UNIT 2

CENTRAL LEGISLATURE-UNION PARLIAMENT

(Articles 79 to 122)
In regard to the constitution of the Union Parliament, the Indian Constitution has adopted the
English pattern. Its two characteristics are that the Head of the State is an integral part of the
Legislature and that it is a bicameral Legislature. Article 79 of the Indian Constitution provides:
“There shall be a Parliament for the Union which shall consist of the President and two Houses
to be known respectively as the Council of States and the House of People”. The President
though cannot be a member of either House,” but, he is an integral part of the Union Parliament.

Provincial Parliament (Article 379)

The Parliamentary body, the Constituent Assembly, which enacted the Constitution, acted as
Provincial Parliament1 till replaced in 1952, on the constitution of the Parliament under the
Constitution. The laws passed by the Provincial Parliament, in the exercise of ordinary
legislative power, do not enjoy the status as the Constitution or some such special status, but
are the laws made by Parliament under the Constitution.2

Bicameral Legislature (Article 79)

The Union Parliament consists of two Houses, i.e., Council of States (Rajya Sabha)3 and the
House of People (Lok Sabha).4 The question of a State Legislature to be a bicameral or
unicameral Legislature, has been left for each State to decide for itself.5

Merits of a Bicameral Legislature

In a federal Constitution, the second Chamber has been considered to be a necessity, because
it plays an important role in the matters of legislation.
Following are the merits of having the second House:-

(i) The second House, i.e., the Upper House, is found to be useful because the senior
politicians and the statesmen might get an easy access in it without undergoing the
ordeal of general elections necessary for the membership of the Popular House, i.e.,
the House of People. Therefore, the experience and talent of the elderly politicians
is not lost to the country.
(ii) The second House acts as a revising House and checks hasty legislation. It provides
for the legislation to be considered in a more dispassionate manner.
(iii) Having a second House, it becomes possible to provide representation to various
classes of interests, unrepresented areas and vulnerable and marginalised groups, or

1
It was so provided in the Indian Independence Act, 1947
2
Kuldeep Nayar v. Union of India, AIR 2006 SC 3127.
3
The Rajya Sabha was first constituted on April 3, 1952.
4
The Lok Sabha held its first setting on May 13, 1952, after the first general election held in the winter of 1951-
1952.
5
See Article 169

1
 special interests as emerging upwardly mobile groups seek recognition and voice.”
It may also provide protection to the weaker sections.
(iv) It is more difficult to corrupt two Houses.

Demerits of a Bicameral Legislature

Although, in a federal Constitution, the second House is considered to be a necessity, but, it
has been criticised, keeping in view the conditions prevailing in India. It may have the
following disadvantages-

(i) It is criticised to be an unnecessary expenditure of public money, a political luxury

for a poor country like India.
(ii) It helps the ruling party to rehabilitate defeated politicians or those, who cannot be
given tickets to contest the election to the lower House. Many times incompetent
persons get elected to the second House and therefore, efficiency of the Legislature
is affected.
(iii) Rivalry between the two Houses, sometimes, blocks popular measures, resulting in
unnecessary delay in the making of legislation.

Parliament not a Sovereign Body

Although, in the composition of the Union Parliament, we have followed the British pattern,6
but Indian Parliament is not a sovereign body like the British Parliament, which is pleasantly
called the “Mother of Parliaments”. It is because of the reason that the Indian Parliament is a
creature of the Constitution and is constituted, under the Constitution, in accordance with the
provisions of the Constitution. It may exercise only powers conferred by the Constitution,
following the procedure laid down therein. The entire scheme of the Constitution is such that
it ensures the sovereignty and integrity of the country as a Republic and the democratic way of
life by parliamentary institutions based on free and fair elections. Indian Parliament is,
therefore, not a sovereign body.7

CONSTITUTION OF HOUSES OF PARLIAMENT

Parliament consists of the President and the two Houses—the Council of States and the House
of the People. While the two Houses continue to be recognised by these names in the
Constitution, they are in actual practice known respectively as the Rajya Sabha and the Lok
Sabha.
On 14th May 1954, the Speaker of Lok Sabha, announced that the House of the People would
thereafter be known as Lok Sabha. On 23rd August 1954, the Chairman of the Rajya Sabha,
made the following announcement:

With the concurrence of the Prime Minister and the Leader of the Council, I have decided that
the Council of States will be called Rajya Sabha and its Secretariat the Rajya Sabha Secretariat.

6
Speaking in the Lok Sabha on March 28, 1957, Shri Nehru Acknowledged that India’s parliamentary institutions
were modelled on those of Britain.
7
People’s Union for Civil Liberties v. Union of India, AIR 2003 SC 2363

2
Dr. Radha Kumud Mookerji, an eminent historian and a member, however, suggested that the
Council of States should be aptly called Rashtra Sabha.

Composition of the Rajya Sabha (Article 80)

Article 80 provides that Rajya Sabha8 shall consist of the following-

(a) 12 members to be nominated by the President from amongst the persons having special
knowledge or practical experience in respect of literature, science, art or social service.
The object behind including the nominated members is to provide representation to
certain non-political interests;
(b) Not more than 238 representatives of the States and the Union Territories.
The allocation of seats in the Rajya Sabha to be filed by the representatives of the States and
of the Union Territories, shall be in accordance with the provisions in that behalf contained in
the Fourth Schedule to the Constitution.

Clause (4) of Article 80 provides that “the representatives of each State in the Rajya Sabha”
shall be elected by the elected members of the Legislative Assembly of the State in accordance
with the system of proportional representation by means of the single transferable vote. The
representatives of the Union Territories are chosen in such manner as Parliament may by law
prescribe.9

In the matters of election of States’ representations to the Rajya Sabha, it has been held that
residence in the respective State, is a matter of qualification to be prescribed by Parliament,
from time to time. Further, that residence in the State, from which, a member is elected, has
never been treated as an essential ingredient of the structure of the Council of States. A
Constitution Bench of the Apex Court in Kuldip Nayar v. Union of India,10 explained:

……..the proceedings concerning election under Article 80 are not proceedings of the
“House of the Legislature of State” within the meaning of Article 194, it is the elected
members of the Legislative Assembly, who constitute under Article 80 the Electoral
College for electing the representatives of the State to fill the seats allotted to that State
in the COS.

In the instant case, the petitioner challenged amendments made in the Representation of People
Act, 1951 by the Amendment Act, 2003, deleting the requirement of “domicile” in the State
concerned for getting elected to the Rajya Sabha as violative of the principle of Federalism.
The impugned Amendments were upheld as constitutionally valid.

Functions and Powers of the Indian Parliament?

The main Functions and Powers of the Indian Parliament are:

8
Presently, the Rajya Sabha consists of 245 members (2-6-2014).
9
See Para IV (A) of the Representatives of People Act, 1951. As regards the Union Territories, an Electoral
College is constituted in each such territory for the election of its representatives to the Rajya Sabha. Cl. (4), it
was held, merely deals with the manner of election, See Kuldip Nayar v. Union of 1ndia, AIR 2006,`SC 3127. 13.
AIR 2006 SC 3127.
10
AIR 2006 SC 3127.

3
Functions and Powers of the Indian Parliament
The Constitution of India enumerates the powers and functions of the Indian Parliament in
Chapter II of Part V of the constitution. Like the British counterpart, the Parliament of India is
not a fully sovereign legislature. It does not enjoy unlimited and absolute powers like that of
the British Parliament. It is a creation of the Constitution. It has no natural growth like that of
the British Parliament. As it is created by the Constitution, it is bound by the provisions of the
Constitution.

The powers and functions of the Indian Parliament may be generalized in the following heads.
While discussing these powers it should be borne in mind that they are enjoyed and exercised
by both the Houses of Parliament with a few difference

(a) Law making powers:

The Parliament of the Union Government is competent to legislate on all matters that are
enumerated in the Union List and the Concurrent List of the Constitution. In the Concurrent
List, the Parliament and the State Legislatures have joint jurisdiction. However, in case of
conflict over any law made under the Concurrent List, the Union Law will prevail upon the
State Law provided the State Law has not received the earlier assent of the President. The
Union Parliament is also competent to make law over the State List under the following
circumstances:-

(i) When the proclamation of Emergency is in operation the Parliament can make law in any
item included in the State List. In case of the declaration of President's Rule in any State under
Article 356 of the Constitution, the Parliament is competent to legislate on any matter included
in the State List (Article 250).

(ii) In normal times when Rajya Sabha passes a resolution by two-thirds majority of its
members present and voting that it is necessary in the national interest that Parliament should
make law with regard to any matter enumerated in the State List, then Parliament is competent
to make law in that matter for the whole or any part of India (Article 249).

(iii) The Parliament is competent to legislate on any matter pertaining to the State List if such
legislation is deemed necessary for the implementation of international treaties or agreements
concluded with foreign States (Article 253).

(iv) If the legislatures of two or more States pass a resolution to the effect that it is desirable to
have a parliamentary law in any matter in the State List, then the Parliament can make law for
those States (Article 252).

Except in the above-mentioned occasions, the Parliament of India is not competent to make
law in the State List. If at any time, the Parliament encroaches upon the rights of the States, the
Supreme Court can prevent such encroachment of the Parliament through its power of Judicial
Review. The Parliament must make law in accordance with the provisions of the Constitution.

4
(b) Financial Powers:
In the financial domain the Parliament is the supreme authority. Not a single paisa can be spent
by the Executive without parliamentary sanction. The budget is annually prepared by the
Cabinet and it is submitted for the approval of the Parliament. The Parliament also approves
all proposals of the Union Government to impose taxes.

Money Bills can originate only in the Lok Sabha. After they have been passed by the Lok
Sabha, they are sent to the Rajya Sabha for approval. Within 14 days the Rajya Sabha is
expected to give its consent. Thus the power of the Rajya Sabha is limited with regards to
money Bills.

Further, to keep a vigil on the way the Executive spends the money granted by the legislature,
there are two Standing Committees of the Parliament. They are the Public Accounts Committee
and the Estimates Committee. These two Committees exercise legislative control over the
Executive on behalf of the Parliament. There are certain items of expenditure included in the
Budget which are not votable in the Parliament. These items include salary of the President,
the Judges of the Supreme Court, and the members of the Union Public Service Commission
etc. They are charged from the Consolidated Fund of India.

(c) Control over the Executive

The Parliament keeps a day-to-day watch over the activities of the Executive. As ours is a
parliamentary system of Government, the Executive is responsible to the Parliament for all acts
of omissions and commissions. The Parliament may remove a Cabinet out of power by a vote
of no confidence. It may reject a bill or a budget proposal of the Cabinet.

Members of the Parliament have a right to ask questions and supplementary question to the
Ministers. Any lapses or mishandling on the part of the Government can be exposed in the
Parliament. Adjournment motions may be moved to discuss serious administrative lapses.
Through adjournment motions, matters of public importance can be brought to the notice of
the Government by the members of the

Parliament. There is a Committee on ministerial assurances appointed by the Parliament to see

that the promises made to the Parliament by the respective ministers are fulfilled. In this matter
the Lok Sabha is more powerful than the Rajya Sabha.

(d) Amending Power:

The Parliament is competent to amend the Constitution. Both the Houses have equal powers
so far amendment of the Constitution is concerned. A bill to amend the Constitution may
originate either in the Rajya Sabha or in the Lok Sabha. Unless it is passed by both the Houses
with the required majority, the amendment cannot be effective.

(e) Judicial Functions

The Constitution vested in the Parliament the power to impeach the President, the Vice-
President, and the other High Federal Officers like the Judges of the Supreme Court and High
Courts, Auditor-General, Members of the Public Service Commission etc. Impeachment is a

5
judicial trial of the Parliament to remove high federal officers. While the resolution for
impeachment is moved in one House, the other House sits as a Court of Trial. Approval of both
the Houses is necessary for any impeachment.

Further, the Parliament possesses punitive powers to punish its members, and non-members
who have broken the privileges of the House. This power is not ordinarily subject to the review
of the Court. In a Parliamentary system of Government, legislative privileges are immune from
judicial control.

(f) Electoral Function

The Parliament participates in the election of the President and the Vice-President. It also elects
some of its members to various Committees of the Parliament. The Vice- President is elected
by both the Houses of the Parliament. He is removable by a resolution of the Rajya Sabha
agreed to by the Lok Sabha.

