could be imposed under Article 19 (2) of the Indian Constitution.) In its original form, Article 19(2) read ‘undermines the security of the state or tends to overthrow the State’.] The court took a rigid interpretation and held that restrictions on freedom of speech and expression would be legitimate only if they concern ‘undermining the security of the state or overthrowing of it.’

Case 2. Brij Bhushan vs State of Delhi (1950)

The Organiser was (and is) an English weekly run by the Rashtriya Swayamsevak Sangh (RSS). On 2nd March 1950, the Chief Commissioner of Delhi imposed prior restraints citing section 7(1)(c) of the East Punjab Public Safety Act, 1949. Abhinav Chandrachud (In his book, ‘The Republic of Rhetoric: Free Speech and the Constitution of India’) equates this Act with the prior restraints imposed by Dalhousie during the Fourth Mysore War.

The order stated that The Organiser was publishing content that was a threat to public law and order. While holding prior restraints as constitutional if they were in furtherance of the grounds mentioned under the ambit of Article 19(2), the court struck down the restraint on The Organiser.

Justice Fazal Ali’s Dissent

Justice Fazl Ali delivered dissenting judgments in both cases (Romesh Thappar vs State of Madras (1950) and Brij Bhushan vs State of Delhi (1950)), contending that the terms “sedition,” “public safety,” “public order,” and “undermining security” were interchangeable. His perspective was that any action that posed a threat to public order also had the potential to subvert and overthrow the State.

Case 3. Justice Sarjoo Prasad’s Observation in Shaila Bala Devi vs State of Bihar (1952)

Perhaps one of the most astonishing of all was the Patna High Court’s judgement in Shaila Bala Devi, where Justice Sarjoo Prasad observed that ‘if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity’ because it was apparently under the ambit of protected speech.

The government did not miss an opportunity to cock a snook at these judgements. The Prime Minister himself wrote to the law minister that the constitutional provisions needed to be amended. Accordingly, the first amendment to the Constitution was tabled. The Statement of Objects and Reasons to the Bill was signed by Nehru himself. It was indicative of the amount of disapproval the government had for these judgements. It read that the courts have construed freedom of speech and expression so broadly as ‘not to render a person culpable even if he advocates murder and other crimes of violence.’ The Statement of Objects and Reasons, according to Abhinav Chandrachud (Author, Republic of Rhetoric), was an ‘obvious reference to Justice Sarjoo Prasad’s judgment in Shaila Bala Devi.’

Free Speech After the First Amendment of the Indian Constitution

Lawrence Liang (a law professor at Ambedkar University, Delhi) points out the irony that while the First Amendment to the US Constitution recognized a right to free speech, the Indian version restricted it.

Criticizing the amendment in the house, Hridaynath Kunzru (a member of the Constituent Assembly) remarked that Article 19 was not being amended; it was being repealed. Despite some opposition, the amendment was passed in the Parliament.

As a result of the first amendment and subsequent amendments, Article 19 (2) now reads:

“(2) Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

The word ‘incitement to an offence’ now removes the impunity to endorse murder. It gave the executive more teeth to deal with objectionable speech.

Scope of Free Speech Under Article 19(1)(a) of the Indian Constitution

The presence of free speech is reflective of the confidence a democracy has in its existence. There can be no free democracy without the consent of the governed, which can only be achieved through freedoms, particularly the freedom of speech and expression.

In another case, S Rangrajan vs P Jagjeevan Ram (1989), the court observed that “Democracy is government by the people via open discussion. The democratic form of government itself demands [from] its citizens an active and intelligent participation…”

The Supreme Court of India affirmed in Manubhai D Shah vs Life Insurance Corp India (1993) that a constitutional provision is ‘never static, it is ever-evolving and ever-changing.’ It suggested that a provision must never be interpreted through a ‘narrow, pedantic and syllogistic approach.’ The court itself adopted a dynamic approach in this case by expanding upon this principle when it said that ‘freedom of speech and expression’ should be interpreted expansively to encompass the liberty to communicate one’s opinions orally, in writing, or through audio-visual means.

How Free Is Free Speech – a Contemporary Analysis

“Freedom to air one’s views is the lifeline of any democratic institution, and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship.” – Indian Supreme Court in Manubhai D Shah vs Life Insurance Corp (1993)

The Supreme Court and the High Courts of the country have always been committed to the protection of free speech. Barring a few exceptions, the courts have always been lauded as the guardian of Fundamental Rights, often sailing against the political tide. The courts have never kowtowed to the need for political correctness of free speech. They have upheld the right to hold and express an unpopular opinion. The court has used Article 19(1)(a) to initiate new rights, like the right to know, which was recognized in the State of UP vs Raj Narain (1975). Time and again, it has widened the scope of protection for free speech and expression.

In Raj Kapoor vs State (1980), when charges of obscenity were brought against the film Satyam Shivam Sundaram, the court came to the rescue of the artists. Justice VK Iyer remarked:

“The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies.”

