LLM Foundation Course Indian Constitutional Law New Challenges 2025-26 - Group V Question Paper with Solutions

For full marks, cover: the text of Article 12 and why it is inclusive; the four named limbs; the long march of "other authorities", with each leading case given its facts, its issue and its ratio rather than a bare citation; the retreat in Zee Telefilms and Federal Bank; whether the judiciary is State; and the honest answer to the question asked, which is that the ambit has been expanded in doctrine and narrowed in fact by privatisation, with Article 226 and Kaushal Kishor filling part of the gap.

1. The provision, and why its drafting decides everything

Article 12 provides that in Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India, the Government and the Legislature of each of the States, all local authorities, and other authorities within the territory of India or under the control of the Government of India.

Three features of that drafting control the whole subject.

Why the definition matters at all. Part III is, in its ordinary working, a set of vertical guarantees held by the citizen against the State. Article 13(2) provides that the State shall not make any law taking away or abridging the rights conferred by Part III, and any law made in contravention is void to the extent of the contravention. Article 32 gives the remedy, and the right to move the Supreme Court under it is itself a fundamental right. So the question whether a body is State decides whether the citizen has any constitutional remedy against it at all. Article 12 is the doorway to the whole of Part III, and every argument about its width is really an argument about how much of national life is subject to the discipline of the fundamental rights.

"All local authorities" takes its meaning from section 3(31) of the General Clauses Act, 1897, which defines a local authority as a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund. On that footing municipal corporations, panchayats, improvement trusts, port trusts and cantonment boards are State, and so are the bodies that administer a local fund under statutory authority. The leading application is Mohammad Yasin v. Town Area Committee (AIR 1952 SC 115), where a fee imposed by a town area committee was struck down as violating Article 19(1)(g), the Court proceeding on the footing that the committee was State.

"Other authorities" is the residual limb, and it is where seventy years of litigation has taken place.

3. "Other authorities": the cases, each with its facts and its ratio

(a) University of Madras v. Shantha Bai (AIR 1954 Mad 67): the narrow start.

(b) Rajasthan State Electricity Board v. Mohan Lal (AIR 1967 SC 1857): the statutory test.

Facts. Employees of the erstwhile Jaipur State transferred to the Rajasthan State Electricity Board, a body constituted under the Electricity (Supply) Act, 1948, complained that the Board had denied them promotion in violation of Articles 14 and 16.

Issue. Is a statutory corporation carrying on commercial activity an "other authority"?

Held. Yes. Bhargava J., for the majority, held that "other authorities" includes every authority created by the Constitution or by a statute on which powers are conferred by law; that the rule of ejusdem generis has no application because the preceding words share no common genus; and that it is immaterial that the body also carries on a commercial activity, since a body may perform commercial functions and still exercise statutory powers of a governmental character. Shah J., concurring, put it differently and importantly: the test is whether the body has been invested with power to make rules or regulations having the force of law, or with authority to issue binding directions the disobedience of which is punishable.

Ratio. Statutory creation plus the conferment of legal powers makes a body State, whatever its commercial character.

The reasoning that mattered most came in Mathew J.'s concurring opinion, which supplied the idea on which the next thirty years were built. The State's functions have expanded far beyond the traditional police functions; it acts through corporations because the corporate form is administratively convenient; a public corporation is therefore an agency or instrumentality of the State; and the State cannot be permitted to escape its constitutional obligations by the simple expedient of clothing itself in a corporate form. He added the criterion of the public function: where a corporation is an instrument of State policy, performing a function the State itself would otherwise perform, it must be subject to the same constitutional limitations as the State.

(d) Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489: the tests, and the parallel rule on State largesse.

Facts. The International Airport Authority invited tenders for a restaurant and snack bar at Bombay airport, restricting eligibility to persons who were "registered second class hoteliers having at least five years' experience". It then accepted a tender from a party which did not satisfy that condition at all. Shetty, whose tender had been rejected, challenged the acceptance.

On the second question, and this is the half of the case that is often forgotten, the Court held that the State and its instrumentalities cannot act arbitrarily in the matter of largesse. Where the State prescribes a standard for the award of a contract, it is bound by it and may not depart from it in an individual case, because Article 14 forbids arbitrariness in every State action, contractual or otherwise. That holding was the foundation of the whole modern law of government contracts.

(e) Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722: form ceases to matter.

Facts. Admission to the Regional Engineering College, Srinagar, was challenged on the ground that the oral interview carried a disproportionate one-third of the total marks and had been conducted arbitrarily. The College was run not by a statutory corporation but by a society registered under the Jammu and Kashmir Registration of Societies Act, 1898, corresponding to the Societies Registration Act, 1860.

Issue. Can a registered society, a creature of contract between its members rather than of statute, be State?

(f) The intermediate applications. Som Prakash Rekhi v. Union of India (1981) 1 SCC 449 applied the tests to a government company under the Companies Act, Bharat Petroleum, holding it State because the whole shareholding, the transferred undertaking and the pervasive control were present. P.K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141 applied them to the Indian Council of Agricultural Research. Tekraj Vasandi v. Union of India (1988) 1 SCC 236 shows the tests excluding as well as including: the Institute of Constitutional and Parliamentary Studies, a registered society doing research, was held not to be State because government funding was partial, control was not pervasive and its work was not a governmental function. Chander Mohan Khanna v. NCERT (1991) 4 SCC 578 held the National Council of Educational Research and Training not to be State on the facts, its funding being largely from its own sales and its autonomy substantial.

(g) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111: the settled test.