(g) Deliberative Function:

The Parliament is a forum for deliberation on questions of public importance. It also serves as
a ventilating chamber of public grievances. The Parliament is a mirror of national life.
Whatever happens in various parts of the country can be discussed in its forum. It is often
described as “a nation in miniature”. Of all the functions of the Parliament this is an important
function in a democratic country. Resolutions passed by the Parliament after days of
deliberation may have the force of law. The Parliament represents the consensus of public
opinion in the country Churchill once described the British Parliament as “the citadel of
liberty”. The Parliament in India also protects the rights and liberties of the people.

Parliamentary Sovereignty and position in India with compare to

England
Introduction
Parliament is the national legislature where the representatives of people discuss and debate
the political and national affairs of the country. Though primarily a law-making body, it
controls in modern times the executive, being a national forum of public opinion. In India,
parliament means the combination of the house of the people, the council of states and president
of India. In England, parliament means the King-in parliament. At the apex of the parliamentary
triangle is king; at its base are the House of Lords and the House of commons. Parliament
means these triple entities acting together. Of course, the House of Commons is the dominant
partner as a popular assembly. Any one of these singly or any two of them acting jointly do not
constitute parliament as was held in Stockdale v. Hansard.11

Parliamentary sovereignty in England

In the England, parliament, or technically the king-in parliament, is sovereign. Sovereignty
means internal supremacy and external independence as the political scientists would suggest.

11
Satyavrate Patel, World Constitutional Law and Practice, Vikas Publications, Delhi-6, 1970, p.12.

6
It means the unlimited capacity to do anything and everything. It can do, undo, and do
otherwise any states of affairs. This means the parliament is omnipotent and Omni competent
in law. It has no superior or equal in this field. It has unfettered discretion and power to pass,
alter, or modify and any law whatever in the way it likes. The nature of the legislation or its
provisions may also be any; they may be wise or unwise, moral or immoral, reasonable or
unreasonable, contrary to existing laws or in consonance with them.

The legislative sovereignty of parliament in England signifies the following:

1) That there is no law which parliament cannot pass. It can make, unmake, or alter any
law whatever.

2) That any legislation passed by parliament must be recognized and applied by all the
courts in the country, whatever the law is reasonable or unreasonable, moral or
immoral.
3) That no court has the right to declare void or unconstitutional any law passed by
parliament. In England, there is legislative sovereignty, no judicial supremacy and the
courts of law have power of judicial review.
4) That there is no other person or body of persons that can claim the power of a parallel
or rival legislature. No other body can override or overrule parliamentary legislation,
and parliament can override or overrule any legislation. This means other law-making
authority is derivative and is necessarily and subordinate to parliament.
The first three may be called the positive aspect, the fourth is called negative aspect. The
positive aspect refers to the unlimited legislative competence of parliament; the negative aspect
embraces the absence of legislative rivals.

In brief, parliamentary sovereignty means that the triple entity called King-in-parliament has
the unlimited right to make or unmake any law whatever, and that no person or body of persons
is recognized by the English law as having the authority to make rules which override, derogate
from, or otherwise compete with an act of parliament or which would be enforced by courts in
contravention of an act of parliament. Thus, the legislative powers of parliament are
uncontrolled and uncontrollable, unlimited and illimitable.

Parliamentary sovereignty in India

The parliament of India is not sovereign like the England parliament. Its jurisdiction is
determined by constitution as contained in Union List and Concurrent List. But even within
that allotted jurisdiction parliament cannot make any law which violates any of the
Fundamental Rights. The Courts are empowered to pronounce upon enactment the
constitutionality of laws. This is due to India has adopted both parliamentary modal of England
and supremacy of judiciary of United States of America i.e. power of judicial review.

7
Constitutional provisions which effects Parliamentary sovereignty in India:
The State shall not make any law which takes away or abridges the rights conferred by this Part
and any law made in contravention of this clause shall, to the extent of the contravention, be
void.12

Powers of parliament in India:

1) The union parliament can legislate on all matters and subjects specified in Union and
Concurrent Lists.13

2) If States authorize the parliament to legislate on certain matters, parliament makes such
legislation even if those subjects are on States List.14
3) In case of breakdown of the constitutional machinery in a state and when a proclamation
has been made to that effect, the State Legislature stands suspended and the Union
parliament legislates for that State even on subjects that are included in the State List.15

4) The parliament is competent to legislate on any matter in state List if the Council of State
passes a resolution by a two-thirds majority declaring such a matter or matters to be of
national importance and interests.16

5) The union parliament is competent to legislate for the whole of India or any part thereof
on any matter in the Union, State or Concurrent List, in order to give effect to any treaty,
Agreement or Convention with any foreign State.17
6) The power to amend the constitution rests with the Union Parliament only.18

7) Parliament controls the national finances. No taxes can be levied, money borrowed or
spend without the permission and authority of parliament and in the manner prescribed
by it. Parliament has, however, no control over expenditure which is charged on the
revenues of India, but may discuss it.19
8) It has power to impeach the President and remove him from office.20

9) The supreme command of the Defence Forces is vested in the President but the exercise
of this power is to be regulated by law and it is the parliament which has the exclusive
legislative power in regard to the Defence Forces, war, and peace.21

12
. Art. 13, constitution of India.
13
Art. 246, Ibid.
14
Art. 252, Ibid.
15
Art. 250, Ibid.
16
Art. 249, Ibid.
17
Art. 253, Ibid.
18
Art. 368, Ibid.
19
Art. 265, Ibid.
20
Art. 61, Ibid.
21
Art. 53(2), Ibid.

8
 10) The ministers of union cabinet must be member of the parliament. If they are not member
at the time of their appointment they must get themselves elected within six mounts,
otherwise they cease to be ministers.22

11) Parliament controls the administration and working of the different ministries by seeking
information by means of questions and supplementaries, passing resolution, votes of
censure and motions of no-confidence. This also establishes the supremacy of parliament
over the executive. The ministry can also be criticized when the Budget is being discussed
or supplementary grant are moved.23

12) The two Houses of parliament participate in the election of the president. But in the
election of the vice-president, the parliament’s right is exclusive.24

13) Parliament can by law form a new State or change after ascertaining the view of State
concerned.25

14) It can create or abolish the Upper Chamber in the State on the recommendation of the
Assembly of the State concerned.26

Indian judiciary’s approach on Parliamentary sovereignty

In India, the Supreme Court is the final interpreter and guardian of the constitution and
custodian of the people’s fundamental rights. Thus, it plays important role. The following most
effective leading cases which balanced our parliamentary sovereignty:-

On amending power the kasavananda Bharati case plays most important role till date today
to save our constitution which gives ruling on amending constitution that the Art. 368 does
not enable parliament to alter the basic structure of framework of the constitution. On Art. 356
S.R. bommai case is also has play most relevant role.

Conclusion
Hitherto we have examined the parliamentary sovereignty theory and position in Indian
parliament with comparison to England’s parliament. We have finds that in India, the
constitution is supreme not the parliament. Indian parliament do not makes any law which
alters fundamental right and violates constitutional provision. Hence, parliament of India is
supreme under constitution. In other hand, parliament of Britain makes any law may be moral
or immoral, legal or illegal no any court examine its legality like Indian supreme court.
Therefore Indian parliamentary system is more responsible towards ideal principle of
constitutional supremacy with power of judiciary review.

22
Art. 75(5), Ibid.
23
Art. 113-116, Ibid.
24
Art. 55 and 66, Ibid.
25
Art. 3, Ibid.
26
Art. 169, Ibid.

9
Powers, Privileges and Immunities of Parliament, its Members and Committees
Articles 105 and 194 of the Constitution deal with the powers, privileges and immunities of
Parliament and State Legislatures and their Members and Committees respectively. These
privileges are essential for the Parliament and State Legislatures to carry out their parliamentary
functions. These privileges of the Members of the Houses exist for the benefit of the Houses
and not for personal benefit of the Members.

Definition of Parliamentary Privileges

Privilege Erskine May, an authority on British Parliamentary Practice and Procedure has
defined parliamentary privilege as under:

It is “the sum of the peculiar rights enjoyed by each House collectively as a constituent part of
the High Court of Parliament, and by Members of each House individually without which they
would not discharge their functions, and which exceed those possessed by other bodies or
individuals.”
Parliamentary privilege was not a new concept for India as, under the Government of India
Act, 1919 and 1935, the Indian Legislatures enjoyed (very) limited privileges.

That the freedom of speech and debates or proceedings in Parliament ought not be impeached
or questioned in any court or place out of Parliament. (Article 9 of the Bill of Rights 1689)

The Council and the Assembly respectively and the committees and members thereof
respectively shall hold enjoy and exercise such and the like privileges immunities and powers
as at the 21st day of July, 1855 were held enjoyed and exercised by the House of Commons of
Great Britain and Ireland and by the committees and members thereof, so far as the same are
not inconsistent with any Act of the Parliament of Victoria, whether such privileges immunities
or powers were so held possessed or enjoyed by custom statute or otherwise. (Section 19(1) of
the Victorian Constitution Act 1975)
The powers, privileges, and immunities of the Senate and of the House of Representatives, and
of the members and the committees of each House, shall be such as are declared by the
Parliament, and until declared shall be those of the Commons House of Parliament of the
United Kingdom, and of its members and committees, at the establishment of the
Commonwealth. (Section 49 of the Commonwealth of Australia Constitution Act 1900).

The Constitution of India does not define such privileges and powers etc. Article 105(1) gives
the freedom of speech in Parliament and clause (2) of the same article confers immunity on a
Member of Parliament from the jurisdiction of Courts in respect of anything said or any vote
given by him in Parliament or any Committee thereof. Similar immunity has been conferred in
respect of the publication by or under the authority of either House of Parliament of any report,
paper, votes or proceedings. Rest of the powers, privileges and immunities are to be defined
by Parliament by law and until they are so defined they were to be those of the House of
Commons of the Parliament of the United Kingdom, as they existed at the commencement of
the Constitution, i.e., January 26, 1950. The Constitution (Forty-Fourth Amendment) Act, 1978
which became operative from June 20, 1979 has deleted reference to the House of Commons.

10
Now, if one has to ascertain the powers and privileges of Parliament immediately after January
26, 1950, he has to find out what were the powers etc. of the British House of Commons. The
position post-June 20, 1979 can be located from the records of Indian Parliament since its
inception. Clause (3) of Article 105 empowers the Parliament to define by law, the privileges,
powers and immunities of each House of Parliament and of the members and committees of
each House in “other respects”. However, neither Parliament nor any State Legislature has
implemented this provision by codifying the other privileges. The primary reason of non-
implementation of clause (3) seems to be the fear that such law will be subject to judicial
review. At present intervention by the Courts is deemed to be an encroachment on the privileges
of the Houses on the ground of British precedents. It may be argued that Clause (3) is
comprehensive and even renders clauses (1) and (2) of Article 105 (and Art. 194) redundant
because these two clauses are included in the sweep of clause (3). It may however, be
submitted, that the British House of Commons did not clearly enjoy the freedom of speech and
freedom of publication. These rights were recognised after a long struggle. The evolution of
British Parliament and of the House of Commons in particular has a chequered history. Art.
105(1) and (2) in no uncertain terms grant the rights of speech and publication. There is no
need to delve in British parliamentary records to locate these rights. These privileges are
unequivocally granted by the Constitution.

Exemption of members of legislative bodies from arrest and detention under civil process
(35A) CPC
[(1) No person shall be liable to arrest or detention in prison under civil process-
(a) if he is a member of-
(i) either House of Parliament, or
(ii) the Legislative Assembly or Legislative Council of a State, or
(iii) a Legislative Assembly of a Union territory,

daring the continuance of any meeting of such House of Parliament or, as the case may be, of
the Legislative Assembly or the Legislative Council;
(b) if he is a, member of any, committee of-
(i) either House of Parliament, or
(ii) the Legislative Assembly of a State or Union territory, or
(iii) the Legislative Council of a State,
during the continuance of any meeting of such committee;
(c) if he is a member of-
(i) either House of Parliament, or
(ii) a Legislative Assembly or Legislative Council of a State having both such Houses,

11
during the continuance of a joint sitting, meeting, conference or joint committee of the Houses
of Parliament or Houses of the State Legislature, as the case may be, and during the forty days
before and after such meeting, sitting or conference.]

(2) A person released from detention under sub-section (1) shall, subject to the provisions, of
the said sub-section, be liable to re-arrest and to the further detention to which he would have
been liable if he had not been released under the provisions of sub-section (1).]

Privileges Expressly Conferred by the Constitution.-

Article 105(1) and (2) confer the freedom of speech in Parliament and freedom of publication
under the authority of either House respectively.

