For Private Circulation only

CONTENTS

CHAPTER - 1: MAKING OF THE CONSTITUTION

CHAPTER - 2: FUNDAMENTAL RIGHTS
CHAPTER -3: DIRECTIVE PRINCIPLES OF STATE POLICY
CHAPTER – 4: FUNDAMENTAL DUTIES
CHAPTER - 5: UNION GOVERNMENT
CHAPTER - 6: UNION LEGISLATURE
CHAPTER - 7: INDIAN JUDICIARY
CHAPTER - 8: STATE GOVERNMENT
CHAPTER - 9: ELECTIONS IN INDIA
CHAPTER – 10: DECLARATION OF EMERGENCY
 THE CONSTITUTION OF INDIA
(Select Areas)

This is a study material for the undergraduate students

who are not conversant with the Constitution of India. This
material is based on the relevant aspects of the University
Grants Commission (UGC) syllabus prescribed in the
wake of the landmark judgement by the Supreme Court of
India in 2003, making a course on the Constitution of
India compulsory in college education.
THE CONSTITUTION OF INDIA (Select Areas)
(A course material prepared by a team of teachers from
Christ University)

Published by the Centre for Publications, Christ

University, Bengaluru - 29.

(For private circulation only)

Copyright: Christ University

I Edition: February 2009

II Edition: February 2010
III Edition: February 2011
IV Edition: February 2012
V Edition: February 2013
VI Edition: February 2014
VII Edition: February 2015
 CONTENTS

CHAPTER - 1: INTRODUCTION TO THE CONSTITUTION OF INDIA ...................

The Preamble of the Constitution

Basic Postulates of the Preamble

CHAPTER - 2: FUNDAMENTAL RIGHTS ............................................................

Right to Equality
Right to Freedom
Right to Life
Right to Education
Right against Arbitrary Arrest and Detention
Right against Exploitation
Right to Religion
Cultural and Educational Rights
Right to Constitutional Remedies
Writ Jurisdiction of the High Courts

CHAPTER – 3: DIRECTIVE PRINCIPLES OF STATE POLICY……………………

CHAPTER -4: FUNDAMENTAL DUTIES………………………………………….

CHAPTER - 5: UNION GOVERNMENT ............................................................

The President of India
Vice President of India
The Prime Minister and Council of Ministers
Chapter - 6: UNION LEGISLATURE ...............................................................
Rajya Sabha
Lok Sabha
Law Making Process in Parliament

CHAPTER - 7: INDIAN JUDICIARY ...................................................................

The Supreme Court of India
The High Courts
Judicial Appointments
Jurisdiction and Role of Supreme Court

CHAPTER - 8: STATE GOVERNMENT .............................................................

Governor
Chief Minister and Council of Ministers
Vidhan Parishad / Legislative Council
Vidhan Sabha / Legislative Assembly

CHAPTER – 9: ELECTORAL PROCESS ............................................................

Electoral System
Opinion Polls and Exit Polls
Electoral Reforms

CHAPTER – 10: DECLARATION OF EMERGENCY…………………………….

National Emergency
Financial Emergency
State Emergency
 EDITORIAL COMMITTEE

Col. Dr. (Fr.) Thomas C. Mathew

Dr. Sandeep. S. Desai
Mr. Sourav Mandal
Ms. Chaithra V
Ms. Ann Thania Alex
 FOREWORD
Higher Education, perhaps, is the right stage to make the younger generation
understand the value of our civil institutions and provide some training in
leadership in politics and administration. Having reached an age to take part in
the electoral process and having been exposed to the three traditional institutions
of democratic government (the executive, legislature and judiciary), they would
certainly take pride in living in a society which believes in a peaceful co-
existence in spite of being multi-ethnic, multi-linguistic and multi-cultural. The
pluralistic and professional ambience of Christ University provides them with
sensitivity and perception to realize the ideals of national capacity and good
governance.

A holistic approach to education will supplement the curriculum with sufficient

training in personal, inter-personal and societal skills. Started as a pilot
programme, our effort in providing these skills to students with the total
involvement of the faculty has received an encouraging response over the years.
The students of the first four semesters were covered by this programme and as a
culmination to this meaningful venture, an additional exposure to the
environmental concerns and the Constitution of India is given to the final year
students, as per the directions of the Supreme Court of India.

This course material is prepared by a team of teachers to function as a ready

referencer to the students of the sixth semester when they take an exam after a
series of lectures. Hope they preserve this valuable document which has been a
guiding spirit to the millions of Indians for over six decades now.

Col. Dr. (Fr) Thomas C Mathew

Vice Chancellor, Christ University
 PREFACE

The Constitution of India is a framework within which the Indian union operates.
It is also the guiding force for the citizens in protecting and discharging their
fundamental rights and duties. The entire structure of the state and its various
organs they being the executive, legislature and judiciary gets legitimized by the
Constitution. It establishes direct linkages between authority and the society by
empowering the citizens through electoral rights, independent judiciary and an
accountable legislature and executive. Hence it becomes imperative for the
citizens to be aware of their fundamental role in the governance of the country,
which may range from casting of votes to safeguarding their interests form state
excesses such as unjust laws, desensitized bureaucracy and other areas.

In order to facilitate such an understanding certain select areas of the Constitution

have been made a part of the course of Indian Constitution. The emphasis has
been on the main trajectories carrying high impact value like the executive,
legislature, judiciary and the structure and form of government. In addition, we
have also included electoral process, fundamental rights and fundamental duties
in order to facilitate a better understanding of the individual responsibilities
involved in statehood. Appropriate examples have also been cited as
methodology, for a more comprehensive perception. Some of the recent concerns
with respect to the working of the Constitution is also highlighted. The committee
sincerely hopes that not only will the students benefit from this study but also be
able to analyse and articulate events and issues from the perspective of what the
Constitution deems.

Editorial Committee
 CHAPTER 1

INTRODUCTION TO THE CONSTITUTION OF INDIA

The Indian freedom struggle movement is the history of perseverance and ardent
devotion to the country. Mahatma Gandhi, as early as in 1922, had put forward
the idea that ‗Indians themselves are going to determine the political destiny of
their nation‘. However, the demand for setting up a Constituent Assembly in very
clear terms, assumed a shape of its own after the failure of the Indian Statutory
Commission (Simon) and the three round table conferences held in London. It led
Jawaharlal Nehru, in early 1934, to state that: ―People of India are to be the sole
arbiters of India‘s fate and must, therefore, have full freedom to draw up their
Constitution; it follows that this can be done by means of a Constituent Assembly
elected on the widest franchise. Those who believe in independence have no
other choice.‖

However, the creation of Constituent Assembly was materialised based on the

recommendations of the Cabinet Mission Plan, 1946. The Constituent Assembly
had 299 members. On August 29, 1947, it set up a drafting committee under the
Chairmanship of Dr. B R Ambedkar. It embodied the decisions of the Assembly
with alternative and additional proposals, in the form of the draft Constitution of
India that was published in February 1948.
The Constituent Assembly next met in November 1948 to consider the provisions
of the draft Constitution clause by clause. The work of the Constituent Assembly
was completed on October 17, 1949 and on November 26, 1949 the Preamble of
the Constitution was adopted. The President of the Constituent Assembly, Dr.
Rajendra Prasad placed his signature on the Constitution and declared it as finally
passed. Some of the provisions of this Constitution were given immediate effect
but the rest of the provisions came into effect on January 26, 1950 to perpetuate
the memory of the first complete Independence Day (Poornaswaraj) observed in
1930. The Constituent Assembly accomplished a priceless task of giving to us a
Constitution; a futuristic document which incorporated rights, duties and
aspirations as democratically as possible considering the prevailing conditions of
the said times. The basic law of the land was not an imposing document; rather it
was ‗adopted, enacted, and given to ourselves‘ for ‗the people of India‘ by ‗the
people of India‘. It is well observed: ‗it is as much democratically made as
circumstances permitted.‘

THE PREAMBLE OF THE CONSTITUTION

The Constitution of India begins with the Preamble which specifies the nature of
the Indian Union and the objectives which it is committed to secure. The
Constitution makers gave the preamble the ‗place of pride‘. It embodies all the
ideals and aspirations for which the country had struggled during the British
regime.1 It sets out the main objectives which the legislation is intended to
achieve.

The Preamble reads:

1
Shelat and Grover, JJ in Keshavanda Bharathi v. State of Kerala AIR 1973 SC 146
―WE, THE PEOPLE OF INDIA having solemnly resolved to constitute India
into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC
and to secure to all its citizens;

JUSTICE- social, economic and political;

LIBERTY - of thought, expression, belief, faith and worship;
EQUALITY - of status and opportunity;
And to promote among them all;
FRATERNITY- assuring the dignity of the individual and the Unity and Integrity
of the nation;

IN OUR CONSTITUENT ASSEMBLY this 26th day of November 1949, DO

HEREBY ADOPT, ENACT AND TO GIVE TO OURSELVES THIS
CONSTITUTION‖.

The words ‗socialist‘, ‗secular‘ and ‗integrity‘ were initially not there in the
Preamble and were added to it by the 42nd Amendment Act (1976) to the
Constitution. The Preamble lists four cardinal objectives which are to be ‗secured
for all its citizens‘. These are:

Justice

The Constitution of India seeks to secure justice - social, economic and political,
to all its citizens. In its social dimension, justice means the absence of socially
privileged classes in the society and nondiscrimination of citizens on grounds of
caste, creed, colour, sex, religion or place of birth. It stands for eliminating social
exploitation in the name of caste or creed. Hence, the Constitution grants the right
to equality to all the citizens through social justice.
Economic justice refers to curtailing discrimination between people on the basis
of income, wealth and economic assets. It involves the concept of equitable
distribution of wealth so as to eradicate the evils of poverty, unemployment,
disease, starvation etc.

Political justice sends the message of equal, free and fair opportunities to the
people for participation in the political process like right to vote, right to contest
elections etc. without any discrimination on the basis of caste, creed, colour, sex
or place of birth. The Constitution provides for a liberal democratic political
system in which people enjoy their liberties within the framework of reasonable
restrictions.

Liberty

The term ‗liberty‘ emphasizes on the concept of freedom which is an essential

requisite for the development of human personality. Our Constitution ensures
liberty of thought, expression, faith, belief and worship. Right to religious
freedom is also a fundamental right guaranteed under Part III of the Constitution.

Equality

Our Constitution grants equality in respect of status and opportunity. It implies

that all citizens, being equal in the eyes of law are equally eligible to all public
dignities, places and employment, according to their capacities and without
discrimination on grounds of religion, race, caste, descent, sex, place of birth etc.
The equality provisions also convey the message that unequals are not to be
treated equally.
Fraternity

The fraternity which is professed in the preamble means common feeling of

brotherhood. The preamble also affirms on ‗unity‘ and ‗integrity‘ that brings the
states together to form the Union of India which can be achieved through spirit of
fraternity. It visualizes the fulfillment of ‗unity in diversity‘.

BASIC POSTULATES OF THE PREAMBLE

We, the people of India: It indicates that the architects of this great document are
the people of the country themselves. It is neither the gift of the British
Parliament, nor it is something imposed upon us by the alien conquerors. It
embodies three cardinal points; that the ultimate sovereignty is with the people of
the country and the fact that all powers of the Government of India is derived
from the people; that the founding fathers are the real representatives of the
people; and that it is based on the acquiescence of the people of India.

Sovereign: India does not pay unconditional allegiance to any external power.
No other country can impose its will upon us. India‘s membership in any
international institutions like, the United Nations, the Commonwealth of Nations
or the World Trade Organization does not affect our sovereign character for the
simple reason that it is all a voluntary affair.

Socialist: It means that the state has taken up the responsibility for eliminating
poverty, for initiating steps to increase employment, for modernizing national
economy, for enforcing social purpose in all economic activities, for reducing
disparities and setting right the historic inequalities between different sections
and parts of the country and checking the growth of monopoly or concentration
of national wealth into the hands of few persons. It may be labeled as
‗democratic socialism‘.
Secular: It means that the state has no religion of its own. It ensures equal respect
for all religions. Discrimination among the people on the basis of religion is
prohibited. It is not to be identified with atheism or being irreligious. Secularism
is the basic structure of Indian Constitution.

Democratic: Our country is the largest democracy in the world. The Constitution
establishes representative government at the centre, in the states and also at the
local levels. It guarantees universal adult franchise and conducting of free and
fair periodic elections. Power is vested in the people and it is exercised by their
representatives who are accountable to them for their acts of commission or
omission. It has provisions for the independence of the press and the judiciary.