Likewise, in Maqbool Fida Hussain vs Raj Kumar Pandey (2008), the court held that the paintings by the legendary painter MF Hussain were not obscene. Justice Sanjay Kishan, in his verdict, considered art to be an important means of expression, and hence it was deemed to be protected under freedom of speech and expression.

Aseem Trivedi, a cartoonist, was arrested on charges of sedition for a cartoon that read Bhrashtameva Jayate, meaning Corruption alone triumphs, an obvious parody of the national emblem. Ordering his release, the Bombay High Court made stark observations against the Mumbai Police. It observed:

“Today, you attacked a cartoonist; tomorrow, you will attack a filmmaker; and then a writer. We live in a free society, and everyone has freedom of speech and expression.”

It is obviously not an equivalent to the US Supreme Court’s decision in the case of Johnson vs the State of Texas (1989), where a person desecrating the national flag was deemed to be exercising his right to free speech and expression.

Aseem Trivedi’s case, however, is another feather in the hat of a judiciary that has always been protective of Fundamental Rights.

The Supreme Court has gone to the extent of annulling legal provisions if they tend to abridge free speech and expression. Shreya Singhal vs Union of India (2015) was one such case, where section 66A of the Information Technology Act, 2000 was declared void because it violated Article 19(1(a). Section 66A of the IT Act, 2000, made it a punishable offence for any person to send ‘grossly offensive’ or ‘menacing’ information using a computer resource or communication device. The Supreme Court held that because of its vague and broad nature, it cannot be used to curb freedom of speech and expression.

The Shreya Singhal case opened new doors for the judiciary in the world of Internet and Artificial Intelligence. It provided a structure to build a fortress around the cherished right to freedom of speech and expression under Article 19(1)(a).

Conclusion

From Romesh Thappar to Aseem Trivedi, we see a common thread that there cannot be unlawful restrictions. The courts have made it clear that the right to free speech cannot be curtailed through unjust and unreasonable laws. The verdict of Shreya Singhal shows that the sky is the limit for a judiciary that is committed to preserving Fundamental Rights, particularly free speech and expression.

It is the presence of liberty to speak that distinguishes a democracy from a dictatorship. Shakespeare puts it in the mouth of Edgar in King Lear: “Speak what we feel, not what we ought to say,” just for us to understand the essence of free speech.

It is the right to say what we feel as against what we are expected to say; it is the right to offend at times when there appears to be a duty to offend.

Journey of Right to Freedom of Speech and Expression in India
Tanzeel Islam Khan

The Constitution of India includes written laws enforced by the courts and unwritten rules required for constitutional government. The unwritten, informal, and uncodified procedural agreements the state’s institutions follow are known as constitutional conventions.

Constitutional conventions cannot be considered laws because neither the courts nor the Houses of Parliament can enforce them. Conventions are constitutional rules that the courts do not implement. When the law remains silent, these conventions play a crucial role.

Further, written rules are followed only in a specific context, while unwritten rules or conventions are applied when the written rule is passive on the issue.

Furthermore, the Constitution of the UK is primarily based on conventions. We in India have a written Constitution but still follow many conventional practices for the smooth functioning of the system. For example, in the appointment of the Chief Justice of India, the senior judge of the Supreme Court becomes the Chief Justice of India. It is nowhere written in the Constitution but is followed as a practice.

Here is an article that covers all about the constitutional conventions.

Definitions of Constitutional Conventions

Here are some definitions of constitutional conventions by popular personalities.

By AV Dicey

Albert Venn Dicey has used the term ‘constitutional convention’ for the first time in his book Introduction to the Study of the Law of the Constitution. Accordingly, AV Dicey believed that the actions of political parties and institutions are administered by two parallel and interrelated sets of rules.

One set of rules is rigorously considered a law because it is a rule that is enforced by the courts (whether written or unwritten, legislated by statute or derived from a mass of tradition, or judge-made maxims).

Conventions, understandings, habits, and practices make up the other set of norms. Though they may govern the acts of the various members of the sovereign power, the ministry, or other officials, they are not actually laws because they are non-enforceable by the courts. This constitutional law segment may be termed the conventions of the Constitution or constitutional morality.

By Austin

According to John Austin, the Constitutional Convention is the “positive morality of the Constitution.”

By Fenwick

Professor Helen Fenwick has defined the constitutional convention as the “non-legal, generally agreed rules about how government should be conducted and, in particular, governing the relations between different organs of government.”

By Peter Hogg

In the words of Peter Hogg, “conventions are rules of the Constitution which the law courts do not enforce. Therefore, they are regarded as non-legal rules. What conventions do is prescribe how legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official or institution. Other conventions limit a broad power or even prescribe that a legal power shall not be exercised.”

Characteristics of Constitutional Convention

The following are the characteristics of the constitutional convention:

1. Conventions are defined and implemented by public officials’ non-legal rights, powers, and duties in the three branches of government: Executive, Legislature, and Judiciary — and the relationships between governments and government institutions.
2. Constitutional conventions are not regarded as laws because they cannot be enforced by the courts or the Houses of Parliament.
3. Conventions or unwritten laws are applied when the written laws legislated by the statute are silent on the matter or where there is no written law/provision related to any particular matter.
4. Although constitutional conventions are not the same as rules of law, they can sway the applicability of the rules of law.