1. Freedom of Speech.-Freedom of speech and debate in Parliament were established in 17th

century in Britain in the famous case of Sir John Iliot, Holles and Valentine, who in 1629 were
charged with seditious speeches made in the House of Commons. They were punished by the
Kings Bench Division.27 In 1668, the House of Lords reversed the judgment on the ground that
seditious words in the House were not and could not be tried by the Courts. Finally, in 1688,
the Bill of Rights was enacted as a result of bargain between the Parliament and new Monarch.
Article 9 of the Bill of Rights declared the scope of parliamentary privilege of freedom of
speech in these words:

“That the freedom of speech and debates or proceedings Parliament, ought not to be impeached
or questioned in any court or place out of Parliament.”

Prior to the commencement of the Constitution of India the privileges of Members of Indian
Legislature were given in Section 28 of the Government of Act, 1935 section 24 (7) of the
Government of India Act, 1919 also Contained provision relating to the privileges of Members
of the Indian Legislature. It provided as under:

“(7) Subject to the rules and standing orders affecting the Chamber, there shall be freedom of
speech in both the Chambers of the Indian legislature. No person shall be liable to any
proceedings in any Court by reason of his speech or vote in either Chamber or by reason of
anything contained in any official report of the proceedings of either Chamber.”

Clause (1) of Article 105 specifically says “there shall be freedom of speech in Parliament”.
This freedom is not unbridled. It is “subject to the provisions of this Constitution and the rules
and standing orders regulating the procedure of Parliament.” Clause (2) further gives immunity
to the Members from the jurisdiction of Courts in respect of anything said or any vote given by
him in Parliament or any Committee thereof. The words “subject to the provisions of this
Constitution” have been interpreted by the Supreme Court to mean subject to those provisions
of the Constitution which regulate the procedure of Parliament28 or a State Legislature as the
case may be Articles 118 and 208 of the Constitution authorise the Parliament and the State
Legislatures respectively to make rules for this purpose.

27
3 State Trials, P. 293
28
M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395.

12
2. Freedom of Publication. Clause (2) of Article 105 confers immunity in relation to
proceedings in Courts. It states that no Member of Parliament shall be liable to any proceedings
to any Court in respect of anything said or any vote given by him in Parliament or any
Committee thereof. The word ‘proceedings’ means any civil, criminal or writ proceedings.29
The scope of Article 105(2) was examined by the Supreme Court in Tej Kiran Jain v. N.
Sunjeeva Reddy,30 and it was held that whatever is said in Parliament is immune from the
jurisdiction of the Courts. In view of this interpretation, the notices of motions, questions,
resolutions or reports of the Committees are covered by ‘proceedings’. Therefore, ‘once it was
proved that the Parliament was sitting and its business was being transacted, anything said
during the course of that business was immune from proceedings in any Court.’ 31 This
immunity from the jurisdiction of the Courts is complete, because it is the essence of
parliamentary democracy that peoples representatives should be free to express themselves
without fear of legal consequences.

P.V Narsimha Rao Case32

Very important issues relating to parliamentary privileges have been decided by the apex Court
in this case. The Court by a majority of 3:2 (SP Bharucha and S. Rajendra Babu, JJ with whom
G.N. Ray, J. agreed and S.P. Agrawal and Dr. A.S. Anand, JJ dissented) answered the following
questions:

(1) Does Article 105 of the Constitution confer any immunity on a Member of Parliament being
prosecuted in a Criminal Court for an offence involving an offer or acceptance of bribe?
(2) Is a Member of Parliament a ‘public servant’ for the purposes of the Prevention of
Corruption Act, 1988?

The facts of the case in brief were that in the General Election for the Tenth Lok Sabha held in
1991, the Congress (I) party emerged as the single largest party and formed the Government
with P.V. Narsimha Rao as the Prime Minister. In July 1993, a no confidence motion was
moved against the Government which was in minority and was short by 14 members for simple
majority the motion was defeated. It was then alleged that certain members of the ruling party
gave large sums of money to few Members of Jharkhand Mukti Morcha (JMM) to vote against
the motion on the floor of the House (Lok Sabha). A complaint to this effect was filed with the
Central Bureau of Investigation (CBI) against certain Members of Parliament and on this basis
cases were registered against these Members under the provisions of Prevention of Corruption
Act, 1988 and the Indian Penal Code, 1860. The Special Judge dealing with the case found
sufficient evidence for framing charges. An objection was raised by the accused persons to the
effect that the jurisdiction of the Court to try the case was barred under Article 105(2) of the
Constitution. This was so, it was contended, because the trial was in respect of matters which
relate to the privileges and immunities of the House and its Members. The Special judge
rejected this contention holding that they were being prosecuted for their illegal acts committed

29
A.K. Subhinh v. Karnataka Legislative Council, AIR 1979 Kant.
30
3. AIR 1970 SC 1573
31
AIR 1970 SC at 1574
32
(1998) 4 SCC 626

13
outside Parliament for demanding and accepting bribe for voting in a particular manner.
Revision petitions against this were filed in the Delhi High Court. These petitions were
dismissed by the High Court. Aggrieved by the decision of the High Court, the petitioners
appealed in the Supreme Court. These appeals were heard by a Bench of three Judges which
asked the registry of the Court to place the matter before the Chief Justice of India because, in
their opinion, a substantial question of law as to the interpretation of Article 105 of the
Constitution was involved which required to be decided by a Constitution Bench. Accordingly
the case came up before a Constitution Bench comprising the justices noted above.

The majority decision gave an extensive interpretation and held that ordinary law does not
apply to acceptance of bribe by a Member of Parliament in relation to proceedings in
Parliament. According to Bharucha J:

“a Member of Parliament shall not be answerable in a Court of law for something that has a
nexus to his speech or vote in Parliament. If a Member of Parliament has, by his speech or vote
in Parliament, committed an offence, he enjoys by reason of Article 105(2), immunity from
prosecution therefor. Those who have conspired with the Member of Parliament in the
commission of that offence have no such immunity. They can, therefore, be prosecuted for it.”

The majority held that the Members of Parliament who took bribe and voted upon no
confidence motion are entitled to the immunity conferred by Art. 105(2) and are not answerable
in a Court of law for the alleged conspiracy and agreement. A Member of Parliament who took
bribe but did not vote is not entitled to the protection of Article 105(2). He must be prosecuted.
Similarly, the bribe givers who are also Members of Parliament or State Legislatures are not
protected by Article 105(2) of the Constitution. Their acts have no nexus to their speech or vote
in Parliament. They can, therefore, also be prosecuted. G.N. Ray, J. in his separate judgment
agreed with Bharucha and Rajendra Babu, JJ.

The minority judgment given by S.C. Agrawal, J. with whom Justice (Dr.) A.S. Anand
concurred, construed the provisions of Article 105(2) narrowly. It held that a Member of
Parliament does not enjoy immunity under clause (2) or (3) of Article 105 from being
prosecuted before a Criminal Court for an offence involving an offer or acceptance of bribe for
the purpose of speaking or giving his vote in Parliament or in any Committee of the Parliament.
Explaining the meaning of the expression “in respect of” occurring in Art. 105(2), Agrawal, J.,
observed that those Words mean “arising out of”. Interpreting these words in this way will
confine the immunity conferred by Article 105(2) to liability that arises out of or is attributable
to something that has been said or to a vote that has been given by a Member of Parliament.
“The immunity would not be available to give protection against liability for an act that
precedes the making of the speech or giving of a vote by a Member of Parliament even though
it may have a connection with the speech made or vote given by the Member if such an act
gives rise to a liability which arises independently or does not depend on the making of the
speech or the giving of vote in Parliament by the Member.”
The minority judgment which held the Members of Parliament who took bribe and voted in the
no confidence motion guilty and amenable to the jurisdiction of a Court of law is more rational.
It is purposive and consistent with the concept of rule of law. Ethically and morally also the

14
conduct of the members of such an eminent body sets example for the general public. The
majority judgment is too technical and runs counter to the purpose of parliamentary privileges
and immunities. In this connection the following observation of Agrawal, J. is pertinent:

“the object of the immunity conferred under Article 105(2) is to ensure the independence of
individual legislators. Such independence is necessary for healthy functioning of the system of
parliamentary democracy adopted in the Constitution. Parliamentary democracy is a part of the
basic structure of the Constitution. An interpretation of Article 105(2) which would enable a
Member of Parliament to claim immunity from prosecution in a Criminal Court for an offence
of bribery in connection with anything said by him or a vote given by him in Parliament or any
committee thereof.

Right to exclude strangers

The members of the house have the power and right to exclude strangers who are not members
of the house from the proceedings. This right is very essential for securing free and fair
discussion in the house. If any breach is reported then the punishment in the form of
admonition, reprimand, or imprisonment can be given.

The right to punish members and outsiders for breach of its privileges
The Indian Parliament has the power to punish any person whether strangers or any member
of the house for any breach or contempt of the house. When any breach is committed by the
member of the house, he/she is expelled from the house.

This right has been defined as ‘keystone of parliamentary privilege’ because, without this
power, the house can suffer contempt and breach and is very necessary to safeguard its
authority and discharge its functions. This power has also been upheld by the judiciary in most
of the cases. The house can put in custody any person or member for contempt till the period
the house is in session.

The right to regulate the internal affairs of the house

Each house has a right to regulate its proceedings in the way it deems fit and proper. Each
house has its own jurisdiction over the house and no authority from the other house can interfere
in regulation of its internal proceedings. Under Article 118 of the Constitution, the house have
been empowered to conduct its regulation for proceedings and cannot be challenged in the
court of law on the ground that the house is not in accordance with the rules made under Article
118. The Supreme Court has also held that this is general provision and the rule is not binding
upon the house. They can deviate or change the rule anytime accordingly.

Punishments prescribed for breach of privileges or contempt of the house

1. Imprisonment – If the breach committed is of a grave nature the, punishment can be
given in the form of the imprisonment of any member or person.

2. Imposing fine – If in the view of the parliament, the breach or contempt committed is
of economic offence and any pecuniary gain has been made from the breach then, the
parliament can impose fine on the person.

15
 3. Prosecuting the offenders – The parliament can also prosecute the one committing the
breach.

4. Punishment given to its own members – If any contempt is committed by the members
of the parliament then, he is to be punished by the house itself which could also result
in the suspension of the member from the house.

What constitutes parliamentary breach or contempt of the house?

There is no codification to clearly state that what action constitutes a breach and what
punishment it entails. Although, there are various acts which are treated by the house as the
contempt. It is generally based on the actions which tend to obstruct the proceedings of the
house and creates a disturbance for the members. Some of them are briefly discussed.

Giving any misleading statement in the house

The acts which are done solely with the purpose to mislead are considered as the contempt of
the house. If the statement is made by a person who believes the information to be true then,
there is no breach involved. It has to be proved that the statement was made with an intention
to mislead the house.

Disturbance by the outsiders

Any disruption created by shouting slogans or throwing leaflets etc. with the purpose of
disturbing the proceedings of the court is regarded as a major contempt by the house. The
person is imprisoned by the house for a specified period of time or a warning is given depending
on the seriousness of the case.

Any kind of assault on the members

Here, the privilege is available when the member is performing his duties. An assault done by
any person on the member of the parliament in the course of performing his duties is treated as
contempt of the house.

Writings or speeches about the character of the member any speech published or libel made
against the character of the member is regarded as the contempt of the house. These are
regarded to be necessary because it affects the performance and function of the member by
reducing the respect for him.

So, clearly, any attack on the privilege of the members by any means is considered as a breach
of the privilege and the parliament can take action regarding the same.

Freedom of press and the parliamentary privileges

The parliamentary privileges restrict the freedom of the press, which is a fundamental right.
Caution to a great extent has to be taken by the press while publishing any report of the
proceedings of the parliament or the conduct of any member. There are instances where the
press can be held liable for the contempt of the house
1. Publishing any matter concerning the character of any member of the parliament

16
 2. Any pre-mature publication of the proceedings
3. Misreporting or misrepresenting the proceeding of the house
4. Publishing the expunged portion of the proceedings

In spite of the fact that the freedom of the press is subject to the parliamentary privileges,
certain enactments have been made for the protection of the freedom of the press. If the
fundamental right is being violated, there is no meaning of democracy. The freedom of the
press has to be protected because we need to be informed about the acts of our representatives.
Parliamentary Proceedings (protection of the publication) Act, 1977 protects the rights of the
press under certain given circumstances
1. The reports of the proceedings are substantially true.
2. The report is made without malice.
3. The report is made for public good.
4. The report should not constitute any secret meeting of the house.