Three riders, each examinable. One, control which is merely regulatory, whether under statute or otherwise, will not make a body State: every insurer, bank, airline and telecom operator is heavily regulated and none is thereby a limb of the State. Two, the Ajay Hasia indicia are not a rigid formula; they are indicia to be applied cumulatively. Three, the enquiry is one of substance and not of form, so the label attached to a body, its mode of incorporation and the nomenclature of its funding do not decide it.

On the facts the Court found that CSIR was formed by a government resolution, that its funding came almost entirely from the government, that the Prime Minister was its ex officio President, that the Government could review and reverse its decisions and could dissolve it and take its assets, and that its objects were of national importance and governmental in character.

4. Where the widening stopped

(a) Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649.

Facts. The Board of Control for Cricket in India terminated Zee's television rights contract. Zee moved the Supreme Court under Article 32, which required it to establish that the Board is State.

(b) Federal Bank Ltd. v. Sagar Thomas (2003) 10 SCC 733. A private bank, licensed and closely regulated by the Reserve Bank of India under the Banking Regulation Act, 1949, was held not to be State. The Court's reasoning is the cleanest statement of the regulatory-control rider: regulation, however detailed, is the State performing its own function of supervision, and it does not convert the regulated body into a limb of the State.

(c) K.K. Saksena v. International Commission on Irrigation and Drainage (2015) 4 SCC 670 completed the picture from the other side, holding that a body may be amenable to Article 226 in respect of a public duty without being State for Article 12, and warning that the duty must be genuinely public and not merely a duty owed to members of the public under a contract.

5. Is the judiciary "State"?

In its rule-making and administrative capacity, yes: rules framed under Articles 145 and 227, and administrative decisions on appointments and service conditions, are State action and are open to challenge under Part III. Prem Chand Garg v. Excise Commissioner (AIR 1963 SC 996) struck down a rule of the Supreme Court requiring security for costs in an Article 32 petition, because it whittled down a fundamental right.

Alongside it the courts opened a second door, which is not Article 12 at all. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani (1989) 2 SCC 691 held that a writ of mandamus under Article 226 lies against any person or body performing a public duty, whatever its constitutional character, because the words "for any other purpose" in Article 226 are wider than Article 32. There a trust running an affiliated college was compelled to pay its teachers, the duty being public though the body was private.

And a third door has now been opened. In Kaushal Kishor v. State of Uttar Pradesh (2023) 4 SCC 1, a bench of five held by 4:1 that the rights under Articles 19 and 21 are enforceable even against persons other than the State and its instrumentalities, joining Articles 15(2), 17, 20(2), 23, 24 and 29(2), which are horizontal on their own terms; and that the State owes a positive duty to protect a person's Article 21 rights even against a threat from a private actor. Nagarathna J. partly dissented, and the remedial framework remains undeveloped, but the direction is clear.

The same shrinkage happens in three other forms. Public private partnership: an airport, a port, a highway or a hospital operated under a concession performs a public function with State assets and is privately owned, so no test of pervasive control catches it. Outsourcing: when a department contracts out a service, the contractor's employees are outside Article 16 and the users are outside Article 14 as against the contractor. The regulated private monopoly: a distribution licensee may be the only supplier of electricity in a city, and after Federal Bank regulation is not control.

For full marks, cover: the two limbs of Article 14 and their different parentage; the classification test with its two conditions and the cases that built it; the arbitrariness doctrine from Royappa to Shayara Bano; then the affirmative action half, which is N.M. Thomas on facet-versus-exception, Indra Sawhney set out in propositions, Nagaraj and Jarnail Singh on promotions, and the two decisions that have unsettled the framework since 2022, Janhit Abhiyan and Davinder Singh.

1. The provision: two guarantees, not one

Article 14: the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

"Equality before the law" is Dicey's formulation, taken from the English common law, and it is negative: no man is above the law, and every person, whatever his rank or condition, is subject to the ordinary law of the land administered by the ordinary courts. It is a declaration of the absence of privilege.

2. The classification test, with its cases

Because equal protection permits classification, the courts had to police the line between a classification and a discrimination.

State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75). Facts: section 5(1) of the West Bengal Special Courts Act, 1950 empowered the State Government to direct that "such offences or classes of offences or cases or classes of cases" as it chose be tried by a Special Court following a truncated procedure with no committal, no jury and a curtailed right of appeal. Anwar Ali Sarkar was tried and convicted by such a court. Held: the section was struck down. It laid down no policy and no principle by which the Government was to choose the cases it sent to the Special Court; the classification was therefore left to executive whim and there was no differentia at all, still less one with a nexus to any object. Vivian Bose J. added the enduring formulation: the question is whether the law is "equality for all in the same situation", judged by what an ordinary reasonable man would think.

Budhan Choudhry v. State of Bihar (AIR 1955 SC 191) supplied the two conditions that are now recited in every judgment on Article 14:

Chiranjit Lal Chowdhuri v. Union of India (AIR 1951 SC 41) established that a law may validly apply to a single individual if there is something special about that person which justifies treating him as a class by himself, the Sholapur Mills legislation being upheld on that footing.

3. The arbitrariness doctrine

E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3. Facts: a Chief Secretary was transferred to a newly created post which he alleged was of lower status, in order, he said, to sideline him. Held: on the facts the challenge failed, but Bhagwati J. laid down the doctrine that changed the subject. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. Equality and arbitrariness are sworn enemies; where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law, and is therefore violative of Article 14.

Two further refinements. Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 held that a classification resting on sex attracts a stricter scrutiny, and struck down section 30 of the Punjab Excise Act, 1914, which prohibited the employment of women in any place where liquor was consumed, on the reasoning that protective legislation which protects by excluding is self-defeating and offends the autonomy of the person it claims to protect. Natural Resources Allocation, In re, Special Reference No. 1 of 2012 (2012) 10 SCC 1 applied Article 14 to the alienation of scarce natural resources and held that auction is not the only permissible method but that the method chosen must be non-arbitrary.