Republic: The Preamble declares India to be a republic. The term republic refers
to having an elected head for state than being ruled by a monarch or a nominated
head of state. India has an elected head of the state who wields power for a fixed
term, who is elected through a democratic process involving members of the state
and central legislatures. Hence, the office of the head of the state is not
hereditary.
 CHAPTER 2

FUNDAMENTAL RIGHTS

Fundamental rights are an essential and inseparable part of any civilized society
and important for the development of an individual. Fundamental rights are also
called vital because; they are sacrosanct. They are placed a step above the
ordinary laws of the country. The fundamental rights are guaranteed under Part III
of the Indian Constitution. The fundamental rights limit the range of state activity
in appropriate directions in the interests of the liberty of its citizens. Yet
fundamental rights are not absolute. They are subject to reasonable restrictions.
The fundamental rights as enumerated in the Indian Constitution are as follows:

• Right to equality
• Right to freedom
• Right against exploitation
• Right to freedom of religion
• Cultural and educational rights
• Right to constitutional remedies
The fundamental rights are inalienable rights enforceable under the law.2 The
rights-holder can approach either the Supreme Court or the High Court for
enforcing her rights against the state, i.e. the government.3 Here, government
(defined as ‗state‘ under Article 12) may include, the legislatures of the Union or
States, Executive agencies of the Union or the State Governments (e.g.,
government companies like the Airport Authority of India, Food Corporation of
India,4 or Societies registered under the Societies Registration Act, 1963 and
having the lawful powers to make rules, bylaws, regulations 5. Even a privately

2
Constitution of India, Article 13.
3
Id. at articles 32 and 226.
4
Ramanna D. Shetty v. Airports Authority, AIR 1979 SC 1628 and Workmen v. FCI,
AIR 1985 SC 670.
5
Som Prakash Rekhi v. Union of India, AIR 1981 SC 217.
owned and privately managed body can be termed as state, if it is found to be
discharging any public function or is acting as an instrumentality of the state 6.

RIGHT TO EQUALITY (ARTICLES 14-18)

According to Article 14 the state shall not deny to any person equality before law
or equal protection of laws within the territory of India. Broadly speaking, it
means the equality of all persons in the eyes of law. It also implies that only
equals can be treated equally and unequals cannot be treated equally.

According to Article 15, no citizen can be subjected to any disability on the

ground of race, religion, sex, or place of birth in such matter as access to places or
public entertainment, use of public wells, tanks, roads, etc. This is the right to
non-discrimination because of which the state is expected to act without
discrimination and bias while discharging its functions. The state is further
directed to add further grounds of non-discrimination into the scope of Article 15
by the court verdicts. Something very similar was attempted to be added by the
Delhi High Court in the case of Naz Forundation v. State of NCT of Delhi7,
wherein, ‗sexual orientation‘ was added as an additional ground of non-
discrimination. Further, Article 15(3) empowers the state to enact special laws to
protect the interests of women and children. The Article 15(4) empowers the state
to undertake special measures for the benefit of the socially and educationally
backward classes of citizens. This provisions of clauses (3) and (4) of the Article
15 are mainly relied by the state to create equal opportunities for the marginal or
deprived classes of citizens, e.g. reservation or any other special provisions in
favour of women, transgenders or other backward classes either based on caste or
region, etc. Recently, in one of its landmark judgments, the Supreme Court of
India8 has directed the government to create equal opportunities and develop an
inclusive legal framework for mainstreaming the transgenders. This includes the

6
Ajay Hasia v. Khaleed Mujib, AIR 1981 SC.
7
National Legal Service Authority v. Union of India, 2009 (160) DLT 277.
8
AIR 2014 SC 1863
right to be recognized of a transgender under the law as a ‗third gender‘ apart
from the binary of male and female; to treat the transgenders as ‗socially and
educationally backward‘ and hence, providing them reservation in public services,
et.al.
Article 16 emphasizes equal opportunities in matters of public employment. No
citizen shall be discriminated on the grounds of religion, race, caste, sex, place of
birth or residence in respect of any employment or office under the state. . This is
the provision under which the state is empowered to create reservation quotas for
any backward classes of citizens, the scheduled castes and the schedule tribes in
matters of public employments.9 The same has been very controversial with the
government‘s decisions of implementing the recommendations of the B. P.
Mandal Commission in 1991 to carve out the OBC quota in public services. The
Supreme Court in the last two decades has to a great extent streamlined the state
policy on reservation under Article 16(4) and 15(4) very effectively, which
includes measures like fixing a cap of fifty percent on all quotas in government
jobs, so that the rest of fifty percent can be open for all non-reserved candidates.10

Untouchability is abolished and its practice in any form is forbidden under

Article 17 of the Constitution. The practice of untouchability in any form is a
punishable offence. The parliament has enacted laws under Article 17 to penalize
variety of acts which were conventionally performed to practice untouchability. 11
Hence, performing any act of untouchability is considered not just as morally
wrong, but legally punishable now.
Article 18 states that no title, not being a military or academic distinction shall be
conferred upon any person by the state. Indian citizens are prohibited from
accepting titles from foreign states without the permission of the President of
India. So, the awards conferred by the state are not to be conferred as suffixes or
prefixes. Though, the Supreme Court has ruled in Balaji Raghavan v. Union of

9
Article 16(4), Constitution of India.
10
Indira Sawhney v. Union of India, AIR 1993 SC 477.
11
Protection of Civil Rights Act, 1955; Schedules Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
India12, that the national awards like the ‗Bharat Ratna‘, ‗Padma Vibhushan‘ etc.
awarded by the Government of India are not ‗titles‘ within the meaning of Article
18 and hence, the same doesn‘t violate the principles of equality enshrined under
the constitution.

RIGHT TO FREEDOM (ARTICLES 19- 22)

Article 19 lays down the basic six freedoms.

Protection of certain rights regarding freedom of speech, etc. —

(1) All citizens shall have the righ t—
(a) to freedom of speech and expression;
(b) to assemble peaceabl y and without arms;
(c) to form associations or unions;
(d) to move freel y throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise an y profession, or to carry on an y occupation,
trade or business.

(2) Nothing in sub -clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State from making any
law, in so far as such law imposes reasonable restrict ions on the
exercise of the right conferred by the said sub -clause in the interests
of the sovereignty and integrit y of India, the security of the State,
friendl y relations with foreign States, public order, decency or
moralit y, or in relation to contempt of court, defamation or
incitement to an offence.
(3) Nothing in sub -clause (b) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the
State from making any law imposing, in the interests of the
sovereignt y and integrit y of India or public order, reasonable
restrictions on the exercise of the right conferred by the said sub -
clause.
(4) Nothing in sub -clause (c) of the said clause shall affect the
operation of any existing law in so far as it imposes, or pre vent the
State from making any law imposing, in the interests
of the sovereignt y and integrit y of India or public order or morality,
reasonable restrictions on the exercise of the right conferred b y the
said sub-clause.
(5) Nothing in sub-clauses (d) and (e) of the said clause shall
affect the operation of any existing law in so far as it imposes, or
prevent the State from making an y law imposing, reasonable
restrictions on the exercise of any of the rights conferred by the said

12
AIR 1996 SC 770.
sub-clauses either in the interests of the general public or for the
protection of the interests of any Scheduled Tribe.
(6) Nothing in sub -clause (g) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the
State from making an y law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred
by the said sub -clause, and, in particular, nothing in the said sub -
clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to, —
(i) the professional or technical qualifications necessary for
practising an y profession or carrying on an y occupation, trade or
business, or
(ii) the carrying on by the St ate, or by a corporation owned or
controlled by the State, of any trade, business, industry or service,
whether to the exclusion, complete or partial, of citizens or
otherwise.

All these rights are subject to reasonable restrictions in the interest of the
sovereignty and territorial integrity of India, security of the state, friendly
relations with foreign states, public order, decency, morality, contempt of court,
defamation, incitement to an offence etc.
The Article 19 has two parts: one, is on the six fundamental rights of freedom
enshrined under the clause (1), sub-clauses (a) to (g); second, is about the
permitted restrictions mentioned under the clauses (2) and (6) of Article 19. These
permitted restrictions are supposed to be reasonably applied upon the exercise of
the six rights of freedom, provided under the clause (1). These rights are only
available to the citizens of India and not to other people. Important rights are
dealt under the Article 19, viz., the freedom of the press, media and the issues
related to its censorship; freedom of expression of an individual vis-e-vis the
rights of other individuals to keep their fame, personality and good will unhurt by
such expression, right to know etc.
So, the two parts of Article 19 depict the story of conflicts and balance between
the interest of different right-holders in a given point of instance, e.g., if
somebody by words, either spoken or written or by means of representation makes
or publishes any imputation concerning any person intending to harm, the
reputation of such person is said to defame such a person. 13 An act of defamation
is punished with simple imprisonment for a term which may extend to two years
or with fine or with both.14 Certain important and impact-full issues that emanate
from the right to freedoms enshrined under Article 19 are:
 Right to silence,15
 Right to retrieve information,16
 Right to hoist the National Flag,17
 Right to travel abroad,18
All these important rights are not absolute in nature, but are rather qualified under
the reasonable restrictions provided under the Article 19(2) to (6). All these
important rights are not absolute in nature, but are rather qualified under the
reasonable restrictions provided under the Article 19(2) to (6).

Article 20 provides for protection in respect of conviction of offences.

 It prohibits the promulgation of ex post facto laws. It says that no person
shall be convicted of any offence except for the violation of law in force
at the time of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence;
 No person shall be prosecuted and punished for the same offence twice;
and
 No person shall be forced to give evidence against him.
These three rights given under Article 20 are the three cardinal principles of
Criminal Legal Structure in India.

Right to Life

13
The Indian Penal Code, 1860, Section 499.
14
Ibid., Section 500.
15
In re, Noise Pollution, AIR 2005 SC 3136.
16
PUCL v. Union of India, AIR 2003 SC 2363.
17
Union of India v. Naveen Jindal, AIR 2004 SC 1559.
18
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
Article 21 says that ‗no person shall be deprived of his life or personal liberty
except according to the procedure established by law‘. This is one of the most
elaborated and most-liberally constructed rights amongst all the other fundamental
rights. The Supreme Court judgment in the case of Maneka Gandhi v. Union of
India19 crossed one of the most important landmarks in the history of
constitutional litigations in India. Some of the major high lights of this judgment
with regard to Article 21 can be summarized as follows:
 The expression ‗Right to Life‘ under Article 21 is to be constructed most
liberally as life does not include mere survival but includes a living a
meaningful and dignified life,
 The expression of ‗procedure established by the law‘ through which the
right to life and personal liberty can be restricted under Article 21 has to
be a just, fair and reasonable procedure of law and not just any
procedure of law, Article 14 and the rule of law should be implicit and
omnipresent in all the actions of the state.
 The right to equality and non-discrimination under Article 14, the right
to freedoms given under Article 19 and the right to life and personal
liberty under Article 21 are inter-dependendent on each other and the
violation of one of these three rights violates the rest of the two and
vice-versa.
Because of the Maneka Gandhi judgment the right to life and personal liberty
under Article 21 is now considered a potential provision that has increased the
scope of state‘s liability to protect many pro-welfare interests resulting in
improving the quality of life, viz.,
 Right to livelihood now stands as a fundamental right under Article 21,20
 Right of the hawkers to carry on trade or business of their choice in
particular designated places,21

19
Ibid.
20
Olega Tellis v. Bombay Municipal Corp., AIR 1986 SC 180.
21
Sodan Singh v. NDMC, AIR 1989 SC 1988.
  Right to medical care and attention,22
 Right to shelter,23
 Right of the women employees to have sexual-harassment free work-
environment,24
 Right to privacy,25
 Right to a healthy and clean environment,26
 These rights are not to be read as absolute rights as every right is to be
read in the larger context of the rest of the fundamental rights and in the
light of the entire constitutional framework, including the objectives of
constitutional philosophy of India as enshrined under the Preamble to
the constitution.

RIGHT TO EDUCATION (ARTICLE 21 A)

Education of children contributes to the welfare of the community by promoting a

stable and democratic society. 27 For these reasons, Article 45 of the Constitution
casts a duty on the state to make provision for early childhood care and education
for all children until they complete the age of six years. The Constitution had put a
limit, i.e., January 25, 1960, within which the goal set forth in the article had to be
achieved. But this could not be achieved. In the year 1993, the Supreme Court in
Unni Krishnan v State of Andhra Pradesh28 recognized the fundamental right to
education in the right to life under Article 21 of the Constitution. To ensure the
implementation of the Constitutional obligation, the Eighty Sixth Constitutional
Amendment Act was passed in 2002. This amendment has inserted Article 21A

22
Parmanand Katarav. Union of India, AIR 1989 SC 2039; Pashim Banga Khet
Mazdoor Samiti v. State of West Bengal, AIR 1996 SC 2426.
23
Chameli Singhv. State of Uttar Pradesh, AIR 1996 SC 1051.
24
Vishakhav. State of Rajasthan, AIR 1997 SC 3011.
25
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378; PUCL V. Union of India,
AIR 1991 SC 207.
26
Subash Kumar v. State of Bihar, AIR 1991 SC 420.
27
1. MILTON FRIEDMAN, THE ROLE OF GOVERNMENT IN EDUCATION IN
PHILOSOPHY OF EDUCATION, edited by Randal Curren, published by (Blackwell Publishing
U.S.A).
28
2. 1993 (1) SCC 645, 732.
into the Constitution which guarantees fundamental right to education to all
children of the age between six to fourteen years. The Parliament has also passed
the Right to Education Act, 2009 to attain this noble mission.