Codification of the parliamentary privileges

Our Indian parliament enjoys supreme powers as being a member of the parliament. There is
also misuse of the privileges given to them because they do not have many restriction on the
rights. They have the power to be the judge of their own proceedings, regulate their
proceedings, what constitutes the breach and what punishment should be given for the breach,
are solely decided by them.

The power vested in them is too wide as compared to the fundamental rights vested in the
citizens. With no codification of the privileges, they have gained an undefined power because
there is no expressed provision to state the limitations on their powers. The privilege from any
civil arrest 40 days before and after the session and during the session results that they are
exempted from arrest for even more than 365 days. No comprehensive law has been till date
enacted by the parliament for the codification of the parliamentary privileges.

It is mostly resisted by the members because then it will be subject to the fundamental rights
and would be in the purview of judicial review. Justice M.N. Venkatachaliah heading the
Constitution Review Commission also recommended to define and delimit the privileges for
the free and independent functioning of the legislature. This is based on the apprehension that
codification will involve interference of the court as the matters would be presented in the court
of law. Non-codification of privileges has led to greater powers being enjoyed by the members.
But, now the time has come to codify and define the privileges and actions must be taken so
that there is smooth functioning of the parliament without any conflict.

Judicial review of the parliamentary privileges

The Indian judiciary has been vested with the responsibility of the protection of the
fundamental rights. Parliament members claim absolute sovereignty over their powers and in
any case does not want the judiciary to interfere. But, the judiciary is regarded as the guardian

17
of our Constitution and it cannot sit quietly if any fundamental right of a citizen is violated due
to privileges or when there is an escape from any criminal liability.

The judiciary has to take a stand on the wrongs committed by the members who are taking the
shelter of the privileges. The Supreme Court in Keshav Singh’s case observed that the
privileges conferred on the members are subject to the fundamental rights.

The Supreme Court has also held that any conflict arising between the privileges and the
fundamental rights would be resolved by adopting harmonious construction. The judiciary is
very well aware of the fact that it does not have jurisdiction over parliamentary matters but it
is necessary for the society that any violation should be resolved by the court as it deems fit.
Parliamentary privileges and the principle of natural justice

In a recent judgment by the Supreme Court judges in the case of Algaapural R. Mohanraj v
Tamil Nadu Legislative Assembly,33 it was held that the principle of the natural justice cannot
be violated by the privilege committee.

Facts of the case

On 19-02-2015, some members of the Tamil Nadu Legislative Assembly was suspended on
the ground of unruly conduct. In furtherance of this, a privilege committee was formed to
inquire about the conduct of the members and further proceedings related to breach of privilege.
It was found and recommended by the take necessary action against six members for the breach
of privilege.

By a resolution dated 31-03-2015, the members were suspended for a period of ten days for
the next session. Further it was extended to cutting of their salaries and giving any other benefit
till the suspension period. A writ petition was filed by the members in the Supreme Court under
Article 32 of the Constitution.

Contentions raised by the members

The contention was raised by the petitioners that their fundamental rights under Article 19(1)
(a), 19(1) (g), 14 and 21 of the Constitution have been violated by the said resolution.

Judgment by the court

The court rejected the contention of the petitioners that the resolution violated Article 19(1)(a)
and 19(1)(g). It further accepted the contention that the rights was violated under Article 14 of
the Constitution. The court observed that the video recording which showed the act of the
members amounting to the breach was not presented before the petitioners. If it would have
been presented then they might had the chance to explain their conduct. It was further directed
by the court to restore the salary and other benefits of the petitioner.

33
(2016) 6 SCC 82.

18
Conclusion
The privileges are conferred on the members for smooth functioning of the parliament. But,
these rights should always be in conformity with the fundamental right because they are our
representatives and work for our welfare. If the privileges are not in accordance with the
fundamental rights then the very essence of democracy for the protection of the rights of the
citizen will be lost. It is the duty of the parliament not to violate any other rights which are
guaranteed by the constitution. The members should also use their privileges wisely and not
misuse them. They should always keep in mind that the powers do not make them corrupt. The
parliament cannot adopt every privilege that is present in the House of Commons but should
adopt only those privileges which accordingly suits our Indian democracy.

EXECUTIVE POWERS UNDER THE INDIAN CONSTITUTION

The executive along with the legislature and the judiciary forms one of the three agencies
through which the State functions. The dispute before the Court has continuously been so as to
how much one agency can intrude into the functions of another. Has the Constitution provided
a rigid classification? In this context the nature and extent of the executive would be studied
emphasizing on the key issues of interpretation of the relevant provisions of the Constitution.
The two important points to be looked into before analyzing the extent and nature of ‘executive
functions’ in the Indian Constitution according to the Constitution is what constitutes the
executive and what exactly are executive functions.

In pursuant with the federal structure envisaged in the Constitution, the executive is divided
into Union Executive, enumerated in Part V Chapter 1 Articles. 52 to 78, and State Executive,
enumerated in Part VI, Chapter 2 Articles 153 to 167.

Article 53(1) vests in the President the executive power of the Union which shall be exercised
by him either directly or through officers subordinate to him in accordance with this
Constitution. Article 154(1), with respect to State Executive and specifically the Governor, is
exactly worded like Art. 53(1), however, Art. 156(1) states that the Governor holds his office
at the pleasure of the President unlike the tenure of the President which is fixed at 5 years
according to Art. 56(1). It means that the Union Executive controls the tenure of the Governor
since he is expected to be a channel between Union and State Executive. The Governor thus,
is appointed by the President (under Article 155) and holds office at his pleasure. The Court
has time and again reiterated that the “pleasure of the President” is “unjusticiable” and cannot
be questioned since the post of the Governor is not an employment under the Government of
India.

Article 74 provides for a Council of Ministers with a Prime Minister at the head, who shall aid
and advice the President, who has to act in accordance with such advice. Article 163, similarly,
provides for a Council of Ministers with the Chief Minister at the head to aid and advice the
Governor in the exercise of his functions, except in so far as he is by or under the Constitution
is required to exercise his discretion. The Governor is expressly given a discretionary power,
the extent of which will be discussed subsequently. However, to what extent can the President

19
and the Governor act independently of the Council of Ministers is another important issue to
be dealt with subsequently.

It is necessary to determine the true meaning of the term ‘executive functions’ which has not
been defined in the Constitution. They are certainly difficult to comprehensively define since
them are merely the residue of the functions of government after legislative and judicial
functions have been taken away. They include, in addition to the execution of the laws, the
maintenance “of public order, the management of Crown property and nationalised industries
and services, the direction of foreign policy, the conduct of military operations, and the
provision or supervision of such services as education, public health, transport, and state
assistance and insurance.”

The Court has also adopted this ‘residuary’ nature of executive functions and has recognised
the difficulty of framing an exhaustive definition of what executive function means and implies
and have held that the executive power generally connotes the residue of governmental
functions that remain after legislative and judicial functions are taken away.

Extent of Executive Powers

Article 73 of the Constitution of India, Extent of the executive power of the Union, states that,

“(1) Subject to the provisions of this Constitution, the executive power of the Union shall
extend-“
To the matters with respect to which Parliament has power to make laws; and

To the exercise of such rights, authority and jurisdiction as are exercisable by the Government
of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly
provided in this Constitution or in any law made by Parliament, extend in any State to matters
with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may,
notwithstanding anything in this article, continue to exercise in matters with respect to which
Parliament has power to make laws for that State such executive power or functions as the State
or officer or authority thereof could exercise immediately before the commencement of this
Constitution.”

In Ram Jawaya Kapoor v. State of Punjab,34 commonly known as ‘Book seller case ‘it has
been observed by the Court that while the executive has no authority to act against the
provisions of a law, it does not imply that the executive’s actions within the ambit of its
authority requires any law which specifically authorises such action. The Court further held
that in the exercise of its “executive power” the state could carry on a trade or business activity
even without a Legislative Sanction.

34
AIR 1955 SC 549.

20
Referring to the expression ‘executive power’ the Apex Court observed that though it was not
possible to give an exact definition of ‘executive power’ ordinarily it signify that, the residue
of governmental functions that remain after legislative and judicial function taken away.

In Jayantilal Amritlal Shodhan v. F.N. Rana and Ors,35 in this case the SC observed that the
function, which did not fall strictly within the legislative or judicial field, would fall in the
residuary class and had to be regarded as executive. The government in the exercise of its
executive power cannot legislate, this power is vested within the legislature. In Smt. Jaikumari
v. State of Maharashtra,36 it was held that to be a known fact of the constitutional law that the
legislative power of the state is distinct from the executive power. The executive therefore,
cannot amend or repeal any statute enacted by the legislature.

In Poonam Verma v. Delhi Development Authority,37 the SC in this case observed that the
guidelines framed by the executive do not confer any legal right. These do not per se partake
the character of statute.

Referring to the provision of Art. 162 of the constitution a division bench of the SC in Indian
Medical Association v. Union of India,38 observed that the state executive had the power to
make any regulation or order which would have the effect of law so long as it did not contravene
any legislation by the state legislature already covering this field.

Power of the President in India

The primary duty of the President is to preserve, protect and defend the constitution and the
law of India as made part of his oath (Article 60 of Indian constitution). The President is the
common head of all independent constitutional entities. All his actions, recommendations
(Article 3, Article 111, Article 274, etc.) and supervisory powers (Article 74(2), Article 78 c,
Article 108, Article 111, etc.) over the executive and legislative entities of India shall be used
in accordance to uphold the constitution. There is no bar on the actions of the President to
contest in the court of law.

The President of India is the Head of State. The system of government of India is a cabinet
form of government. The Indian President is, therefore, a constitutional head like the King or
Queen of Britain—that is, all executive powers are constitutionally vested in him, although
those are actually exercised and executed by the cabinet. In India the powers of the Union
government are treated as the powers of the President because these powers are used in his
name in pursuance of the constitutional stipulation under Article 53 which reads: The executive
powers of the Union shall be vested in the President and shall be exercised by him either
directly or through the officers subordinate to him in accordance with this Constitution.

The constitutional powers and functions of the President of India may be classified into six
principal types.

35
AIR 1964 SC
36
AIR 2009 Bom.
37
AIR 2008 SC
38
AIR 2011 SC

21
1. Executive Power
A. Head of the Union: The President is at the head of the Union Executive. Consequently, all
executive powers are exercised in his name. The executive power of the Union to be exercised
by the President is extended to the matters with respect to which Parliament has power to make
laws and to conclude treaty and agreement.

B. Appointments: As head of the executive, the President appoints the Governors of States,
the Judges of the Supreme Court and the High Courts, the Auditor General of India and many
other high officials, such as the members of Finance Commission, Election commission, Union
Public commission etc.

C. Appointment of the Prime Minister and other Ministers: The President also appoints the
Prime Minister and with his advice the other Ministers of the Union Council of Ministers. But
here too, as in all other appointments, the President can seldom use his discretion. He is,
ordinarily, duty-bound to summon the leader of the political party which secures an absolute
majority in the Lok Sabha to become the Prime Minister and form the Ministry. He does enjoy
some discretionary powers in the matter only under exceptional circumstances. When no single
political party wins a clear absolute majority and, as a result, no Council of Ministers can be
formed without a coalition of parties the President can exercise his discretion judiciously in
appointing the Prime Minister. Such situations developed in the past.

D. Can ask to prove Majority in Lok Sabha: Union Council of Ministers normally remains
in office for five years, unless dissolved earlier for any reason. The President must be satisfied
that the Council of Ministers enjoys the confidence of the majority of the Lok Sabha. In case
of any doubt he can ask the Council of Ministers to prove its majority in the Lok Sabha, as the
Prime Ministers Sri H.D. Deve Gowda was asked by the President after the official withdrawal
of support by the Congress Party from Ministry. The President can also dissolve the Union
Council of Ministers in accordance with Article 75(2) of the constitution, if he finds that the
Ministry does not enjoy the support of the majorities in the Lok Sabha.

2. Legislative Powers
A. President is a part of Parliament: The Union Legislature or Parliament consists of the
President and two Houses of Parliament. The President is, therefore, an integral part of Union
Legislature. He shall summon from time to time, either separately or jointly, the Houses of
Parliament. The President can prorogue the Houses or either House of Parliament and, if
necessary, can dissolve the lower Chamber of Parliament, the Lok Sabha. For example, the
President solved the twelfth Lok Sabha in early 1999 when the confidence motion in favour
your of the Vajpayee government was lost in the Lok Sabha.