Keep the two tests distinct. The classification test asks whether the legislature drew the line sensibly; the arbitrariness test asks whether there was any principle at all. They are cumulative, not alternative, and the second can strike down a law that survives the first.

4. Affirmative action: is it an exception to equality, or a part of it?

This is the doctrinal pivot and the answer must open with it.

Indra Sawhney adopted that reading, and it is the reason every measure discussed below is an application of Article 14 rather than a departure from it.

5. Indra Sawhney v. Union of India 1992 Supp (3) SCC 217, in propositions

Facts. The Union implemented the Mandal Commission's recommendation of twenty seven per cent reservation for the Other Backward Classes in central services, later adding ten per cent for the economically backward among the forward classes.

Held, by a bench of nine:

1. backwardness under Article 16(4) is social and educational; caste may be the starting point of identification for a Hindu community, since caste is a social class in India, but caste alone is not the test and the enquiry must extend to all social groups;
2. economic criteria alone cannot be the basis of backwardness, so the additional ten per cent for the economically backward among the forward classes was struck down;

6. The amendments that followed, and their conditions

Proposition (5) was reversed by the Seventy-seventh Amendment, 1995, inserting Article 16(4A); the Eighty-first Amendment, 2000 added Article 16(4B) on carry-forward vacancies; the Eighty-second Amendment, 2000 added a proviso to Article 335 permitting relaxation in qualifying marks; and the Eighty-fifth Amendment, 2001 added consequential seniority.

M. Nagaraj v. Union of India (2006) 8 SCC 212 upheld all four as not violating the basic structure, but read three conditions into Article 16(4A): before making a provision for reservation in promotion the State must collect quantifiable data showing (i) the backwardness of the class, (ii) the inadequacy of its representation in the service, and (iii) must ensure that administrative efficiency is not destroyed, and must observe the fifty per cent ceiling, the creamy layer rule and the rule against indefinite carry-forward.

7. The two decisions that have unsettled the framework

Janhit Abhiyan v. Union of India (2022) SCC OnLine SC 1540, decided 7 November 2022. Facts: the One Hundred and Third Amendment inserted Articles 15(6) and 16(6), permitting up to ten per cent reservation for the economically weaker sections, expressly excluding those already covered by Articles 15(4), 15(5) and 16(4). Held, by 3:2: the amendment is valid. Reservation on purely economic criteria does not violate the basic structure, notwithstanding proposition (2) of Indra Sawhney, because that proposition construed Article 16(4) and the new provisions are a separate enabling power. The fifty per cent ceiling is a rule of prudence and is not inviolable, at least for a reservation made outside Article 16(4). And the exclusion of the Scheduled Castes, Tribes and backward classes from the new quota does not offend the equality code, since they are provided for elsewhere. Chief Justice Lalit and Bhat J. dissented on the last point: exclusion on the ground that a class is already benefited is itself a discrimination, and it makes the poorest of the poor ineligible.

8. Reasonable classification in the context of affirmative action: how the tests actually operate

Bring the two halves together, because that is what the question asks.

The differentia in an affirmative action measure is social and educational backwardness, or membership of a Scheduled Caste or Tribe, or now economic weakness. The object is the advancement of that class and its adequate representation. The nexus is direct and has never seriously been doubted.

What the courts have policed is not the existence of the classification but its limits, and each limit is an application of Article 14 itself: the creamy layer, because including those who no longer need the benefit destroys the nexus; the fifty per cent ceiling, because a reservation that swallows the rule reverses the guarantee; quantifiable data, because a classification asserted without evidence is arbitrary; efficiency, because Article 335 requires it to be taken into consideration; and now sub-classification, because treating unequals within a protected class as equals reproduces inside the category the very inequality the category exists to cure. That last point is Davinder Singh, and it is the purest application of N.M. Thomas to be found anywhere in the reports.

For full marks, cover: the position before 2002, which is Mohini Jain and Unni Krishnan given with their facts and their difference; the Eighty-sixth Amendment's three limbs; the Right to Education Act, 2009 section by section; the two cases that decide whom the Act binds; the decisions that gave the right content beyond a seat; and a critical analysis of what Article 21A does not reach.

1. The starting position: a directive principle with a deadline

Education was not a fundamental right in 1950. It was placed in Part IV, and the placement was deliberate: the Constituent Assembly knew that a right to be educated is a claim on resources, and Part IV is where claims on resources were put.

Issue. Is there a right to education under the Constitution, and is a capitation fee consistent with it?

Held. Kuldip Singh J. held that although the right to education is not stated in Part III in terms, it is concomitant to the fundamental rights enshrined there. The reasoning proceeded in three steps: the Preamble promises to secure to all citizens the dignity of the individual; the dignity of the individual cannot be assured unless it is accompanied by the right to education; and the directive principles in Articles 38, 39(a) and (f), 41 and 45 make it obligatory on the State to provide education at all levels. Charging a capitation fee, the Court held, denies the citizen his right to education and is arbitrary, unfair and violative of Article 14, since it makes admission depend on the capacity to pay rather than on merit.

The difficulty with it. The judgment, read literally, made education a fundamental right at every level, including professional and higher education, which no State could deliver, and it said so without confronting Article 41's express qualification about economic capacity.

The Court also framed a scheme of "free" and "payment" seats for private professional colleges, with the State fixing the fee for both. That scheme was found unworkable and was set aside in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, which held that running an educational institution is an occupation under Article 19(1)(g) and that the scheme had made private education economically unviable.