RIGHT AGAINST ARBITRARY ARREST AND DETENTION (ARTICLE 22)

Article 22 guarantees protection against arbitrary arrest and detention. The man in
custody will be informed, as soon as possible, regarding the grounds of his arrest.
Moreover, the arrested person shall not be denied the right to engage or consult a
legal practitioner of his choice for the sake of making his defense. It is also
provided that a person who is arrested and placed under police custody shall be
produced before the nearest magistrate within a period of 24 hours of such arrest
and that no such person shall be kept in custody beyond the said period without
the order of the magistrate.

RIGHT AGAINST EXPLOITATION (ARTICLES 23- 24)

Article 23 prohibits traffic in human beings and forced labour like beggary. A
qualifying clause says that nothing shall prevent the state from imposing
compulsory service for a public purpose and in imposing such a service, the state
shall not make any discrimination on various grounds like those of religion, race,
class and the like. This provision specifically prohibits slavery or ‗bonded labour‘
and immoral traffic in human beings. Article 24 prohibits employment of children
below 14 years of age in hazardous jobs.

RIGHT TO RELIGION (ARTICLES 25- 28)

Article 25 ensures freedom of conscience and right to profess, practice and

propagate religion. Article 26 guarantees freedom to every religious denomination
or to any section thereof to establish and maintain institutions for religious and
charitable purposes to manage its own affairs in matter of religion, to own and
acquire movable and immovable property and to administer such property in
accordance with law. Article 27 says that no person shall be compelled to pay any
taxes which would be spent for the promotion or maintenance of any particular
religion or religious activity. Finally, Article 28 prohibits compulsory attendance
at religious instructions imparted in any educational institution wholly or partly
maintained by the state.

CULTURAL AND EDUCATIONAL RIGHTS (ARTICLES 29-30)

India is a multilingual state. It comprises vast tracts of territory consisting of

people with different cultures and traditions. Besides the 18 recognized languages
apart from English there are more than 200 dialects in India.

Article 29 lays down that any section of the citizens residing in the territory of
India having its distinct language, script or culture shall have the right to conserve
the same. No citizen shall be denied admission to any educational institutions
maintained by the state or receiving aid out of state funds on the grounds of
religion, race, caste, language or any of them.

Article 30 states that all minorities, whether based on religion or language, shall
have the right to establish and administer educational institutions of their choice.
The state shall not discriminate in granting aid to educational institutions on the
ground that it is under the management of the minority whether based on religion
or language.

However, the Supreme Court has ruled that a state government can make learning
of its language compulsory even in linguistic minority schools in order to
strengthen national integration and bridge the gap between different cultural
segments in society.

RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)

This provision is extraordinary because it gives meaning and fulfillment to the
other fundamental rights guaranteed by the Constitution. According to Dr. B.R.
Ambedkar, ‗it is the heart and soul of the Constitution‘. Article 32 states that a
citizen can move the Supreme Court by appropriate proceedings for the
enforcement of rights conferred on him by the Constitution. Supreme Court has
the power to issue writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari for the enforcement of any of rights conferred by the
Constitution.

The right guaranteed by the article shall not be suspended except or otherwise
provided by the Constitution. In case of violation of fundamental rights individual
has right to move the Supreme Court by an appropriate method and the Supreme
Court has the power to issue writs, as mentioned below, which may be appropriate
for enforcement of any of the fundamental rights. The writs are as follows:

Habeas Corpus
This writ protects the personal liberty of a citizen. It provides a remedy for a
person who has been wrongfully detained or restricted. The courts can order the
authorities to produce before it a person who has been detained or arrested for the
purpose of determining the legality of his detention

Mandamus
It is an order to a public body or person to do what is his duty, provided it is a
public duty affecting the rights of individual. It is mainly used for public purpose
and for the enforcement of public duties. This writ is aimed at correcting the acts
or omissions on the part of authorities which violate the fundamental rights of the
citizens.

Prohibition
This is a judicial writ issued by a court of superior jurisdiction and directed to the
inferior court or tribunal preventing it from acting without proper jurisdiction. The
writ of prohibition is a need at an earlier stage to prevent the wrong action of the
authorities i.e., it is a preventive step.

Certiorari
This writ is an order commonly issued by a superior court to withdraw a case
from a lower court or tribunal, acting without jurisdiction or in excess of it or in
violation of the principles on natural justice. By this writ, the superior court
prevents the lower courts from exceeding the limit. The writ of certiorari is an
order of the higher court issued to inferior courts, tribunals or authorities to
transmit to it the record of proceeding pending with them for scrutiny and if
necessary for quashing the same.

Quo Warranto
This writ prevents the illegal assumption of any public office or usurpation of any
public office till the matter is finally decided by the court. If a person acts in an
office in which he is not entitled to act, an injunction may be granted restraining
him from further action.

Article 32 is remedial right for the enforcement of the fundamental rights

guaranteed by the Constitution and the right itself has been made fundamental by
its incorporation in part III of the Constitution. Thus, the Supreme Court is made
the protector and guarantor of fundamental rights.

WRIT JURISDICTION OF THE HIGH COURTS

The High Courts of the states are vested with writ jurisdiction under Article 226
of the Constitution of India. Along with the power to issue writs that are discussed
above, the jurisdiction of the High Courts are wider than that mentioned in Article
32. Article 226 is applicable in the context of all sorts of constitutional and legal
rights though that may not be necessarily included within the fundamental rights
enshrined in the Constitution.
 CHAPTER 3

DIRECTIVE PRINCIPLES OF STATE POLICY

Directive Principles of State Policy (DPSP) are enunciated in the Constitution to

apply them in the making of laws by the state. Directive principles, as the term
indicates are only directive in nature and are not enforceable in a court of law.
Some of the key aspects envisaged through the directive principles are

 Securing social order for the promotion of welfare of the people.

 Securing adequate means of livelihood equally to men and women.
 Equal pay for equal work to both men and women.
 Securing free legal aid to ensure that opportunities for accessing justice
are not denied to any citizen due to economic or other disabilities.
 Securing just and humane working conditions and maternity relief.
 Free and compulsory education of children until they complete the age
of fourteen years.
 Promoting educational interests of scheduled castes, scheduled tribes
and other weaker sections of the society.
 Protection of monuments and places and objects of national importance.
 Promotion of international peace and security.

The DPSPs are inducted under the Constitution of India with the objective of
creating some core non-enforceable directions for State so that the laws and the
government policies reflect the broader goals as provided under the Constitution.
Though, by virtue of Article 38 of the Constitution the DPSPs are non-
enforceable in the courts of law unlike the Fundamental Rights. Despite this major
difference, the Supreme Court and the High Courts have interpreted the
relationship between DPSPs and the Fundamental Rights in a unique manner.
According to the courts, the DPSPs are to be understood as if they are
complementary and supplementary to the Fundamental Rights, and further, that
there is no question of any superiority or inferiority between these two rights.
Both these two categories of rights should be read in the larger perspective and
objectives of the constitutional philosophy as given under the preamble. Hence,
both are to be constructed harmoniously while making laws or defining the state
policy.29

29
Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178; Minerva Mills v.
Union of India, AIR 1980 SC 1789.
 CHAPTER 4

FUNDAMENTAL DUTIES

The fundamental rights in the Constitution of India are balanced by the

fundamental duties. Fundamental duties, refers to the duties of the citizens
towards their nation. They were inserted in the form of Article 51A by the
Constitution (Forty Second Amendment) Act, 1976. The fundamental duties of
citizens are mentioned below:

 To abide by the Constitution and to respect its ideals and institutions.

 To respect the National Flag and the National Anthem.
 To cherish and follow the ideals that inspired the freedom struggle.
 To uphold and protect the sovereignty, unity and integrity of India.
 To defend the country; give national service to the country when called
to do so.
 To promote harmony and spirit of common brotherhood amongst all the
people of India crossing all the factors of diversities.
 To renounce practices derogatory to women.
 To value and preserve the heritage of our composite culture.
 To protect and improve our natural environment and show compassion
to living creatures.
 To develop scientific temper, humanism and spirit of inquiry and
reform.
 To safeguard public property and abjure violence.
 To strive towards excellence in spheres of individual and collective
 activity thereby the nation can rise to higher levels of endeavour and
achievement.

Though fundamental duties are not enforceable before a court of law, they
provide a valuable guide and aid to interpretation of constitutional and legal
issues. It also has to be kept in mind that the individual duty of every citizen of
state becomes the collective duty of the state at large.
 CHAPTER 5

UNION GOVERNMENT

The government at the centre is called the Union Government. The President is
the Head of the State. There is a Vice President to assist the President and to act
as the President during the absence of the latter for any reason. The Council of
Ministers with the Prime Minister at the head is to aid and advice the President
and is collectively responsible to the Lok Sabha.

THE PRESIDENT OF INDIA

The President is the head of the Republic of India. He is elected for a term of five
years and he may be re-elected any number of times. The President is the chief
commander of all the armed, naval and air forces. However, the role of the
President in a parliamentary democracy is that of a titular or a nominal head. In
other words, the President is not a single handed executive who enforces his
decisions through the council of ministers rather the President works on the aid
and advise given by the council of ministers.

THE VICE PRESIDENT OF INDIA

The Vice President assumes the role of the President in his absence or any casual
vacancy in the office of the President of account of death, resignation or removal.
The Vice President also functions as the ex-officio chairman of the Rajya Sabha.
While performing the duties of the Office of the President, the Vice President will
not perform his duties as the chairman of the Rajya Sabha. The procedure for
election to the office of the President and Vice President remains the same.
QUALIFICATIONS

The candidates nominated to the office of the President and Vice President must
be an Indian citizen and must have completed the age of thirty five years.
Furthermore, they must possess all other qualifications prescribed for an elected
member of the Lok Sabha and Rajya Sabha respectively. The nominee also must
not be holding an office of profit. Office of profit refers to where the candidate
concerned is already enjoying another post in the central or state government for
which he/ she is earning remuneration.

METHOD OF ELECTION

The President and Vice President is elected by an electoral college consisting of

the elected members of the Parliament and State legislatures including the
Legislative Assemblies of Pondicherry and of the National Capital Territory of
Delhi. The election is conducted as per the provisions of the Presidential and
Vice Presidential Elections Act, 1952 by the Election Commission of India. All
disputes pertaining to the election of the President and Vice President shall be
inquired into and decided by the Supreme Court of India.

TERM

The President holds the office for a period of five years from the date he takes
the oath in the presence of the Chief Justice of India whereby he swears in the
name of God, or solemnly affirms, that he will faithfully execute his office or
discharge his functions in a way so as to preserve, protect and defend the
Constitution to the best of his ability and devote himself to the service and
wellbeing of the people of India. He may resign his office before the expiry of
his term for any reason. The letter of resignation must be addressed to the Vice
President.

The Vice President takes the oath before the President of India and shall continue
in his office for a term of five years from the time he enters the office. The Vice
President takes the oath in the presence of the President of India or some person
appointed on behalf of the President of India. In the event of a vacancy in the
office of the President, the Vice President shall act as the President. Within next
six months the election of the new President must be held. The Vice President
shall leave his office before the completion of his term by submitting the
resignation to the President of India.
REMOVAL

Article 61 of the Constitution lays down the procedure for removal of the
President through the process of impeachment for the ‗violation of the
Constitution‘. The elaborate procedure for impeachment involves the council of
states and the house of people and includes moving of resolution, conducting an
investigation and finally passing of the resolution. The Vice President shall be
removed by a resolution of the Council of States passed by a majority of all the
then members of the Council and agreed to by the House of the People.
However, the resolution cannot be moved without fourteen days notice regarding
the intention to move the resolution.

POWERS AND FUNCTIONS OF THE OFFICE OF THE PRESIDENT

The following are the powers and functions of the President:

EXECUTIVE POWERS

1. All administration is conducted in his name; he makes rules for the

conduct of government business and allocation of work among the
ministers.

