CONSTITUTION VIVA ANSWERS

Q1. State the qualifications required to be fulfilled in order to be the

President of India.

A1. The following eligibility must be met in order to be the President of India:
1. He/She must be the citizen of India.
2. Should be above 35 years of age.
3. Qualified to be a member of the Lok Sabha.
4. Should not hold any office of Profit under GOI, GOS, or any local authority which
is subject to the control of any state.
{These are mentioned in Article 58 of the Indian Constitution}

Q2. How is the President of India Elected?

A2. The President is indirectly elected by an electoral college comprising both houses of the
parliament of India and the Legislative Assemblies of each of India’s states and territories
who themselves are all directly elected.
{The manner of election is provided in the Article 55 of the Constitution of India}

Q3. What is the meaning of the Executive Power?

A3. The power of the Executive branch of the Government to put the laws into action is
called Executive Power.
{The executive is not supposed to make laws (role of legislature), the executive is not supposed to
interpret laws (role of judiciary), they can only put the laws in action;
Executive Branch is responsible for the day-to-day management of the state;
Executive is led by the head of the Government, in India (parliamentary system) it is the leader of the
major party, i.e., Prime Minister}

Q4. State the extent of the executive power of the Union and of the States.

A4. Union: Executive power of the union extends to all the matters with respect to which the
parliament can make laws. {Article 73 of the Constitution talks about the Extent of the executive
power of the Union.}
State: Extends to all the matters in which the state legislatures can make laws, it cannot
encroach upon matters in the Union List or any other matters entrusted with the union by the
way of Central Laws. {Article 162 talks about the extent of the executive powers of the state.}

Q5. Who all are the members of the Electoral College under Art 54?

A5. Members consists of:

1. Elected members of both the houses of Parliament. {Rajya Sabha and Lok Sabha
MPs}
2. Elected members of the Legislative Assemblies of the State and Union Territories
of Delhi, Jammu and Kashmir. {MLAs}
Q6. Who all are not the members of the Electoral College?

A6. The nominated Members are not included, the way they are in in Electoral Collage of
Vice President. {Nominated Members: In Lok Sabha: 2 – They represent Anglo Indian Community
(Art 331 of Constitution) In Rajya Sabha: 12 – They are experts in different fields of science, culture
arts and history (Art 80(1)(a) of the Constitution}

Q7. When may the President Exercise his Clemency Power?

A7. The president can use this power at any point after a crime is committed and before,
during or after the criminal procedures have taken place.
{Clemency: It is the general term used for reducing the penalties for a particular crime without
clearing the criminal record; Clemency extends to all federal offences except in cases of Impeachment
Pardon: It is meant to indicate forgiveness of a particular crime, either because the person was
wrongfully convicted or the punishment was not appropriate.}

Q8. What are the Forms of the Clemency that may be granted by the
president?(Art 72)

A8. There are four types of Clemency granted by the President:

1. Pardon: Completely absolves the offender from all forms of sentences and
punishment and disqualifications.
2. Commutation: It means exchange of one thing from another, like to replace
punishment with less severe punishment.
3. Reprieve: Temporary suspension of death sentence.
4. Respite: Awarding lesser punishment on some special grounds.
5. Remissions: Reducing the amount of sentence without changing its character.

{ The pardoning power of President is wider than the governor and it differs in the following
two ways:
1. The power of the President to grant pardon extends in cases where the punishment or
sentence is by a Court Martial but Article 161 does not provide any such power to the
Governor.
2. The President can grant pardon in all cases where the sentence given is sentence of death
but pardoning power of Governor does not extend to death sentence cases.}

Q9. What are the requirements that need to be observed both before and
after issuing ordinances?

A9. To be observed Before issuing an ordinance:

1. Both the Houses or either of the two Houses are not in Session.
2. The ordinance should only be issued on the subjects on which the parliament can
make law.
3. The ordinance should not take away any Fundamental Rights.

