Chapter 1: Constitution: Why and How

● Each society consists of some set of rules or ideals that make it what it is and differentiate it from
other kinds of societies. In large societies, these rules are formulated through consensus, and in
modern countries, this consensus is usually available in written form.

● On similar lines, a Constitution is a body or a document which consists of certain fundamental rules
and principles that all persons in a country can agree upon as the basis of the way in which they
want the country to be governed.

Who can decide which rules are the best to suit a society?

● The constitution specifies the basic allocation of power in a society.

● It decides who gets to decide what the laws will be.

● In the Indian Constitution, it is specified that in most instances, Parliament gets to decide laws and
policies and that Parliament itself be organised in a particular manner.

Purpose and functions of a Constitution

● Lays out certain ideals that form the basis of the kind of country that we as citizens aspire to live
in.

● Defines the nature of a country’s political system; plays a crucial role in laying out certain important
guidelines that govern decision-making within these societies.

● Provides a set of basic rules that allow for minimal coordination amongst members of society.

● Provides safeguards against the leaders who might misuse their authority—sets some limits on
what a government can impose on its citizens. These limits are fundamental in the sense that the
government may never trespass them. (Ex – Aseem Trivedi, Shreya Singal Case, Section 66A of
IT Act)

● Protects minorities from the tyranny of the majority (i.e. from inter-community and intra-community
domination (Ex – Apartheid Movement in South Africa)

● The Constitution saves us from ourselves (This may sound strange but what is meant by this is that
we might at times feel strongly about an issue that might go against our larger interests and the
Constitution helps us guard against this.)

● It helps to protect us against certain decisions that we might take that could have an adverse effect
on the larger principles that the country believes in. Therefore, the constitution sets authoritative
constraints upon what one may or may not do. (Ex – Cow slaughter, Ghar Wapsi issue)

● Enables the government to fulfil the aspirations of a society and create conditions for a just society.
(Directive Principles of State Policy, DPSP, and various acts)

● The Constitution expresses the fundamental identity of a people.

In many Countries, Constitutions remain defunct. Why?

 ● Because they are crafted by military leaders or leaders who are not popular. (Ex. Junta rule of
Myanmar, Nepal’s Constitution)

● Crafted by leaders who do not have the ability to carry the people with them.

Why is the Constitution of countries like India, South Africa, and the United States the most
successful?

● The Constitutions were created in the aftermath of popular national movements and were crafted
by popular leaders who had the ability to take forward the citizens with them and were highly
credible— drawing upon a long history of the nationalist movement that had a remarkable ability to
take along different sections of society together. (Ex – Nehru, B.R.Ambedkar, etc.)

● The Constitution drew enormous legitimacy from the fact that it was drawn up by people who
enjoyed immense public credibility, who had the capacity to negotiate and command the respect of
a wide cross-section of society, and who were able to convince the people that the constitution was
not an instrument for the aggrandisement of their personal power.

● In some countries (not India) the Constitution was framed on the basis of a full-fledged referendum,
where all the people vote on the desirability of a constitution.

● Therefore, the authority of people who enact the Constitution helps determine in part its prospects
for success.

The Hallmark of a successful constitution/an effective constitution is one which –

● Gives everyone in society some reason to go along with its provisions.

● Does not allow permanent majorities to oppress minority groups within society.

● Does not systematically privilege some members at the expense of others or that systematically
entrenched the power of small groups in society.

● Does not stifle the identity of any group.

● Has to convince people that it provides the framework for pursuing basic justice.

● Preserves the freedom and equality of all its members.

● Fragments power in society intelligently so that no single group can subvert the constitution

● Ensures that no single institution acquires a monopoly of power

● Provides for balanced institutional design – i.e., an intelligent system of checks and balances

● Strikes the right balance between certain values, norms, and procedures as authoritative, and at
the same time allow enough flexibility in its operations to adapt to changing needs and
circumstances

● not too rigid or too flexible

● Such a Constitution can ensure that it will survive as a document respected by people.

How was the Indian Constitution made?

 ● The Constitution was made by the Constituent Assembly which had been elected for undivided
India.

● First sitting on 9 December 1946 and re-assembled as Constituent Assembly for divided India on
14 August 1947.

● Much before the Constituent Assembly finally came into being, the demand for such a constituent
assembly was first echoed by Dr. Rajendra Prasad (in 1946).

● (Rajendra Prasad quoted Mahatma Gandhi that “swaraj would mean wishes of the people as
expressed through their freely chosen representatives”).

● However, the idea of a constituent assembly to frame a constitution for India was first mooted by
M. N. Roy in 1934.

● Members were elected by indirect election by the members of the Provisional Legislative
Assemblies that had been established in 1935.

● The Constituent Assembly was composed roughly along the lines suggested by the plan proposed
by the committee of the British cabinet, known as the Cabinet Mission.

Cabinet Mission Plan:

● According to this plan –

○ Each Province and each Princely State or group of States were allotted seats proportional
to their respective population roughly in the ratio of 1:10,00,000.

○ The seats in each Province were distributed among the three main communities, Muslims,
Sikhs, and General, in proportion to their respective populations.

○ Members of each community in the Provisional Legislative Assembly elected their own
representatives by the method of proportional representation with a single transferable
vote.

○ The method of selection in the case of representatives of Princely States was to be

determined by consultation.

What is a Constituent Assembly?

● A body of representatives is composed of drafting a constitution.

● In our times, we have recently seen how Nepal’s constituent assembly has drafted its constitution
recently. We note that drafting the constitution is the only function of a constituent assembly.

● Once the constitution is ready and adopted; the assembly is dissolved.

● Further, since members of the constituent assembly are representatives (elected or unelected); it’s
a form of representative democracy.

About Objective Resolutions:

● Moved by Nehru in 1946; defined the aims of the Constituent Assembly.

 ● This resolution encapsulated the aspirations and values behind the Constitution.

● Based on this resolution, our Constitution gave institutional expression to these fundamental
commitments: equality, liberty, democracy, sovereignty, and cosmopolitan identity.

Constitution of India: Drawn From Various Sources

Government of India Act of 1935 (a) Federal Scheme

(b) Office of governor

(c) Judiciary

(d) Public Service Commissions

(e) Emergency provisions

(f) Administrative details

Parts of Indian Constitution

● The parts of the Indian Constitution along with Subject and Articles they cover are given below.
Parts of the Indian Constitution added as amendments

● Three parts – 9A Municipalities, 9B Co-operative societies, and 14A tribunals – are added to the
original constitution via amendments.
 ● Various articles were also added under these 25 parts of the Indian constitution as amendments.
At present, the total article count is around 469.

Schedules of Indian Constitution

15 Salient Features of the Indian Constitution
 Chapter 2: The Preamble to the Constitution of India

● A preamble is an introductory statement in a document that explains the document’s philosophy

and objectives.

● Preamble is an ornamental or decorative part of constitute is considered to be ornamental or

decorative part of constitution because it is not enforceable in the Court of Law, also because
Preamble is not conferring any substantive power to the organs of government nor it can limit the
power however Preamble has its own utility.

● It is the essence or whole summary of the constitution and declares the basic values on which the
constitution is based. Dr. D D Basu says it contains the philosophy or theme of the constitution.

● It is customary, not compulsory to the constitution as Preamble. The unwritten constitution does
not have a preamble but the written constitution may or may not have a preamble like Govt. of India
act 1935 did not have a Preamble.

● In a Constitution, it presents the intention of its framers, the history behind its creation, and the core
values and principles of the nation.

● The preamble is in the form of a declaration, Preamble can not overwrite specific provisions of the
constitution i.e. it is subordinate to the constitution. The Preamble is neither a source of power to
the legislature nor a prohibition upon the powers of the legislature.

● It is non-justiciable, that is, its provisions are not enforceable in courts of law.

● If there is a clash between preamble and articles of constitution, Articles will prevail over Preamble.

● As per the supreme court, if there is an ambiguity surrounding an article or articles of the
constitution then that interpretation of the constitution or article will be used by courts which tallies
with the preamble.

● The preamble basically gives idea of the following things/objects:

○ Source of the Constitution

○ Nature of Indian State

○ Statement of its objectives

○ Date of its adoption

History of the Preamble to Indian Constitution

● The ideals behind the Preamble to India’s Constitution were laid down by Jawaharlal Nehru’s
Objectives Resolution, adopted by the Constituent Assembly on January 22, 1947.

● Although not enforceable in court, the Preamble states the objectives of the Constitution and acts
as an aid during the interpretation of Articles when language is found ambiguous.

Preamble of Indian Constitution

 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 of 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 twenty-sixth day of November, 1949, DO HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Components of Preamble

● It is indicated by the Preamble that the source of authority of the Constitution lies with the people
of India themselves and the constitution arises from people only i.e. preamble declares that people
are the ultimate sovereign in India.

● In the Kehar Singh vs Union of India case, a statement was challenged that the constitution derives
its power from people directly, however, the court settled the issue by saying that this statement is
a legal fiction and a conclusive assumption which can not be questioned, challenged or tested in
any court of law.

● The preamble declares India to be a sovereign, socialist, secular, and democratic republic.

● The objectives stated by the Preamble are to secure justice, liberty, equality to all citizens, and
promote fraternity to maintain unity and integrity of the nation.
 ● The date is mentioned in the preamble when it was adopted i.e. November 26, 1949.

● Preamble helps in legal interpretation of the constitutional provisions.

● The Preamble contains the ideals and aspirations of the people of India.

Key words in the Preamble

● We, the people of India: It indicates the ultimate sovereignty of the people of India. Sovereignty
means the independent authority of the State, not being subject to the control of any other State or
external power.