2. He receives information of all important decisions of the Cabinet

relating to the affairs of administration and proposals for legislation and
he may refer any matter for the consideration or reconsideration of the
Council of Ministers.
3. He appoints the Prime Minister; ministers on the advice of the Prime
Minister.
4. He appoints Governors, Ambassadors, Chief Justice and Judges of the
Supreme Court, Chief Justices and Judges of the High Courts, Statutory
 Commissions, Finance Commission, National Human Rights
commission, National Women‘s Commission, National Commission for
SC/ST, Minorities Commission, etc.
5. He appoints the Chairman and members of the Union Public Service
Commission, Joint Public Service Commission, Attorney General,
Chief Election Commissioner and other election commissioners,
Comptroller and Auditor General.
6. Maintains foreign relations, accepts the credentials of ambassadors and
envoys of foreign countries.
7. He is the supreme commander of defence forces of the country.
8. He sends instructions and directions to the state governments which
must be complied.

LEGISLATIVE POWERS

Article 79 of the Constitution of India states the constitution of Parliament as

comprising of the President of India, the Council of States (Rajya Sabha) and the
House of People (Lok Sabha). President is an indispensable component of the
Parliament in that he summons the Parliament, prorogues and dissolves the
sessions of the Lok Sabha. Any Bill passed by the Parliament becomes an Act
once it receives the assent of the President. He can summon a joint sitting of both
the Houses in case of an unresolved deadlock in respect of any Bill. He can
address either or both the Houses of Parliament at any time. He can nominate two
members from the Anglo-Indian community to the Lok Sabha and 12 members to
the Rajya Sabha. The President has the power to send messages to either House
of Parliament.

During the intervals between the two sessions of the Parliament, the President can
issue ordinances which have the same force and effect as an Act of Parliament.
Ordinance making power of the President of India is discussed under Article 123
of the Constitution. The President may promulgate ordinances in such
circumstances wherein he is satisfied requires immediate action. An ordinance
may have the same effect as that of an act passed by the Parliament; however, an
ordinance has to be laid before both the houses of the Parliament within six
weeks of its reconvening for the session, in the failure of which the ordinance
shall cease to operate. The fact that ordinances are preferred in many cases
where it is not extremely necessary has become a matter of real concern and is
considered as an easy method towards enactment once the ordinance is approved
by both the houses.

FINANCIAL POWERS

The President has some financial powers

1. No money bill can be introduced in the Parliament without the prior
consent of the President.
2. At the commencement of each year, the President causes to be laid
before the Parliament the Budget of the Union for the coming financial
year.
3. The President controls the contingency fund of India.
4. From time to time the President appoints a finance commission which
makes recommendations for the distribution of revenues between the
Union and the States.

JUDICIAL POWERS

As the head of the state, the President has power to grant pardon, reprieve,
respite, suspension, commutation or remission in respect of criminals facing
punishments, including death sentence.

Further, the President can seek the advice of the Supreme Court of India on any
question of law or fact of public importance under Article 143 of the
Constitution. However, the President is not bound to accept the advice given by
the Supreme Court.
EMERGENCY POWERS

The power of the President to declare emergency is discussed in brief detail in

Chapter 9.

PRIME MINISTER AND COUNCIL OF MINISTERS

The Constituent Assembly came to the conclusion that the British Parliamentary
form of government would be more suitable for our country in view of our
familiarity with it. Article 74 provides for the real executive. It reads: ―There
shall be a Council of Ministers with the Prime Minister at the head, to aid and
advise the President, who shall in the exercise of his functions, act in accordance
with such advice.‖

Article 75 says: ―The Prime Minister shall be appointed by the President and the
other Ministers shall be appointed by the President on the advice of the Prime
Minister.‖ The size of the Council of Ministers cannot exceed 15% of the strength
of Lok Sabha. The Minister shall hold office during the ‗pleasure‘ of the
President. The Council of Ministers shall be collectively responsible to the House
of People. If a Minister is not a member of either House of Parliament, he should
be elected to either house within six months; otherwise he ceases to be a Minister.

APPOINTMENT

The Prime Minister is the head of the Council of Ministers. He is appointed by

the President by virtue of being the leader of the majority party in the Lok Sabha.
In case no party has absolute majority in the Lok Sabha, President may invite the
leader of the largest party to form the government.

The appointment of Prime Minister pertains to the discretionary powers of the

President, but this must be used with great caution. It should not become a matter
of public controversy.
FUNCTIONS AND POSITION

The first and foremost function of the Prime Minister is to prepare the list of his
ministers. He meets the President with this list and then Council of Ministers is
formed. There are ministers of cabinet rank, ministers of State and deputy
ministers. It is also one of the discretionary powers of the Prime Ministers to keep
some ministers of the fourth rank knows as parliamentary secretaries. The
President has hardly any say in the selection of the ministers. It is a different
matter that a wise and sagacious President may advise the Prime Minister to
include or not to include a particular name in his list of ministers.

The President allocates portfolios among the Ministers on the advice of the Prime
Minister. The Prime Minister may keep any department or departments under his
control; he may also advise the President to reshuffle portfolios of his ministers
from time to time. In case a minister disagrees with the policy of the Cabinet or
with the Prime Minister, he should resign.

The decisions of the Cabinet are virtually the decisions of the Prime Minister.
The proposals about appointments of persons to high post, the determination of
home and foreign policies of the government, preparation of budget and
introduction of bills in the Parliament, summoning and proroguing the session of
the Parliament and a host of other decisions are taken by the Prime Minister in
consultation with his close confidantes having important positions in the Council
of Ministers. In short, in the words of Ramsay Muir, ―the Cabinet is the steering
wheel of the Ship of the State and the Prime Minister is its steersman.‖

Theoretically, the Prime Minister is the first among equals; in practice the case is
quite different. His pre eminent position, like his British counterpart, is evident
from the following points:
 He is the leader of the majority party in the popular House of the
 Parliament.
 Virtually, the ministers hold office during the ‗pleasure‘ of the
Prime Minister.
 The allocation of business among ministers is a function of the
Prime Minister.
 He is the chairman of the Cabinet, summons its meeting and
presides over it. He decides the agenda of the Cabinet.
 He is in charge of coordinating the policies of government and has
accordingly a right of supervision over all the departments.
 The Prime Minister is a link between the President and the Cabinet
and a channel of communication between the President and the
ministers and between the Parliament and ministers.
 He is the chairman of Interstate Council, Planning Commission,
Nuclear Command Authority, National Development Council etc.

Thus, the office of the Prime Minister in India is the most powerful but a
democratic office. The role of the Prime Minister depends upon the qualities of
the person holding this office at a particular time. The Constitution of India and
the Indian Democracy has sufficient strength to prevent and check any
authoritarian attempt by any holder of this high office.
 CHAPTER 6

UNION LEGISLATURE

Part V, Chapter II, Articles 79 to 122 deals with the Union Parliament. Article 79
expressly states that ‗there shall be a Parliament for the Union of India‘. The
Parliament in India consists of the President and the Upper House and the Lower
House. The upper house is the Council of States and the lower house is called the
House of People.

RAJYA SABHA
Rajya Sabha is known by other names such as the ‗Council of States‘, the ‗House
of Elders‘ and the ‗Upper House‘. The maximum number of members in Rajya
Sabha should not exceed 250 of which 238 members are elected from the states
through indirect elections. The 12 members are nominated by the President from
among those with special knowledge and experience in the field of art, literature,
science, social service etc. The representation of the states in Rajya Sabha varies
between different states and is divided in proportion to the population of each
state.
A person contesting to the Rajya Sabha must be a citizen of India who has
attained the age of 30 years and should possess all such qualifications as may be
prescribed by a law of the Parliament. Grounds for disqualification includes
holding of any office of profit, being an insolvent or one of unsound mind and is
not a citizen of India or has voluntarily acquired the citizenship of a foreign state.
TENURE

The Rajya Sabha is a permanent House not subject to dissolution. The members of
Legislative Assemblies of states elect the members for a period of 6 years where
1/3 of the members retire every 2 years and are eligible for re-election. The
quorum of the House is 1/10 of its total membership.

IMMUNITIES

The members enjoy immunity from arrest; to stand witness in any case
importantly the freedom of speech ensures that anything said by them in the
House is not liable for proceeding in a court of law.

SESSIONS

The Constitution of India clearly states that the Parliament shall meet twice in a
year and there should not be a gap of more than 6 months between two sittings.
(Article 85). The Parliament meets in three sessions; the budget session
(February-May), the monsoon session (July-September) and the winter session
(November/December) every year.

POWERS AND FUNCTIONS OF THE RAJYA SABHA

On legislative matters, the Rajya Sabha enjoys the same powers with the Lok
Sabha except in case of a money bill. A money bill originates in the Lok Sabha
and must get a majority in the House and then proceeds to the Rajya Sabha. The
approval of both the Houses is essential for a bill to become a law. In case of
disagreement between the two Houses on a bill, both the Houses meet on a joint
sitting and the deadlock is resolved by a majority of a total number of members of
both the Houses present and voting.

A money bill cannot be introduced in the Rajya Sabha and when such a bill is
referred to it after it is passed by the Lok Sabha; it has to pass it within a period
of 14 days. If the Rajya Sabha does not pass the money bill during the said period
of 14 days, the bill will be deemed to have been passed. The Rajya Sabha may
return a money bill with some recommendations, but the Lok Sabha may accept
them or not while reconsidering the same bill.

An amendment to the Constitution can be initiated in either House of the

Parliament and must be passed by a 2/3 majority in both the Houses present and
voting. In this regard, the Constitution does not provide for a joint sitting of the
Parliament in case of a dispute. If Rajya Sabha does not pass an amendment bill, it
stands defeated.

The President is elected by an electoral college consisting of the members of

Parliament along with the members of state legislative assemblies. The members
of both the Houses of Parliament elect the Vice President.

The special powers of the Rajya Sabha consist of the power to declare a subject of
state list as a subject of national importance and to legislate on the same and the
power in respect of creation or abolition of an All India Service.

LOK SABHA

The Lok Sabha, i.e. The House of the People is the lower house of the Union
Parliament. It represents the people of India. Its members are directly elected by
the people. It is a powerful, democratic and fully representative House of the
Union Parliament. The Lok Sabha enjoys a very strong position as a powerful
part of the Parliament.

COMPOSITION

The Constitution provides for a maximum of 552 members, not more than 530
representatives from the states and not exceeding 20 members from the Union
Territories. At present, the House consists of 545 members, of whom 543 are
elected and 2 Anglo Indian members are nominated by the President. Some seats
are reserved for scheduled castes and scheduled tribes.

A candidate contesting for the Lok Sabha elections must be a citizen of India and
he must have attained the age of 25 years. Further he should possess all such
qualifications as may be prescribed by a law of the Parliament. The grounds for
disqualifying from membership of Lok Sabha and Rajya Sabha are the same.
TENURE

The normal term of the Lok Sabha is 5 years. The term can be extended for 1 year
during an emergency, but fresh elections to the Lok Sabha must be held within
six months of the end of emergency.

SESSIONS

President can call the session of Parliament at any time but the gap between two
meetings of the Parliament cannot be of more than six months. It means in one
year a minimum of two meetings of the Lok Sabha are essential. The President
has the power to summon or prorogue or dissolve the Lok Sabha. For a meeting
of the Lok Sabha, the presence of at least 1/10 of its total members is essential.

SPEAKER OF THE LOK SABHA

The Presiding officer of Lok Sabha is called the Speaker. The speaker is elected
by and from among the members of the House. One more member is elected as
the Deputy Speaker who performs the functions of the speaker in his absence.

POWERS AND FUNCTIONS OF THE LOK SABHA

LEGISLATIVE FUNCTIONS

An ordinary bill can become a law only after it has been passed by both the
Houses of the Parliament. It can be introduced either in the Lok Sabha or Rajya
Sabha. When it is passed by one House it is sent to the other House. After it has
secured the approval of both the Houses, it becomes a law after the signature of
the President. In case of any difference between the two Houses over a Bill, the
President summons a joint sitting of both the Houses. In a joint sitting, the Lok
Sabha, because of its larger membership, dominates the session.

All money bills can be introduced only in the Lok Sabha. After it being passed
in the Lok Sabha, the money bill will be send to the Rajya Sabha. A money bill
passed by the Lok Sabha can be delayed by the Rajya Sabha for a maximum
period of 14 days. If the Rajya Sabha fails to pass a Money Bill and 14 days
lapse from the date of the submission of that Money Bill to the Rajya Sabha, it is
deemed to have been passed by both the Houses of Parliament and is sent to the
President for his signature. Thus, we can say that the Lok Sabha has the final
control over the finances of the Union. Constitution amendment bill can be
introduced in either House of the Parliament. However it is considered passed
only when both the Houses pass it in identical terms and in accordance with the
provisions of Article 368 of the Constitution.

EXECUTIVE FUNCTIONS

The Council of Ministers is responsible to the Lok Sabha for all its acts of
omission and commission. The Ministers remain in office so long as they enjoy
the confidence of the majority in the Lok Sabha. The Lok Sabha can remove the
Ministry from office by passing a vote of no confidence against it. Thus, the life
and death of the Council of Ministers is decided by the Lok Sabha.