To be observed After issuing the Ordinance:

1. It should be laid before both of the Houses of Parliament, within Six Weeks from
the reassembly of Parliament, otherwise it will cease to exist.
{Article 123 grants the President this Power to make Ordinances when the parliament is in recess.
These ordinances will have the same force and effects as an Act of Parliament, but they are in nature
of temporary laws; Re-promulgation of an ordinance after failing to get approval within the stipulated
time of both houses of parliament is an unconstitutional act by the president}

Q10. What are the manners in which ordinances may be brought to an

end?

A10. They are as follows:

1. If it is not laid before both the houses of the Parliament, within Six weeks from
the reassembly, it will automatically cease to exist.
2. It can be withdrawn by the president at any time. {123(2)(b)}

Q11. What is Collective Responsibility?

A11. Collective responsibility ensures that all ministers stand or fall together in Parliament,
and the government is carried on as a unity; it ensures that the Cabinet’s decisions are joint
decisions of all Ministers
{Art 75(3) talks about the collective responsibility of Council of ministers}

Q12. What is Individual Responsibility?

A12. It is related to Ministers and states that Ministers are individually responsible for their
actions of their department. The accountable minister is expected to take the blame and
ultimately resign, but the majority or coalition within parliament of which the minister is part,
is not held to be answerable for that minister's failure.
{In State of Karnataka v. Union of India, AIR 1978 SC 131, the Supreme Court held that
if an individual Minister uses his office as an occasion or pretence for committing acts of
corruption, he would be personally answerable for his unlawful acts and no question of
collective responsibility of Council of Ministers can arise in such a case.}

Q13. What is the Difference between Casual Vacancy and Normal Vacancy
in Office?

A13. Casual Vacancy: Vacancies that arise due to Death, resignation or removal; or when the
President is unable to discharge his duties due to illness or absence. {Art 65}
Normal Vacancy: Vacancy caused by expiration of Term of office of President.

Q14. What is the meaning ascribed by the SC to the term ‘election’ under
Art 71(1)? State the appropriate case law.

A14. Here, ‘election’ means ‘entire election process culminating in a candidate being
declared elected.’ This was stated by the SC in N B Khare v. Election Commission of
India, 1957 SCR 1081.
{In this case, the election for the post of President was about to be conducted. It was challenged on
ground of existence of vacancy in the Electoral College due to the fact that elections were yet to be
conducted in some seats of (then) UT of Himachal Pradesh and State of Punjab. The Court declined to
entertain the contentions because the challenge was made prior to the culmination of election, making
the petition premature.}

Q15. When shall an election to fill the vacancy in office of President be

conducted in case of expiration of term?

A15. Before the Expiration of Term. {Art 62 (1)}

Q16. When shall election to fill the vacancy in office of President be

conducted in case of casual vacancy in office of President?

A16. As soon as possible after, and in no case later than six months from, the date of
occurrence of the vacancy; {Art 62(2)}
{and the person elected to fill the vacancy shall, subject to the provisions of article 56, be entitled to
hold office for the full term of five years from the date on which he enters upon his office.}
Q17. What offices are excluded from the meaning of office of profit under
Art 58?
A17. If Members of Legislatures become Ministers, then to some extent exemptions are
required and were granted too.

Q18. What were the reasons given by the Court in President Poll re, (1974)
2 SCC 33 while holding that the election to the office of President is not
precluded due to the dissolution of Legislative Assembly or Legislative
Assemblies of any State of States?

A18. This was supported by four reasons:

1. The President is elected for a fixed term (Article 56 (1) and Article 62 (2)). The
election to the post of President shall be conducted within the time stipulated under
Article 62. Both the provisions for the term of Presidency and the time within which
elections must be conducted is mandatory in nature.
2. Apart from being mandatory in nature there is no provision regarding extension of
time within which elections must be conducted to fill the vacancy. By way of contrast
reference was made by court to Article 83 to substantiate this view.
3. Article 55 (1) shows that the words ‘as far as practicable’ indicate that in practice the
scale of representation may not be uniform because of the actual number of electors
entitled at the date of election to cast their votes. The actual number of electors at the
date of the election of the President may not be equal to the total number of electors in
qualified to be in the Electoral College.
4. It will not only be undemocratic but also unconstitutional to deny the elected
members of both the Houses of Parliament as well as the elected members of the
Legislative Assemblies of the States the right to elect the President in accordance with
the provisions of the Constitution only because the Assembly of a State is dissolved.