B. Summons and Addresses Parliament: The President may address either or both House of
Parliament. In such address, at the first session after general election to the Lok Sabha and at
beginning of a joint session of Parliament each year, he may place the reasons for summoning
it. Apart from addressing Parliament, the President may also, in case of necessities, send
messages to either House, or to both Houses [Article 86(2)]. Normally, the President does not

22
send such a message, unless however, he has a serious disagreement with the Council of
Ministers.

C. Nomination: The President nominates a number of members in both Houses. The chief
purpose of the nomination is to ensure adequate representation in Parliament of all sections of
population which many not always be achieved through elections.

D. Power in respect of Bills: The President has certain functions in respect of passing of a
Bill. A bill passed by both the Houses of Parliament requires his assent in order to become an
Act. He may give his assent to a bill or can withhold assent when a bill, after getting approved
in both the Houses, is placed before the President. But, if Parliament, acting on President’s
refusal to assent to a bill, passes it again with or without amendment, for the second time and
presents it to the President for his approval, the President shall not withhold his assent there
from under Article 111. In other words, it becomes obligatory upon him to give his assent.

In certain cases, prior sanction of the President is required for initiating any legislation. For
instance, bill for formation of a new State or altering the boundaries of the existing State or
States is to be placed before Parliament with prior approval of the President. Money bill is
another example where obtaining of such approval of the President is a constitutional necessity.

3. Power to Promulgate Ordinances

Article 123 of the Indian Constitution provides that except when both Houses of Parliament
are in session, the President may promulgate such Ordinances as the circumstances appear to
him to require. Such an ordinance can have the same force and effect of an Act of Parliament.
Such an ordinance shall cease to operate unless passed by both Houses of Parliament within
the stipulated period.

The more controversial and debatable legislative power of the President has always been the
Ordinance Making Power. Usually the power to make the laws rests with the Parliament.
However, special power on the President empowering him to promulgate ordinances when the
Parliament is not in session and the circumstances are such which require immediate action.
An ordinance cannot be promulgated when both the houses of parliament are in session
However it may be passed when only one house is in session the reason being that a law cannot
be passed by only one house and thus it cannot meet a situation calling for immediate
legislation. This power granted to the President in the Indian Constitution is unique and no such
power has been conferred upon the executive in Britain or the USA.

One of the essentials to be kept in mind while passing an ordinance is that the President should
be satisfied; that circumstances exist that requires immediate actions on part of the President.
The apex court has not yet defined ‘satisfaction of the President’ and even whether the
subjective satisfaction of the President can be questioned in the Court of Law. To clearly clarify
the said ambiguity, Indira Gandhi led Government passed the 38th Constitutional (Amendment)
Act, 1975 which has expressly excluded the subjective satisfaction of the President outside the
purview of Judicial Review. Further in 44th (Amendment) Act, 1978 deleted this clause, holding
that the power of President could be challenged in the Court of Law if it is based on bad faith,
corrupt motive or had any mala fide intention.

23
In the case of A.K. Roy v. Union of India,39 the Supreme Court held that the subjective
satisfaction of the President is not completely non-justiciable. Later in case of Venkata Reddy
v. State of Andhra Pradesh,40 the Apex court over ruled its own decision and held that the
Satisfaction of the President cannot be called in question in the Court of law and is out of
Judicial Review.

In the case of R.C. Copper v. Union of India,41 constitution validity of the Twenty-fifth
Amendment Act, 1971 was challenged which curtailed the right of property of an individual
and permitted the acquisition of the same by the government for the public use, on the payment
of compensation which has to be determined by the Parliament and not by the court of law. So
in the said case popularly known as Bank Nationalization case, the Apex court while examining
the constitutionality of Banking Companies Ordinance, 1969 which had sought to nationalize
14 commercial banks in India, it was held that President decision can be challenged on the
ground that no ‘immediate action’ was required on his part.
In the case of A.K. Roy v. Union of India,42 the Supreme Court while examining the
constitutionality of the National Security Ordinance, 1980 which was issued to provide for
preventive detention in certain cases, the Supreme Court argued that the President’s power of
making Ordinances is not beyond the Judicial Review of the court. However, the Court was
unable to explore the issues of the case further as the ordinance of the President was replaced
by an Act. The court also pointed out the need to exercise judicial review over the President’s
decision only at substantial grounds and not otherwise at every ‘casual challenge’.

In the case of S.K.G.Sugar Ltd v. State of Bihar,43 it was held that promulgating of an
Ordinance by the Governor is purely upon the Subjective Satisfaction of him and he is the sole
Judge to consider the necessity to issue the Ordinance and “his satisfaction is not a justiciable
matter”.

In the case of T. Venkata Reddy v. State of Andhra Pradesh,44 the petitioner challenged the
constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers
Ordinances, 1984. One of the grounds was that the Ordinance is void on account of the lack of
mind used by the Governor and from the commencement of the same the state legislature was
disapproving it. The ordinance is said to take effect as soon as it is promulgated by the President
and ceases to operate by the legislative act.
One of the questions which were raised in the above mentioned case by the court was: “whether
the validity of an Ordinance passed can be tested upon the similar grounds as to those on which
an executive or judicial action is tested”. In answering the question the Supreme Court cited
its own earlier judgment given in K. Nagaraj v. State of Karnataka,45 and held that the Power

39
(1982) 1 SCC 271
40
(1985) 3 SCC 198
41
AIR 1970 SC 564.
42
AIR 1982 SC 710.
43
AIR 1974 SC 1533
44
AIR 1985 SC 724.
45
(1993) 4 SSC 27.

24
of making Ordinances is a legislative action so the same grounds as related to the law making
should be challenged than challenging the executive or judicial grounds.

Further in the case of S.R. Bommai v. Union of India,46 in this case the scope of Judicial
Review was expanded as to where the court told that where the action by the President is taken
without the relevant materials, the same would be falling under the category of “obviously
perverse” and the action would be considered to be in bad faith. The Supreme Court held that
the exercise of power by the President under the Article 356(1) to issue proclamation is
Justiciable and subject to Judicial Review to challenge on the ground of mala fide.

In case of State of Orissa v. Bhupendra Kumar Bose,47 the court held that the rights and
obligations which are created by the Ordinance came into effect as soon as the Ordinance is
promulgated and the same cannot be extinguished until a proper legislature by a legislative
body extinguishes those rights and obligations of the Ordinances. However, where the
Ordinances promulgated is an abuse of power and a kind of Fraud on the constitution, then, the
state prevailing with such promulgation should immediately revive.
An ordinance would be made open to challenge on the following grounds:
1. It constitutes colorable legislation; or
2. It contravenes any of the Fundamental Rights as mentioned in our Constitution; or
3. It is violative of substantive provisions of Our Constitution such as an Article 301; or
4. Its retrospectively is unconstitutional.

Ordinances are however framed by the executive body which is said to be a single, unified
entity. The President is the head of the executive body who promulgate ordinances on the
advice of the council of ministers. The most important requirement of the promulgation of the
ordinances is the ‘necessity to take the immediate action’. Then there will be no difficulty in
ascertaining the satisfaction of the President when there is real need or necessity in
promulgating the Ordinances.

In further the case of D.C. Wadhwa v. State of Bihar,48 the State of Bihar’s promulgating and
re-promulgating ordinances were challenged as there was promulgation of the same in
“massive scale”. Between the year 1967-81, 256 ordinances were promulgated and then re-
promulgated and some among them remain into existence for up to 14 years. Chief Justice P.N.
Bhagwati observed:

“The power to make an ordinance is to meet an extraordinary situation and it should not be
made to meet political ends of an individual. Though it is contrary to democratic norm for an
executive to make a law but this power is given to the President to meet emergencies so it
should be limited in some point of time.”

46
AIR 1994 SC 1918
47
AIR 1962 SC 945.
48
AIR 1987 SC 579.

25
The power of judicial review of ordinances was once again discussed in year 1998 in the case
of Krishna Kumar Singh v. State of Bihar,49 in this case the Supreme Court struck down many
number of ordinances stating that no particular basis for the exercise of the Ordinance making
power of the President had been shown. It also stated: “There was also no explanation offered
for promulgating one ordinance upon another”.

4. Financial Powers
The President of India also exercises financial powers. No money bill can be introduced in
Parliament without the recommendations of the President. According to the Constitution of
India, the Annual Financial Statement is placed by the President before both the Houses of
Parliament. This statement shows the estimates of revenue and expenditure of the central
Government for the next year. It may be pointed out that the proposal for taxation and
expenditure cannot be made without the approval of the President. . No proposal for spending
money or raising revenues for purposes of government can be introduced in Parliament without
previous permission of the President.

5. Emergency Powers
The constitution of India empowers the President to proclaim three kinds of Emergencies:
A. National Emergency (Art. 352);
B. Emergency for failure of Constitutional Machinery in a State (Art. 356);
C. Financial Emergency (Art. 360).

A. National Emergency
The President of India may issue a Proclamation of National Emergency when the security of
India or any part thereof is threatened by war, armed rebellion or external aggression. Such a
Proclamation of Emergency may remain in force for an indefinite period. During a
Proclamation of National Emergency, the executive power of the States is to be exercised in
accordance with the directions given by the Central Government. Parliament has the power to
make laws on the subjects enumerated in the State List. The right to freedom of speech and
expression, freedom to form association, freedom to practice and profession, etc., embodied in
Article 19 shall remain suspended.

B. Failure of State Constitutional Machinery

In Case of failure of Constitutional machinery in a State, the President of India is authorized to
make a Proclamation to that effect. The maximum duration of this type of emergency is three
(3) years. During such an emergency, the President may assume to himself the executive
powers of the State. The powers of the legislatures of the State are to be exercised by the Union
Parliament

49
Judgment Date: 2 January, 2017

26
C. Financial Emergency
The President may also issue a Proclamation of Financial if he is satisfied that the financial
stability of India is threatened. This type of emergency may continue to remain in force for an
indefinite period. The Central Government may give directions to the States for canons of
financial propriety. All money-bills passed by the State Legislatures are to be reserved for the
consideration of the President.

6. Diplomatic powers
All international treaties and agreements are negotiated and concluded on behalf of the
President. However, in practice, such negotiations are usually carried out by the Prime Minister
along with his Cabinet (especially the Foreign). Also, such treaties are subject to the approval
of the Parliament. The President represents India in international forums and affairs where such
a function is chiefly ceremonial. The President may also send and receive diplomats, i.e. the
officers from the Indian Foreign Service. The President is the first citizen of the country.

7. Military powers
The President is the Supreme Commander of the Indian Armed Forces. The President can
declare war or conclude peace, on the advice of the Union Council of Ministers headed by the
Prime Minister. All-important treaties and contracts are made in the President’s name. He also
appoints the chiefs of the service branches of the armed forces.

8. Pardoning Powers/Judicial Powers

Pre-Constitutional scheme
Before the Constitution of India came into force, the law of pardon in India was the same as in
England since the sovereign of England was the sovereign of India.

From 1935 onwards, the law of pardon was contained in Section 295 of the Government of
India Act which did not limit the power of the Sovereign. The result was up to the coming into
force of the Constitution, the exercise of the King’s prerogative was plenary, unfettered and
exercisable as hitherto.

Constitutional Scheme
Article 72 confers power on the President “to grant pardons, reprieves, respites or remissions
of punishment, or to suspend, remit, or commute the sentence of any person convicted of an
offence in the following cases-:
(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to
a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death”.

The power conferred on the President, however, does not affect the power conferred by any
law on any officer of the Armed Forces of the Union to suspend, remit, or commute a sentence

27
passed by Court Martial, and also the power exercisable by the Governor of the State under
any law, for the time being in force, to suspend, remit or commute a sentence of death.

However, the power conferred under Article 72 is a Constitutional power and is absolute and
cannot be fettered by any statutory provision such as Sections 432, 433 and 433A of the Code
of Criminal Procedure, 1974.

A pardon completely absolves the guilt of the offender. When a convict is granted pardon, he
is completely absolved from the punishment imp0S€d on him as also from all penal
consequences and such disqualifications as disentitle him from following his occupation and
as are concomitant of the conviction.

Reprieve means temporary suspension of death sentence, for example pending a proceeding
for Pardon or commutation.

Respite means awarding a lesser punishment on some special ground for example pregnancy
of a woman offender.
Commutation means the exchange of one form of punishment for another. For example,
rigorous imprisonment is commuted to simple imprisonment.

Remission means reduction of the amount of sentence without changing its character. An order
of remission does not, in any way, interfere with the order of the Court. A remission of
sentence, therefore, does not mean acquittal.