JUDICIAL FUNCTIONS: The Lok Sabha performs some judicial functions also.
The impeachment proceedings can be taken up against the President in either
House of the Parliament. The President can be removed from office only by a
resolution adopted by both the Houses with 2/3 rd majority of their members. The
House also has the power to impeach any judge of the Supreme Court or the
State High Court. It can also remove the high officers like the Attorney General,
Chief Election Commissioner, and the Comptroller and Auditor-General of India.

ELECTORAL FUNCTIONS: The elected members of the Lok Sabha take part in the
election of the President. Both Lok Sabha and Rajya Sabha members elect the
Vice President of India. The Lok Sabha also elects a Speaker and a Deputy
Speaker.
APPROVAL OF DECLARATION OF EMERGENCY: Each declaration of emergency by
the President has to be approved by Lok Sabha and Rajya Sabha within a
stipulated period. Other powers of the Lok Sabha include the approval of
ordinances issued by the President, change of the boundaries of the state, creation
of new states and change in the name of state, change in the qualification for the
membership of the Parliament and the state legislatures, revising the salary and
allowances of the members of the Parliament, setting up Joint Public Service
Commission for two or more states. It can also pass a resolution for abolishing or
creating the upper chamber of a state legislature.

POSITION OF THE LOK SABHA

The Lok Sabha is a very powerful House. The Council of Ministers is responsible
to the Lok Sabha and not to the Rajya Sabha. As directly elected, national,
representative House, the Lok Sabha really represents the sovereign will of the
people. Like the British House of Commons the Lok Sabha is the real centre of
power in the Union Parliament.

LAW MAKING PROCESS IN PARLIAMENT

All bills require to be passed by both the Houses of Parliament. A bill, so passed,
becomes an Act or law after it receives the assent of the President. The President
may either give his assent or return it for reconsideration of the Parliament. If a
returned bill is passed again it becomes a law, and the President shall not
withhold his assent.

Articles 107 to 122 of the Constitution deal with the provisions relating to the
passing of the bills in Parliament. Bills may be classified as ordinary and money
bills. Ordinary bills may be introduced in either House of Parliament. A money
bill must be introduced only in the Lok Sabha. An ordinary bill to become an Act
requires the concurrence of both the Houses. If there is disagreement between the
two Houses, it can be solved by a joint committee of members from both Houses.
Even after this, if the Rajya Sabha disagrees and returns the bill with its
recommendations which are not acceptable to the Lok Sabha, the President of
India will call for a joint sitting of both Houses of Parliament. The Speaker of the
Lok Sabha presides and decision is by simple majority of votes. In the case of a
money bill, there is no possibility of a joint-sitting of both Houses. Once a
money bill has been passed by the Lok Sabha, the Rajya Sabha may at the most
delay it for a fortnight, where after the bill is deemed to have been passed by
both the Houses.
A distinction may be made between Public Bills and Private Bills. A Public Bill
is an official bill or a bill introduced by the government. Ministers initiate them
and also pilot them until they are enacted. The government takes all the care to
get them enacted. Public bills reflect the policies of the government. A Private
Bill is one which is introduced by any other member. It generally reflects public
opinion. The stages through which bills will have to pass through before
becoming an Act are described below:

1) INTRODUCTION AND FIRST READING: A bill may be introduced by any member

of Parliament. The member who wishes to introduce a bill has to obtain the leave
of the House, after giving a month‘s notice along with its text and other details.
The title of the bill is read out and speeches, if any, are very brief. A vote is taken
and if the majority favour the bill, it is deemed to have been read a first time and
is published in the Gazette of India.

2) SECOND READING: At this stage, the bill is moved for consideration by the
House immediately or at a future date, as specified in the motion. It may also be
moved for submission to a select committee. The usual procedure is to submit the
bill to a select committee. Bills of a controversial nature may be circulated among
the people for eliciting public opinion. During this stage there is no detailed
discussion of the provisions of the bill. There is only a general discussion
regarding the main principles, the merits and demerits of the bill as a whole.

The report of the committee with its suggestions is presented before the Houses.
The House proceeds to consider the bill clause-by-clause, as it had emerged from
the committee. During this stage members are free to debate amendments. It is up
to the Speaker to allow or disallow amendment proposals. Finally, the clause with
or without amendments is put to vote. Voting may be held clause-by-clause or for
a group of clauses.

3) THIRD READING: This is practically a formal stage, and so significant changes

are allowed in the bill. The bill as a whole is discussed and arguments in favor
and against it are expressed by the members. A few oral amendments to clear
ambiguities or defects in the form of the bill may be accepted by the House. The
bill is put to vote. If it is passed by a majority of members present and voting, the
bill is deemed to have been passed by the House.

After receiving a certificate that it has been passed from the Presiding officer of
the House (Speaker of Lok Sabha, or Chairman of the Rajya Sabha) of its origin,
the bill is sent to the other House. The same procedure is followed once again in
the other House, the bill is sent to the President for his assent. On receipt of the
President‘s assent it becomes a law.
 CHAPTER 7

INDIAN JUDICIARY

The Constitution of India provides for a single integrated judicial system with the
Supreme Court at the apex, High Courts at the state level and District Courts at
the local level. Indian Judicial System is an independent and effective system. It
acts as the guardian of the Constitution of India, the fundamental rights and
freedoms of the people, and in fact, the democratic system and its federal
structure.

THE SUPREME COURT OF INDIA

The Supreme Court of India is the apex level court, the court of final appeals in
India. The Constitution under its Article 124 provides: ‗There shall be a Supreme
Court of India‘. It enjoys supreme judicial authority in India. The whole of the
judicial administration is organized and run in accordance with the orders and
rules of the Supreme Court. Its decisions bind all the courts. No appeal lies
against its decisions.

COMPOSITION

Initially the Supreme Court consisted of seven judges. The number has been
modified from time to time and presently stands at thirty. The Supreme Court, as
of now, comprises the Chief Justice and 28 other judges. The President may
appoint ad hoc judge or judges at the request of the Chief Justice of India.

METHOD OF APPOINTMENT

The judges of the Supreme Court are appointed by the President after
consultation with the sitting judges of the Supreme Court and the High Courts in
the states. A major revamping of the procedure of judicial appointments has
taken place by the National Judicial Appointment Commission (NJAC) Bill
2014. This Bill has to be read in conjunction with the Constitution (121 st)
Amendment Bill, 2014 which has added three new provisions to the constitution
namely; Art. 124A, 124B and 124C. Art. 124A deals with the constitution of the
NJAC whereas Art. 124B discusses the functions and Art. 124C enables the
Parliament to make new laws pertaining to the appointment of judges. The
Statement of Objects attached to the Bill it states that ―the said Commission
would provide a meaningful role to the judiciary, the executive and eminent
persons to present their view points and make the participants accountable, while
also introducing transparency in the selection process‖. The NJAC consists of
members from the executive, the legislature and the judiciary. The intention
behind the constitution of the NJAC has been to regulate the politics in the
collegiums system thereby ensuring the selection of qualified and credible
candidates to the apex court as well as the high courts. However, the success or
failure of NJAC can only be determined in the days to come.

QUALIFICATIONS

The following are the qualifications laid down by the Constitution.

• Is a citizen of India;
• Has been for at least 5 years a judge of the High Court; or
• Has been an advocate of an High Court for 10 years; or
• A distinguished Jurist in the opinion of the President.

TERM

A judge of the Supreme Court holds office until attaining the age of 65 years.
The retirement age for judges of High Courts is 62 years. There have been
proposals to increase the retirement age of the High Court judges from 62 to 65.
The Constitution Amendment Bill pertaining to the same remains inconclusive.

METHOD OF REMOVAL

The Constitution provides for the procedure of impeachment for the removal of
judges. Judges can be removed only on grounds of proved misbehaviour or
incapacity.

SEAT OF THE SUPREME COURT

The Supreme Court sits in the national capital New Delhi. It can, however, meet
in any other place as the Chief Justice may appoint, with the approval of
President.

JURISDICTION

The Supreme Court of India has been vested with original, appellate and
advisory jurisdictions.

Original Jurisdiction30: Any disputes:

• Between the Government of India and one or more States; or

• Between the Government of India and State or States on the one side and
one or more other States on the other; or
• Between two or more States.

Appellate Jurisdiction: Supreme Court is the highest court of appeal in all civil,
criminal and constitutional cases. It can hear appeals against the decisions of the
High Courts.
Advisory Jurisdiction: The President of India can seek the advice of the Supreme
Court in respect of any legal matter and dispute of high public importance. In
such a case the Supreme Court gives its advisory opinion to the President.
However, such an advice is not binding upon the President.
Special Leave to Appeal: Under Article 136, the Supreme Court can in its
discretion grant special leave to appeal from any judgment, decree,
determination, sentence or order in any case or matter decided by any court or
tribunal in India. The only exception to this power is a judgment passed by an
Army tribunal or Army Court.
Jurisdiction in respect of Fundamental Rights: The Supreme Court has the
power to issue orders, directions and writs (Under Article 32) for the enforcement
of fundamental rights of the people as enshrined in Part III of the Constitution.

30
Article 131 of the Constitution of India.
AS INTERPRETER AND PROTECTOR OF THE CONSTITUTION: The Constitution is
the Supreme law of the land and the Supreme Court acts as the final interpreter of
the Constitution. It has the power to reject any act of the legislature or the
executive, if it is found to be unconstitutional. This is known as the power of
judicial review which is discussed in brief detail in the coming paragraphs.

COURT OF RECORD: The Supreme Court is a court of record. Records of the

Supreme Court are admitted as final evidences and cannot be questioned when
these are produced and referred to in any other court. It also has the authority to
punish for its own contempt or contempt of any subordinate courts.

POWER TO REVIEW ITS OWN JUDGMENTS: The law laid down by the Supreme
Court is considered as law of the land. Its decisions are therefore binding on all
the lower courts. The Supreme Court also has the power to review its own
decisions.

POSITION: The above account of the powers and jurisdiction of the Supreme
Court of India brings out fully the strong position enjoyed by it in the Indian
political system. It happens to be, as Professor K. V. Rao describes, ‗The most
powerful in the world having the largest jurisdiction‘. In the worlds of Prof.
M.V. Pylee, ―the combination of such wide and varied powers in the Supreme
Court of India makes it not only the supreme authority in the judicial field but
also the guardian of the Constitution and the law of the land.‖

It has always functioned as an independent and an impartial apex court. It has

always maintained its dignity and exercised its jurisdiction emphatically and
effectively. The Supreme Court has been instrumental in bringing substantial
improvements in the social, political and economic context of this country.

JUDICIAL REVIEW

It may be defined as the power of the court to determine the constitutional

validity of an impugned law or executive action and hold it unconstitutional and,
for that reason; unenforceable to the extent it is inconsistent with the
fundamental law of the land. The power of judicial review works as a mechanism
to check the usurping of power by the legislature or the executive.

PUBLIC INTEREST LITIGATION

Popularly known as PIL, Public Interest Litigation has been defined as litigation
undertaken for the purpose of redressing public injury, enforcing public duty,
protecting social, collective and diffused rights and interests or vindicating public
interest. In the beginning it was confined to a few cases as those of combating
inhuman conditions inside the jails or horrible exploitation of bonded labor. Now
its scope has become wider so as to include any situation calling for speedy trial,
right to legal aid, right to livelihood, right to protection of life from pollution of
air and water or environmental hazards, right to lead a life of dignity or
fulfillment of basic needs and the like. No doubt, a surprising degree of
willingness has been shown by the Indian judiciary in altering the rules of
procedures whenever necessary so much so that now actions may be commenced
not only by way of formal petition, but also by the way of letters addressed to the
court or to a judge who may choose to treat it as a writ petition.

Obviously, the case of public interest litigation militates against the traditional
doctrine of locus standi which signifies that only an aggrieved person or a
directly affected party may move the court. Now, under PIL any citizen or a
group or a voluntary organization, or even a court can suo motu bring to notice
any case demanding action in the interest of the public. It provides for an easy,
simple, speedier and less expensive system of providing relief, under orders of
the court, to the aggrieved public or any section of the public.

JUDICIAL ACTIVISM

The routes of judicial activism may be traced in the role of Supreme Court and
the High Courts in exercising the power of ‗judicial review‘ as well as in giving
wider interpretations of the constitutional provisions while entertaining public
interest petitions and trying them in an expeditious manner. The courts have gone
to the extent of looking into many areas as wires of telecom policy, allotment of
official accommodation to the public servants, cause of the spread of an epidemic
hazardous to human life, distribution of petrol dealerships and gas agencies,
protection of the environment, involvement of politicians in any hawala
transactions, scam relating to animal fodder or ayurvedic medicines etc. It all
shows that the courts have expanded their jurisdiction to any conceivable extent
in the name of doing justice to the aggrieved party that moves them. Such a role
of higher judiciary has been regarded as ‗active‘, even adventurous which is
widely appreciated by the common people.