● Sovereign: The term means that India has its own independent authority and it is not a dominion
of any other external power. In the country, the legislature has the power to make laws that are
subject to certain limitations.

● Socialist: The term means the achievement of socialist ends through democratic means. The
Indian brand of socialism is ‘democratic socialism’.
economy
○ It holds faith in a mixed economy where both the private and public sectors co-exist side
by side.

○ Democratic socialism aims to end poverty, ignorance, disease, and inequality of

opportunity.

○ Indian socialism is a blend of Marxism and Gandhism, leaning heavily towards Gandhian
socialism.

○ It was added in the Preamble by 42nd Amendment, 1976.

● Secular: The term means that all the religions in India get equal respect, protection, and support
from the state.
religion ○ It was incorporated in the Preamble by the 42nd Constitutional Amendment, 1976.

○ The word secular appeared in only one article, that is Article 25 (2)(a) before it was inserted
into the Constitution’s Preamble.

○ The state will protect every religion equally but the state will not have any foundation on
religion.

○ Accordingly, Articles 25 to 28 (guaranteeing the fundamental right to freedom of religion)

have been included in the constitution.

● Democratic: The term implies that the Constitution of India has an established form of Constitution
that gets its authority from the will of the people expressed in an election.

○ The Indian Constitution provides for “representative parliamentary democracy” under

which the executive is responsible to the legislature for all its policies and actions.

○ The term ‘democratic’ is used in the Preamble in the broader sense embracing not only
political democracy but also social and economic democracy.
 ● Republic: The term indicates that the head of the state is elected by the people. In India, the
President of India is the elected head of the state.

○ He is elected indirectly for a fixed period of five years. A republic also means two more
things:

■ First, vesting of political sovereignty in the people and not in a single individual like
a king;

■ Second, the absence of any privileged class and hence all public offices being
opened to every citizen without any discrimination.

Objectives of the Indian Constitution

● The Constitution is the supreme law and it helps to maintain integrity in the society and to promote
unity among the citizens to build a great nation.

● The main objective of the Indian Constitution is to promote harmony throughout the nation.

● The factors which help in achieving this objective are:

● Justice: It is necessary to maintain order in a society that is promised through various

provisions of Fundamental Rights and Directive Principles of State Policy provided by the
Constitution of India. It comprises three elements, which are social, economic, and political.

● Social Justice – Social justice means that the Constitution wants to create a society
without discrimination on any grounds like caste, creed, gender, religion, etc.

● Economic Justice – Economic Justice means no discrimination can be caused by people

on the basis of their wealth, income, and economic status. Every person must be paid
equally for an equal position and all people must get opportunities to earn for their living.

● Political Justice – Political Justice means all the people have an equal, free, and fair right
without any discrimination to participate in political opportunities.

● Equality: The term ‘Equality’ means no section of society has any special privileges and
all the people have been given equal opportunities for everything without any
discriminations. Everyone is equal before the law.

● Liberty: The term ‘Liberty’ means freedom for the people to choose their way of life, have
political views and behaviour in society. Liberty does not mean freedom to do anything, a
person can do anything but within the limit set by the law. The ideals of liberty, equality,
and fraternity in our Preamble have been taken from the French Revolution (1789–1799).

● Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional

attachment with the country and all the people. Fraternity helps to promote dignity and unity
in the nation.

● Importance of Objectives: It provides a way of life. It includes fraternity, liberty, and

equality as the notion of a happy life and which can not be taken from each other.

■ Liberty cannot be divorced from equality, equality cannot be divorced from liberty.
Nor can liberty and equality be divorced from fraternity.
 ■ Without equality, liberty would produce the supremacy of the few over the many.

■ Equality without liberty would kill individual initiative.

■ Without fraternity, liberty would produce the supremacy of the few over the many.

■ Without fraternity, liberty and equality could not become a natural course of things.

Status of Preamble

● Please note: Preamble is a part of the Indian Constitution.

● Initially, the Preamble was not considered a part of the Constitution and its amendment
was not accepted. (In the Berubari’s case 1960, the Supreme Court held that “Preamble is
NOT a part of the constitution”)

● However, later in Kesavananda Bharati v/s State of Kerala 1973 case the Supreme Court
ruled that “Preamble is a part of the constitution and can be amended” as any other
provisions of the Constitution, provided the basic structure of the constitution is not
destroyed.

● In the 1995 case of Union Government Vs LIC of India also, the Supreme Court has once
again held that Preamble is the integral part of the Constitution but is not directly
enforceable in a court of justice in India.

Amendment of the Preamble

● 42nd Amendment Act, 1976: After the judgement of the Kesavanand Bharati case, it was
accepted that the preamble is part of the Constitution.

○ As a part of the Constitution, the preamble can be amended under Article 368 of the
Constitution, but the basic structure of the preamble can not be amended.

○ Because the structure of the Constitution is based on the basic elements of the Preamble.
As of now, the preamble is only amended once through the 42nd Amendment Act, 1976.

● The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through 42nd
Amendment Act, 1976.

○ ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.

○ ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
 Chapter 3: The Union and its Territory: Part I (Articles 1- 4)

● Part I of the Indian Constitution is titled The Union and its Territory. It includes articles from 1- 4.
Part I is a compilation of laws pertaining to the constitution of India as a country and the union of
states that it is made of. This part of the constitution contains the law in the establishment,
renaming, merging, or altering the borders of the states.

● Articles under Part I were invoked when West Bengal was renamed, and for the formation of
relatively new states such as Jharkhand, Chattisgarh, or Telangana.

● The Union and its Territory

● (Articles 1 to 4) under (Part I) of the Constitution deal with the Union and its territory.

● Article 1 deal with the Name and territory of the Union —

(1) India, that is Bharat, shall be a Union of States.

(2) The States and the territories thereof shall be as specified in the First Schedule.

(3) The territory of India shall comprise—

○ the territories of the States;

○ the Union territories specified in the First Schedule; and

○ such other territories as may be acquired

● Article 1 stipulates that “India, i.e., Bharat, shall be a Union of States“.

● Very important – Please note: the country is described as ‘Union’ although its Constitution is federal
in structure.

Why is the country described as ‘Union’, not federation?

● Dr. B R Ambedkar replied – “the phrase ‘Union of States’ has been preferred to ‘Federation of
States’ for two reasons:

○ one, the Indian Federation is not the result of an agreement among the states like the
 American Federation; and

○ two, the states have no right to secede from the federation. The federation is a union
because it is indestructible.

● The country is an integral whole and divided into different states only for the convenience of
administration.

Please Note:

● As of today there are 28 states and 8 Union territories in the country. (J&K and Ladakh – new UTs)

● The provisions of the Constitution pertaining to the states are applicable to all the states in the
same manner.

● The 1st Schedule contains the names of the States and UTs.

● 5th and 6th Schedule of the Constitution contains separate provisions with respect to the
administration of scheduled areas and tribal areas within the states.

● States share distribution of powers with the Centre.

● The union territories and the acquired territories are directly administered by the Central
government. (except Delhi and Puducherry)

Do you know?

● ‘Territory of India’ is a wider expression than the ‘Union of India’. Because the latter includes only
states while the former includes not only the states but also union territories and territories that may
be acquired by the Government of India at any future time.

● Article 2: Admission or establishment of new States.

● Parliament may by law admit into the Union, or establish, new States on such terms and conditions
as it thinks fit.

● Article 2 grants two powers to the Parliament:

○ the power to admit into the Union of India new states; and

○ the power to establish new states.

● Please note:

○ The first refers to the admission of states which are already in existence while the second
refers to the establishment of states which were not in existence before.

○ Notably, Article 2 relates to the admission or establishment of new states that are not part
of the Union of India.

● Article 3: Formation of new States and alteration of areas, boundaries, or names of existing
States.
 ● Parliament may by law—

(a) form a new State by separation of territory from any State or by uniting two or more States or parts
of States or by uniting any territory to a part of any State;

(b) increase the area of any State;

(c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State.

● Article 3 notably relates to the formation of or changes in the existing states of the Union of India.

● However, Article 3 lays down two conditions in this regard:

○ One, a bill contemplating the above changes can be introduced in the Parliament only with
the prior recommendation of the President; and

○ Two, before recommending the bill, the President has to refer the same to the state
legislature concerned for expressing its views within a specified period.

● The President (or Parliament) is not bound by the views of the state legislature and may either
accept or reject them, even if the views are received in time.

● Further, it is not necessary to make a fresh reference to the state legislature every time an
amendment to the bill is moved and accepted in Parliament.

● In the case of a union territory, no reference need be made to the concerned legislature to ascertain
its views and the Parliament can itself take any action as it deems fit.

● Crux: Constitution authorises the Parliament to form new states or alter the areas, boundaries,
or names of the existing states ‘without their consent’. Hence, the territorial integrity or continued
existence of any state is not guaranteed by the Constitution. Therefore, India is rightly described
as ‘an indestructible union of destructible states’.

● Article 4: declares that laws made under Article 2 and 3 are not to be considered as
amendments of the Constitution under Article 368.

● Article 4 declares that laws made for admission or establishment of new states (under Article 2)
and formation of new states and alteration of areas, boundaries, or names of existing states (under
Articles 3) are not to be considered as amendments of the Constitution under Article 368.

● This means that such laws can be passed by a simple majority and by the ordinary legislative
process.

Please Note:

● Indian Territory can be ceded to a foreign state only by amending the Constitution under Article
368.
 ● However, the Supreme Court in 1969 ruled that settlement of a boundary dispute between India
and another country does not require a constitutional amendment. It can be done by executive
action as it does not involve cession of Indian Territory to a foreign country.