An order of remission has the effect of wiping out that part of the sentence of imprisonment
which has not been served out and thus in practice to reduce the sentence to the period already
undergone. In law, the order of remission merely means that the rest of the sentence need not
be undergone, leaving the order of conviction by the Court and the sentence passed by it,
untouched.

Nature of Power
The power vested in the President under Article 72 and the Governor under Article 161, is
manifestation of prerogative of the State, an important constitutional responsibility to be
discharge by the highest executive, keeping in view the consideration of larger public interest
and welfare of the people. The power is held neither a matter of grace nor a matter of privilege.

Being the constitutional Head, the President is required to act on the aid and advice of the
Council of Ministers. However, in tendering their advice to the President, the Central
Government is duty bound to objectively place the case of the convict with a clear indication
about the nature and magnitude of the crime committed by him, its impact on the society and
all incriminating and extenuating circumstances.

On receipt of the advice of the Government, the President or the Governor, as the case may be,
has to take a final decision in the matter. In an appropriate case, the President or the Governor,
as the case may be, can, after scanning the record of the case, form his/her independent opinion
as to whether a case is made out for the grant of pardon, reprieve etc.

28
Mercy Petition-Judicial Review
It has been consistently said that the Court’s power of judicial review of decision taken by the
President under Article 72 or by the Governor under Article 161, as the case may be, is very
limited. The Court can neither sit in appeal nor exercise the power of review. The Court, may,
however, interfere if it is found that the decision has been taken without application of mind to
the relevant factors or that the same in founded on the extraneous, or irrelevant considerations
or in vitiated due to mala fide or patent arbitrariness.

The Supreme Court in Samsher Singh v. State of Punjab50 a seven-judge bench stated that the
satisfaction of the President or the Governor required by the Constitution is not their personal
satisfaction, but the satisfaction of the Council of Ministers on whose aid and advice the
President and the Governor exercise their powers and functions. The Hon’ble Supreme Court
in the case of Maru Ram v. Union of India51 ruled that the President and the Governors in
discharging the functions under Article 72 and Article 161 respectively must act not on their
own judgment but in accordance with the aid and advice of the ministers. This legal position
was re-affirmed by this Hon’ble Court in the case of Kehar Singh v. Union of India.52

In Kuljit Singh v. Lt. Governor of Delhi,53 the Supreme Court expressed the view that the
pardoning power of the President is a wholesome power that should be exercised ‘as the justice
of a case may require’, and that it would be undesirable to limit it by way of judicially- evolved
constraints.

In Kehar Singh v. Union of India it was said that the order of the President cannot be subjected
to judicial review on its merits except within the strict limitations defined in Maru Ram’s case.
Looking at these cases, the Court did not actually call for judicial intervention.

However, in Swaran Singh v. State of U.P54 the Supreme Court invalidated the remission of
sentence by the Governor because some material facts were not brought to the knowledge of
the Governor. Not only this, the Supreme Court had asked the President to reassess his decision
when it was of the view that the decision of the President was totally arbitrary and unfair, a
three-Judge Bench held that “this Court has no power to touch the order passed by the Governor
under Article 161 of the Constitution. If such power was exercised arbitrarily, malafide or in
absolute disregard of the finer canons of the constitutionalism, the by-product order cannot the
approval of law and in such cases, the judicial hand must be stretched to it.”

The Governor’s power of pardon under Article 161 runs parallel to that of the President under
Article 72 and thus several cases based on the same have a bearing on the Presidential Power
under Article 72. Moreover, judgments dealing with Article 72 have simultaneously deal with
Article 161 and vice-versa. In the case of K.M. Nanavati v. State of Bombay55 a reprieve

50
(1974)2 SCC 831
51
(1981)1 SCC 107
52
AIR 1989 SC653
53
(1982)1 SCC 417
54
AIR 1998 SC 2026
55
AIR 1961 SC 112

29
granted by the Governor under Article 161 was held constitutionally invalid since it conflicted
with the rules made by the Supreme Court under Article 145 of the Constitution.

In Satpal v. State of Haryana,56 the Supreme Court quashed an order of the Governor
pardoning a person convicted of murder on the ground that the Governor had not been advised
properly with all the relevant materials. The Court spelt out specifically the considerations that
need to be taken account of while exercising the power of pardon, namely, the period of
sentence in fact undergone by the said convict as well as his conduct and behaviour while he
underwent the sentence. The Court held “not being aware of such material facts would tend to
make an order of granting pardon arbitrary and irrational”.
In Dhananjoy Chaterjee v. State of West Bengal,57 the Supreme Court held that an order
passed by the Governor under Article 161 is subject to judicial review and he shall not be
deprived of an opportunity to exercise his powers in a fair and just manner because court felt
that all material facts including the mitigating factors were not placed before the Governor. The
Court directed the respondent authorities to put up the mercy petition again to the Governor
and bring all relevant facts to the notice of the Governor.

Later in Epuru Sudhakar v. Government of Andra Pradesh,58 Pasayat, J. has laid down that
judicial review under Articles 72 and 161 is available on the following grounds:-
(a) That the order has been passed without application of mind;
(b) That the order is mala fide;
(c) That the order has been passed on extraneous or wholly irrelevant considerations;
(d) That the order suffers from arbitrariness.

In Jagdish v. state of Madhya Pradesh,59 court held that the power of the President and
Governor to grant pardon etc. under Articles 72 and 161, though couched in imperative terms
has nevertheless to be exercised on the advice of the executive authority. In this background it
is the government, which in effect exercises that power.

In Bani Kanta Das and another v. State of Assam and others,60 court held that the reason for
the commutation of a sentence must be given by the Governor. In this case court set aside the
impugned order of commutation of death sentence to life imprisonment and directed the re-
consideration of the application filed by accused for commutation of sentence.

In Narayan Dutt v. State of Punjab,61 the question related to the power of the Governor under
Article 161. The appellant accused along with other accused, convicted under Sections 148,
302 302/149 323 149 324 325 and 326 on various counts, sentenced to life imprisonment, had
appealed before the High Court of Punjab and Haryana. During the pendency of the appeals,

56
AIR 2000 SC 1702
57
(2004) 9 SCC 751
58
AIR 2006 SC 3385
59
(2009) 9 SCC 495
60
(2009)15 SCC 206
61
AIR 2011 SC 1216

30
they had petitioned under Article 161 before the Governor. Expressing his belief as to the
innocence of the petitioners, the Governor granted pardon to three of the seven accused and
directed them to be released immediately. Setting aside the order, the Apex Court had remitted
the matter back to the Governor for reconsideration in accordance with law.
The following principles may be culled out from the observations made by their Lordships:

that, to decide on the innocence or otherwise of an accused person in a criminal trial is within
the exclusive domain of a Court of competent jurisdiction, as this is essentially a judicial
function;

that the Governor’s power of granting pardon under Article 161 being an exercise of executive
function, is independent of the Court’s power to pronounce on the innocence or guilt of the
accused;

that, both the above operate in totally different arenas and the nature of these two powers are
also totally different from each other. One should not trench upon the other.
that, by pronouncing upon the innocence of the accused, in the instant order, the Governor has
exceeded the permissible constitutional limits under Article 161.

that, it is axiomatic that before the power of the Governor under Article 161 is invoked by any
person, the condition precedent is that such person must be convicted of any offence against
any law and will be subjected to undergo a sentence.

It may be noted that granting pardon is in no sense an overturning of a judgment of conviction.

That, granting pardon, is an Executive action that mitigates or set aside the punishment for a
crime. It eliminates the effect of conviction without addressing the defendant’s guilt or
innocence.62

JUDICIARY OF INDIA
The government of India has three major branches – Legislature, Judiciary and Executive.
Judiciary is an important branch of the government of India. It is an independent body and is
different from Executive and legislature. Judiciary operates in such a way that it keeps both the
executive and legislature in their mandated role. The main function is to deliver justice to the
people. Indian judiciary inherited its legal system from the British colonial rule. The single
system of courts has been adopted by Government of India act 1935, enforces both central laws
as well as state laws.
Functions of Judiciary and Its Importance:
1. To Give Justice to the people:

The first and foremost function of the judiciary is to give justice to the people, whenever they
may approach it. It awards punishment to those who after trial are found guilty of violating the
laws of the state or the rights of the people.

62
Per Hon’ble Justice Kapadia (as his Lordship then was) in his concurring opinion in Epura Sudhakar v. Govt. of
A.P. AIR 2006 SC 3385

31
The aggrieved citizens can go to the courts for seeking redress and compensation. They can do
so either when they fear any harm to their rights or after they have suffered any loss. The
judiciary fixes the quantity and quality of punishment to be given to the criminals. It decides
all cases involving grant of compensations to the citizens.
2. Interpretation and Application of Laws:

One of the major functions of the judiciary is to interpret and apply laws to specific cases. In
the course of deciding the disputes that come before it, the judges interpret and apply laws.
Every law needs a proper interpretation for getting applied to every specific case. This function
is performed by the judges. The law means what the judges interpret it to mean.
3. Role in Law-making:

The judiciary also plays a role in law-making. The decisions given by the courts really
determine the meaning, nature and scope of the laws passed by the legislature. The
interpretation of laws by the judiciary amounts to law-making as it is these interpretations
which really define the laws. Moreover, the judgments delivered by the higher courts, which
are the Courts of Records, are binding upon lower courts. The latter can decide the cases before
them on the basis of the decisions made by the higher courts. Judicial decisions constitute a
source of law.
4. Equity Legislation:

Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the
land, the judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom
for deciding the cases. Such decisions always involve law-making. It is usually termed as
equity legislation.
5. Protection of Rights:

The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has
the right to seek the protection of the judiciary in case his rights are violated or threatened to
be violated by the government or by private organizations or fellow citizens. In all such cases,
it becomes the responsibility of the judiciary to protect his rights of the people.
6. Guardian of the Constitution:

The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of
the land and it is the responsibility of the judiciary to interpret and protect it. For this purpose
the judiciary can conduct judicial review over any law for determining as to whether or not it
is in accordance with the letter and spirit of the constitution. In case any law is found ultra-
vires (unconstitutional), it is rejected by the judiciary and it becomes invalid for future. This
power of the court is called the power of judicial review.
7. Power to get its Decisions and Judgments enforced:

The judiciary has the power not only to deliver judgements and decide disputes, but also to get
these enforced. It can direct the executive to carry out its decisions. It can summon any person
and directly know the truth from him.

32
In case any person is held:
(i) Guilty of not following any decision of the court, or
(ii) Of acting against the direction of the court, or
(iii) Misleading the court, or

(iv) Of not appearing before the court in a case being heard by it, the Court has the power to
punish the person for the contempt of court.
8. Special Role in a Federation:

In a federal system, the judiciary has to perform an additionally important role as the guardian
of the constitution and the arbiter of disputes between the Centre and States. It acts as an
independent and impartial umpire between the central government and state governments as
well as among the states. All legal Centre-State disputes are settled by the judiciary.
9. Running of the Judicial Administration:
The judiciary is not a department of the government. It is independent of both the legislature
and the executive. It is a separate and independent organ with its own organization and officials.
It has the power to decide the nature of judicial organization in the state. It frames and enforces
its own rules.

These govern the recruitment and working of the magistrates and other persons working in the
courts. It makes and enforces rules for the orderly and efficient conduct of judicial
administration.
10. Advisory Functions:

Very often the courts are given the responsibility to give advisory opinions to the rulers on any
legal matter. For example, the President of India the power to refer to the Supreme Court any
question of law or fact which is of public importance.
11. To Conduct Judicial Inquiries:

Judges are very often called upon to head Inquiry Commissions constituted to inquire into some
serious incidents resulting from the alleged errors or omissions on the part of government or
some public servants. Commissions of inquiry headed by a single judge are also sometimes
constituted for investigating important and complicated issues and problems.
12. Miscellaneous Functions:

Besides the above major functions, the judiciary also performs several other functions. Some
such functions are the appointment of certain local officials of the court, choosing of clerical
and other employees. Cases relating to grant of licenses, patents, and copy rights, the
appointment of guardians and trustees, the admission of wills, to appoint trustees to look after
the property of the minors, to settle the issues of successions of property and rights, issue of
administrating the estates of deceased persons, the appointment of receivers, naturalization of
aliens, marriage and divorce cases, election petitions and the like.

33
Importance of Independent Judiciary
In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The
common man depends upon judiciary for getting justice. Without a security of rights and
freedom guaranteed by the judiciary, they cannot really hope to carry out their jobs and enjoy
their living. They are more dependent upon judiciary than the legislature and the executive.
Without judicial protection, their lives can become miserable. From citizens point of view
Judiciary is the most important organ of the government.