Need and Significance of Constitutional Convention

The Constitution of India is a detailed and lengthy document. The constitution-makers have left some matters or issues to be controlled by conventions, which provide constitutional officeholders with some additional authority in such circumstances. The constitutional conventions aim to ensure that the Constitution’s legal framework remains flexible enough to operate according to current constitutional values. Significant constitutional change can be achieved in this manner over time without requiring any fundamental changes to the legislation.

Further, the constitutional conventions function across all branches of government, i.e., the Legislative, the Judicial, and the Executive. Each incorporates a principle of responsible government, not exerting full legal powers or abusing public power and respecting the other government departments’ roles, functions, and duties.

What Are Constitutional Conventions and Their Characteristics?
Subhashini Parihar

In this article, you will read about judicial interference in electoral matters, its power to review, subject matter primarily under judicial review and some of the landmark judgements.

Jurisdiction in Electoral Matters

Judicial review is the authority granted to the Supreme Court and the High Court to examine the constitutionality of legislative and executive actions. The primary goal of judicial review is to protect the public and Fundamental Rights.

The constitutionally mandated Election Commission of India (ECI) holds India’s state and union elections. The Lok Sabha, Rajya Sabha, State Legislative Assemblies, and the President and Vice President of India can all be elected through the ECI.

The High Court and Supreme Court can hear petitions challenging the Election Commissioners’ decisions, but once the election process has started, they cannot interfere with how the elections are conducted.

Election petitions are the only means through which the judiciary can review an election’s outcome. The Election Commission itself lacks the authority to examine the election results. Additionally, this election petition can only be submitted to the High Court concerning elections for the State Legislatures.

Election petitions are the only means through which the judiciary can review an election’s outcome. For state legislature elections, these petitions are submitted to the High Court. However, in the case of Parliament elections for the President or Vice President, the petitions can only be submitted before the Supreme Court, and the High Court lacks jurisdiction in such matters. It’s important to note that election-related concerns are outside the scope of jurisdiction for civil courts.

Power of Judicial Review in India

The Indian Constitution is thought to be safeguarded by the judiciary. Judicial review is the safeguard if the legislature passes a bill that conflicts with the Constitution. Likewise, if executive actions are such that they go against a fundamental principle of the Constitution, judicial review is the safeguard.

As a result, any passed law that conflicts with a basic right listed in Part III of the Constitution is void, as stated in Article 13. Therefore, the High Court is given the authority to conduct judicial reviews under Articles 226 and 227, and the Honorable Supreme Court is given the authority under Article 32.

In accordance with a number of important case laws, including Kesavananda Bharti vs State of Kerala (1973) and Indira Nehru Gandhi vs Raj Narain, judicial review was regarded as one of the fundamental elements of the Constitution.

Subject Matter Primarily Under Judicial Review

Judicial review is not restricted to specific subject matters. Nonetheless, the courts are empowered to exercise judicial review in the following situations:

1. Any measure passed by the legislature that is later proven to be arbitrary or to violate the fundamental principles of the Constitution may be ruled unconstitutional by the courts. Whether or not anything is considered “arbitrary” or in violation of the Constitution depends on how the judges perceive the situation.

2. Judicial review has the power to declare void administrative actions that are deemed to be infringing in nature.

3. In the case of Hamdard Dawakhana vs Union of India (1960), the Parent Act (the Drugs and Cosmetics Act, 1940) was taken into the ambit of judicial review, and it was declared void on the grounds of excessive delegation. The case involved a challenge to the Drugs and Cosmetics Act, which had granted wide powers to the government to make rules regulating the manufacture and sale of drugs and cosmetics. The court held that the delegation of powers was excessive and violated the principle of separation of powers, which is an essential feature of the Indian Constitution.

4. In India’s current Constitution, the main topic of the judicial review relates to:

• (i) The enactment of legislative acts that are inconsistent with the constitutional provisions governing the division of powers.
• (ii) When the legislature transfers crucial legislative authority to the executive branch or another body.
• (iii) A Fundamental Right is violated.
• (iv) Violating a number of additional constitutional prohibitions that are written into the Constitution.
• (v) Breaking implicit constraints and limitations.

Involvement of the Judiciary in Electoral Cases

According to Article 329 of the Constitution, no other court may hear a case or procedure challenging a parliamentary or state legislative election.

To challenge the validity of an election, a petition must be filed following the procedure specified by the law. The Representation of the People Act, 1951, which was enacted by Parliament under Article 327 of the Constitution, governs various electoral matters. Part VI of the Representation of the People Act specifically addresses the procedures and legal provisions related to elections.

According to the Representation of the People (Amendment) Act 1966, election petitions can be heard by the High Court. The High Court now hears election petitions directly, and according to Articles 132, 133, and 136, one may appeal the High Court’s decision to the Supreme Court.