Q19. How is the executive power of the Union and State over matters in the
Concurrent List managed by the Constitution?

A19. The Constitution of India, under Article 256 mentions the obligations of the Union and
the State. Article 256, states that ‘Every State shall utilize its executive powers in conformity
with the laws made by the Parliament and with all the pre-existing laws prevailing in the
State, and it further mentions that, the Union may exercise its executive power to give
directions to the State as and when the Government of India deems fit for any purpose'

Q20. What are the reasons behind granting clemency power to the
President?

A20. Relief from undue harshness of law/ evident mistakes in the operation/enforcement of
criminal law, the courts are tied down by the evidence placed before it; there might be facts
which are not placed before the court, facts which were placed before the court but not in a
proper manner, or facts which were discovered after the passing of the sentence. Convict is
rehabilitated and the society has nothing to gain from his incarceration. Inflicting a lenient
punishment would better serve public interest.

Q21. What are the grounds for substantive judicial review of clemency
power? State with the appropriate case.

A21. This power of pardon shall be exercised by the President on the advice of Council of
Ministers. The constitution does not provide for any mechanism to question the legality of
decisions of President or governors exercising mercy jurisdiction. But the SC in Epuru
Sudhakar case has given a small window for judicial review of the pardon powers of
President and governors for the purpose of ruling out any arbitrariness.

Q22. What effect did the addition of fourth clause to Art 123 have on the
exercise of judicial review of ordinance making power?

A22. 38th Amendment, 1975 - clause (4) added to Art 123

“Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in
clause (1) shall be final and conclusive and shall not be questionable in any court on any
ground.”
44th Amendment, 1978 - clause (4) removed from Art 123.

Q23. What was the test devised by the Court in Krishna Kumar Singh to
determine whether the effect of the ordinance would outlive the ordinance?

A23. Krishna Kumar Singh v State of Bihar, 2017 - satisfaction of President not immune
from judicial review; the test is whether the satisfaction is based on some relevant materials;
the court will not determine the adequacy or sufficiency of the materials; it will scrutinise
whether the satisfaction in a particular case constitutes a fraud on the constitution or was
actuated by an oblique motive.

Q24. What are factors that guide the appointment of the PM by the
President? Is the President bound by the advice of the Council of Ministers
in the matters of appointment of the PM?

A24. The Prime Minister shall be appointed by the President. President performs this act in
his discretion without the advice of Council of Ministers. This might seem like an unfettered
discretion, but it is not so in practice. To keep the fabric of Parliamentary government in
proper working order, it is necessary that the Council of Ministers enjoys the confidence of
Lok Sabha. Therefore, it is essential that a person who has the support and confidence of a
majority of members of Lok Sabha shall be appointed as a Prime Minister. Hence, the leader
of the majority party in the Lok Sabha should invariably be invited to become the Prime
Minister.

Q25. What is the distinction between Cabinet and Council of Ministers?

A25. The cabinet consists of many senior ministers who hold important portfolios such as
defence, home affairs, education etc. The meetings between the council of ministers are rare.
The council of ministers usually consists of about 60 to 70 ministers of the government.

Q26. What is the procedure for a special address by the President?

A26. 87. Special address by the President.-

(1) At the commencement of the first session after each general election to the House
of the People and at the commencement of the first session of each year the President
shall address both Houses of Parliament assembled together and inform Parliament of
the causes of its summons.
(2) Provision shall be made by rules regulating the procedure of either House for the
allotment of time for discussion of the matters referred to in such address.

Q27. What are the powers given to the Attorney General with respect to
the Parliament?