Structure of Judiciary of India

Indian constitution has established an integrated judicial system. It has three Tier structure –
1. Supreme Court
2. High Court
3. Subordinate Court

1. Supreme Court India

The Supreme Court of India was inaugurated on 28th January 1950. It succeeded the federal
court of India which was established under GOI act 1935. The Supreme Court replaced the
British Privy council. Moreover, Article 124 to 147 of the Indian Constitution deals with the
composition, appointment, powers, procedures etc. of Supreme Court. It is final interpreter and
guardian of the Constitution & guarantor of fundamental rights of citizens. The Supreme Court
is situated in Delhi.

Composition of Supreme Court

Article 124 provides for t the constitution of the Supreme Court, which consists of a Chief
Justice of India, and until Parliament by law provides for a larger number, not more than seven
other Judges at the time of commencement of the Constitution. This number has been increased
by the Supreme Court (Number of Judges) Act, 1956 to 10 in 1956, 13 in 1960 and 17 in 1977.
Further increase to 25 was made in 1986 and today the Court consists of the Chief Justice and
30 other Judges by the Supreme Court (Number of Judges) Act, 2008.

Appointment of the Judges of SC and HC

The United Kingdom
In the United Kingdom, the Judges are appointed by the executive though there have been
reforms, of judicial appointments system since 1994. The Constitution Reforms Act, 2005 has
made far reaching changes in the British Constitution. The Supreme Court has replaced the
House of Lords as the highest Court of appeal in almost all cases. House of Lords has ceased
to discharge judicial functions from October 1, 2009. Thus, for the first time in 900 years,
judicial independence is now officially incorporated in law. The Supreme Court is independent
from the House of Lords. It has its own independent system of appointments, staff, budget and
building. Section 25 (as amended by Sections 50-53 of the Tribunals, courts and Enforcement
Act, 2007) to Section 31 and Schedule 8 of the Constitutional Reforms Act, 2005 deal with the

34
appointment of Justices of the Supreme Court. The appointment process passes through
different stages and finally the appointment is made by Her Majesty, the Queen. The
appointments are made by a Selection Commission convened by the Lord Chancellor. The
Selection Commission is chaired by the President (Chief Justice) of the Supreme Court. The
Commission also includes the Deputy President of the Supreme Court and one member each
of the Joint Appointment Commission for England and Wales, the joint Appointment Board in
Scotland and the Joint Appointment Commission in Northern Ireland. The Selection
Commission has also to consult the Lord Chancellor (a Cabinet Minister), the First Minister in
Scotland and the First Minister in Wales and Chairman of the Northern Ireland Joint
Appointment Commission. The Selection Commission submits final report to the Lord
Chancellor, who after being satisfied forwards the names of persons selected to the Prime-
Minister, who in turn, sends the recommendations to Her Majesty, the Queen. The Queen
makes formal appointments.

Under the 2005 Act Justices of the High Court and the Supreme Court can be removed for
serious misconduct under Section 108, in certain cases, these Justice can be suspended.

In the United States, the Judges of the Supreme Court are appointed by the President and
confirmed by the Senate. The appointment of the Judges of the U.S. Supreme Court is for life.
A Judge may resign, voluntarily retire or may be impeached.

The India
India has followed a mixed method. Every Judge of the Supreme Court is appointed by the
President by warrant under his hand and seal after consultation with such of the Judges of the
Supreme Court and of the High Courts in the States as the President may deem necessary for
the purpose.

The method of appointment of the Chief Justice of India, Supreme Court (SC) and High Court
(HC) judges was laid down in the Constitution of India. The Constitution stated that the
President shall make these appointments after consulting with the Chief Justice of India and
other SC and HC judges as he considers necessary. The collegium system evolved after three
landmark judgments of the Supreme Court, known as the ‘three judge’s cases: the first, second
and the third judges’ cases. The constitution of India provides the method of judges’
appointment in Article 124/217 where it is stated that the President (i.e. Central Government),
shall appoint judges after consultation with the judges of the Supreme Court and of the High
court in the States as the „president may deem necessary. On the other hand, in the article 74,
it is clearly stated that the President is bound to act in accordance to the advice given by the
Council of Ministers. In reference to the Judges’ appoint of Supreme Court and High Court, a
controversy arises due to the word ‘consultation’ in Article 124/ 217 and Executive power of
the Central Government in the Article 74. This controversy led to the evolution of the collegium
system by the Supreme Court in three cases popularly known as three judges’ cases.

Analysis of Cases and overview of Collegium System:-

The controversy of appointment of judges starts with the issue of J. Zafar Imam in 1968 when
the vacancy occurred in the office of Chief Justice of the SC, the then senior most judge J.

35
Zafar Imam was not appointed as the Chief Justice of SC because off his physical and mental
infirmity. Again in 1973, Justice A.N. Ray who was fourth in the order of seniority was
appointed as the Chief Justice of India. Thus, three senior judges were bypassed because they
all were involve in Kesavananda Bharti Case, in which the SC held that the ‘Independent of
Judiciary is the basic structure of the constitution’, who then resigned from the Court in protest
[Justice Shelatt, Justice Grover, and Justice Hegde]. The government invoked the Law
commission’s recommendation [14th Law Commission] which criticized the practice of
appointing the senior most judges as the Chief Justice of the Supreme Court on a ground that
a Chief Justice should not an able and experienced judge but also a competent administrator
and, therefore succession of the office should not be regulated by mere seniority. The same tier
was repeated in 1976, The Government appointed Justice Beg as Chief Justice by-passing
Justice H.R. Khanna, who was senior to him at that time.

In the case of Union of India v. Sankalchand Seth,63 which was related to the transfer of a
judge from one High Court to another under Article 222, Supreme Court held that the President
has the right to differ from the advice provided by the consultants. In the words of the Court:

“The consultation implies consultation of two or more persons to find a satisfactory solution.
Consultation is different from consentity”

In S P Gupta v. Union of India,64 the Supreme Court with the majority judgment held that the
concept of primacy of the Chief Justice of India was not really to be found in the Constitution.
It held that the proposal for appointment to a High Court Judges can originate from any of the
constitutional functionaries mentioned in Article 217 and not necessarily from the Chief Justice
of the High Court. The Constitution Bench also held that the term ‘consultation’ used in
Articles 124 and 217 was not ‘concurrence’ meaning that although the President will consult
these functionaries, his decision was not bound to be in concurrence with all of them. The
judgment tilted the balance of power in appointments of judges of High Courts in favour of the
executive.
In Supreme Court Advocates-on-Record Association v. Union of India,65 a nine-judges
Constitution Bench overruled the decision in S P Gupta case and devised a specific procedure
called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary.
Underlining that the top court must act in ‘protecting the integrity and defending the
independence of the judiciary’, the majority verdict accorded primacy to the CJI in matters of
appointment and transfers while also ruling that the term “consultation” would not diminish
the primary role of the CJI in judicial appointments. “The role of the CJI is primal in nature
because this being a topic within the judicial family, the executive cannot have an equal say in
the matter. The collegium system, the court said that the recommendation should be made by
the CJI in consultation with his two senior most colleagues, and that such recommendation
should normally be given effect to by the executive. It added that although it was open to the
executive to ask the collegium to reconsider the matter if it had an objection to the name

63
(1977) 4 SCC 193
64
AIR 1982 SC 149
65
(1993) 4 SCC 441

36
recommended, if, on reconsideration, the collegium reiterated the recommendation, the
executive was bound to make the appointment.

Case: In Re Presidential Reference No. 1,66 President K R Narayanan issued a Presidential

Reference to the Supreme Court over the meaning of the term ‘consultation’ under Article 143
of the Constitution (advisory jurisdiction). The question was whether ‘consultation’ required
consultation with several judges in forming the CJI’s opinion, or whether the sole opinion of
CJI could by itself constitute a ‘consultation’. In response, the Supreme Court laid down 9
guidelines for the functioning of the Coram for appointments and transfers this has come to be
the present form of the collegium, and has been prevalent ever since. This opinion laid down
that the recommendation should be made by the CJI and his four senior most colleagues,
instead of two. It also held that Supreme Court judges who hailed from the High Court for
which the proposed name came, should also be consulted. It was also held that even if two
judges gave an adverse opinion, the CJI should not send the recommendation to the
government. Ever since, the collegium has been making recommendations for appointments
and transfer of judges.

National Judicial Appointment commission (NJAC):

In 2015, the parliament passed a law to replace the collegium with a National Judicial
Appointment commission (NJAC).This was struck down as unconstitutional by the supreme
court, in the Fourth judges’67 case as the new system would undermine the independence of the
judiciary. The National Judicial Appointments Commission (NJAC) is a constitutional body
proposed to replace the present Collegium system of appointing the judges. The NJAC was
established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014]
passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014.
Alongside, the Parliament also passed the National Judicial Appointments Commission Act,
2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures
and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional
Amendment Act came into force from April 13, 2015. It will consist of six people — the Chief
Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two
‘eminent persons’, for the appointment of the judges of SC and HC as well as transfer of the
judges fron one HC to the other HC.

In Supreme Court Advocates-on-Record Association and others v. Union of India,68 by a

majority opinion of 4:1, on 16 October 2015, Supreme Court struck down the constitutional
amendment and the NJAC Act restoring the two-decade old collegium system of judges
appointing judges in higher judiciary. Supreme Court declared that NJAC is interfering with
the autonomy of the judiciary by the executive which amounts to tampering of the basic
structure of the constitution where parliament is not empowered to change the basic structure.

Jurisdiction of the Supreme Court

66
(1998) 7 SCC 739
67
Supreme Court Advocates-on-Record Association and others v. Union of India, (2015) 6 SCC 408.
68
(2015) 6 SCC 408.

37
The Supreme Court of India is the highest judicial forum and final court of appeal of India as
established under the Constitution of India, which makes the Supreme Court the highest
constitutional court and guardian of the Constitution. The Supreme Court of India consists of
the Chief Justice of India and 30 other Judges.
Before discussing about Supreme Court’s Jurisdiction let’s define jurisdiction.

Jurisdiction basically means Territory within which a court or government agency may
properly exercise its power.

Jurisdiction generally describes any authority over a certain area or certain persons. In the law,
jurisdiction sometimes refers to a particular geographic area containing a defined legal
authority. For example, the federal government is a jurisdiction unto itself. Its power spans the
entire United States. Each state is also a jurisdiction unto itself, with the power to pass its own
laws. Smaller geographic areas, such as counties and cities, are separate jurisdictions to the
extent that they have powers that are independent of the federal and state governments.

If we make a critical survey of the leading Constitutions of the world, we find that theoretically
speaking the Supreme Court of India has wider jurisdiction than any other Supreme Court in
any part of the world. The jurisdiction of the Court can be kept in four categories.
1. Original Jurisdiction
2. Writ Jurisdiction
3. Appellate Jurisdiction
4. Advisory Jurisdiction
1. Original Jurisdiction:

As per article 32, Supreme Court is the guardian/protector of fundamental rights and any person
whose fundamental rights are violated can directly approach the Supreme Court for remedy.
Supreme Court has from time to time interpreted the fundamental rights and has protected the
Citizens of India from any unconstitutional legislation which breech their fundamental rights.
Any matter regarding the enforcement of Fundamental Rights comes under the Original
Jurisdiction of the Supreme Court. Article 32 of the Constitution of India, 1950 guarantees the
right to move the Supreme Court for enforcement of fundamental rights. Supreme Court has
power to issue directions or orders or writs including the writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo Warranto and Certiorari, whichever may be appropriate, for
enforcement of these rights.

A court is said to have original jurisdiction when it possesses the authority to hear and
determine the case in the first instance. This type of jurisdiction has been dealt with in Article
131 of the Constitution.

The Supreme Court of India possesses original and exclusive jurisdiction in any dispute:
(a) Between the Government of India, and one or more states or

38
(b) Between the Government of India and any state or states on one side and one or more other
states on the other or
(c) Between two or more states.

The dispute relating to the original jurisdiction of the Court must involve a question of fact or
law on which the existences of a legal right depends. A legal right is defined “as any advantage
or benefit which is in any manner conferred upon a person by a rule of law”. The Supreme
Court has no original jurisdiction in disputes between individuals or between associations or
local bodies.

It is not authorized to investigate a dispute arising out of any treaty, covenant, engagement or
agreement which was entered into before the commencement of the Constitution. These
disputes may be referred by the President to the Supreme Court for its advisory opinion.