The Election Commission is not permitted to independently review any results once the voting is over and they have been made public. In relation to elections for the Parliament and State Legislatures, this can only be examined through the procedure of an election petition, which can be submitted before the High Court.

The jurisdiction to hear election petition cases lies exclusively with the respective High Courts of the states. Appeals against the decisions of the High Courts can be made to the Supreme Court of India by parties aggrieved by the High Court’s ruling. It is important to note that apart from the Supreme Court, challenges to the election of the President and Vice President cannot be filed in any other court or authority.

Cases Where Judicial Interference Has Helped Positively

In the following case, the courts looked into the situation and helped the EC understand the responsibility that was placed on them.

The Supreme Court summoned representatives of the EC in one of the incidences and conveyed their concern over the “hate speech” made by BSP leader Mayawati and UP Chief Minister Yogi Adityanath during their campaign.

The EC then took additional action by imposing a 72-hour and 48-hour ban on the two candidates’ ability to campaign, respectively.

The EC might act arbitrarily in some situations. Thus, the courts might utilize their authority to resist it. The High Court ruled that the EC’s decision to remove 20 AAP members from office for having a profit-making position was unlawful because they were not given a chance to be heard. It was decided to return the case to the EC for further hearing.

Cases Where Judicial Interference Might Cause Problems

Instances may arise where the decisions of the Election Commission (EC) fail to meet the satisfaction of certain parties. However, it should be noted that the Supreme Court has often declined to intervene and investigate election-related matters. In a specific case, the Supreme Court rejected an application made by a third party seeking scrutiny of the EC’s ruling. The Election Commission, being an independent constitutional body, holds the authority to make decisions in such matters.

In situations where parties are dissatisfied with the Election Commission’s judgments, they may not directly apply for judicial review of those judgments. The bench, presided over by Chief Justice Ranjan Gogoi, clarified that the EC’s decision, whether right or wrong, has been finalized. The aggrieved parties are advised to pursue separate writ petitions if they wish to contest the EC’s decision.

Landmark Judgments

Here are the summaries of two landmark judgements.

Indira Nehru Gandhi vs Raj Narain, 1975 AIR 2299

In this instance, Indira Gandhi’s opponent in the elections was a politician named Raj Narain. Ms Indira Gandhi easily won the elections. Raj Narain, however, brought a malpractice claim before the court.

As a result of the court’s ruling in Raj Narain’s favour, Ms Gandhi was ordered to step down as Prime Minister of the country. After being upset by this ruling, she filed an appeal with the Supreme Court. However, due to domestic unrest, the President proclaimed a national emergency while the appeal was pending before the Supreme Court.

Furthermore, during that time, the 39th Amendment was enacted, which specifically excludes the elections of the President, Prime Minister, Vice President, and Speaker of the Lok Sabha from judicial review by the courts. Consequently, the Supreme Court is barred from exercising its jurisdiction to hear the mentioned case.

The constitutionality of the 39th Amendment was thus contested in this instance. The change was declared unlawful and arbitrary by the court. The court ruled that it was essential to keep in mind the fundamental elements of the Indian Constitution. One of the basic structures is judicial review. Such an amendment jeopardized the nation’s foundational belief in free and fair elections.

Election Commission of India vs Ashok Kumar & Ors. (1978) 1 SCC 405

In Election Commission of India vs Ashok Kumar & Ors., the Election Commission of India published a notification stating that areas, where voting was to be done by ballot paper, were to have their votes mixed together rather than station by station, in accordance with the authority granted by Rule 59A of the Conduct of Election Rules, 1961.

In opposition to this specific notification, writ petitions were sent to the High Court, insisting that the counting be done station-by-station. The High Court granted the petitioner relief. This order infuriated the ECI, who submitted an SLP (Special Leave Petition) to the Supreme Court.

The Supreme Court reversed the High Court’s decision, arguing that Article 329(b) prevented the elections from being called into doubt until the process was still ongoing.

Conclusion

An electoral process cannot be subjected to judicial scrutiny. It does not, however, imply that the ECI has unrestricted authority. The courts may take the ECI’s decision under review.

Furthermore, judicial involvement was not permitted during the electoral process. This is done to prevent any more postponements of the election process since, in the event of judicial intervention, it would take a while for the court to review the matter and render a decision.

However, since our country’s courts serve as its peacekeepers, they occasionally have issued orders to the ECI directing it to enhance or monitor the electoral processes and ensure that the Model Code of Conduct is appropriately implemented.

Judicial Review in Electoral Matters in India
Suhani Dhariwal

The local governments were not much strengthened at the time of their formation. Therefore, the 73rd and 74th Constitutional Amendments were brought, and things drastically changed after the enactments of these amendments.

This law note will mainly discuss the changes brought in the Constitution after enacting the 73rd and 74th Constitutional Amendments.

What Is the Panchayati Raj System?

Panchayati Raj is a local government formed at the village level where each community has different functions to perform. The Panchayati Raj system aims to develop local self-governments in districts, zones, and villages.