● So only when there is the involvement of cession of Indian Territory to a foreign country, the
amendment is needed.

● EVOLUTION OF STATES AND UNION TERRITORIES

Integration of Princely States

● We have read earlier that the Indian Independence Act (1947) gave three options to the princely
states –

○ joining India,

○ joining Pakistan or

○ remaining independent

● Of the 552 princely states situated within the geographical boundaries of India, 549 joined India
and the remaining 3 (Hyderabad, Junagarh, and Kashmir) refused to join India.

● However, in course of time –

○ Hyderabad state was integrated through Police action.

○ Junagarh was integrated through the referendum.

○ Kashmir was integrated through an Instrument of Accession.

Some important points:

● After independence, there were demands from different regions, particularly South India, for the
reorganization of states on a linguistic basis.

● The government of India appointed the S K Dhar Committee to examine the feasibility of the
reorganization of states on a linguistic basis.

● The Dhar Committee recommended the reorganization of states on the basis of administrative
convenience rather than linguistic factors.

● This created much resentment and led to the appointment of another committee – JVP Committee
– consisted of Jawaharlal Nehru, Vallahbhai Patel, and Pattabhi Sitaramayya

● The JVP committee’s report formally rejected language as the basis for the reorganization of states.

● However, the death of Potti Sriramulu, a Congressperson of standing, after a 56-day hunger strike
for the cause of the creation of separate Andhra state on a linguistic basis — forced the Government
of India to create the first linguistic state, known as Andhra state

● The creation of Andhra state intensified the demand from other regions for the creation of states
on a linguistic basis. This forced the Government of India to appoint the Fazl Ali Commission to re-
examine the whole question.
 ● Faiz Ali’s report broadly accepted language as the basis of the reorganization of states. But, it
rejected the theory of ‘one language–one state’. Its view was that the unity of India should be
regarded as the primary consideration in any redrawing of the country’s political units.

Four major factors should be taken into account in any scheme of reorganization of states:

1. Preservation and strengthening of the unity and security of the country.

2. Linguistic and cultural homogeneity.

3. Financial, economic, and administrative considerations.

4. Planning and promotion of the welfare of the people in each state as well as of the nation as a
whole.
 Chapter 4: Citizenship of India – Part II : (Articles 5-11)

● (Articles 5 to 11) – (Part II) of the Constitution – deals with the provisions of Citizenship. The term
citizenship entails the enjoyment of full membership of any State in which a citizen has civil and
political rights.

● The Constitution confers the following rights and privileges on the citizens of India (and denies the
same to aliens):

○ Right against discrimination on grounds of religion, race, caste, sex, or place of birth (Article
15).

○ Right to equality of opportunity in the matter of public employment (Article 16).

○ Right to freedom of speech and expression, assembly, association, movement, residence,

and profession (Article 19).

○ Cultural and educational rights (Articles 29 and 30).

○ Right to vote in elections to the Lok Sabha and state legislative assembly.

○ The right to contest for the membership of the Parliament and the state legislature.

○ Eligibility to hold certain public offices, that is, President of India, Vice-President of India,
judges of the Supreme Court and the high courts, governor of states, the attorney general
of India and advocate general of states.

● In India both citizens by birth as well as a naturalized citizen are eligible for the office of President.

● Along with the above rights, the citizens also owe certain duties towards the Indian State, as for
example, paying taxes, respecting the national flag and national anthem, defending the country,
and so on.

Some important facts:

● The Constitution deals with citizenship from Articles 5 to 11.

● However, it only identifies the persons who became citizens of India at its commencement (i.e., on
January 26, 1950).

● It does not deal with the problem of acquisition or loss of citizenship subsequent to its
commencement.

● It empowers the Parliament to enact a law to provide for such matters and any other matter relating
to citizenship. Accordingly, the Parliament has enacted the Citizenship Act.

● Therefore we should know about (Articles 5 to 11) and (Citizenship Act)

● According to the Constitution, there are four categories of persons became the citizens of India at
its commencement i.e., on 26 January 1950.

● ARTICLE 5 : CITIZENSHIP AT THE COMMENCEMENT OF THE CONSTITUTION

● (Article 5): A person who had his domicile in India and also fulfilled any one of the three conditions,
viz.,

○ if he was born in India; or

○ if either of his parents was born in India; or

○ if he has been ordinarily resident in India for five years immediately before the
commencement of the Constitution became a citizen of India

● Articles 6 and 7 deal with two categories of persons, namely, those who were residents in India but
had migrated to Pakistan and those who were residents in Pakistan but had migrated to India.
Those who migrated from Pakistan to India were divided into two categories:

○ those who came before July 19, 1948, and

○ those who came after that date.

● ARTICLE 6: RIGHTS OF CITIZENSHIP OF CERTAIN PERSONS WHO HAVE MIGRATED TO

INDIA FROM PAKISTAN

● (Article 6): A person who migrated to India from Pakistan became an Indian citizen if he or either
of his parents or any of his grandparents was born in undivided India and also fulfilled any one of
the two conditions viz., in case he migrated to India before July 19, 1948, he had been ordinarily
resident in India since the date of his migration; or in case he migrated to India on or after July 19,
1948, he had been registered as a citizen of India. But, a person could be registered only if he had
been resident in India for six months preceding the date of his application for registration.

● ARTICLE 7: RIGHTS OF CITIZENSHIP OF CERTAIN MIGRANTS TO PAKISTAN

● (Article 7): A person who migrated to Pakistan from India after March 1, 1947, but later returned
to India for resettlement could become an Indian citizen. For this, he had to be resident in India for
six months preceding the date of his application for registration.

● ARTICLE 8: RIGHTS OF CITIZENSHIP OF CERTAIN PERSONS OF INDIAN ORIGIN RESIDING

OUTSIDE INDIA

● (Article 8): A person who, or any of whose parents or grandparents, was born in undivided India
but who is ordinarily residing outside India shall become an Indian citizen if he has been registered
as a citizen of India by the diplomatic or consular representative of India in the country of his
residence, whether before or after the commencement of the Constitution. Thus, this provision
covers the overseas Indians who may want to acquire Indian citizenship.

● To sum up, these provisions deal with the citizenship of –

(a) Persons domiciled in India;

(b) Persons migrated from Pakistan;

(c) Persons migrated to Pakistan but later returned; and

(d) Persons of Indian origin residing outside India.

 ● ARTICLE 9: PERSONS VOLUNTARILY ACQUIRING CITIZENSHIP OF A FOREIGN STATE
NOT TO BE CITIZENS

● No person shall be a citizen of India or be deemed to be a citizen of India if he has voluntarily

acquired the citizenship of any foreign state (Article 9).

● ARTICLE 10: CONTINUANCE OF THE RIGHTS OF CITIZENSHIP

● Every person who is or is deemed to be a citizen of India shall continue to be such citizen, subject
to the provisions of any law made by Parliament (Article 10).

● ARTICLE 11: PARLIAMENT TO REGULATE THE RIGHT OF CITIZENSHIP BY LAW

● Parliament shall have the power to make any provision with respect to the acquisition and
termination of citizenship and all other matters relating to citizenship (Article 11).

● The Citizenship Act, 1955

● A comprehensive law dealing with citizens was passed by Parliament in 1955 in accordance with
the powers vested in it by Article 11 of the Constitution.

● The provisions of the Act may be broadly divided into three parts, acquisition of citizenship,
termination of citizenship, and supplemental provisions.

● Acquisition of Citizenship

● The Act provides five modes of acquiring the citizenship of India. These are:

1. Citizenship by birth

2. Citizenship by descent

3. Citizenship by registration

4. Citizenship by naturalization

5. By incorporation of territory (by the Government of India)

(1) By Birth:

● Every person born in India on or after January 26, 1950, but before June 30, 1987, shall be a citizen
of India by birth.

● A person is a citizen of India by birth if he/she is born in India on or after July 1, 1987, but at the
time of the birth, either of his parents was a citizen of India.

● Note: The children of foreign diplomats posted in India and enemy aliens cannot acquire Indian
citizenship by birth.

(2) By Descent:

● A person born outside India on or after January 26, 1950, shall be a citizen of India by descent if
his father or mother is a citizen of India at the time of his birth.
 ● Children of those who are citizens of India by descent, as also children of noncitizens who are in
service under a government in India, may also take advantage of this provision and become Indian
citizens by descent, if they so desire, through registration.

(3) By Registration:

● Any person who is not already an Indian citizen by virtue of the provisions of the Constitution or
those of this Act can acquire citizenship by registration

● if that person belongs to any one of the following five categories :

○ Persons of Indian origin who are ordinarily resident in India and who have been so resident
for at least six months immediately before making an application for registration.

○ Persons of Indian origin who are ordinarily resident in any country or place outside
undivided India;

○ Women who are, or have been, married to citizens of India;

○ Minor children of persons who are citizens of India; and

○ Persons of full age and capacity who are citizens of the Commonwealth countries or the
Republic of Ireland.

(4) By Naturalization:

● Any person who does not come under any of the categories mentioned above can acquire Indian
citizenship by naturalization if his application for the same has been accepted by the Government
of India and certificate is granted to him to that effect.