Why the sequence matters. Mohini Jain is the case that put education inside Part III; Unni Krishnan is the case that told us how far in. Quoting the first without the second is the single commonest error on this question.

4. The Eighty-sixth Amendment, 2002: three limbs

The amendment converted the judgment into text and it did three things, which must be given together because the second is the one candidates forget.

One, new Article 21A: the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

• Section 3: every child of six to fourteen has a right to free and compulsory elementary education in a neighbourhood school till completion of elementary education, and no child shall be liable to pay any fee or charge which prevents him from pursuing it.
• Section 4: a child above six not admitted or unable to complete elementary education shall be admitted to a class appropriate to his age, with a right to special training.
• Section 8 and 9: the duties of the appropriate Government and the local authority to provide the school, the infrastructure and the teaching.
• Section 12(1)(c): an unaided school shall admit in class I at least twenty five per cent of the strength of that class from children belonging to weaker sections and disadvantaged groups in the neighbourhood, and provide free and compulsory elementary education till its completion, reimbursed by the State to the extent of its own per-child expenditure or the actual amount charged, whichever is less.
• Section 13: no capitation fee and no screening procedure for admission, with penalties. This section enacts the holding in Mohini Jain.
• Section 14: no denial of admission for want of age proof.

Facts. Unaided private schools challenged section 12(1)(c) as violating their right under Article 19(1)(g) and the autonomy recognised in T.M.A. Pai and P.A. Inamdar.

Held, 2:1: the Act is constitutional and section 12(1)(c) applies to government schools, aided schools and unaided non-minority schools. The reasoning: Article 21A places the obligation on the State to "provide", and the State may discharge that obligation through its own schools, through aided schools or through unaided schools with reimbursement; the twenty five per cent obligation is therefore a reasonable restriction on Article 19(1)(g) in the interest of the general public. The Court held the Act inapplicable to unaided minority schools. Radhakrishnan J. dissented as to unaided schools generally.

Pramati Educational and Cultural Trust v. Union of India (2014) 8 SCC 1.

Facts. A challenge to the Eighty-sixth and Ninety-third Amendments and to the application of the Act to minority institutions.

State of Tamil Nadu v. K. Shyam Sunder (2011) 8 SCC 737 held that the right of a child is not merely a right to free education but a right to education of reasonable quality, and that a uniform system of school education furthering the constitutional goal of equality is consistent with Article 21A.

8. Scope and significance, analysed

What the right achieves. It converts an unenforced directive into an enforceable claim. It fixes an entry age, a leaving age and a completion standard. It abolishes capitation and screening at the elementary stage, which is where the Mohini Jain mischief was worst. It imposes duties of infrastructure and staffing enforceable through Articles 21A and 32. And by section 12(1)(c) it does something no other fundamental right does: it obliges a private actor to admit a stranger, on the reasoning that the State's constitutional obligation may be discharged through others.

What it does not reach, and this is where the marks are.

Reach. After Pramati the whole of the minority school sector is outside the Act, and therefore outside section 12(1)(c). Two consequences follow: the burden of the twenty five per cent obligation falls unevenly on non-minority unaided schools, and there is an evident incentive to seek minority status, an incentive sharpened by Aligarh Muslim University v. Naresh Agarwal, decided 8 November 2024, which overruled S. Azeez Basha v. Union of India (AIR 1968 SC 662) and held that an institution incorporated by statute may still be a minority institution if it was established by a minority.

Structure of the right. Article 21A says "in such manner as the State may, by law, determine", so the content of the right is what the statute says it is. That is a real weakness by comparison with Articles 19 and 21, whose content the courts supply. If the Act were repealed the right would remain, but its content would have to be reconstructed from Article 21 as in Unni Krishnan.

Reimbursement. Section 12(2) caps reimbursement at the State's own per-child expenditure, which in most States is far below the fee of a good private school, so the obligation operates as a partial subsidy on the school. That is the source of most of the litigation about the section in the High Courts.

For full marks, cover: why independence is structural and not a privilege of judges; the constitutional provisions grouped by what each protects; the four Judges Cases with the facts and the holding of each; independence as basic structure; the accountability side, because a judiciary answerable to nobody forfeits the confidence that is its only power; and the live problems, which are the Memorandum of Procedure, tribunals and post-retirement appointments.

Appointment. Article 124(2): a Judge of the Supreme Court is appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts as the President may deem necessary, and in the case of an appointment other than that of the Chief Justice, the Chief Justice of India shall always be consulted. Article 124(3) fixes the qualifications, so the executive can neither lower nor raise the bar: five years as a High Court Judge, ten years as an advocate of a High Court, or a distinguished jurist in the President's opinion. Article 217(1) provides correspondingly for the High Courts.

Security of tenure. A Judge holds office until sixty-five (Supreme Court, Article 124(2)) or sixty-two (High Court, Article 217(1)) and may be removed only by an order of the President passed after an address by each House of Parliament, supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting, presented in the same session, on the ground of proved misbehaviour or incapacity: Article 124(4), applied to High Court Judges by Article 218. The procedure is in the Judges (Inquiry) Act, 1968.

Protection of the office. Articles 121 and 211 forbid discussion in Parliament or a State legislature of the conduct of a Judge in the discharge of his duties, except on a motion for removal. Articles 129 and 215 make the Supreme Court and the High Courts courts of record with power to punish for contempt of themselves, a power the Court has held to be inherent in that status and not conferred by the Contempt of Courts Act, 1971: Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406. Articles 124(7) and 220 restrict practice after retirement, Article 124(7) barring a retired Supreme Court Judge from pleading in any court in India and Article 220 barring a retired High Court Judge from pleading in any court other than the Supreme Court and a High Court other than his own. Article 50, a directive principle, requires the State to separate the judiciary from the executive in the public services.