The Panchayati Raj system helps to build the basis of Indian democracy. It recognises the women and members of Scheduled Tribes, Scheduled Castes, Other Backward Classes, and other socially marginalised groups.

The drainage system, street lights, village wells, tanks, and pumps are all maintained by the Gram Panchayat.

Meaning of Municipalities

A municipality is simply an urban local government. It is often a single administrative subdivision with corporate status and the authority to govern itself under local, state, and federal laws.

Constitutional Amendments Related to Local Self-Government

The 73rd and 74th Constitutional Amendments were brought into the Indian Constitution, which relates to the local self-government. These amendments were brought in 1992 and came into force in 1993.

It is crucial to understand that the 73rd Constitutional Amendment deals with the Panchayati Raj System, whereas the 74th Constitutional Amendment brought changes to the municipality’s system. Let’s now discuss both amendments in detail.

73rd Constitutional Amendment

This amendment brought changes to the rural local government that is on the village level. Furthermore, a three-tier system was formed that is:

• Zilla Panchayat, which covers the entire rural area of the district;
• Then comes the intermediary level, which is not needed in small states; and at last comes the Gram Panchayat, which covers a village or group of villages.

Changes brought by the 73rd Constitutional Amendment

The 73rd Constitutional Amendment brought changes in various subjects. We will now study each of them one by one:

Three-tier system

• The creation of a Gram Panchayat was made necessary.
• The amendment further added that the Gram Sabha would include all adult members who are registered voters in the Panchayat area.
• The state legislation will decide the role and functions of the Gram Sabha.

Election

• After this amendment, the elections of all three levels of the Panchayati Raj system will be done directly by the people.
• The elected Panchayat will have a tenure of 5 years.
• In case the Panchayat is dissolved before the completion of its tenure, then fresh elections shall be held within the period of six months.

Reservations

• The one-third position was reserved for women in the Panchayat.
• States may provide reservations for the other backward classes (OBC).
• The reservations listed in the amendment will apply to ordinary members and also the chairperson of all three levels.

Transfer of Subjects

• All the 29 subjects present in the state list are transferred to the Eleventh Schedule of the Constitution so that the Panchayati Raj institutions can also make laws on those subjects.
• Moreover, the actual transfer of these functions lies in the state legislature.

74th Constitutional Amendment

All the changes brought in the 73rd Constitutional Amendment were the same as those brought in the 74th Constitutional Amendment. The only difference is that this amendment dealt with urban local bodies or Nagarpalikas.

A Nagarpalika, also known as a town municipality, is an urban local body that administers a city with a minimum population of 100,000 but less than 1,000,000.

Relation Between the 73rd and 74th Constitutional Amendments

• The 74th Amendment is the same as the 73rd Amendment; the only difference is that the 74th Amendment applies to urban areas, and the 73rd Amendment applies to local areas.
• All provisions or changes brought by the 73rd Constitutional Amendment are in the same way applied to the 74th Amendment, and therefore, it also applies to the Nagarpalikas or urban bodies. (In other words: The changes brought by the 73rd Constitutional Amendment in the case of the Panchayati Raj system are the same as the changes brought in the municipality system by the 74th Constitutional Amendment.)
  
• The Constitution makes it mandatory that the list of functions that come under the State List will be transferred from the state government to the urban local bodies so that the urban local bodies can make laws on those subjects.
• These functions have been listed in the Twelfth Schedule of the Indian Constitution.

Conclusion

India has progressed as a nation due to these constitutional changes or amendments brought by the union and state governments.

Previously, before the 73rd and 74th Amendments, the Indian political system consisted of the two Houses of Parliament, State Assemblies, and certain union territories. In contrast, now, the municipality and Panchayat are also part of the Indian political system. Although the system brought by these amendments could solve the problems at the grassroots level, many issues still persist in the system that require solutions.

Read Next:

• Amendment in the Indian Constitution – Procedure, Modes, and Types
• All Amendments of the Indian Constitution – Briefly Explained

Amendments in Indian Constitution for Local Self-Government
Anushka Saxena

The Constitution of India ensures several rights to Indian citizens. These rights are contained under Part III of the Constitution as Fundamental Rights. However, it is insufficient to grant these rights to citizens of India by only asserting that they are guaranteed under the Constitution. And, hence these rights must be safeguarded.

To protect the rights guaranteed under the Indian Constitution, Articles 32 and 226 of the Constitution of India expressly grant the right to appeal to the Supreme Court and the High Court, respectively, through suitable procedures.

Related Law Note: Meaning, Essentials, and Significance of Writ Petition

Meaning of Writ Petition

A writ is an order issued by a higher court to a lower court or courts demanding them to do or refrain from doing something. And a writ petition is an application presented to the court asking for the issuance of a particular writ.

Under the Indian legal system, a person can file a writ petition in the Supreme Court or the High Court under Article 32 and Article 226 of the Indian Constitution if his/her Fundamental Rights are violated. A writ petition can also be filed in the Supreme Court if the High Court or other lower courts do not make appropriate decisions.