● An applicant for a naturalization certificate has to satisfy the following conditions:

○ He is not a citizen of a country which prohibits Indians from becoming citizens of that
country by naturalization;

○ He has renounced the citizenship of the country to which he belonged;

○ He has either resided in India or has been in the service of a government in India, normally,
for one year immediately prior to the date of application;

○ During the seven years preceding the above mentioned one year, he has resided in India
or been in the service of a government in India for a period amounting in the aggregate to
not less than four years;

○ He is of good character;

○ He has adequate knowledge of a language specified in the Constitution;

○ If granted a certificate, he intends to reside in India or enter into, or continue in service

under a government in India.
 ● The Act provides, however, for a conspicuous exemption under which any or all of the above
conditions may be waived in favor of a person who has rendered distinguished service to the cause
of science, philosophy, art, literature, world peace or human progress generally.

● Every person to whom a certificate of naturalization is granted has to take an oath of allegiance
solemnly affirming that he will bear true faith and allegiance to the Constitution of India as by law
established and that he will faithfully observe the laws of India and fulfill his duties as a citizen of
India.

(5) By Incorporation of Territory:

● If any territory becomes part of India, the Government of India, by order, may specify the persons
who shall be citizens of India by reason of their connection with that territory.

● Termination of Citizenship

● The Act envisages three situations under which a citizen of India may lose his Indian nationality.
These are:

(1) By Renunciation:

● If any citizen of India who is also a national of another country renounces his Indian citizenship
through a declaration in the prescribed manner, he ceases to be an Indian citizen of registration of
such declaration.

● When a male person ceases to be a citizen of India, every minor child of his also ceases to be a
citizen of India. However, such a child may within one year after attaining full age, become an
Indian citizen by making a declaration of his intention to resume Indian citizenship.

(2) By Termination:

● Any person who acquired Indian citizenship by naturalization, registration or otherwise, or he or

she voluntarily acquired the citizenship of another country at any time between January 26, 1950,
the date of commencement of the Constitution, and December 30, 1955, the date of
commencement of this Act, shall have ceased to be a citizen of India from the date of such
acquisition.

(3) By Deprivation:

● The Central Government is empowered to deprive a citizen of his citizenship by issuing an order
under 10 of the act.

● But, this power of the Government may not be used in the case of every citizen; it applies only to
those who acquired Indian citizenship by naturalization or by virtue only of clause (c) of Article 5 of
the Constitution or by registration.

● The possible grounds of such deprivation are:

○ Obtaining of a citizenship certificate by means of fraud, false representation, concealment

of any material fact;

○ Disloyalty of disaffection towards the Constitution shown by act or speech;

 ○ Assisting an enemy with whom India is at war;

○ Sentence to imprisonment in any country for a term of not less than two years within the
first five years after the acquisition of Indian citizenship and

○ Continuous residence outside Indian for a period of seven years without expressing in a
prescribed manner his intention to retain his Indian citizenship.

● The Act also provides for reasonable safeguards in order to see that a proper procedure is followed
in every case of deprivation of citizenship.

● Single Citizenship

● The Indian Constitution provides for only single citizenship, that is, the Indian citizenship. The
citizens in India owe allegiance only to the Union. There is no separate state citizenship.

● The other federal states like the USA and Switzerland, on the other hand, adopted the system of
double citizenship.

● In the USA, each person is not only a citizen of the USA but also of the particular state to which he
belongs.

● The Constitution of India, like that of Canada, has introduced the system of single citizenship and
provided uniform rights (except in few cases) for the people of India to promote the feeling of
fraternity and unity among them and to build an integrated Indian nation.

● Overseas Citizen of India (OCI) and Person of Indian Origin (PIO)

● The Indian diaspora will no longer have to get a visa affixed on their passports every time they
travel to India as the Union government has decided to do away with the process.

● The government has decided that since the categories Overseas Citizen of India (OCI) and the
Persons of Indian Origin (PIO) were merged a few years back, the OCI card will suffice to enter the
country and hence would require no visa.

● In other words, both OCI and PIO don’t need a visa to enter the country, only an OCI card will
suffice.

● Carrying a passport will, however, be mandatory (Check and read recent news for more updates
on PIO and OCI)

Citizenship (Amendment) Act, 2019

● The CAA provides citizenship on the basis of religion to six undocumented non-Muslim
communities (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from Pakistan,
Afghanistan and Bangladesh who entered India on or before 31st December, 2014.

● It exempts the members of the six communities from any criminal case under the Foreigners
Act, 1946 and the Passport Act, 1920.

● The two Acts specify punishment for entering the country illegally and staying here on expired
visas and permits.
 Chapter 5: Fundamental Rights: Part III (Articles 12-35)

● Articles 12-35 (Part III) of the Indian Constitution deal with Fundamental Rights. Fundamental
Rights are largely inspired by the Bill of Rights in the American Constitution.

● Part 3 and Part 4 together form the conscience of the Constitution or intellectual component of the
State. Fundamental Rights are essential for the healthy functioning of democracy therefore called
a cornerstone of Indian Democracy.

● These rights are the most indispensable assets of an individual to achieve his fullest physical,
intellectual, and spiritual stretcher. They are also fundamental because the State can not take away
these rights and any law which infringes upon them will be declared null and void. It is to prevent
the state from becoming arbitrary or authoritarian, they are fundamental for having the civilized
society in place.

● Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the
fundamental normative rules about what is allowed or owed to people, according to some legal
system, social convention, or ethical theory. Rights are of essential importance in such disciplines
as law and ethics, especially theories of justice and deontology.

● Natural rights are rights that are “natural” in the sense of “not artificial, not man-made”, as in rights
deriving from human nature or from the edicts of a god. They are universal; that is, they apply to all
people and do not derive from the laws of any specific society. They exist necessarily, inhere in
every individual, and can’t be taken away.

● For example, it has been argued that humans have a natural right to life. These are sometimes
called moral rights or inalienable rights.
 ● Legal rights, in contrast, are based on a society’s customs, laws, statutes or actions by legislatures.
An example of a legal right is the right to vote of citizens. Citizenship, itself, is often considered as
the basis for having legal rights and has been defined as the “right to have rights”. Legal rights are
sometimes called civil rights or statutory rights and are culturally and politically relative since they
depend on a specific societal context to have meaning.

● Fundamental Rights

● Fundamental Rights are protected and guaranteed by the Constitution and they cannot be taken
away by an ordinary law enacted by the legislature. If a legal right of a person is violated, he can
move to an ordinary court, but if a fundamental right is violated the Constitution provides that the
affected person may move to High court or Supreme Court.

Universal Declaration of Human Rights –

● The General Assembly, Proclaims the Universal Declaration of Human Rights as a common
standard of achievement for all peoples and all nations, to the end that every individual and every
organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education
to promote respect for these rights and freedoms and by progressive measures, national and
international, to secure their universal and effective recognition and observance, both among the
peoples of Member States themselves and among the peoples of territories under their jurisdiction.

● In 1925 the Indian National Congress finalized the draft of the CommonWealth of India Bill adopting
a ‘Declaration of Rights.’ The Madras Session of the Congress held in the year 1927 – demanded
incorporation of a ‘Declaration of Fundamental Rights’ in any future constitutional framework.

● The Karachi Session of the Congress in 1931 adopted a detailed program of fundamental rights.
The Government of India Act, 1935 was passed without any bill of rights much to the
disappointment of the Indian leaders.

● It was the ‘Sapru Committee’ of 1945 that subsequently stressed the need for a written code of
fundamental rights and the Constituent Assembly raised a forceful demand for the inclusion of
human rights in the Constitution.

● The framers of the Constitution derived inspiration from the Constitution of the USA (i.e., Bill of
Rights) and adopted Fundamental Rights in Part III of the Constitution from Articles 12 to 35.

● Part III of the Constitution (which contains FRs) is rightly described as the ‘Magna Carta of India’.

● Fundamental Rights are justiciable – allows persons to move the courts for their enforcement, if
and when they are violated. The Fundamental Rights are named so because they are guaranteed
and protected by the Constitution, which is the fundamental law of the land.

● Fundamental Rights are guaranteed by the Constitution to all persons and legal entities without
any discrimination. They uphold the equality of all individuals, the dignity of the individual, the larger
public interest, and unity of the nation.

Establishing ‘A Government of Laws and Not Of Men’ –

● The Constitution listed the rights that would be specially protected and called them ‘fundamental
rights’.
 ● These rights are so important that the Constitution has separately listed them and made special
provisions for their protection. The Constitution itself ensures that they are not violated by the
government.

● They promote the ideal of political democracy. They prevent the establishment of an authoritarian
and despotic rule in the country and protect the liberties and freedoms of the people against the
invasion by the State.

● They check and balance the tyrannical power of the executive and arbitrary law of legislature. In
short, they aim at establishing a government of laws and not of men.

Ordinary Rights and Fundamental Rights:

● Rights may be either statutory or constitutional. When a right is enacted in an ordinary law of the
land it is a statutory right. And when the Constitution guarantees any right it assumes the status of
a constitutional right.

● Ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected
and guaranteed by the Constitution of the country.

● Ordinary rights may be changed by the legislature by the ordinary process of law-making, but a
fundamental right may only be changed by amending the Constitution itself.

● Judiciary has the powers and responsibility to protect fundamental rights from violations by actions
of the government. Executive, as well as legislative actions, can be declared illegal by the judiciary
if these violate the Fundamental rights or restrict them in an unreasonable manner.

Originally, the Constitution provided for seven Fundamental Rights viz,

● Right to equality (Articles 14–18)

● Right to freedom (Articles 19–22)

● Right against exploitation (Articles 23–24)

● Right to freedom of religion (Articles 25–28)

● Cultural and educational rights (Articles 29–30)

● Right to property (Article 31)

● Right to constitutional remedies (Article 32)

● However, the right to property was deleted from the list of Fundamental Rights by the 44th
Amendment Act, 1978.