In short, judicial activism means a proactive approach of the judiciary towards

prevailing socio economic conditions in the country. It is aimed at securing a due
implementation of laws, policies and programs by the executive. It constitutes a
bold attempt on the part of the judiciary to act as the effective guardian of law by
acting to check executive apathy.

However, there is a divergent view that judicial activism has to be balanced by a

certain extent of judicial restraint. Judicial restraint refers to the situation where
the judiciary imposes restrictions on its own self thereby minimizing its
interference with the working of the legislature and the executive.

Hierarchy of Courts

Supreme Court

High Court

Metropolitan City District Level

Civil Civil
- City Civil Court/Family Court - District Court
- Court of Small Causes - Civil Judge – Senior Division
Criminal - Civil Judge – Junior Division
- Sessions Court Criminal
- Metropolitan Court - Sessions Court
- Magistrates Court - Judicial Magistrate Cour
 CHAPTER 8

STATE GOVERNMENT

The framework of the state governments are almost the same as that of the
government at the centre. Some minor points of difference may, however, be
noted, for instance, the Governor is the constitutional head of the state
government, but he is not elected, he is appointed by the President and may be
recalled, or reappointed, or transferred by him from one state to another. The
Governor performs the same functions what the President does at the centre with
this difference that he has no emergency powers. Each state has a Vidhan Sabha,
but in some states, the legislature is bicameral having Vidhan Sabha and Vidhan
Parishad respectively as upper and lower chambers.

STATE EXECUTIVE

India is a federal state where the power and authority is divided between the
centre and state government by the Constitution. Similar to that of the union
executive, the state executive has the Governor as the Head of the State. The
difference is, the President is indirectly elected whereas the Governor is appointed
by the President. Like the President, the Governor is also the nominal executive
and the day to day administration is carried out by the Council of Ministers
headed by the Chief Minister.

GOVERNOR

What the President is to the nation, the Governor is to the state. Article 153 of the
Constitution states that ‗There shall be a Governor for States for the Union of
India‘. Interestingly, there may be a common Governor for two or more states for
some times. He is appointed by the President on the advice of the union Council
of Ministers for five years. A person to be appointed for this post must be a
citizen of India; he must be above 35 years of age; and he must not be holding
any office of profit.
The Sarkaria Commission, appointed to look into the centre-state relations
suggested that as far as possible non controversial persons must be appointed as
Governors. Traditionally the Chief Minister of the State is consulted before
appointing a Governor.

OATH

The Governor has to take an oath before assuming the office. The oath is
administered by the Chief Justice of the State High Court. In his oath he swears to
uphold the letter and spirit of the Constitution.

REMOVAL OF A GOVERNOR
The term of office of the Governor of a State is five years, but he is to hold office
during the pleasure of the President. The President is bound to act on the aid and
advice of the Council of Ministers under Article 74 of the Constitution and thus
in effect it is the Central Government that appoints and removes Governors. The
recent controversies regarding the removal, transfer and appointments made to
the office of the Governor suggests that the integrity of constitutional offices
needs to be checked by following the spirit of the Constitution rather than
subjecting the same to political whims and fancies.

POWERS AND FUNCTIONS OF THE GOVERNOR

The powers and functions of the Governor cover executive, legislative, judicial,
financial and other spheres.
In the Executive sphere, his functions are as under:
1. He is the executive head of the state government. The executive power of the
state is vested in him that he has to exercise directly or through officers
subordinate to him. All executive actions of the state government are taken in his
name. He makes rules for the transaction of the business of government and for
the allocation of work among his ministers.
2. He appoints the Chief Minister and on his advice appoints other ministers. He
makes appointments of High Officers of state like Advocate General, Chairman
and members of State Public Service Commission, Election Commissioner of
State, Chairman and Members of state finance commission etc.
3. He acts as the Chancellor of State Universities.
4. In case he is satisfied that constitutional machinery has broken down, he may
recommend to the President for the invocation of Article 356 of the Constitution
to declare emergency. If it happens, he acts as the ‗agent‘ of the President in
running the administration of the state.

LEGISLATIVE FUNCTIONS OF THE GOVERNOR

1. He is an integral part of the state legislature without being its member. He

summons the session of the legislature and prorogues it. He may dissolve the
Vidhan Sabha at anytime on the advice of the Chief Minister.
2. He may nominate one member of the Anglo Indian Community to the Vidhan
Sabha in case he finds it not adequately represented in it. If the state legislature is
bicameral, he nominates about one-sixth of its members from amongst persons
distinguished in the fields of art, literature, science, social service and co-
operative movement.
3. The first session of the legislature of a new year and a session after general
elections begin with his inaugural address.
4. He may send messages to the legislature for consideration.
5. In case the legislature is not in session, he may promulgate an ordinance having
the same force of law.
6. He has veto power as such, he may give assent to a non money bill, or withhold
his assent, or return it for reconsideration of the legislature.
EXECUTIVE POWERS

1. Like the President, in the judicial sphere, he has ‗prerogative of mercy‘. He

may grant pardon to a person convicted by the court or may remit or commute the
sentence, provided all judicial remedies have been exhausted and the matter falls
within the executive authority of the state government.
2. He can decide matters relating to the appointments, postings and promotions of
district judges and other judicial officers.
3. He is also consulted by the President in the appointment of the judges of the
state high courts.
4. He enjoys personal immunity from all civil and criminal proceedings during his
term of office.

FINANCIAL POWERS

1. A money bill can be introduced in the Vidhan Sabha with his recommendation.
He is responsible for the presentation of the budget before the Vidhan Sabha for
its approval.
2. The members of the Finance and Planning Commissions are appointed by the
Governor.

DISCRETIONARY POWERS

As first citizen of the state, the Governor has the responsibility of conducting the
administrative machinery as per the provisions of the Constitution. Article 163
vests the Governor with discretionary powers that cannot be questioned in any
court of law. They are as follows:
1. In appointing the Chief Minister if no party enjoys majority it is left to the
Governor to call any person to form the government and prove his majority.
2. If the Governor believes that the government has lost majority or if the Chief
Minister having lost majority does not resign or if the government is using
unethical means for political gains, under these circumstances he can dissolve the
Council of Ministers.
3. The Governor can return a bill back to the legislature for reconsideration.
4. He can reserve certain bills passed by the state legislature for consideration of
the President.
5. If the Governor is satisfied that a situation has arisen in which the government
cannot be run according to provisions of Constitution he may request the
President to take over the state administration under Article 356. This is called
President‘s rule.

ROLE OF GOVERNOR

The Governor acts in a dual capacity; on the one hand, he acts as the
constitutional head of the state government. As such he is expected to act on the
advice of the Council of Ministers. On the other hand, the Governor acts like the
agent of the centre. Since he can live in office during the ‗pleasure‘ of the
President, he must look towards the centre in every delicate or sensitive situation.
It is for this reason that the office of Governor becomes the subject of criticism
particularly when the state government is run by a party which is not in power at
the centre.

CHIEF MINISTER AND COUNCIL OF MINISTERS

Since the parliamentary form of government has been established in the states as
at the centre, so the provisions of the Constitution in this regard resemble, though
we may come across certain variations as well.
Article 163(1) says that there shall be a Council of Ministers with the Chief
Minister at the head to aid and advice the Governor in the exercise of his
functions.

The Chief Minister is the real head of the Government. He is appointed by the
Governor. In accordance with the principles of the parliamentary government the
Chief Minister must be the leader of the majority party in the Vidhan Sabha. In
case a political party manages to secure a clear majority in the Vidhan Sabha, its
leader is invited by the Governor to form the government. In case no party gets
absolute majority in the Vidhan Sabha, then a coalition government is formed.
Two or more parties may form a coalition and then their chosen leader is invited
by the Governor to form the government. If no party gets clear majority and there
is no chance of the formation of a coalition government either, the Governor may
advice the President to invoke Article 356. The Governor appoints ministers on
the advice of the Chief Minister. Since the minister remains in office during the
‗pleasure‘ of the Governor, he may dismiss the Chief Minister in case he forfeits
the claim of being the leader of the party having majority in the Vidhan Sabha or
when there is a serious split in the ranks of the party having clear majority there.

Like the Prime Minister at the centre the Chief Minister is the real head of the
state government. He advises the Governor to appoint ministers and to distribute
portfolios among them. He may advice the Governor to dismiss a minister in case
he differs from the policy and working of the Council of Ministers. He acts as the
channel of communication between the Governor and the Council of Ministers
and also between the ministers and the state legislature. He advises the Governor
to make all high appointments, to summon the session of the state legislature and
to dissolve the Vidhan Sabha.
POSITION OF THE CHIEF MINISTER

His position in the state is similar to the one enjoyed by the Prime Minister in the
centre. His office is a powerful office, rather the most powerful office in the state.
However real role and position of the Chief Minister in the state depends upon
several factors which includes the personality of the person who occupies the
office, his hold over political party, his leadership qualities, the level of majority
of his party in the Vidhan Sabha, the nature of relationship between the state and
the centre, the level of public support behind his policies.

STATE LEGISLATURE

Each state of the Indian Union has a Vidhan Sabha, but few states like Bihar,
Karnataka, etc have an upper chamber (Vidhan Parishad) as well. As per article
169, the centre has the power to create or abolish Vidhan Parishad incase a
resolution to this effect is passed by the Vidhan Sabha of that state by special
majority.

VIDHAN PARISHAD / LEGISLATIVE COUNCIL

COMPOSITION

The strength of Vidhan Parishad varies from state to state. It is provided that the
strength may be at least forty and atmost not more than one third of the strength
of the legislative assembly of the state. The composition of this chamber is
determined by the formula involving the method of indirect election in some and
direct election in some other categories, leaving the case of some members to be
nominated by the Governor. It is as follows:
1. About one third members are elected by the Vidhan Sabha from amongst
persons who are not its members
2. About one third of members are elected by the local bodies of state like
Municipal boards, Zilla Parishads or any other authority as specified in the law of
the Parliament.
3. About one twelfth members are elected by persons of at least three years
standing as teachers in educational institutions not lower than that of a secondary
school.
4. About one twelfth are elected by the university graduates of at least three years
standing in the state.
5. About one sixth members are nominated by the Governor from amongst
persons possessing special knowledge in the fields of arts, literature, science,
social services and cooperative movements.

QUALIFICATIONS

A member of Vidhan Parishad must be a citizen of India and must be above 30

years of age. He must also possess all other qualifications as prescribed by
Parliament by law. He must not hold an office of profit under the government –
national, regional or local. He should not be an insolvent or one of unsound
mind.

TERM

The Vidhan Parishad is a continuous House not subject to dissolution. It is a

permanent chamber. The members are elected for a period of six years and one
third of them retire every two years. As such a member enjoys tenure of six years.
He may be reelected any number of times. The Vidhan Parishad elects its
Chairman and Deputy Chairman.

POWERS AND FUNCTIONS

The Vidhan Parishad has no effective powers. It has to pass a money bill passed
by the Vidhan Sabha within fourteen days and a non money bill passed by the
Vidhan Sabha within three months. Incase Vidhan Parishad rejects or returns a
non money bill, the Vidhan Sabha may re pass it and the Vidhan Parishad has to
pass it within a period of one month. There is no provision for joint sitting in such
a matter. A money bill cannot be introduced in the Vidhan Parishad. In case it
returns it, the Vidhan Sabha may pass it again after accepting or rejecting such
recommendations. The Council of Ministers is collectively responsible to the
Vidhan Sabha. As such, it may put the government to some inconvenience at the
most by throwing critical light on its acts of commission and omission. The
members of this House do not take part in the election of the President and of the
members of the Rajya Sabha. In short, the Vidhan Parishad cannot override the
will of the Vidhan Sabha. Keeping in view its insignificant position some have
suggested the abolition of the House itself.

VIDHAN SABHA / LEGISLATIVE ASSEMBLY

COMPOSITION

Vidhan Sabha is the popular and powerful chamber of the state legislature. It may
have at the most 500 members and at the least 60 members depending upon
demographic composition of the state. The members are elected directly by the
voters of the state, but the Governor may nominate one Anglo-Indian as a
member in order to give representation to this community, if the community is
not sufficiently represented otherwise. Some seats are reserved for SC/ST.
QUALIFICATIONS

A member of Vidhan Sabha must be a citizen of India who is not less than 25
years of age. He should fulfill all such qualifications as are laid down by the act
of the Parliament. Further, no person can be a member of two houses
simultaneously, that is, of the Parliament or some state legislature at one and the
same time.

TERM

The normal term of the Vidhan Sabha is 5 years. In case emergency

proclamation is in force, the Parliament may extend the life of the Vidhan Sabha
by one year but within six months of the termination of emergency, elections
must take place. The Governor has the power to dissolve the Vidhan Sabha at
any time. The quorum for the meeting of the Vidhan Sabha stands fixed at one
tenth of its total membership.