There are five types of writs as provided under the Indian Constitution:

1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo Warranto

We have defined these writs below. But you can learn more about them on our dedicated law note: 5 Types of Writs Under the Constitution – Articles 32 and 226

1. Habeas Corpus

Habeas Corpus means ‘to have the body‘. It is an order to bring the detained person to court. A writ of Habeas Corpus comes into action when a person is detained illegally or unlawfully.

Essential Conditions of the Habeas Corpus Writ

The writ petition of Habeas Corpus can be filed in the Supreme Court and the High Court under the following circumstances:

• Despite being detained, the person has not been produced before the magistrate within 24 hours of the arrest or warrant being issued.
• There was no violation of the law on the part of the person in custody.
• The arrest was made under the provisions of law that are against the Indian Constitution or are unconstitutional.
• A person is arrested with malafide intent or with the intention to harm such a person.

Related: Rights Given to an Arrested or Accused Person in India

2. Mandamus

Mandamus means ‘a command‘. Under the writ of Mandamus, the court can compel an authority to do his duties, exercise his power, or prevent him from doing an act.

Essential Conditions of the Mandamus Writ

The Supreme Court has outlined the necessary conditions for the writ petition of Mandamus in Mani Shobrej Jain vs State of Haryana (1977). Accordingly, the essentials of the Mandamus writ petitions are:

• A recognised legal right must be there.
• The legal right should be such as enforceable by the court.
• Enforcement of such right must be the duty of private authority, public authority, corporation or government.
• Such duty of the private authority, public authority, corporation or government must be of a public nature.

Further, the following cannot be subject to a Writ of Mandamus:

• A private organisation
• The President or the state government
• The Chief Justice in office
• To carry out a private agreement

3. Prohibition

Prohibition means ‘to forbid‘. It forbids the lower court from exercising authority over matters with no jurisdiction.

The writ petition of prohibition can be filed in the court only under two conditions, i.e., the excess or the absence of the jurisdiction.

4. Certiorari

Certiorari means ‘to certify‘. Under the writ of Certiorari, a higher court orders a subordinate court to transfer the ongoing matter to a higher authority or overturn the already passed judgement.

Essential Conditions of the Certiorari Writ

The writ petition of Certiorari can be filed in the Supreme Court and the High Court under the following circumstances:

• Existence of a court that is qualified to exercise its judicial powers.
• The decision by the inferior court violates the provisions of the Indian Constitution.
• The decision by the inferior court includes errors.

5. Quo Warranto

Quo warranto means ‘by what authority‘. The Writ of Quo Warranto is issued to determine the legitimacy of a person’s claim to a public office.

Essential Conditions of Quo Warranto Writ

The writ petition of Quo warranto can be filed in the Supreme Court and the High Court under the following circumstances:

• When a public office (established by law or the Constitution) is held by a private person who lacks the necessary authority
• The character of the public office must be substantive. The duties associated with the office must be of a public nature.
• The intruder whose authority is being challenged must be in a position at the time of petition filing.
• A writ of Quo Warranto may be filed against someone who loses their qualification. It does not matter that the person was qualified earlier.

Who Can File the Writ Petition?

Any person whose Fundamental Rights, as listed in Part III of the Indian Constitution, are violated may file a writ petition. It offers a defence against the violation of the Fundamental Rights of a person. However, a writ petition of Habeas Corpus can also be filed by the friend or relative of a person detained unlawfully.

How to File a Writ Petition in the High Courts or the Supreme Court?

A specific procedure that is followed to file a writ petition in the High Courts and the Supreme Court is:

1. The first step in filing a writ petition is drafting the petition. An advocate must be hired to help in the overall procedure of drafting and representation in the court. The draft comprises the name and address of the aggrieved person, along with the facts that led to the violation of Fundamental Rights.
2. The petition can be filed at the filing counter in court after the drafting.
3. The court will then schedule a date for the hearing; on that date, it accepts the petition and sends a notice to the other party.
4. Then, the court reschedules the hearing. This subsequent hearing takes place in the presence of the other party to whom the notice was sent if he decides to appear in court.
5. Finally, the court hears and considers the submissions made by both parties and orders for relief accordingly.

Can a Writ Petition Be Filed on the Writs Apart From Those Mentioned in the Constitution?

Apart from the writs mentioned in the Indian Constitution, a writ petition can also be filed in court for a civil or criminal act. When the cause of action relates to criminal law, such as bail, a criminal writ petition may be filed. And, when the cause of action relates to a civil wrong, such as taxes, a civil writ petition may be filed.

Conclusion

A writ petition is a request to the court to issue a specific writ. Apart from the writs mentioned in the Constitution of India, it can also be filed for any civil or criminal offence whenever the necessity for a court to direct or order something is perceived. A writ petition may be filed by anyone whose Fundamental Rights, as listed in Part III of the Indian Constitution, have been violated. The proper procedure for filing writ petitions in the Supreme Court and the High Courts must be followed.