● It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there
are only six Fundamental Rights.

● Features of Fundamental Rights

● Some of them are available only to the citizens while others are available to all persons whether
citizens, foreigners, or legal persons like corporations or companies.
● The state can impose restrictions on Fundamental rights. (They are not absolute but qualified).

● Except Fundamental rights guaranteed under Articles 20 and 21 remaining Fundamental rights can
be suspended during the operation of a National Emergency.

● Article 19 can be suspended only when an emergency is declared on the grounds of war or external
aggression and not on the grounds of armed rebellion.

● Most of the FRs are available against the arbitrary action of the State.

● Some of FRs are negative in character, they place limitations on the authority of the State

● Some other FRs are positive in nature, as they confer certain privileges on the persons.

● FRs are defended and guaranteed by the Supreme Court. Hence, the aggrieved person can directly
go to the Supreme Court, not necessarily by way of appeal against the judgment of the high courts.

● FRs are not sacrosanct or permanent –> Meaning, the Parliament can curtail or repeal them. But
only by a constitutional amendment act and not by an ordinary act. Moreover, this can be done
without affecting the ‘basic structure’ of the Constitution.

● Their scope of operation is limited by Article 31A (saving of laws providing for the acquisition of
estates, etc.), Article 31B (validation of certain acts and regulations included in the 9th Schedule),
and Article 31C (saving of laws giving effect to certain directive principles).

● Article 33 enables the parliament to restrict the application of FR to the members of armed forces,
paramilitary forces, police forces, intelligence agencies, and analogous services.

● Most of them are directly enforceable (self-executory) while a few of them can be enforced on the
basis of a law made for giving effect to them. Such a law can be made only by the Parliament and
not by state legislatures so that uniformity throughout the country is maintained (Article 35).

● Article 12 provides the ‘Definition of the State’.

● The “State” includes –

○ the Government and Parliament of India

○ the government and the state legislature

○ all local authorities (municipalities, Panchayati Raj, District boards. etc)

○ Other statutory and non-statutory authorities (LIC, ONGC, etc.).

● The actions of the state (all the above said) can be challenged in the courts as a violation of
Fundamental Rights.

● According to the Supreme Court, even a private body or an agency working as an instrument of
the State falls within the meaning of the ‘State’ under Article 12.

● Article 12 does not explicitly mention the judiciary. However, as the judiciary is the guardian of
fundamental rights, an obvious question that can arise is ‘Can Courts be defined as ‘State’ under
Article 12 of the Indian Constitution?’
● The High Court of Bombay recently answered this question in the case of The National Federation
of the Blind, Maharashtra & Anr v. The High Court of Judicature of Bombay, wherein it held that
‘Courts are included within the definition of “State” only on the administrative side while dealing with
employees or while taking decisions in an administrative capacity and not on the judicial side’.

● Article 13 – Laws inconsistent with or in derogation of the fundamental rights.

● Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental
rights shall be void.

● It provides for the “doctrine of judicial review”.

● The Supreme Court (according to Article 32) and the high courts (according to Article 226) can
declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental
Rights.

● The term ‘law’ in Article 13 has been given a wide connotation so as to include the following:

○ Permanent laws enacted by the Parliament or the state legislatures;

○ Temporary laws like ordinances issued by the president or the state governors;

○ Statutory instruments in the nature of delegated legislation (executive legislation) like order,
bye-law, rule, regulation, or notification; and

○ Non-legislative sources of law, that is, custom or usage having the force of law

● Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged
(24th amendment act).

● However, the Supreme Court held in the Kesavananda Bharati case (1973) that a Constitutional
amendment can be challenged on the ground that it violates a fundamental right that forms a part
of the ‘basic structure’ of the Constitution and hence, can be declared as void.

● Please note: The word “Judicial Review” is nowhere mentioned in the Constitution.

● Article 14: Equality before law and equal protection of laws

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

● Article 14 aims to establish the “Equality of Status and Opportunity” as embodied in the Preamble
of the Constitution.

● Equality before law – no one is above the law of the land.

● Equality before law: The absence of any special privileges in favor of any person. This concept
ensures the following,

○ The absence of any special privileges in favor of any person,

○ The equal subjection of all persons to the ordinary law of the land administered by ordinary
law courts, and
 ○ No person (whether rich or poor, high or low, official or non-official) is above the law.

● Note: Equality before law is taken from the British Constitution.

● Equal Protection of Laws: The equality of treatment under equal circumstances.

○ The equality of treatment under equal circumstances, both in the privileges conferred and
liabilities imposed by the laws,

○ The similar application of the same laws to all persons who are similarly situated, and

○ The like should be treated alike without any discrimination.

● Note: Equal Protection of Laws is taken from the American Constitution.

● The concept of ‘equal protection of the laws’ requires the State to give special treatment to persons
in different situations in order to establish equality amongst all. It is positive in character.

● Therefore, the necessary corollary to this would be that equals would be treated equally, whilst un-
equals would have to be treated unequally.

● These provisions confer rights on all persons whether citizens or foreigners.

● The word ‘person’ includes legal persons, viz, statutory corporations, companies, registered
societies or any other type of legal person.

● The Supreme Court held that the ‘Rule of Law’ as embodied in Article 14 is a ‘basic feature’ of the
constitution. Hence, it cannot be destroyed even by an amendment.

Rule of Law

● The guarantee of equality before the law is an aspect of what Dicey calls the Rule of Law in
England. It means that no man is above the law and that every person whatever be his rank or
condition is subject to the jurisdiction of ordinary courts.

● Rule of law requires that no person shall be subjected to harsh, uncivilized, or discriminatory
treatment even when the object is the securing of the paramount exigencies of law and order.

● Professor Dicey gave three meanings of the Rule of Law –

1. Absence of arbitrary power or supremacy of the law

● It means the absolute supremacy of law as opposed to the arbitrary power of the Government. In
other words – a man may be punished for a breach of the law, but he can’t be punished for anything
else.

2. Equality before the law

● It means subjection of all classes to the ordinary law of land administered by ordinary law courts.
This means that no one is above the law all are equal in eyes of the law

3. Absence of individual liberty

 ● There are various constitutions that provide individual liberty but do not provide methods. It means
that the source of the right of individuals is not the written constitution. The U.K. doesn’t have
provisions for individual liberty.

Rule of Law in India

1. Supremacy of Law:

● The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made to suffer
in body or goods except for a distinct breach of law established in the ordinary legal manner before
the ordinary courts of the land. It implies that a man may be punished for a breach of law but cannot
be punished for anything else. No man can be punished except for a breach of law. An alleged
offense is required to be proved before the ordinary courts in accordance with the ordinary
procedure.

2. Equality before Law:

● The Second meaning of the Rule of Law is that no man is above law. Every man whatever be his
rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the
ordinary tribunals. Everybody under Article 14 is equal before the law and has equal protection.

3. Individual Liberty

● A lot of individual liberty is mentioned like fundamental rights in Article 21- protection of life and
personal liberty, Article 19- Right to freedom, etc. and courts are there to protect individual liberty.

● The first and second aspect applies to the Indian system but the third aspect of the Dicey’s rule of
law does not apply to the Indian system as the source of right of individuals is the constitution of
India.

● The constitution is the supreme law of the land and all laws passed by the legislature must be
consistent with provisions of the constitution.

● The rule of law imposes a duty upon the state to take special measures to prevent and punish
brutality by police methodology. The rule of law embodied in article 14 is the basic feature of the
Indian constitution and hence it can’t be destroyed even by an amendment of the constitution under
article 368 of the constitution.

Exceptions to Equality

● The rule of equality before the law is not absolute and there are constitutional and other exceptions
to it. These are mentioned below:

○ The President or Governor of the state is not answerable to a court of law for exercising
their executive powers.

○ No criminal proceeding against the President or Governor of state can be instituted or

continued during their tenure in office.

○ No civil proceeding in which there is a claim of compensation can be instituted against the
President or Governor of the state except after the expiry of a 2-month notice issued
against them.
 ○ Under international law, foreign diplomats who are on a visit to India or posted here, and
leaders or heads of state on their official visit are not answerable in the local courts.

● Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of
birth

● Article 15 prohibits the state from discriminating against any citizen on the ground of any religion,
race, caste, sex, and place of birth, or any of them. It provides that there shall be no restriction on
any person on any of the above bases to access and use the public places.

● Exceptions:

● However, this Article does not prevent the State from making any special provisions for women or
children.

● For example, reservation of seats for women in local bodies or the provision of free education for
children.

● It also allows the State to extend special provisions for socially and educationally backward classes
for their advancement. It applies to the Scheduled Castes (SC) and Scheduled Tribes (ST) as well.

● For example, reservation of seats or fee concessions in public educational institutions.

● The state is empowered to make any special provision for the advancement of any socially and
educationally backward classes of citizens or for the scheduled castes or the scheduled tribes
regarding their admission to educational institutions including private educational institutions,
whether aided or unaided by the state, except the minority educational institutions (93rd
Amendment Act of 2005).

● In order to give effect to this provision, the Center enacted the Central Educational Institutions
(Reservation in Admission) Act, 2006, providing a quota of 27% for candidates belonging to the
Other Backward Classes (OBCs) in all central higher educational institutions including the Indian
Institutes of Technology (IITs) and the Indian Institutes of Management (IIMs).

Think! about Creamy layer,

In order to bring about real equality, preference given to the socially and educationally disadvantaged
group is justified.

● Article 16: Equality of opportunity in the matter of public employment

● Article 16 provides the guarantee of equality of opportunity in matters of public employment.