A27. S/he has the right to speak and to take part in the proceedings of both the Houses
of Parliament or their joint sitting and any committee of the Parliament of which s/he may be
named a member, but without a right to vote.

Q28. What is casting vote and who can exercise casting vote?

A28. A casting vote is a vote that someone may exercise to resolve a deadlock. A casting
vote is typically by the presiding officer of a council, legislative body, committee, etc., and
may only be exercised to break a deadlock. Speaker or the Chairman gets the chance to Vote,
and this deciding vote is called Casting Vote.

Q29. What is office of profit? How is it relevant to membership of Union

and State Legislature?

A29. An office of profit has been interpreted to be a position that brings to the office-holder
some financial gain, or advantage, or benefit. The amount of such profit is immaterial. Under
the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA
(or an MLC) is barred from holding any office of profit under the central or state government.
The articles clarify that “a person shall not be deemed to hold an office of profit under the
government of India or the government of any state by reason only that he is a minister”.
Provisions of Articles 102 and 191 also protect a legislator occupying a government position
if the office in question has been made immune to disqualification by law. In the recent past,
several state legislatures have enacted laws exempting certain offices from the purview of
office of profit. Parliament has also enacted the Parliament (Prevention of Disqualification)
Act, 1959, which has been amended several times to expand the exempted list.

Q30. What is the procedure for joint sitting of both the Houses of
Parliament?

A30. The joint sitting of the Parliament is called by the President (Article 108) and is
presided over by the Speaker or, in their absence, by the Deputy Speaker of the Lok Sabha or
in their absence, the Deputy-Chairperson of the Rajya Sabha. The Chairperson doesn't
preside over the joint session at any means/cost.

Q31. What is quasi-federal constitution?

A31. The Indian Constitution is neither purely federal nor purely unitary, but it’s a
combination of both. Indian Constitution is mainly federal with unique safeguards for
enforcing national unity and growth. Also, federalism is not dead in India, as evidenced by
the fact that new regions are demanding statehood and union has yielded, thus states like
Manipur, Tripura, Goa, etc. have been created.

Q32. What are the features of the federal constitution?

A32. The most essential feature of the federal constitution is that it has a dual government
that means a dual polity consisting of the union at the centre and the states at the periphery.
Each is endowed with sovereign powers to be exercised in the field assigned to them
respectively by the Indian Constitution.

Q33. What do you mean by co-operative federalism?

A33. Cooperative federalism refers to a concept where various states cooperate with each
other and with the centre to achieve the goals of growth, development of the states and the
nation.

Q34. How is the tenure of SC judges different from that of HC judges?

A34. The Supreme Court of India comprises the Chief Justice and not more than 30 other
Judges appointed by the President of India. Supreme Court Judges retire upon attaining the
age of 65 years.
A Judge of High Court holds the office until he completes the age of 62 years. Every Judge of
a High Court is appointed by the President in consultation with the Chief Justice of India, the
Governor of the State and also the Chief Justice of that High Court.

Q35. State the process of appointment of judges of Supreme Court.

A35. Appointment of Judges of the Supreme Court:

According to the Constitution of India, the following are the rules for appointment of the
Supreme court Judge.
 1. Every Judge of the Supreme Court shall be appointed by the President by warrant
under his/her hand and seal after consultation with such of the Judges of the
Supreme Court and of the High Court in the States as President may deem
necessary for the purpose and shall hold office until he attains the age of 65 years.
2. Supreme Court held that the consultation with Chief Justice is not binding on the
President. But the Court held that consultation should be effective.
3. In Supreme Court Advocates-on-Record Association vs Union of India 1993, the
Court states that the view of the CJI is binding on the President, the Court also
held that while advising the President CJI is expected to consult two of the senior-
most Judges.
4. CJI is the sole authority to initiate the process of appointment of Judges of the
Supreme Court. In case of conflict of opinion between CJI and President, the view
expressed by CJI will have a primary.
5. In July 1998, the President sought the court’s opinion on core issues relating to the
appointment of Apex Court Judges and transfer of High Court Judges.
6. The 11th Presidential Reference sought clarification on certain doubts over the
consultation process to be adopted by the Chief Justice of India as stipulated in the
1993 case relating to judges appointment and transfer opinion.
The crux is as follows:
1. In judicial appointments, it is obligatory for the President to take into account the
opinion of the CJI.
2. The opinion of the CJI is binding on the Government. The opinion of the CJI must
be formed after due consultation with a collegium of at least four senior-most
judges of the Supreme Court.
3. Even if two judges give an adverse opinion, then he should not send the
recommendation to the Government.