Held, by seven judges: "consultation" in Articles 124 and 217 does not mean concurrence; the opinion of the Chief Justice of India has no primacy; the President is not bound by it; and the ultimate power of appointment rests with the executive. The case is equally famous for relaxing locus standi and legitimising public interest litigation, so it cuts both ways in any discussion of judicial power.

(b) Second Judges Case: Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441.

Facts. A petition on the filling of vacancies and the appointment of judges, heard by nine judges to reconsider S.P. Gupta.

Held: the Chief Justice must consult a collegium of the four senior-most Judges of the Supreme Court for an appointment to that Court, and the two senior-most for a High Court appointment or a transfer; the opinions must be in writing; the Chief Justice's sole individual opinion does not constitute "consultation"; and a recommendation made without such consultation is not binding on the Government.

(d) Fourth Judges Case: Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1, decided 16 October 2015.

Facts. The Ninety-ninth Constitutional Amendment inserted Articles 124A, 124B and 124C and created the National Judicial Appointments Commission, consisting of the Chief Justice of India, the two next senior Judges, the Union Minister of Law and Justice and two eminent persons nominated by a committee of the Prime Minister, the Chief Justice and the Leader of the Opposition. Section 5(2) and section 6(6) of the accompanying Act provided that the Commission shall not recommend a person if any two members did not agree.

4. Independence as basic structure, beyond appointments

Independence was named as a basic feature in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. It was applied in Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1, where clause (4) of Article 329A, which declared the election of the Prime Minister valid and beyond challenge in any court, was struck down as an exercise of judicial power by the legislature and a denial of the rule of law. And it was reaffirmed in L. Chandra Kumar v. Union of India (1997) 3 SCC 261, where a bench of seven held that the power of judicial review vested in the High Courts under Article 226 and in the Supreme Court under Article 32 is part of the basic structure, that it cannot be ousted even by amendment, and that tribunals are supplemental and their decisions remain subject to review by a Division Bench of the High Court.

Removal has never once succeeded. In the case of Justice V. Ramaswami the inquiry committee constituted under the Judges (Inquiry) Act found misbehaviour in 1992, and the motion nonetheless failed in the Lok Sabha in May 1993 because the governing party abstained and the motion did not secure a majority of the total membership of the House. Justice Soumitra Sen resigned in 2011 after the Rajya Sabha passed the motion and before the Lok Sabha voted. Sub-Committee on Judicial Accountability v. Union of India (1991) 4 SCC 699 held that the process up to the committee's finding is a statutory process and not a proceeding in Parliament protected by Article 122, so it is justiciable, and that the Speaker's decision to admit a motion may be reviewed.

The in-house procedure was devised in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) 5 SCC 457 for misconduct falling short of removal: a complaint to the Chief Justice, a committee of Judges, and, if the misconduct is serious, advice to resign, or, failing that, withdrawal of judicial work and a report to the President and the Prime Minister. It is confidential and has no statutory basis, which are its weaknesses.

6. Where the problem stands now

The Memorandum of Procedure. In the remedial hearing after the NJAC judgment the Court directed that the Memorandum governing appointments be revised to improve transparency, the secretariat, the eligibility criteria and the complaints mechanism. More than a decade later it has still not been settled between the collegium and the Union. Since no time limit binds the Government, the practice of neither notifying nor formally rejecting a reiterated name has become the effective instrument by which appointments are influenced without any amendment at all, and the Court has repeatedly taken note of it.

Conclusion. The Constitution protects judicial independence by four devices which work, a difficult removal, an unassailable and charged salary, a protected office, and High Court control of the subordinate judiciary; and by one device it does not spell out at all, which is appointment. Every serious contest of the last forty-five years has been fought on that last ground, from S.P. Gupta to the NJAC case, because it is the only one the text left open, and the answer the Court gave, primacy exercised through a collegium, appears nowhere in the constitutional text. The statement in the question is therefore correct but incomplete: independence is the backbone of constitutional democracy, and in India that backbone is held together less by the text than by a body of judicial doctrine the Court has had to defend repeatedly, most recently over the tribunals in November 2025. Independence secured only by judgments must be re-won every decade, and the unfinished Memorandum of Procedure, a decade after it was directed, is the measure of how much of the problem remains unsolved.

The guarantee is expressly made "subject to public order, morality and health and to the other provisions of this Part". That last clause is the hinge of this entire question, and it should be quoted verbatim: religious freedom in India is textually subordinate to the rest of Part III, so a conflict with Articles 14, 15, 17 or 21 is resolved by the Constitution itself and not by any judicially invented balancing test.

Article 25(2) preserves two State powers. Clause (a) saves any existing law and permits the State to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice. Clause (b) permits laws providing for social welfare and reform or for throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I provides that the wearing and carrying of kirpans is deemed included in the profession of the Sikh religion. Explanation II provides that the reference to Hindus includes Sikhs, Jains and Buddhists, and that references to Hindu religious institutions are to be construed accordingly.

Article 28 deals with religious instruction, in four graded situations: 28(1), no religious instruction in an institution wholly maintained out of State funds; 28(2), that bar does not apply to an institution administered by the State but established under an endowment or trust requiring such instruction; 28(3), in a State-recognised or State-aided institution no person may be required to take part without his consent, or the consent of his guardian if a minor.

2. The essential religious practices doctrine

(a) Its creation: Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282).