● Article 16(1) and 16(2) have laid down a general rule that there shall be equal opportunity for all
citizens and thus emphasizes on the universality of Indian Citizenship.

● No citizen can be discriminated against or be ineligible for any employment or office under the State
on grounds of only religion, race, caste, sex, descent, place of birth, or residence.

● Exceptions:
 ○ As per Article 16(3), residence qualifications may be made necessary in the case of
appointments under the state for particular positions, thus making the domicile provisions
stronger, however, the power is not vested in the states but in Parliament to prescribe the
requirement as to residence in the state.

○ Article 16(4) empowers the state to make special provisions for the reservation of
appointments or posts in favor of any “backward class of citizens” which in the opinion of
the state are not adequately represented in the services of the state.

○ Equality, as guaranteed in our Constitution, not only conceives of providing formal equality
but also to provide for real and absolute equality. Articles 14 and 15(1) enable and
contemplate classification to achieve the Constitutional Objective of real equality. Articles
15(4) and 16(4) flows out of Articles 15(1) and 16(1) respectively and can never be
considered as exceptions to Article 15(1) and Article 16(1).

103rd Constitutional Amendment Act: Changes in Article 15 and 16

● The Constitutional (103rd Amendment) Act got the assent of the President of India on 13th January
2018. It provides reservation of jobs in central government jobs as well as government educational
institutions. It is also applicable to admissions to private higher educational institutions.

● It applies to citizens belonging to the economically weaker sections from the upper castes.

● This reservation is “in addition to the existing reservations and subject to a maximum of ten percent
of the total seats in each category”.

● The Statement of Objects and Reasons of the Bill states that people from economically weaker
sections of the society have largely remained excluded from attending higher educational
institutions and public employment on account of their financial incapacity to compete with the
persons who are economically more privileged.

● The bill states that it is drafted with a will to mandate Article 46 of the Constitution of India, a
Directive Principle that urges the government to protect the educational and economic interests of
the weaker sections of society. While socially disadvantaged sections have enjoyed participation
in the employment in the services of the state, no such benefit was provided to the economically
weaker sections.

○ Article 15 (6) is added to provide reservations to economically weaker sections for

admission to educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institutions referred to in
clause (1) of Article 30. The amendment aims to provide reservations to those who do not
fall in 15 (5) and 15(4) (effectively, SCs, STs, and OBCs).

○ Article 16 (6) is added to provide reservations to people from economically weaker sections
in government posts.

○ An explanation states that “economic weakness” shall be decided on the basis of “family
income” and other “indicators of economic disadvantage.”

Equal pay for equal work:

● The principle of equal pay for equal work has not been specifically declared to be a Fundamental
Right under the Indian Constitution. But it certainly is a constitutional goal. The principle of equal
pay for equal work would be an abstract doctrine not attracting Article 1 4 if sought to be applied to
them.

● But the equality clause will have some substance if equal work means equal pay and such right is
deducible from Article 14 and 16 in the light of Preamble to the Constitution and Article 39(d) of the
Directive Principles of the Constitution.

● There cannot be any unequal scale of pay on the basis of no classification or irrational classification
when they do identical work under the same employer. Thus, the court makes liberal use of the
equality clause to make the directive of equal pay for equal work more authentically constitutional
than what it is.

● Article 17: Abolition of Untouchability

● Article 17 abolishes untouchability and its practice in any form is made punishable under the law.

● This was the article which was adopted with the cries of “Mahatma Gandhi ki Jai”.

● Note: The term ‘untouchability’ has not been defined either in the Constitution or in the Act.

● Accordingly, the Parliament passed the Untouchability (Offenses) Act, 1955.

● In 1976, this act was renamed the Civil Rights Act, 1955.

● Under the Protection of Civil Rights Act (1955), the offenses committed on the ground of
untouchability are punishable either by imprisonment up to six months or by fine up to Rs500 or
both.

● The act defines a civil right as any right accruing to a person by reason of the abolition of

● untouchability by Article 17 of the Constitution.

● A person convicted of the offense of ‘untouchability’ is disqualified for election to the Parliament or
state legislature.

● The Supreme Court held that the right under Article 17 is available against private individuals and
it is the constitutional obligation of the State to take necessary action to ensure that this right is not
violated.

● Article 18 – Abolition of titles except military and academic

● Article 18 prevents the state from confirming any title except military and academic distinction.

● Article 18 prohibits the Indian citizens from receiving titles from any foreign state.

● Article 18 abolished titles and makes four provisions in that regard:

a) It prohibits the state from conferring any title (except military or academic distinction) on anybody,
whether a citizen or a foreigner.

b) It prohibits a citizen of India from accepting any title from any foreign state.
 c) A foreigner holding any office of profit or trust under the state cannot accept any title from any
foreign state without the consent of the president.

d) No citizen or foreigner holding any office of profit or trust under the State is to accept any present,
emolument or office from or under any foreign State without the consent of the president.

● Note: The Supreme Court upheld the constitutional validity of the National Awards—Bharat
Ratna, Padma Vibhushan, Padma Bhushan, and Padma Sri. It ruled that these awards do
not amount to ‘titles’.

● Article 19 — Protection of certain rights regarding freedom of speech, etc.

1. Right to freedom of speech and expression.

● Why to protect freedom of speech?: Freedom of speech offers a human being to express his
feelings to others, but this is not the only reason; purpose to protect the freedom of speech. There
could be more reasons to protect these essential liberties. There are four important justifications
for freedom of speech –

○ For the discovery of truth by open discussion – According to it, if restrictions on speech are
tolerated, society prevents the ascertainment and publication of accurate facts and
valuable opinions. That is to say, it assists in the discovery of truth.

○ Free speech is an aspect of self- fulfillment, and development – freedom of speech is an

integral aspect of each individual’s right to self-development and self-fulfillment. Restriction
on what we are allowed to say and write or to hear and read will hamper our personality
and its growth. It helps an individual to attain self-fulfillment.

○ For expressing belief and political attitudes – freedom of speech provides an opportunity
to express one’s belief and show political attitudes. It ultimately results in the welfare of the
society and state. Thus, freedom of speech provides a mechanism by which it would be
possible to establish a reasonable balance between stability and social change.

○ For active participation in democracy – democracy is the most important feature of today’s
world. Freedom of speech is there to protect the right of all citizens to understand political
issues so that they can participate in the smooth working of democracy. That is to say,
freedom of speech strengthens the capacity of an individual in participating in decision-
making.

● It is apparent that the right to information was not spelled out as a separate right under Article 19.
However, it is now well-settled in a catena of cases that the right to freedom of speech and
expression enshrined in Article 19(1)(a) includes the right to information.

● In-State of U.P. v. Raj Narain, (1975) 4 SCC 428, it was observed that the right to know is derived
from the concept of freedom of speech.

● This was further confirmed in S.P. Gupta v. Union of India, 1981 Supp SCC 87, where it was held
that:

○ “The concept of an open Government is the direct emanation from the right to know which
seems to be implicit in the right of free speech and expression guaranteed under Article
19(1)(a). Therefore, disclosure of information in regard to the functioning of Government
 must be the rule and secrecy an exception justified only where the strictest requirement of
public interest so demands.”

● The law in this regard has been developed over the years, in Union of India v. Association for
Democratic Reforms, (2002) 5 SCC 294 and in PUCL v. Union of India, (2003) 4 SCC 399.

● In consonance with its duty, Parliament enacted the Right to Information Act in 2005.

2. Right to assemble peaceably and without arms.

● The right is however subject to the following restrictions:-

○ The assembly must be peaceful and harmonious;

○ It must be unarmed and not threatening the safety of the people;

○ Reasonable restrictions can be imposed under clause 3 of article 19.

● The right to assembly embodies the very idea of a democratic government. Article 19(1)(b) thus
includes the right to hold meetings and to take out processions. However, this right is not absolute
but restrictive in nature. The assembly must be non-violent and must not breach public peace.

3. Right to form associations or unions or co-operative societies.

● The right to form associations or unions has a very wide and varied scope including all sorts of
associations viz., political parties, clubs, societies, companies, organizations, entrepreneurship,
trade unions, etc.

● It was held in Kulkarni’s case that the right of association pre-supposes organization. It is an
organization or permanent relationship between its members in matters of common concern. It thus
includes the right to form companies, societies, partnerships, and trade unions.

● The right to form trade unions should not lead to the conclusion that trade unions have a guaranteed
right to effective collective bargaining or to strike as a part of collective bargaining or otherwise.
The right to strike or to declare a lock-out may be controlled or restricted by various industrial
legislations such as the Industrial Dispute Act or Trade Unions Act.

● Right to form association does not carry the right to recognition

● Right to form association does not carry the right to strike

● Right to form association does not carry the right to inform rival union

4. Right to move freely throughout the territory of India.

● Article 19(1)(d) of The Indian Constitution guarantees to all citizens of India the Right “to move
freely throughout the territory of India.” This Right is, however, subject to reasonable restrictions
mentioned under Article 19(5). Clause (5) of Article 19 empowers the State to impose reasonable
restrictions in the interest of the general public or for the protection of the interest of any Scheduled
Tribe.

● According to clause (5) of Article 19 of the Indian Constitution State may impose reasonable
restrictions on the Freedom of movement on two grounds:
 ○ In the Interest of General Public

○ For the Protection of Scheduled Tribes

5. Right to reside and settle in any part of the territory of India.

● Article 19(1)(e) of the Indian Constitution guarantees to every citizen of India, the right “to reside
and settle in any part of the territory of India”. This right is subjected to reasonable restrictions which
may be imposed by the State, a by-law under clause (5) of Article 19, in the interest of the general
public or for the protection of the interest of any Scheduled Tribe.