Q36. State the process of appointment of permanent judges of High Court.

A36. Appointment of the Judges: The Chief Justice of a High Court is appointed by the
President with the consultation of the Chief Justice of the Supreme Court and the Governor of
the State. The other judges are appointed by the will of President, Governor and the Chief
Justice of High Court.

Q37. State the process of removal of judges of Supreme Court and High
Court.

A37. Supreme Court:

The Constitution of India also provides a set of regulations for the removal of the Supreme
Court judge. Article 124(4) mentions those Removal regulations of the Supreme court judge
as follows:
1. A judge of the Supreme Court shall not be removed from his office except by an
order of the President passed after an address by each House of Parliament
supported by a majority of the total membership of that House and by a majority
of not less than two-thirds of the members of that House present and voting has
been presented to the president in same session for such removal on the ground of
proved misbehaviour or incapacity.
Parliament may by law regulate the procedure for the presentation of an address and for the
investigation and proof of the misbehaviour or incapacity of a Judge under the previous
Clause.
 1. Prof. Rumki Basu argues that the constitutional provisions for enquiring the
independence of the judiciary make it amply clear that the Judiciary is beyond
executive or legislative interference as stated in the following:
Minimum qualifications for the Judge are prescribed in the constitution itself.
Once appointed, the judges can hold office until the complete 65 years. They cannot be
removed during their tenure except on proved misbehaviour or incapacity.
The procedure for removal is too difficult. The motion has to be passed by a majority of the
total members of both houses of Parliament and two-thirds of the members present and
voting.
1. The salaries of the Judges and the administrative expenses of the Supreme Court
are charged on the Consolidated Fund of India [CFI] and are not subjected to the
vote of Parliament.
2. Judges of the Supreme Court cannot plead or act in any court or before any
authority within the territory of India after retirement.

High Court:
A judge of a High Court may also be removed like a judge of the Supreme Court. A judge of
High Court may be removed by the President if the Parliament passes a motion against him
by an absolute majority and 2/3rd majority of the members present and voting, both the
Houses sitting separately.

Q38. What is institutional independence of judiciary?

A38. In legal parlance Independence of Judiciary mean the power of upholding without fear
or favour, the Rule of Law, personal freedom and liberty, equality before law and impartial
and effective judicial control over administrative and executive actions of the Government.

Q39. What is individual independence of judges?

A39. Judicial independence, the ability of courts and judges to perform their duties free of
influence or control by other actors, whether governmental or private. The term is also used
in a normative sense to refer to the kind of independence that courts and judges ought to
possess.

Q40. How did the SC change its view from primacy of executive in matter
of appointment of judges to primacy of judiciary in matter of appointment
of judges? State with associated case laws.

A40. In S.P. Gupta v. Union of India which is popularly known as judges transfer case I. The
Supreme Court after being agreed with its earlier decision was given in Sankalchand sheth’s
case held again that word ‘consultation’ meant ‘mere consultation of views’ and it does not
means ‘ concurrence of views’ and thus the President is not bound to act in accordance with
such consultation and has a right to take a contrary view.
This decision of the Supreme Court means that power of appointment of judges was “solely
and exclusively” vested in the central government and other constitutional functionaries had
merely a consultative role. Hence this case laid down the ‘executive supremacy’ in matters of
appointment of Supreme Court judges.
Q41. What is original jurisdiction? How is it different from exclusive
jurisdiction?