Facts. The Madras Hindu Religious and Charitable Endowments Act, 1951 gave the Commissioner extensive powers over the Shirur Mutt, including power to settle a scheme, to require budgets and accounts, and to levy a contribution.

Why this matters. Shirur Mutt asked what the community believes; Durgah Committee asked what the court finds essential. The shift transferred the enquiry from the believer to the judge, and the objection made ever since, most forcefully by Malhotra J. in Sabarimala, is that it requires a secular court to do theology.

(c) Applications, compactly. Excommunication by the Dai-ul-Mutlaq of the Dawoodi Bohra community was protected in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (AIR 1962 SC 853), the Bombay Prevention of Excommunication Act, 1949 being struck down as violating Article 26(b). The tandava dance in public was held not essential to the Ananda Marga faith in Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta (1983) 4 SCC 522, and the holding was reaffirmed in 2004. A mosque was held not an essential part of the practice of Islam in M. Ismail Faruqui v. Union of India (1994) 6 SCC 360, namaz being capable of being offered anywhere, a holding whose correctness was referred and then declined to be reconsidered in 2018.

3. Balancing: the cases, in four groups

(a) Religion against freedom of conscience and expression.

Rev. Stainislaus v. State of Madhya Pradesh (1977) 1 SCC 677. Facts: challenges to the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967, which prohibited conversion by force, fraud or allurement and required notice to the District Magistrate. Held: the Acts are valid. The word "propagate" in Article 25(1) means the right to transmit or spread one's tenets by an exposition of them, and it does not include a right to convert another person, because what Article 25(1) grants is not a right to convert but freedom of conscience for all alike, and conversion by force or allurement would impinge on the freedom of conscience of the person converted. That reading is the constitutional foundation of the anti-conversion legislation now in force in more than ten States, several of which extend to conversion by marriage and reverse the burden of proof, and it is the reading most criticised, since the same clause protects conscience.

Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association (2000) 7 SCC 282. Facts: residents complained of noise from drums and amplifiers at a prayer hall. Held: no religion prescribes that prayers must be performed by disturbing the peace of others or through amplifiers, and Article 25 is subject to public order and health; noise regulation is therefore valid against religious use.

Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1, the Sabarimala case. Facts: the Sabarimala temple excluded women of menstruating age, between ten and fifty, from entry, the practice being justified by the celibate character of the deity Lord Ayyappa and given statutory form in Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. Held, 4:1: the exclusion is unconstitutional. The devotees of Lord Ayyappa are not a separate religious denomination within Article 26, since they lack a distinctive name, a common organisation and a distinct system of belief. The exclusion is not an essential religious practice, there being no scriptural or historical evidence of its antiquity or invariability. It violates Article 25(1) as against the excluded women, whose own right to worship is equal. It violates Articles 14 and 15(1), resting on a physiological characteristic. And Chandrachud J. added that the practice, treating menstruating women as polluting, is a form of untouchability within Article 17, which is absolute and admits of no exception. Malhotra J. dissented: matters of deep religious faith should not ordinarily be interfered with; the notion of rationality has no place in matters of religion; and a person not belonging to the faith should not be permitted to question its practices.

The hijab case. Aishat Shifa v. State of Karnataka (2023) 2 SCC 1 produced a split verdict in a bench of two: Gupta J. upheld the prescription of a uniform, holding that wearing the hijab is not an essential religious practice and that a uniform is a reasonable restriction; Dhulia J. set the prescription aside, holding that the essential practices enquiry was not necessary at all, that the question was one of choice, dignity and privacy under Articles 19(1)(a) and 21, and that the practical consequence would be to keep girls out of school. The matter stands referred to a larger bench.

The Places of Worship Act. The Places of Worship (Special Provisions) Act, 1991 freezes the religious character of every place of worship as it stood on 15 August 1947, excepting only the Ayodhya dispute. In M. Siddiq v. Mahant Suresh Das (2020) 1 SCC 1 the Court described it as a legislative instrument protecting secular values and embodying non-retrogression as a foundational feature of the constitutional order. The Act is itself now under challenge, and in December 2024 the Court restrained all courts from ordering surveys or passing effective orders in suits seeking to reclaim places of worship, pending its decision.

For full marks, cover: Article 324 and the Commission's composition and functions; the reservoir-of-power doctrine and its statutory limit, with the facts of both cases; the reforms the Commission delivered itself as against those forced on it by the courts, each with the case; the appointment controversy from Anoop Baranwal to the Act of 2023 and the pending challenge; and an assessment of how the institution has evolved.

1. The constitutional office

Article 324(1): the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the legislature of every State and of elections to the offices of President and Vice-President shall be vested in a Commission. Those three words, superintendence, direction and control, are the widest formula the Constitution uses for any body.

Articles 325 and 326 forbid a separate electoral roll or exclusion on grounds of religion, race, caste or sex, and provide for adult suffrage, the qualifying age reduced from twenty-one to eighteen by the Sixty-first Amendment, 1988. Articles 327 and 328 divide legislative competence over elections between Parliament and the State legislatures; Article 329 bars the interference of courts in electoral matters except by an election petition. The working statutes are the Representation of the People Act, 1950 on rolls and constituencies and the Representation of the People Act, 1951 on the conduct of elections, disqualifications, corrupt practices and election petitions.

2. Composition, and T.N. Seshan

The Commission was a single-member body for most of its life. Two Election Commissioners were appointed in 1989 and their posts abolished in 1990, a step upheld in S.S. Dhanoa v. Union of India (1991) 3 SCC 567. In October 1993 two Election Commissioners were appointed again and the Chief Election Commissioner (Conditions of Service) Amendment Ordinance made the Commission function by majority.