Parliament may, by law, exclude the jurisdiction of the Supreme Court in:
(i) Disputes between States regarding the use, distribution or control of waters of any
inter-state river or river valley.
(ii) Matters referred to the Finance Commission
(iii) Adjustment of certain expenses between the Union and the states under Article 290.
(iv) Disputes specified in the provision to Articles 131 and 363(1).
(v) Adjustment of expenses between the Union and the states under Articles 257 (4)
and 258(3).

Referring about the original jurisdiction of Supreme Court, D.D. Basu said, “Though our
Federation is not in the nature of a treaty or compact between the component units, there is
nevertheless a division of legislative as well as administrative powers between the Union and
the states. Article 131 of our Constitution therefore vests the Supreme Court with original and
exclusive jurisdiction to determine justiciable disputes between the Union and the states or
between the States inter se”. It may however by pointed out that during the first decade of the
working of the Constitution, original jurisdiction of the Court was not invoked. Such disputes
were resolved by the parties noted above by mutual agreement or negotiation, rather than by
adjudication.

The West Bengal Government was the first to bring suit against Government of India in 1961
against the unconstitutionality of the Coal Bearing Areas Act 1957 before the Supreme Court.
However, the same was dismissed by the Apex Court.

In State of Rajasthan v. Union of India,69 in 1977 (after 19 months of the Emergency), a

peculiar situation arose. In the country as a whole, one party was voted to power (through
Parliamentary election) by an overwhelming majority. At the same time, in nine States, another
party was already in power. The Central Government was of the view, that in these States, the
Government should seek a fresh mandate from the electorate. A letter to that effect was
addressed by the Home Minister to the Chief Ministers of the States. Apprehending that the
letter would be followed by the issue of a Presidential Proclamation under article 356 of the

69
AIR 1977 SC 1361: (1977) 3 SCC 592,

39
Constitution, the States moved the Supreme Court, questioning the validity of such a
Proclamation in the circumstances of the case.

The Supreme Court held that it had jurisdiction to entertain the proceeding. In the end, however,
the court decided that the apprehended Proclamation would be valid [Incidentally, the judgment
also contains a detailed discussion of the scope of judicial review, in regard to Presidential
action under article 356].

In State of Karnataka v. Union of India,70 In that case, the Central Government had issued a
notification under section 3 of the Commissions of Inquiry Act, 1952, to inquire into the
conduct of certain Ministers of the State Government of Karnataka (including the Chief
Minister). The State Government challenged the legality of this notification, mainly raising a
constitutional issue connected with federalism. The principal point raised was, that the scheme
of the Constitution was that the State Cabinet was collectively responsible to the State
Legislative Assembly [article 164 (2) of the Constitution]. The Constitution did not
contemplate a parallel overseeing of the State Cabinet (or its members) by the Centre. In the
end, the contention of the State Government failed. But the jurisdiction of the Supreme Court
(under article 131) to go into the above question was upheld. The point that is relevant for the
present purpose, is the fact that by a majority judgment, the proceeding was held to be
maintainable and it was specifically held, that in this context, the supposed distinction between
the State (an abstract entity) and the State Government (its concrete representative), was
immaterial.

2. Writ Jurisdiction (Article 32):

Under Article 32, the Supreme Court can entertain an application for the issue of a
constitutional writ for the enforcement of Fundamental Rights. This is called as original
jurisdiction as the aggrieved party can move the Apex Court directly through a petition instead
of coming through a High Court by way of an appeal. Basu is of the view, “…it should be
treated as a separate jurisdiction since the dispute in such cases is not between the units of the
Union but an aggrieved individual and the Government or any of its agencies.” The jurisdiction
under the article is not analogous to that of under Article 131.

3. Appellate Jurisdiction:
The Supreme Court, as the highest Court of Appeal, stands at the Apex of the Indian judiciary.
M.C. Setalved in his speech at the inauguration of the Supreme Court on January 28, 1950 said,
“The writ of this court will run over territory extending to over two million square miles
inhabited by a population of about 300 millions. It can truly be said that the jurisdiction and
powers of this Court in their nature and extent are wider than those exercised by the High
Courts of any country in the Commonwealth or by the Supreme Court of the U.S.A.”
The appellate jurisdiction of the Court can be divided into four main categories of cases;

1. Appeal in Constitutional Matters (Article 132)

2. Appeal in Civil Matters (Article 133)

70
AIR 1978 SC 68 para 53.

40
 3. Appeal in Criminal Matters (Article 134)
4. Appeal in Special Leave Petition (Article 136)

1. Appeal in Constitutional Matters (Article 132)

According to Article 132(1) an appeal shall lie to the Supreme Court from any judgement,
decree or final order of a High Court in the territory of India, whether in a civil, criminal or
other proceedings, if the High Court certifies that the case involves a substantial question of
law as to the interpretation of the Constitution. If the High Court refuses to give such- a
certificate, the Supreme Court can grant special leave to appeal, if the Court is satisfied that the
case involves a substantial question of law as to the interpretation of the Constitution.

In the Election Commission v. Venkata Rao,71 A question was raised as to whether an appeal
would lie to Supreme Court from a decision of single judge. The Supreme Court answered the
question in affirmation, but this can only be done in very exceptional cases, where direct appeal
to the Supreme Court is necessary and in view of the great importance of the case an early
decision is required in public interest.

2. Appeal in Civil Matters (Article 133)

Under article 133 (1) , an appeal lies to the Supreme Court from any judgment ,decree or final
order in a civil proceeding of a High court if it certifies:-
a. That the case involves a substantial question of law of general importance and

b. That in the opinion of a High court the said question needs to be decided by the Supreme
Court.

An important question of law can arise in any case whatever the value of the subject matter
involved. Now, an appeal may go to the Supreme Court in any case involving an important
question of law even though the value of the sub- matter involved may not be large. No appeal
in a civil matter to the Supreme Court as a matter of right. An appeal can lie only on a certificate
of the High court which is issued when the above 2 condition are satisfied.

A question of law which is fairly arguable, or when there is room for difference of opinion on
it, or when the court thinks it necessary to deal with that question at some length and discuss
alternative views would be a substantial question of law.

The Supreme Court has emphasized that for grant of the certificate the question, howsoever
important and substantial should also be of such pervasive import and deep significance that in
the High court judgment it imperatively needs to be settled at the national level by the High
court, otherwise the court will be flooded with cases of lesser magnitude.

When the High court has given such a certificate the appeal before the Supreme Court is not
limited only to the specific question of law but the entire appeal will be before the court. In
appeal to the Supreme Court under Article 133, question of constitutional law may also be

71
AIR 1953 SC 210

41
raised. No appeal lies to the Supreme Court under Article 133 from the decision of a single
judge of the High court, but parliament has power to provide otherwise.
3. Appeal in Criminal Matters (Article 134)

According to article 134 an appeal lies to the Supreme Court from any judgment, final order or
sentence in a criminal proceeding of a high court in the following 2 ways.
A. Without a certificate of high court.
B. With a certificate of the high court.

A. Without a certificate art-134 (a) (b):

An appeal lies to the supreme court without the certificate of the High court if the High court:-

a. Has on appeal reversed an order of acquittal of an accused person and sentenced him to
death.

b. Has withdrawn for trial before itself any case from any court subordinate to its authority and
has in such trial convicted the accused person and sentenced him to death.
B. With a certificate Article 134 (c)

Under clause (c) an appeal lies to the Supreme Court if the High court certifies under Article
134-A that it is a fit case for appeal to the Supreme Court.

The power of the High court to grant fitness certificate in the criminal cases is a discretionary
power but the discretion is a judicial one and must be judicially exercised along with the well-
established lines which govern these matters. The Supreme Court has laid down entire guiding
principles for the high court to follow in granting certificate.

The high court should grant certificate only where there has been exceptional circumstances.
Eg. Where substantial and grave injustice has been done. Thus a certificate cannot be granted
by the high court on mere question of fact.

In State of U. P v. Raj Nath,72 The High court acquitted the accused in appeal solely on the
ground that it regarded the testimony of eye-witness to be baseless. It was held that the order
of acquittal had resulted in the manifest miscarriage of justice because the High court did not
make an attempt to evaluate the evidence of eye-witness properly.

Accordingly, the order of the High court was set-aside and it was directed to dispose of appeal
a fresh after evaluating the evidence. Parliament is empowered under Article 134(2) to extend
the appellate jurisdiction of the Supreme Court in criminal matters.

4. APPEAL BY SPEC IAL LEAVE-ARTICLE 136

Under 136 the Supreme Court is authorised to grant in its discretion special leave to appeal
from

72
AIR 1983 SC 187.

42
a. Any judgement, decree determination sentence or order
b. In any case or matter
c. Passed or made by any court or tribunal in the territory of India.

The only exception to this power of the Supreme Court is with regard to any judgment etc. of
any court or tribunal constituted by or under any law relating to the Armed forces This Article
vests wide power in the Supreme Court, the power given under this Article is in the nature of
a special residuary power which are exercisable outside the purview of ordinary law. Article
132 to 135 deal with ordinary appeals to the Supreme Court in cases in cases where the needs
of justice demand interference by the highest Court off the land.
Power to Grant Special Leave to Appeal to Be Exercised In Exceptional Cases:-
From the above, it is clear that Supreme Court is vested with very wide discretionary power.

In D. C. Mills v. Commissioner of Income Tax, W. B,73 The court held that it being an
exceptional and overriding power it has to be exercised sparingly and with caution and only in
special extra ordinary situations. Beyond that it is not possible to fetter the exercise of this
power by any set formula or rule.
IN CRIMINAL CASES

The power of the Supreme Court under Article 136 has more frequently been invoked in
criminal appeals. In criminal cases the court will not grant special leave to appeal unless it is
shown that special and exceptional circumstances exist, or it is established that grave injustice
has been done and that the case in question is sufficiently important to warrant a review of the
decision by the Supreme Court.

In Haripada Dey v. State Of West Bengal,74 The Supreme Court held that it will grant special
leave only if there has been gross miscarriage of justice or departure from legal procedure such
as which vitiates the whole trial or if the finding of fact were such as shocking to the judicial
conscience of the court.

In Delhi Judicial Service Association v. State of Gujarat,75 the Supreme Court has held that
under article 136 the Supreme Court has wide power to interfere and correct the judgement and
orders passed by any court or tribunal in the country. The Supreme Court has supervisory
jurisdiction over all court of India.

In Ramakant Ravi v. MadanRai,76 The Supreme Court held that where an accused is acquitted
by the high court and no appeal against the acquittal is filed by the state a private party can file
appeal under article 136 against the acquittal order of the high court.

TRIBUNALS

73
AIR 1955 SC
74
AIR 1956 SC 757
75
(1991) 4 SCC 406
76
AIR 2004 SC 77

43
Under Article 136 the power of the Supreme Court to grant special leave to appeal is not
confined to orders or determination of a court of law, but includes tribunals also. Thus a tribunal
is a body of authority although not a court having all the attribute of a court which is vested
with judicial power to adjudicate on question of law or fact affecting the rights to citizens in a
judicial manner. However it does not include a tribunal which have purely administrative or
executive functions or a tribunal having only legislative functions without any quasi-judicial
functions.

In Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd,77 It was held that the Supreme
Court can normally interfere with the decisions arrived at by these tribunals on the following
grounds where:-

1. The tribunal acts in excess of the jurisdiction conferred upon it under the statue or
regulating it or where it ostensibly fails to exercise a patent jurisdiction.
2. There is an apparent error on the face of the decision.
3. The awards are made in violation of principles of natural justice to parties.
4. The tribunal has erroneously applied well accepted principle of jurisprudence.

Advisory Jurisdiction
Article 143(1) of the Constitution of India, 1950, provides that if at any time it appears to the
President that a question of law or fact has arisen, or is likely to arise, which is of such a nature
and of such public importance that it is expedient to obtain the opinion of the Supreme Court
upon it, he may refer the question to that Court for consideration and the Court may, after such
hearing as it thinks fit, report to the President, its opinion thereon.

Article 317 of the Constitution of India, 1950, provides that the Chairman or any other member
of a Public Service Commission can be removed from his office by order of the President, on
the ground of misbehaviour, after the Supreme Court on reference being made by the President,
has on enquiry reported that he ought, on such ground, to be removed from his office.

Section 53K of the Competition act, 2002 provides for removal and suspension of Chairperson
and Members of Appellate Tribunal in consultation with the Chief Justice of India on any of
the grounds specified in clauses (a) to (f) of Sub-section (1) of Section 53K after an enquiry by
a Judge of the Supreme Court.

77
AIR 1957 SC 78

44