● Article 19(1)(d) and Article 19(1)(e) are Complementary

● It is to be noted that the right to reside [under Article 19(1)(e)] and the right to move [under Article
19(1)(d)] freely throughout the Country are complementary and often go together. Most of the
Cases considered under Article 19(1)(d) are relevant to Article 19(1)(e) also. The two rights,
therefore, were discussed together.

● The Freedom of Movement and Residence apply only to citizens of India and not the Foreigners.
A foreigner cannot claim the right to reside and settle in the country as guaranteed by Article
19(1)(e). The Government of India has the power to expel foreigners from India.

6. Right to practice any profession or to carry on any occupation, trade or business.

● All citizens are given the right to practice any profession or to carry on any occupation, trade, or
business. This right is very wide as it covers all the means of earning one’s livelihood.

● The State can impose reasonable restrictions on the exercise of this right in the interest of the
general public.

● The State can impose ‘reasonable’ restrictions on the enjoyment of these six rights only on the
grounds mentioned in Article 19 itself and not on any other grounds.

● Article 20: Protection in respect of conviction for offenses.

● Article 20 of the Constitution is with respect to protection in respect of conviction of an offense. It

imposes limitations on the powers of the State, which it otherwise possesses under Article 21, to
enact and enforce criminal laws.

● Article 20(2) is aimed at protecting an individual from being subjected to prosecution and conviction
for the same offense more than once.

● Article 20(3), which protects an individual against self-incrimination, has been termed a ‘humane’
Article. It gives protection to a person accused of an offense against compulsion to be a witness
against himself. This is in consonance with the expression ‘according to the procedure established
by law’, enshrined in Article 21, within the ambit of which just and fair trials lie.

● Article 20 grants protection against arbitrary and excessive punishment to an accused person,
whether citizen or foreigner or a legal person like a company or a corporation.

○ No ex-post-facto Legislation

○ No Double Jeopardy
 ○ No Self-incrimination

● Article 21: Protection of Life and Personal Liberty.

● Article 21 declares that no person shall be deprived of his life or personal liberty except according
to procedure established by law. This right is available to both citizens and noncitizens.

● Article 21 secures two rights:

○ Right to life

○ Right to personal liberty

● The expression “Procedure established by law” is a more definite phrase and this phrase finds a
place in the Japanese Constitution of 1946. It implies that the life and personal liberty of a person
cannot be encroached upon arbitrarily without the proper sanction and provision of law.

● Though the phraseology of Article 21 starts with a negative word, the word No has been used in
relation to the word deprived. The object of the fundamental right under Article 21 is to prevent
encroachment upon personal liberty and deprivation of life except according to the procedure
established by law.

● It clearly means that this fundamental right has been provided against the state only. If an act of
private individuals amounts to encroachment upon the personal liberty or deprivation of life of
another person, such violation would not fall under the parameters set for Article 21.

● In such a case the remedy for the aggrieved person would be either under Article 226 of the
constitution or under general law. But, where an act of a private individual supported by the state
infringes the personal liberty or life of another person, the act will certainly come under the ambit
of Article 21. Article 21 of the Constitution deals with the prevention of encroachment upon personal
liberty or deprivation of life of a person.

● The Supreme Court has reaffirmed its judgment in the Menaka case in subsequent cases. It has
declared the following rights as part of Article 21:

● (a)Right to live with human dignity.

● (b) Right to the decent environment including pollution-free water and air and protection against
hazardous industries.

● (c) Right to livelihood.

● (d) Right to privacy.

● (e) Right to shelter.

● (f) Right to health.

● (g) Right to free education up to 14 years of age.

● (h) Right to free legal aid.

● (i) Right against solitary confinement.

● (j) Right to speedy trial.

● (k) Right against handcuffing.

● (l) Right against inhuman treatment.

● (m) Right against delayed execution.

● (n) Right to travel abroad.

● (o) Right against bonded labor.

● (p) Right against custodial harassment.

● (q) Right to emergency medical aid.

● (r) Right to timely medical treatment in the government hospital.

● (s) Right not to be driven out of a state.

● (t) Right to fair trial.

● (u) Right of prisoners to have necessities of life.

● (v) Right of women to be treated with decency and dignity.

● (w) Right against public hanging.

● (x) Right to hearing.

● (y) Right to information.

● (z) Right to reputation.

● Article 21 A — Right to Education

● Article 21 A declares that the State shall provide free and compulsory education to all children of
the age of six to fourteen years in such a manner as the State may determine.

● Thus, this provision makes only elementary education a Fundamental Right and not higher or
professional education.

● This provision was added by the 86th Constitutional Amendment Act of 2002. This amendment is
a major milestone in the country’s aim to achieve “Education for All”.

● Even before this amendment, the Constitution contained a provision for free and compulsory
education for children under Article 45 in Part IV. However, being a directive principle, it was not
enforceable by the courts. Now, there is scope for judicial intervention in this regard.

● The Right of Children to Free and Compulsory Education (RTE) Act, 2009, which represents the
consequential legislation envisaged under Article 21-A, means that every child has a right to full-
time elementary education of satisfactory and equitable quality in a formal school which satisfies
certain essential norms and standards.
The RTE Act provides for the:

● Right of children to free and compulsory education till completion of elementary education in a
neighborhood school.

● It clarifies that ‘compulsory education’ means the obligation of the appropriate government to
provide free elementary education and ensure compulsory admission, attendance, and completion
of elementary education to every child in the six to fourteen age group. ‘Free’ means that no child
shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from
pursuing and completing elementary education.

● It makes provisions for a non-admitted child to be admitted to an age appropriate class.

● It specifies the duties and responsibilities of appropriate Governments, local authority, and parents
in providing free and compulsory education and sharing of financial and other responsibilities
between the Central and State Governments.

● It lays down the norms and standards relating inter alia to Pupil Teacher Ratios (PTRs), buildings
and infrastructure, school-working days, teacher-working hours.

● It provides for rational deployment of teachers by ensuring that the specified pupil-teacher ratio is
maintained for each school, rather than just as an average for the State or District or Block, thus
ensuring that there is no urban-rural imbalance in teacher postings.

● It also provides for prohibition of deployment of teachers for non-educational work, other

● than decennial census, elections to the local authority, state legislatures, and parliament, and

● disaster relief.

● It provides for the appointment of appropriately trained teachers, i.e. teachers with the requisite
entry and academic qualifications.

● It prohibits –

(a) physical punishment and mental harassment;

(b) screening procedures for admission of children;

(c) capitation fee;

(d) private tuition by teachers and

(e) running of schools without recognition,

● It provides for the development of curriculum in consonance with the values enshrined in the
Constitution, and which would ensure the all-round development of the child, building on the child’s
knowledge, potentiality, and talent and making the child free of fear, trauma, and anxiety through a
system of child-friendly and child-centered learning.

● Article 22: Preventive Detention

● Article 22 is also a very important Article which has given rise to so many controversial legislations.
● The issue related to this Article is the “issue of preventive detention’. Our purpose is to get the basic
idea of “preventive Detention” and related contemporary issues. Article 22 of the constitution of
India provides that:

● A person cannot be arrested and detained without being informed about the grounds of such
arrests.

● This means that before a person is arrested, he/ she must be informed that he is being arrested
and the reason why he/she is being arrested.

● A person who is arrested cannot be denied to be defended by a legal practitioner of his choice.

● This means that the arrested person has the right to hire a legal practitioner to defend himself/
herself.

● Every person who has been arrested would be produced before the nearest magistrate within 24
hours.

● The custody of the detained person cannot be beyond the said period by the authority of the
magistrate.

● Article 22(1) and 22(2) make the above provisions. However, Article 22(3) says that the above
safeguards are not available to the following:

● If the person is at the time being an enemy alien.

● If the person is arrested under certain law made for the purpose of “Preventive Detention”

● The first condition above is justified, because when India is in war, the citizen of the enemy country
may be arrested.

● The reasons for the introduction of such a clause were explained by Ambedkar thus:

○ “It has to be recognized that in the present circumstances of the country, it may be
necessary for the executive to detain a person who is tampering either with public order or
with the Defence Services of the country. In such a case, I do not think that the exigency
of the liberty of the individual shall be placed above the interests of the State.”

● Ambedkar, however, pointed out the safeguards provided in the Constitution to mitigate the
rigors of an apparently absolute power of preventive detention permitted under Article 22
(3).

1. First, every case of preventive detention must be authorized by law. It cannot be at the will
of the executive.

2. Secondly, no law of preventive detention shall normally authorize the detention of a person
for a longer period than three months.

3. Thirdly, every case of preventive detention for a period longer than three months must be
placed before an Advisory Board composed of persons qualified for appointment as Judges
of a High Court. Such cases must be placed before the Board within the three months
period.
 4. Fourthly, no person who is detained under any preventive detention law can be detained
indefinitely. There shall always be a maximum period of detention in which Parliament is
required to prescribe by law.

5. Fifthly, in cases that are required to be placed before the Advisory Board, the procedure to
be followed by the Board shall be laid down by Parliament.

6. Sixthly, when a person is detained under a law of preventive detention, the detaining
authority shall communicate to him the grounds on which the order has been made. It
should also afford him the earliest opportunity of making a representation against the order.

● Article 23 Prohibition of traffic in human beings and forced labour

● Article 23 prohibits traffic in human beings and forced labour such as beggars.