Advisory: under Articles 103(2) and 192(2), where a question arises whether a sitting member of Parliament or of a State legislature has become subject to a disqualification, the President or the Governor decides according to the opinion of the Election Commission, and that opinion is binding. Section 8A of the 1951 Act gives it a similar role on disqualification for corrupt practices. The label "advisory" is misleading and the point is frequently examined.

Quasi-judicial: deciding disputes about the recognition of parties and the allotment of symbols when a party splits, a jurisdiction upheld in Sadiq Ali v. Election Commission of India (1972) 4 SCC 664, where the Court approved the test of the majority in the organisational and legislative wings.

4. How wide is the power, and where does it stop

Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405. Facts: at the Ferozepur parliamentary constituency in Punjab, mobs snatched and destroyed ballot papers during the count at two centres. The Election Commission cancelled the entire poll and ordered a fresh election. The candidate leading the count challenged the cancellation, arguing that Article 324 conferred no such power and that he had not been heard.

Held: the direction was bad. Article 324 operates in areas left unoccupied by legislation; where Parliament has legislated, the Commission cannot act contrary to the statute, and it cannot in the exercise of Article 324 do what the law forbids. The Court set out the position in three propositions: where the law is silent the Commission has plenary power; where the law is not silent it must act in conformity; and it cannot ignore the law altogether. Parliament cured the defect by inserting section 61A into the 1951 Act in 1989.

Kanhiya Lal Omar v. R.K. Trivedi (1985) 4 SCC 628 upheld the Symbols Order as falling within Article 324, and Election Commission of India v. State of Tamil Nadu 1995 Supp (3) SCC 379 upheld the Commission's power to requisition central forces.

5. Reforms the Commission delivered under Article 324

• the Model Code of Conduct, which is not statutory and derives its force entirely from Article 324 and from consensus among the parties, enforced with real effect from 1991;
• the Electors Photo Identity Card, from 1993;
• electronic voting machines, used in a few constituencies from 1998 and universally from 2004, after section 61A supplied the statutory basis;

Union of India v. Association for Democratic Reforms (2002) 5 SCC 294. Facts: a public interest petition sought disclosure of the criminal, financial and educational antecedents of candidates. Held: the right to know the antecedents of a candidate is part of Article 19(1)(a), because a voter casts his vote as an act of expression and cannot express an informed choice without the information; the Commission was directed to call for disclosure by affidavit. When Parliament responded by inserting section 33B of the 1951 Act, providing that no candidate shall be liable to disclose anything not required under the Act, that section was struck down in PUCL v. Union of India (2003) 4 SCC 399, which held expressly that the right to information is a facet of Article 19(1)(a) and that a law abridging it must satisfy Article 19(2).

PUCL v. Union of India (2013) 10 SCC 1 introduced NOTA, holding that the right to reject is part of the freedom of expression and that secrecy must be preserved for the elector who rejects all candidates.

Lily Thomas v. Union of India (2013) 7 SCC 653 struck down section 8(4), which had suspended the disqualification of a sitting legislator while an appeal was pending, as beyond Parliament's competence under Articles 102(1)(e) and 191(1)(e); conviction now disqualifies immediately.

Association for Democratic Reforms v. Election Commission of India, decided 26 April 2024, declined to direct hundred per cent counting of VVPAT slips, but directed that the symbol-loading units be sealed and preserved for forty-five days and permitted a verification of the burnt memory of machines on the request of a defeated candidate at his cost.

7. The appointment controversy, which is the sharpest live issue

For seventy-three years appointments were made by the President on the advice of the Council of Ministers, with no statute at all, although Article 324(2) expressly contemplates one.

Parliament legislated within the year. The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, brought into force at the end of December 2023, constitutes the selection committee of the Prime Minister, a Union Cabinet Minister nominated by the Prime Minister, and the Leader of the Opposition in the Lok Sabha, with a search committee headed by the Cabinet Secretary preparing a panel of five names. The Chief Justice of India was thus replaced by a Cabinet Minister, restoring a two-to-one executive majority, which is precisely the structure Anoop Baranwal was decided to displace. The Act also equates the Commissioners' salary with that of the Cabinet Secretary rather than a Supreme Court Judge.

The Act is under challenge and, as of the hearings in 2026, the Supreme Court has not ruled on its validity. A candidate must state the position exactly that way and not as settled either way.

Two structural weaknesses remain untouched by either. The Commission's expenditure is voted, not charged on the Consolidated Fund, unlike that of the Comptroller and Auditor General or the judiciary, so its budget passes through the House each year. And it has no independent secretariat, its staff being drawn largely on deputation from the Union and the States under Article 324(6). Both have been the subject of repeated requests by successive Commissions and neither has been granted.

And two powers it does not have. It cannot deregister a political party, as it told the Court in Indian National Congress v. Institute of Social Welfare (2002) 5 SCC 685, where it was held that deregistration is possible only in narrow cases such as registration obtained by fraud or a party ceasing to bear allegiance to the Constitution. And the expenditure ceiling binds the candidate and not the party, which is the loophole through which most campaign money moves.

For full marks, cover: two notes only, at about twelve marks each, each with its constitutional provision, its leading cases and one current development. All four are written out below so that whichever pair is chosen is covered.

(a) Inter-state Dispute

Disputes between the units of the Indian federation fall into three kinds, and the Constitution deals with each differently.

Water disputes are taken out of the courts altogether by Article 262. Clause (1) permits Parliament to provide by law for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of any inter-State river or river valley, and clause (2) permits Parliament to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute. Parliament did both in the Inter-State River Water Disputes Act, 1956, whose section 11 bars the jurisdiction of all courts. Tribunals have been constituted for the Krishna, Godavari, Narmada, Ravi and Beas, Cauvery, Vansadhara and Mahadayi.