How to File a Writ Petition in High Court or Supreme Court in India
Subhashini Parihar

The Governor is the head of the state. He is elected by the President of India and holds office at the pleasure of the President.

Like the union, there is a parliamentary system, even at the state level. There is a need for a nominal head in a parliamentarian government, which is the President at the national level and the Governor at the state level.

Article 153 of the Indian Constitution says that there shall be a Governor for every state and all the executive powers of the state vest in the Governor. Therefore we can say that the post of Governor is a constitutional one.

What Is the Need for a Nominal Head (Governor) in a State?

1. For the checks and balances in the state, it is necessary to have a head who supervises all actions of the state.
2. The parliamentary system is unstable. A government formed can at any time be broken by the people of India. Hence, a head with a fixed term is required for continuity of administrative work.
3. The parliamentary system is based on party politics. Therefore, a head is required who can be considered above party policies and think for the welfare of the people.

Why Is the Governor Called a Linchpin?

Linchpin means a person or thing vital to an enterprise or organization. Sarkaria Commission has stated that the Governor is a linchpin.

In India, there is a concept of cooperative federalism. The two governments, which are union and state, work collectively. They are not independent in their spheres. This is the reason that the Governor has a unique position in linking the two sets of government.

The Governor acts as a bridge between the union and the state. He has to communicate the state’s aspiration to the union as an elder brother and bring issues of national significance at the state level like a postman.

Functions of Governor

1. It is the Governor of a state who appoints the chief minister of the state and the Advocate General of the state.
2. The Governor possesses powers to impose the Governor’s rule or state emergency in the state on the failure of constitutional machinery in the state.
3. For any state bill to become an act, the assent of the Governor to the bill is necessary.
4. The Governor can summon the state legislature. He may prorogue (discontinue a session of (parliament or other legislative assemblies) without dissolving it) the session or dissolve the assembly.
5. He nominates one member of the legislative council from the Anglo-Indian community.
6. If the situation is of an emergent nature, he has the power to issue an ordinance in the state like that of a President.
7. He also has pardoning power like that of a President. But he cannot do so if the punishment is Court Martial or death.
8. The Governor also appoints judges of a high court.

What Makes the Post of Governor Controversial?

Article 163 of the Indian Constitution says that the Governor is not bound to the advice given by the council of ministers of state. He has discretionary power to consider the opinion or advice given to him. Then the question comes – ‘Is the discretionary power of the Governor absolute?‘

In Nebam Rabia vs the Union of India 2016, the Supreme Court clarified that the decisions of the Governor are not beyond the scope of judicial review. The judiciary can anytime inquire about the action of the Governor.

Should the Office of Governor Be Abolished

The report of the Punchhi Commission in 2010 stated two points. First, there should be the removal of the phrase ‘the Governor works at the pleasure of the President.’ It should be deleted from the constitution. Secondly, the Governor should be removed from his office only by resolution of the state legislature.

We derive the post of the Governor from the Government of India Act of 1935 when there was British rule in India. Now, India is a free independent nation. But because we have adopted a parliamentary form of government, there is a necessity for a nominal head at the centre as well as at the state level.

Instead, there can be reforms in his post, like in the case of appointment and removal. An eminent personality can be appointed as a Governor who doesn’t belong to that state. This will ensure a healthy administration in the office of the Governor.

Recent Scenario of Powers of Governor

In recent times, there have been many instances like of Jammu & Kashmir, where the Governor’s rule was imposed for six months. In the Karnataka assembly elections in 2018, when there was no single party present to form the government, the Governor’s role came into the limelight. The same happened in the Uttarakhand elections in 2016.

It is said that constitutional emergency should be imposed sparingly and in extreme situations where there is no way out. Imposing an emergency in a state is not a small thing but a serious concern.

Conclusion

The Sarkaria Commission, in its report, stated that the post of Governor is above politics. The office of the Governor is bestowed with the responsibility of the welfare of the state. Therefore the scope of discretionary power of the Governor is limited. The actions of the Governor must not look arbitrary.

“Governor is neither a decorative emblem nor a glorified cypher but has an important role in strengthening federalism.”

Read Next:
1. How Can India Admit and Establish New States as Per the Indian Constitution
2. What Is Anti-Defection Law as Per the Indian Constitution
3. What Are the Discretionary Powers of the President of India

Governor of an Indian State: Role, Importance, and Functions
WritingLaw

Local self-government is a form of government introduced at the village or local level to decentralise power. As India is a big country with several states, the law-making power cannot stay only with a few people sitting at the centre.

This is because in a centralized system of power concentration, the sole authority is not aware of the happenings at the local and divisional levels, and to ascertain and resolve the problems taking place at the local or rural level, a local-self government was required to take care of a particular section of the society.

In this law note, you will learn about the meaning and evolution of local self-government in India.

Meaning of Local Self-government

As we know, for a better working government, everyone, whether rich or poor, must have an equal say or democratic right to elect their representative. In the same way, for a country to function properly, every sector of the society must have equal participation, and therefore, participation of the people from the grassroots level is also very important.