PRESIDING OFFICER

At its very first session after elections, the Vidhan Sabha elects its own speaker
and deputy speaker. The two are elected by the members from amongst
themselves. The speaker presides over the meetings of the Vidhan Sabha and
conducts its proceedings. In his absence the deputy speaker performs his
functions.

POWERS AND FUNCTIONS

The Vidhan Sabha is a powerful chamber. The money bill and the budget are
introduced in it. Its members take part in the election of the President of India
and of the members of the Rajya Sabha and the Vidhan Parishad (if present).
Since the ministry is accountable to the Vidhan Sabha, it may throw out the
government by passing a vote of no confidence against it. It may express its lack
of confidence in the government by rejecting an official bill, or by disapproving
the policy of the cabinet. It considers reports submitted by the State Public
Service Commission, Comptroller and Auditor General, State Human Rights
Commission and State Women‘s Commission etc. In the case of a constitutional
amendment bill referred to it for ratification under Article 368, it passes a
resolution by simple majority to endorse it or not.

On the whole, the position of the state legislatures is very weak. They can make a
law on a subject of the state list. They can make a law on the subject on the
concurrent list also. In the event of any conflict between the central and state
laws, the central law shall prevail. Thus, the operation of the legislative process at
the central as well as the state levels ‗reinforces the union predominance in the
legislative field‘.
 CHAPTER 8

ELECTORAL PROCESS

ELECTORAL SYSTEM

An ‗election‘ is commonly defined as a competition for office based on a formal

expression of preferences by a population. These opinions are then combined to
arrive at a collective decision that determines which candidate has won.

Elections are the mainstay of a democratic society. It is through elections that

people determine the goals that their state shall pursue and who will execute these
goals. Elections bring about a society that operates on the principle of general
welfare, rather than the welfare of an individual or a few individuals.

In established democracies such as India, choosing the government is not the only
function of elections. Elections in contemporary India perform a range of other
functions such as educating citizens about national and international issues, and
even showing them the limits of their own political authority.

Hence, elections form the backbone of any practicing democracy in general, and
India in particular. This is because elections are more easily manipulated than any
other element of a democratic polity i.e. if we desire to change the nature of a
democracy, the electoral system is the most suitable and effective means of doing
so.

It must be noted that the term ‘elections’, as used above, refers to what happens
on the day of polls and immediately afterwards; it concerns only the casting of
votes, the counting of votes and the declaration of winners.
The term ‘electoral system’, on the other hand, has a wider implication than the
term ‗elections‘. ‗Electoral System‘ refers to everything that influences the
outcome of elections. It encompasses the constitutional and legal provisions
pertaining to the conduct of elections in the state, the system by which results are
determined, the voting behavior of the electorate, the role of the mass media and
national and vernacular press, the composition, powers and functions of the
Election Commission of the State, as well as the economy, polity and social
structure of the democracy.

EVOLUTION OF THE INDIAN ELECTORAL SYSTEM

The Republican form of government (wherein the Head of State is elected)

existed in several parts of ancient India. The common practice in these republics
was that adult men enjoyed and exercised the right to vote and to participate in
the general assembly, which decided all public matters. Understandably, such
direct democracy was feasible only as long as the population of the state
remained limited. With the eventual increase in population and the growing
complexities of the social structure, it became increasingly difficult for all
citizens to gather at a location to discuss and decide affairs of the state.
Consequently, direct democracy gave way for indirect representative democracy,
wherein only the representatives of groups of people would assemble to
deliberate on matters of common good.

Besides the evolution of first direct and then indirect democracy in sovereign
states, the genius and native adaptability of Indians also led to the evolution of
almost self sufficient rural communities (which we may call villages). Direct
democracy at the village level was supplemented by indirect democracy at the
state level. With time, the village polity came to be known as the Panchayat
system, which is thriving in India today.

Art 326 establishes universal adult suffrage as the basis for the creation of the
general electoral roll. Hence, all adult citizens of India are eligible to find a place
in the general electoral roll and cast their ballot in each general election.
Art 327 and 328 provide that the Parliament and State Legislatures may legislate
on matters of elections, subject to the provisions of the Constitution.

Accordingly, the Parliament has passed The Representation of the People Act
1950 and 1951, The Presidential and Vice Presidential Elections Act 1952 and the
Delimitation Commission Act 1952, 1962, 1972 and 2002. Also, several
amendments to the Constitution also lay down election rules, such as the
Constitution Amendment Act 1985, which makes ‗defection‘ a ground for
disqualification from membership in the Houses.

A Member of Parliament or Assembly is said to have defected when s/he gets

elected to her/his seat on the ticket of a particular party, and after the election
switches loyalty or crosses the floor to join another party. The 91st Amendment,
2003 provides that in the event of a defection, the member must resign her/his
membership to the House. Art 329 bans the courts from interfering in electoral
matters.

TERRITORIAL CONSTITUENCIES

General elections in India are conducted on the principle of territorial

constituencies, with one MP being elected from each constituency. Territorial
constituencies must have roughly the same population, subject to limitations of
geographical and administrative boundaries.

The Constitution lays the responsibility of demarcating the country into territorial
constituencies on the Election Commission of India. However, seeing the
arduous, complicated and specialized nature of the task, the Election Commission
has delegated the work to the Delimitation Commission established for the
purpose. Accordingly, prior to each General Election, the Delimitation
Commission is expected to redraw constituencies after gauging the changes in
density of population.
It may be noted that in the year 1976 the then Government, led by Indira Gandhi,
laid a freeze on further delimitation till after the 2001 census. Seeing the strain
that delimitation would lay on resources and administration, the freeze was then
extended till 2011. This long gap between delimitations has led to huge
differences in populations of constituencies, due to the phenomenal inter-country
migration that has taken place since 1976, particularly to urban areas.

SYSTEM OF DETERMINING THE WINNER

There exist various systems whereby the winners of an election may be

determined. In India, we follow the First Past the Post System to determine the
winners in general elections. The First Past the Post System is, simply, a system
of determining the winner wherein the candidate with the largest number of
votes, irrespective of whether he has won the majority of votes, wins. This can be
better understood with the help of a hypothetical example. Assume that
candidates A, B and C are contesting elections. A total of ten votes are polled.
Out of these ten votes, four votes are polled in favour of A, three votes in favour
of B and three votes in favour of C. As per the First Past he Post System, A is
declared the winner because he has secured the largest number of votes.
However, A cannot be said to have won the majority of votes, because to secure a
majority a candidate must win at least one vote more than fifty percent of votes
polled (in this case six votes out of ten), whereas A has won less than six votes.
Hence we say that under the First Past the Post System (FPTP), a candidate
should have secured the largest number of votes, and not necessarily the majority
of votes polled. The greatest advantage that the FPTP system holds for India is
that it is the simplest possible method of determining a winner. India‘s behemoth
government and huge electorate necessitates a simple system. Also, the
alternatives to FPTP, such as the ‗List System‘, ‗Single Transferable Vote
System‘ etc are probably too complex for the masses to comprehend and follow.
The FPTP System, wherein the voter has only to place a cross (in case of paper
ballot) or press a button (in case of Electronic Voting Machines) next to the
political party of his choice is more suited to India.
RESERVATION OF SEATS

The Constitution of India provides that the state must work for the betterment of
the scheduled castes, scheduled tribes. In order to ensure their proper
representation, the Election Commission of India creates reserved constituencies
in proportion to their population to the total population of the state.

POSTAL BALLOT SYSTEM

In order to make Indian democracy as inclusive as possible, Members of the

Armed Forces and citizens of India on ‗special deputation‘ by the government
such as Ambassadors and other diplomats can vote for their preferred candidate
through postal ballot when they are unable to be physically present in their
constituency on the day of polling.

EXTRA-CONSTITUTIONAL AND EXTRA-LEGAL FACTORS

The Indian electoral system is not influenced only by the constitutional and legal
features that have been mentioned above. Rather, there exist several social,
economic and political influences that play a significant role in the outcome of
Indian elections, even though they may not be formally recognized as features of
the system. The more influential among these are the media, which can make or
break a candidate‘s electoral prospects; sectarian tendencies such as
communalism, regionalism, linguism and casteism; as well as domestic and
foreign social, political and economic currents.

THE ELECTORAL PROCESS IN INDIA

The electoral process in India which takes place on the basis of the Indian
electoral system, is a large scale operation, involving the utilization of a
phenomenal amount of financial, human and infrastructural resources. Whereas
the basic framework of elections in India has been laid down by the Constitution,
 the rules and regulations regarding the same have been framed over the years by
the Parliament and the Election Commission. Elections in India may be broadly
classified into three categories for the purpose of study:

(i) General Elections to the Lok Sabha

(ii) Presidential and Vice Presidential Elections
(iii) Elections to Panchayats and Municipalities.

ELECTORAL PROCESS

In the 2004 General Elections, for example, the Election Commission had
employed a forty lakh strong staff and spent Rs. Five hundred and eighteen crore.

THE PROCEDURE

The procedure followed for the conduct of General Elections is as follows (it has
been divided into steps only to facilitate easy understanding. The steps do not
necessarily take place in the following order).
Firstly, prior to each general election, the country must be delimited into various
territorial constituencies of roughly equal population. The last delimitation was
conducted prior to the 2009 general elections. The next delimitation exercise is
expected to commence in 2026.

Secondly, before each general election, the President, on the advice of the Chief
Election Commissioner, appoints several Regional Commissioners to assist the
Election Commission in its duties. Given the mammoth size of elections in India,
it would be difficult for the three members Election Commission to run the entire
show by themselves. Hence, the Commission delegates election work at the
regional level to Regional Commissioners appointed for the purpose.

Thirdly, the Election Commission prepares the general electoral roll for the
country. This in itself is a behemoth task, not only because of the sheer size of
India‘s voting population, but also because of the fact that the majority of Indians
exhibit uncommon lethargy when it comes to registering themselves as voters.
Consequently, it is only after the Election Commission has repeatedly issued
several notices in national and regional newspapers and made public
announcements requesting people‘s co-operation, that a section of potential
voters are mobilized to do the needful. Once the electoral rolls are prepared, the
Election Commission makes it available to the public through internet websites as
well as special centres established for the purpose. This gives the people a chance
to check whether their names are part of the electoral roll, and to get mistakes in
their names, addresses, sex and age, if any, corrected before the final electoral
roll is prepared.

Fourthly, the Election Commission calls for all party meeting to discuss the poll
dates. The Commission also meets the outgoing Prime Minister to determine
whether general elections would be feasible in the light of current national issues
and circumstances. At this stage, the Election Commission also welcomes
suggestions from political parties regarding ways in which the conduct of
elections may be improved.

Fifthly, campaign managers of political parties conduct opinion polls to gauge the
electorate‘s mindset, and to identify poll issues that will strike a chord with voters
thereby maximizing their candidate‘s poll success. Opinion polls have been
discussed in detail later in the Chapter.

Sixthly, after reviewing the suggestions by and considerations of all national,

state and regional political parties, the Election Commission prepares a schedule
for elections. This poll schedule is prepared in such a way that minimum
inconvenience is caused to people, and at the same time, it is administratively
feasible. The Election Commission takes special care to ensure that the polls are
free and fair, people are able to exercise their franchise independently, and that
any law and order situation is avoided. To this extent, the Election Commission
prepares a poll schedule that permits the best and most effective utilization of the
State‘s law-keeping forces, particularly the police. For instance, polls in
Maharashtra cannot be held on ‗visarjan‘ days of the Ganpati festival, because at
the time the police will be engaged in ‗bandobasts‘ organised to ensure that
immersions of Ganesh idols proceed in an orderly manner. Accordingly, polls are
always scheduled for days when the police are relatively unengaged elsewhere,
and are able to focus on the smooth conduct of polls. To this end, and given the
huge size of Indian territory, the Election Commission organizes polling in
‗phases‘. As per this system, polls in different states are held on different dates
within the same time frame.

Taking cognizance of all such considerations, the Election Commission

announces the elections dates at ‗the best possible time considering all factors‘.
Seventhly, the Code of Conduct prescribed by the Election Commission comes
into force when the election dates are declared.

OPINION POLLS AND EXIT POLLS

Opinion and exit polls are the fallout of the increasingly intensive and extensive
coverage of political issues by the media. Today, both are familiar features of the
electoral process in democratic nation states, and play a significant role in shaping
poll campaigns, electoral issues, and candidates‘ fortunes.