A41. Original Jurisdiction– the court that gets to hear the case first. For example Municipal
courts typically have original jurisdiction over traffic offenses the occur within city limits.
Exclusive Jurisdiction– only that court can hear a specific case. For example only the Texas
Court of Criminal Appeals Court can hear appeals for death penalty sentences.
Jurisdiction is either the court's power to hear a matter or a geographic area over which a
court has authority. Original jurisdiction is a court's power to hear a trial and accept evidence.

Q42. What is the original jurisdiction of the Supreme Court?

A42. In common law legal systems original jurisdiction of a court is the power to hear a case
for the first time, as opposed to appellate jurisdiction, when a higher court has the power to
review a lower court's decision.

Q43. How is the nature of the certificate of appeal under Art 132 different
from the certificates given under Art 133 and 134?
A43.

Q44. What is a curative petition? Discuss with appropriate case law.

A44. A curative petition means a way to ask the court to review or to revise the decision even
after a review petition is dismissed or used. The court has been very aware of the use of such
a petition. Such a petition needs to be filed within 30 days of the judgment or order.
Rupa Ashok Hurra v. Ashok Hurra & Anr., 2002
In this case, the Supreme Court’s Hon’ble Justice Syed Shah Mohammed Quadri held
numerous inquiries on whether an oppressed individual is qualified for any help against a last
judgment of the court after the excusal of audit request either under Article 32 of the
Constitution or something else. Article 124 of the Indian Constitution builds up the Supreme
Court of India in a setting that indicates its ward and controls and empowers Parliament to
give it. Since the locale of this court under Article 32 of the Indian Constitution is summoned
in these writ petitions. Solutions for the usage of rights:
1. The option to move the Supreme Court by suitable procedures for the requirement
of the privileges of basic rights is ensured.
2. The Supreme Court has the ability to give requests or writs, whichever might be
fitting for the authorization of any rights given by any gathering.
3. Without bias to the forces on the Supreme court by point (1).
4. With the due process of law, Parliament entitles any other court to exercise within
the local limits of its jurisdiction and any power which is exercisable by the
Supreme Court.
5. Under this article, the right guaranteed will not be suspended except if not
provided by the Constitution.
The appointed authorities have fundamentally analyzed the nature and the chronicled
foundation of writs in India just as English Laws. It was said that a High Court can’t give a
writ to another High Court nor can a seat of High Court issue a writ to an alternate seat of a
similar High Court.
Q45. Define the various forms of writs mentioned in Arts 32 and 226.
A45. The five types of writs are:
1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto

Q46. What are the differences between Arts 32 and 226?

A46. With the same power of enforcing fundamental rights, Article 226 has a much broader
scope than Article 32 because it can also be used to enforce other legal rights conferred by
the Constitution or any other statute.
However, it is Article 32 which is known as the heart and soul of the Constitution and for the
fact that it is a fundamental right in itself cannot be refused. Whereas, Article 226 being a
constitutional right gives discretionary power to the High Courts. Further, it is the decision of
the Supreme Court under Article 32 which supersedes the decision of High Courts under
Article 226. Thus, with the difference in powers both articles ensure that the rights of the
citizens are protected and provisions of the constitution are upheld.

Q47. What is the current maximum strength of the Supreme Court? Which
legislation makes the said determination?

A47. The Supreme Court (Number of Judges) Amendment Bill, 2019 was introduced in Lok
Sabha on August 5, 2019 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad. The
Bill amends the Supreme Court (Number of Judges) Act, 1956.

The Act fixes the maximum number of judges in the Supreme Court at 30 judges (excluding
the Chief Justice of India). The Bill increases this number from 30 to 33.

Q48. What are the legal instruments that govern the appointment of judges
of the Supreme Court and High Courts?
Q49. Which Act deals with the investigation into concerns of misbehaviour
or incapacity of judges? Which provision empowers the Parliament to pass
such an enactment?
Q50. Can the SC be moved under Art 136 against interim and
interlocutory orders of any court or tribunal?