Thus, the concept of local self-government evolved, representing the people of local or rural areas. The 73rd Constitutional Amendment Act of 1992 entrusted local self-government in India.

Furthermore, a person sitting at the centre in New Delhi does not know the problems existing in a small village in Karnataka. Therefore, to solve a problem in a particular area, a person from that area must be elected as the representative of the whole area. This is known as the local self-government.

History of Local Self-Government

In response to pleas for local autonomy during British rule, the village Panchayat was created as a local self-government. The control was given to the citizens at the lower level. (The Government of India Act of 1935 also empowered the states to pass laws.)

Even after the enactment of local self-government, the makers of the Constitution weren’t happy with the current legal framework. In addition, they included Article 40, allowing states to establish autonomous organisations in the form of local Panchayats.

Evolution of Local Self-Government

The concept of local self-government is not a new concept. It was there even before India’s independence but was not implemented properly. However, after the 73rd Amendment, this concept was taken seriously, and the Government of India appointed various committees for proper study and implementation.

Now, you will learn about a few committees that formed part of the adequate implementation of the concept of local self-government.

Balwant Rai Mehta Committee

This committee was appointed in 1957 to check and suggest certain measures for better working of the community development program and National Extension Service. Moreover, after a complete evaluation, the committee recommended the establishment of a local government known as Panchayati Raj. A few recommendations of the Balwant Rai Mehta Committee are as follows:

1. Three-tier Panchayati Raj system:
   A. Gram Panchayat at the village level.
   B. Panchayat Samiti at the block level.
   C. Zila Parishad at the district level.
2. They suggested that the directly elected people will form a Gram Panchayat and indirectly elected people shall form a Panchayat Samiti and Zila Parishad.
3. Furthermore, the main objective of local self-government shall be planning and development.
4. This committee further added that the Panchayat Samiti shall be the executive body that will implement the things, and the Zila Parishad will work as an advisory and supervisory body.
5. The chairman of Zila Parishad will be the District Collector.
6. The Balwant Rai Mehta Committee also asked for certain resources to help them properly discharge their duties.

The report of the Balwant Rai Committee was accepted by the National Development Council in 1958. But they further said that no rigid pattern has to be followed, and the states will be free to form their own pattern, keeping the main objective in mind.

Rajasthan was the first state to adopt the concept of local self-government, and it was first implemented in the Nagore district. At the same time, different states adopted different patterns and formations of local self-government.

Ashok Mehta Committee

This committee was appointed in 1977 to suggest ways to strengthen the Panchayati Raj system in India. Here are a few recommendations of the Ashok Mehta Committee:

1. The three-tier system can be replaced with a two-tier system to increase efficiency. That is Zila Parishad at the district level and Mandal Panchayat formed for a group of villages.
2. The district-level body will supervise local government activities after the state level.
3. Zila Parishad shall be an executive body that will be responsible for making plans at the district level.
4. The Zila Parishad and Mandal Panchayat may have taxation powers for mobilising their financial resources.
5. There should be a regular audit by the agency at the district level.
6. Panchayati Raj institution shall be granted constitutional recognition.

GVK Rao Committee

This committee was formed to review existing administrative arrangements for rural development and poverty elevation programs. Furthermore, the Planning Commission appointed this committee in 1985.

GVK Rao Committee found that the development was not seen as bureaucrats were involved in the process, and hence, there was no involvement of local people. Then, there came a need to remove bureaucratisation and include people of that particular area in the decision-making. This committee recommended the following to improve the Panchayati Raj system:

1. Zila Parishad, which is a district-level body, will be the most important body in democratic decentralisation.
2. The district and lower level are to be assigned with the specific planning, implementation, and monitoring of rural development programs.
3. There shall be a post of District Development Commissioner. He will work as a chief executive officer of the Zila Parishad.
4. Regular elections shall be held for levels of the Panchayati Raj system.

LM Singhvi Committee

The Rajiv Gandhi government established this committee to guide the growth of Panchayats and their institutions. Consequently, under the Narasimha Rao government, the 73rd and 74th Constitutional Amendment Acts of 1992 were approved. The main recommendations of the LM Singhvi Committee were:

1. There must be constitutionally sanctioned Panchayati Raj Institutions.
2. A three-tier structure for the Panchayati Raj system should be in place at the village, block, and district levels.
3. Nyaya Panchayats must be established for a group of villages.

Conclusion

One of India’s most effective governance systems is the local self-government system. It is an effective entity that controls most Indian communities at the local level. A small number of significant committees greatly aided the development of local self-government in India. It operates locally, something the state-level government cannot do.

The majority of systems globally, including this one, are flawed. Corruption, a lack of resources, and poor management are common problems for local self-government. Thankfully, the government has launched some programs to improve rural regions nationwide to solve these issues.

Read Next: Amendments in Indian Constitution for Local Self-Government

Meaning and Evolution of Local Self-Government in India
Anushka Saxena