Political and administrative disputes go to the Inter-State Council under Article 263. The President may establish a Council charged with enquiring into and advising upon disputes between States, investigating subjects of common interest, and making recommendations for better coordination of policy. The Sarkaria Commission recommended it in 1988 and it was finally constituted in 1990. The Zonal Councils, five of them, are statutory bodies created by the States Reorganisation Act, 1956, not constitutional ones. Article 307 permits Parliament to appoint an authority for carrying out the purposes of Articles 301 to 304 on freedom of trade and commerce.

One point of currency. Federal friction now arises less from water than from the Governor's office, and the Supreme Court's advisory opinion of 20 November 2025 in the Presidential Reference on Articles 200 and 201 held that courts cannot fix timelines for a Governor or the President to act on a Bill and that there is no concept of deemed assent, while holding that a Governor may not sit on a Bill indefinitely and that limited judicial review lies for unexplained delay.

The right has been read to include a long list of derived rights: freedom of the press, which has no separate mention (Sakal Papers v. Union of India, AIR 1962 SC 305, price-page schedule struck down; Bennett Coleman v. Union of India (1972) 2 SCC 788, newsprint control; Indian Express Newspapers v. Union of India (1985) 1 SCC 641, customs duty on newsprint); the right to know (S.P. Gupta; PUCL v. Union of India (2003) 4 SCC 399), which is the constitutional root of the Right to Information Act, 2005; the right not to speak (Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615); commercial speech (Tata Press Ltd. v. MTNL (1995) 5 SCC 139); the right to fly the national flag (Union of India v. Naveen Jindal (2004) 2 SCC 510); and the right to broadcast, with the holding that airwaves are public property (Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995) 2 SCC 161).

Two matters remain unsettled and should be flagged as such: sedition, since the Court kept section 124A of the Penal Code in abeyance in S.G. Vombatkere v. Union of India on 11 May 2022 and the Penal Code was replaced by the Bharatiya Nyaya Sanhita on 1 July 2024, whose section 152 is the successor offence; and hate speech, on which Pravasi Bhalai Sangathan v. Union of India (2014) 11 SCC 477 referred the matter to the Law Commission and Amish Devgan v. Union of India (2021) 1 SCC 1 supplied a framework but no statutory definition exists.

(c) Fundamental Rights vs Directive Principles of State Policy

The relationship between Part III and Part IV is the oldest structural argument in Indian constitutional law, and it has passed through four stages.

Stage one, primacy of Part III. In State of Madras v. Champakam Dorairajan (AIR 1951 SC 226) the Court held that the directive principles have to conform to and run subsidiary to the fundamental rights, because Article 37 makes them expressly unenforceable while Article 13 voids inconsistent law. Parliament answered within months with the First Amendment.

Stage three, primacy of some directive principles, and the basic structure. The Twenty-fifth Amendment, 1971 inserted Article 31C, immunising a law giving effect to the policy in Article 39(b) or (c) from challenge under Articles 14 and 19, and adding that no such law shall be called in question on the ground that it does not give effect to that policy. In Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 the first part of Article 31C was upheld and the second, the ouster of judicial review, was struck down. The Forty-second Amendment, 1976 then widened Article 31C to cover all the directive principles, and that widening was struck down in Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, which held that the harmony and balance between fundamental rights and directive principles is itself part of the basic structure, and that Parts III and IV are like two wheels of a chariot. Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal (1983) 1 SCC 147 sustained the surviving Article 31C.

(d) Grass Root Democracy

Grass root democracy in India means the constitutionalisation of local self-government by the Seventy-third and Seventy-fourth Amendments, 1992, in force from 24 April 1993 and 1 June 1993 respectively. Before them, local government was a State subject under entry 5 of List II and existed at the pleasure of the State legislature, which could and did supersede elected bodies indefinitely. Article 40, a directive principle, had asked the State to organise village panchayats since 1950, and four committees, Balwant Rai Mehta (1957), Ashok Mehta (1978), G.V.K. Rao (1985) and L.M. Singhvi (1986), had recommended it before Parliament acted.

The Seventy-third Amendment inserted Part IX, Articles 243 to 243-O, and the Eleventh Schedule. Its mandatory features are the ones to state:

1. a Gram Sabha of all registered voters of a village, Article 243A;
2. a three-tier structure at village, intermediate and district level, the intermediate tier being optional in a State with a population under twenty lakh, Article 243B;
3. direct election to all seats at every level, Article 243C;

The enforcement cases matter. In Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad (2006) 8 SCC 352 the Court held that Article 243U is mandatory and that a State Election Commission must hold elections before the expiry of the five-year term, and that want of funds or of preparedness is no excuse. In Rajbala v. State of Haryana (2016) 1 SCC 463 the Court upheld minimum educational qualifications and other disqualifications for panchayat candidates, a decision widely criticised for excluding precisely the people the tier exists to represent.

Conclusion. Each of these notes is a study of the same problem from a different angle: how a written constitution distributes power so that it can be used and still be checked. Article 262 and Article 263 keep inter-State conflict out of the ordinary courts and have not, on the evidence of the water tribunals, produced speed. Article 19(2) has been read narrowly enough to protect dissent and widely enough to permit blocking, and the internet is where that line is now drawn. Parts III and IV, after Minerva Mills, are held in a balance that is itself unamendable. And the Seventy-third Amendment shows what constitutionalising an institution can and cannot do: it can guarantee an election and a seat, but it cannot by itself transfer the funds and functions that make the seat worth holding.