Opinion polls seek to gather and comprehend public opinion on electoral issues.
This opinion gathering works both ways - (i) it enables candidates contesting
polls to understand the voter‘s mind, and shape their campaign in such a way so
as to secure the maximum number of votes; and (ii) it brings into limelight those
issues that are important to the public, thereby ensuring that the interests of the
masses is placed on the national agenda, and political parties strive to secure these
interests: consequently, irrespective of which political party comes to power, it is
the masses who win.
Increasingly, political parties in India and elsewhere are paying enormous fees for
the services of private agencies that carry out such polls. These polls gather
information that enable the parties to understand the voting behaviour of various
sections of the electorate. The insight gained by analyzing this information
enables the campaign organizers of political parties to formulate a campaign trail
that captures votes.

Opinion polls are not a one-time affair. Rather, campaign organizers execute a
number of polls in several phases, beginning before the official campaigning
period and ending just before the nation goes to vote. These polls may be broadly
classified into three types: firstly, benchmark polls, which are organised several
weeks before the official campaign period begins. These seek to understand the
broad issues around which campaigns may be organised. Often, during this
period, political parties also experiment with and try out new party symbols,
slogans and agendas on the people.

Secondly, trend polls are organised in the initial weeks of the campaign period.
These seek to understand the direction towards which the public favour is
heading, and enable the parties to either change the course of their policies to
head in the same direction as the masses, or even to develop a strategy that will
swing public opinion away from its original course and convert it to one that
favours the political party.

Thirdly, tracking polls are organised in the final campaign days when the battle
heats up. Voting behaviour is tracked on a daily basis, audience reaction is
gauged after every public speech by a candidate, and the future course of their
campaign is decided accordingly.

Exit polls are conducted as people exit the polling station after casting their vote.
Unlike opinion polls which seek to gauge for whom people are likely to vote, exit
polls seek to determine for whom people actually vote.
Exit polls are conducted for two reasons: (i) to predict the outcome of the election
before the votes have been officially counted and the results declared; and (ii) in
case of an election that is conducted in phases (as is usually the case in India), to
predict the outcome of the initial phases so that political parties can use the
information to try for a success in the later phases (at least, or as well, as the case
may be).

Opinion and exit polls are particularly favoured by political candidates and parties
who would otherwise be on tenterhooks till the results are officially declared, and
by news channels that gain from the viewership generated by the predictions of
successive polls.

However, such polls have also attracted critics and detractors. The main criticism
aimed at opinion and exit polls is that (i) they are often artificially engineered (by
a combination of cleverly worded questions and applied psychology) to project a
win for the party that commissions the poll; (ii) it has been observed that the
outcome of polls conducted on a group of people, particularly exit polls, often
influences the voting behaviour of other groups. The projected results of exit
polls conducted after the initial phases of the election are seen to influence voting
in the later phases of the poll. This can be understood by considering a
hypothetical situation. Let us say, in the 2004 General Elections, voting in India
took place in four phases, with North, East, South and West India going to the
polls in April, May, June and July respectively. The exit polls conducted after the
first phase of elections held in April and covering North India project a victory
for the Opposition rather than the ruling party. This projected result is likely to
influence the second, third and fourth phases in either of two ways: (i) people in
east, south and west India may succumb to the bandwagon effect wherein they get
influenced to vote for the party that north India has voted for i.e. the Opposition;
or (ii) people may succumb to the boomerang effect wherein they vote for the
party that is falling behind i.e. is the ruling party, out of sympathy for its failure
in the north. Understandably, in either case, the poll outcome has been subject to
unwarranted outside influence, which is undesirable in a democracy.
An order of the Electoral Commission of India, dated 20th January 1998, brings
out this adverse effect of opinion and exit polls on the Indian polity: ―The
Election Commission has observed that during the run up to any general elections
to the House of the People or State Legislative Assemblies, opinion polls are
often conducted by different organizations. The results of such opinion polls are
published in newspapers, magazines and other periodicals, and sometimes
telecast/broadcast on the electronic media. The dissemination of such results of
opinion polls receives wide publicity and coverage in the print and electronic
media and such dissemination, particularly on the eve of polls, has the potential
to influence the electors when they are in the mental process of making up their
minds to vote or not to vote for a certain political party or a candidate. The
methodology followed by different organizations conducting such opinion polls
varies from organization to organization, or the agencies, conducting such polls.
Similarly, the sample size of the electorate covered by such polls and geographic
spread of the survey also differs substantially in each case.

―Apart from the opinion polls, exit polls are also conducted by some
organizations on the days of polls. Considering the magnitude of the electorate in
the country, particularly at the time of countrywide general elections to the House
of the People, and the complexity of operations involved in the conduct of such
general elections, the poll is taken in a phased manner, spread over a period of
two to three weeks. Publication of results of any exit poll, in the intervening
period when the poll in any of the States or Union Territories or constituencies is
yet to be taken, is likely to affect the unbiased exercise of franchise by the
elector, one way or the other‖.

To remedy the above undesirable situation, the Election Commission of India

held discussions with various national and state political parties with the outcome
that all except two parties were of the opinion that these opinion polls are
conducted in an unscientific manner.
―According to them, there is considerable bias in the size and the nature of the
sample drawn to make such an opinion poll and they tend to influence the voters
in an unbecoming manner. They further stated that many of the polls are
motivated and are not impartial, because of the known leanings or prejudices of
some of the organisations conducting such polls, towards or against certain
political parties and/or their leaders… Almost all the parties were also opposed to
allowing the exercise of exit polls and emphatically stated that the results of such
exit polls, even if permitted, should, in no way, come out before the polling in all
the constituencies in all States and Union Territories was over in all respects‖.

Accordingly, The Election Commission has formulated several guidelines

regarding the conduct of opinion and exit polls in India. These guidelines have
been consistently improved in the light of experience since their formulation in
1998. These guidelines form an important part of electoral reforms that have been
suggested to improve the democratic character of the country. Some suggested
electoral reforms have been discussed below.

ELECTORAL REFORMS
Accordingly, The Election Commission has formulated several guidelines
regarding the conduct of opinion and exit polls in India. Some important
suggestions have been discussed below.
1. The punishment for candidates, who willfully conceal information when filing
their nomination forms, and particularly those who undervalue their material
assets, should be made more stringent.
2. The Electoral Commission should be granted the authority to determine the
security deposit that candidates have to pay, before each election. As of now,
candidates to Lok Sabha elections pay a deposit of Rs. 10,000/- and candidates to
State Assembly elections pay a deposit of Rs. 5,000/- each (with concessions for
backward castes). This amount is refunded to them after the polls on the
condition that the candidate secures a particular percentage of votes polled. This
measure has been taken to dissuade non-serious candidates.
However, it appears that the deposit amount is not high enough to dissuade non-
serious candidates or those who are unlikely to win the polls. Also, in some areas,
some mischief makers file nomination papers en masse, so as to disrupt the
election process there. Such activities lay a heavy burden on the administration,
preventing the easy and smooth conduct of elections. In order to dissuade such
non serious applications, the security deposits must be increased to a suitable
amount.
3. Candidates with a criminal record, and particularly those behind bars must not
be permitted to contest elections. However, in order to prevent opponents from
framing politically motivated false charges against each other, only those cases
filed at least six months before the election must lead to disqualification. (how to
modify this based on Lilly Thomas judgement)

4. A candidate must not be permitted to contest from more than one constituency
in a given election. Currently, candidates can contest from a maximum of two
constituencies. In the event that the candidate wins in both constituencies, s/he
vacates the seat in one of the constituencies, following which a bye-election has
to be conducted there to fill the vacated seat. Needless to say, the fresh election
places an unwelcome strain on administrative expenses, time and manpower,
which can be avoided by the one-candidate-one-constituency rule.
5. The publication and publicization of the results of opinion and exit polls must
be restricted and subject to monitoring by the Election Commission so as to
ensure that they do not influence voters yet to cast their vote in the case of multi-
phase polls. It is interesting to note that the Election Commission, when faced
with the dilemma that a ban on opinion and exit polls is contrary to Art 19(1) of
the Constitution (freedom of speech and expression) answers: ―Regarding the
argument about the right to freedom of information sought to be linked to the
dissemination of results of opinion and exit polls, it has to be noted that the past
experience shows that in many cases, the result of elections have been vastly
different from the results predicted on the basis of the exit polls. Thus, the
information claimed to be disseminated turned out to be disinformation in many
cases‖.
6. Surrogate advertisements that appear in the media, either in favour of or against
a contesting political party or candidate, must be banned.
7. Election posters and pamphlets that are printed without the names and
addresses of the printer and publisher mentioned on its face must be banned.
8. The electoral infrastructure (i.e. ballot papers and electronic voting machines
etc) must be modified so as to enable voters to cast even negative or neutral votes
if s/he finds all candidates in the constituencies unsuitable and undeserving of
being elected. This recommendation is the application of the democratic principle
‗the right to vote includes the right to not vote‘. This suggestion has seen the light
of the day through the recent judgment of the Supreme Court in People‘s Union
for Civil Liberties and Another v. Union of India31

9. It must be made compulsory for political parties to keep regular accounts of

their income and expenditure, which shall be subject to audit by agencies
specified by the Election Commission. This shall promote transparency in the
dealings of political parties, and particularly prevent the circulation of ‗black
money‘ and the corrupt handling of campaign funds donated by party supporters.
Also, it has been found that the campaign expenditure of political parties is
usually ten to fifteen times the ceiling prescribed by the Election Commission.
Such unlawful activities can be halted through the audit of party accounts.

31
(2013)10 SCC1
 CHAPTER 9

EMERGENCY

The term ‗emergency‘ refers to difficult situations, which may arise suddenly and
require the immediate attention of the authorities. The Constitution of India
provides for declaration of emergency during extraordinary situations where it
might not be possible for the normal scheme of the Constitution to function.
Declaration of emergency may lead to suspending certain provisions of the
Constitution to protect the independence and security of the nation. There are
three kinds of emergencies (a) national emergency where the nation is at the
threat of war, external aggression or armed rebellion32 (b) financial emergency
where the financial stability of the country is threatened 33 and (c) state emergency
which arises due to the failure of the constitutional machinery in a particular state
thereby resulting in President‘s rule.34

The President upon receiving a written communication from the cabinet that a
grave emergency exists because of which the security of the country is threatened
will give a proclamation of emergency to the whole of the country or parts
thereof. Proclamation of emergency has to be laid down before both the Lok
Sabha and Rajya Sabha. Resolutions approving the proclamation of emergency or
its continuance have to be passed by either House of the Parliament by a majority
of the total membership and not less than two-thirds of those present and voting35.

32
Article 352 of the Constitution.
33
Article 360 of the Constitution.
34
Article 356 of the Constitution.
35
SUBHASH C. KASHYAP, OUR CONSTITUTION- AN INTRODUCTION TO
INDIA‘S CONSTITUION AND CONSTITUTIONAL LAw, 4 th revised edn. 2005, National
Book Trust India.
The proclamation will expire if the same was not approved by the Houses within
one month. If approved, the proclamation will remain valid for six months unless
it is revoked earlier by another proclamation of the President. If the Lok Sabha
passes a resolution disapproving the proclamation or its continuance, it shall be
revoked forthwith. If notice of a resolution signed by not less than one-tenth of
the total membership is given to the President/ Speaker, a special sitting of the
House shall be held within 14 days to consider it.
National emergency was proclaimed thrice in India (a) In October 1962 during
Chinese aggression, (b) December 1971 at the wake of India Pakistan war and (c)
in June 1975 on grounds of internal disturbance. There have been numerous
declarations of state emergencies in India since independence. Financial
emergency has never been declared in our country till now.

STATE EMERGENCY

On receiving the report from the Governor of the State or otherwise, the President
of India may declare a state emergency in the event of the failure of the
constitutional machinery of the state. Upon declaration of the emergency, the
executive powers that are originally vested with the Governor would be
transferred to the President. Similarly the powers of the State Legislature may be
exercised by or under the authority of the Parliament. There have been several
instances of declaration of state emergency since the inception of the Constitution
of India. The presidential proclamation shall cease to expire after a period of six
month from the date of issue of proclamation unless the same has been revoked
prior to it.
REFERENCES

1 D.D. Basu : Introduction to the Constitution of India,

Wadwahxco, 2006.

2 M.V. Pylee : India‘s Constitution, S. Chand & Co., 1992

3. J.C. Johari : Constitution of India: A Politico-legal Study,

Sterling, 2007

4 K.K.Ghai : Indian Government and Politics, Kalyani

Publishers, 2005

5 A.C.Kapur : Principles of Political Science, S. Chand, 1997

6. S.C. Kashyap : Our Constitution, National Book Trust, 2005

 NOTE TO THE STUDENTS
This study material accompanied by a series of lecture sessions is meant
for all science, arts, commerce and management students of the sixth semester at
undergraduate level to equip themselves with the basic knowledge in various
aspects of the Constitution of India. At the end of this course they need to take a
test in which they will be evaluated out of 50 marks. The questions will be of
multiple choice objective type and their performance in the test will fetch them
one credit.