● This includes the slave trade where humans were sold for the purposes of sexual exploitation,
prostitution, or forced labor. It is more commonly known as the modern form of slavery as compared
to the olden times when it only meant having the slaves attend to various household problems.

● The term ‘begar’ has been used in this clause. It is a word in Indian English which means forced
labour with no compensation. When the British ruled our country, the begar system was in effect.
British officials and Zamindars used people with poor backgrounds to carry their personal
belongings from one place to another.

● The Zamindars, through cunning tricks, deceived generations of a family into working on their farms
for free. These activities come under forced labour and were rendered illegal through our
constitution. As per the provisions enshrined in the constitution, the government passed “The
Immoral Traffic (Prevention) Act 1956” and “The Bonded Labour System (Abolition) Act 1976”.

● The important points are:

○ In case of disasters or any such emergency situation where the government needs
additional help from the civilian workforce, even then it can’t have them work without paying
any remuneration. It still has to pay those workers the minimum wage set at that time.

○ We all know that the prisoners get paid for the work they do in jail. There are two cases
here. It is not a violation of Article 23 if the prisoners who are sentenced to rigorous
punishment are not paid for their work. However, any person who is under preventive
detention, normal sentence, or those under trials must be paid reasonable wages if they
want to work.

○ Now, let’s understand another related term, Bonded Labour.

○ It is also called forced labour. As clear as the name is, it doesn’t simply mean forced manual
work, but also the work done due to economical compulsions. For example, if a person is
forced to take up work that pays less than the predefined minimum wage, it is also a
violation.

● Article 24: Prevention of child labour

● Article 24 mandates that - ‘No child below the age of 14 years shall be employed to work in any
factory or mine or engaged in any other hazardous employment’.
 ● The Commissions for Protection of Child Rights Act, 2005 was enacted to provide for the
establishment of a National Commission and State Commissions for Protection of Child Rights and
Children’s Courts for providing speedy trial of offences against children or of violation of child rights.

● In 2006, the government banned the employment of children as domestic servants or workers in
business establishments like hotels, dhabas, restaurants, shops, factories, resorts, spas, tea-
shops, and so on. It warned that anyone employing children below 14 years of age would be liable
for prosecution and penal action.

● The Indian government had promulgated a legislation Child and Adolescent Labour (Prohibition
and Regulation) Act, 1986 (“CL Act”) to regulate child labor practices in India.

● The central legislature has made substantial changes in the provisions of the CL Act in the year
2016 and the said amendments have been made effective from July 30, 2016.

● Pursuant to the said amendment the name of the CL Act has been changed to ‘Child and
Adolescent Labour’ (Prohibition and Regulation) Act, 1986′. A complete prohibition has been
imposed on the employment of child labor (i.e. a person below the age of 14 years) in any
establishment whether hazardous or not.

Features -

● A child is permitted to work only to help family, in a family enterprise, or as a child artist after school
hours or during vacations.

● The amendment has introduced the concept of adolescent labour for the first time.

● An adolescent has been defined as a person between the ages of 14-18 years.

● The amendment permits the employment of adolescent labour except in hazardous processes or
occupation.

● The offences under the Act have now been made compoundable and cognizable notwithstanding
the provisions of the Criminal Procedure Code.

● The CL Act provides for the rehabilitation of children and adolescents who have been victims under
the provisions of the CL Act.

● It provides for setting up of the Child and Adolescent Labour Rehabilitation Fund in which all the
amounts of penalty have to be realised.

● Liability has been affixed upon the parents and guardian of the affected child/children separately
from the employers.

● The Act provides for increased penalty and imprisonment which shall not be less than 6 months
and may extend up to 2 years and fine which may vary between Rs. 20, 000 to Rs. 50,000.

● Previously, the violations under the CL Act were punishable with imprisonment of not less than
three months which could extend to one year or/and with a fine of ten thousand rupees which could
extend to twenty thousand rupees.

Critical Assessment –
 ● The new amendments put a complete prohibition on the employment of children, but at the same
time, it allows them to be employed in family enterprises/businesses.

● Considering that majority of child labor activities happen in the economically weaker section of the
society which is highly unregulated, no proper mechanism has been provided to keep the same in
check with the new amendments.

● According to UNICEF India, permitting children to work in their family enterprises would lead to
more children working in unregulated conditions. Section 3 which has this provision does not even
specify the hours of work. It simply states that children can help after school hours or during
vacations. It may restrict the children, especially the poor children belonging to low caste, to
traditional caste-based occupations for generations. Also, it may be difficult to determine whether
an enterprise is owned by a family or some person has employed the whole family to run the
enterprise.

● Further, the list of hazardous industries has been drastically decreased, this may allow the
employers in industries like chemical mixing units, cotton farms, battery recycling units, and brick
kilns, etc. (which are actually hazardous) to employ adolescent labor, which they may even get at
a much cheaper price.

● It is therefore more important now for the government to keep a check on the working conditions
for adolescent labour as well as the working conditions for children in family-run businesses. This
would require more personnel deployment which currently is in shortage.

● Article 25: Freedom of Conscience and Free Profession, Practice and Propagation of
Religion

● Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely
profess, practice, and propagate religion. The implications of these are:

● Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures
in whatever way he desires.

● Right to profess: Declaration of one’s religious beliefs and faith openly and freely.

● Right to Practice: the Performance of religious worship, rituals, ceremonies, and exhibition of beliefs
and ideas.

● Right to propagate: Transmission and dissemination of one’s religious beliefs to others or

exposition of the tenets of one’s religion. But, it does not include a right to convert another person
to one’s own religion. Forcible conversions impinge on the ‘freedom of conscience’ guaranteed to
all the persons alike.

● Article 25 covers not only Religious beliefs (doctrines) but also religious practices (rituals).

● These Rights are available to all persons - citizens as well as non-citizens.

Further, the state can impose reasonable restrictions on these Rights on the following grounds:

● Public Order

● Morality
 ● Health

● Other provisions relating to Fundamental Rights

● Further Article 25 also permits the State to:

○ Regulate or restrict any economic, financial, political, or other secular activity associated
with religious practice; (It means the state will not interfere in religious matters but it can
interfere with the economic, financial, political, and other matters of any religion or religious
practice)

○ Provide for social welfare and reform or throw open Hindu religious institutions of a public
character to all classes and sections of Hindus. ( In Hindu Religion there are a caste system
and a lot of discrimination on the grounds of Castes, so article 25 authorizes the state to
open the Hindu Religious Institutions for all Hindus).

Article 25 also contains two explanations:

● Wearing and carrying of kirpans is to include in the profession of the Sikh religion

● The Hindus, in this context, include Sikhs, Jains, and Buddhists.

● Article 26: Freedom to Manage Religious Affairs

● According to Article 26, every religious denomination or any of its section shall have the following
rights:

○ Right to establish and maintain institutions for religious and charitable purposes;

○ Right to manage its own affairs in matters of religion;

○ Right to own and acquire movable and immovable property; and

○ Right to administer such property in accordance with the law.

○ Religious Denomination: Meaning and Scope

● It has now been established through various judgments that three conditions must be satisfied in
order to qualify as a religious denomination under Article 26. These are:

○ It must be a collection of individuals who have a system of beliefs which they regard as
conducive to their spiritual well-being, i.e., common Faith

○ Common Organisation

○ Designated by a distinctive name

● Therefore, members belonging to different religions, satisfying the three tests, would be a
denomination within the meaning of Article 26. The expression ‘denomination’ can also be used for
members forming sects or sub-sects of a religion designated by a distinctive name.

● It is pertinent to note that, unlike Article 30, the benefit of Article 26 is not confined to ‘minority’
groups only. Sikhs, not a minority in Punjab, constitute a ‘religious denomination’13 and can thus
claim the benefit of Article 26.
● Article 27: Freedom from Taxation for Promotion of a Religion

● Article 27 lays down that no person shall be compelled to pay any taxes for the promotion or
maintenance of any particular religion or religious denomination.

● In other words, the State should not spend the public money collected by way of tax for the
promotion or maintenance of any particular religion.

● This provision prohibits the State from favouring, patronising, and supporting one religion over the
other.

● This means that the taxes can be used for the promotion or maintenance of all religions.

● The provision prohibits only the levy of a tax, not a fee. This is because the purpose of a fee is to
control the secular administration of religious institutions and not to promote or maintain the religion.
Thus, a fee can be levied on pilgrims to provide them with some special service or safety measures.
Similarly, a fee can be levied on religious endowments for meeting the regulation expenditure.

● Article 28: Freedom from Attending Religious Instruction

● Under Article 28, no religious instruction shall be provided in any educational institution wholly
maintained out of State funds.

● However, this provision shall not apply to an educational institution administered by the State but
established under any endowment or trust, requiring imparting religious instruction in such
institution.

● According to Article 28 (2), the above provision shall not apply to an educational institution
administered by the State but established under any endowment or trust, requiring imparting of
religious instruction in such institutions.

● According to Article 28 (3), No person attending any educational institution recognized by the State
or receiving aid out of State funds shall be required to attend any religious instruction or worship in
that institution without his consent. In the case of a minor, the consent of his guardian is needed.

● Thus, article 28 distinguishes between four types of educational institutions:

1. Institutions wholly maintained by the State

2. Institutions administered by the State but established under any endowment or trust.

3. Institutions recognized by the State.

4. Institutions receiving aid from the State.

● In (type-1 institutions) the Institutions wholly maintained by the State, religious instructions are
completely prohibited.

● In (type-2 institutions) the Institutions administered by the State but established under any
endowment or trust, religious instructions are permitted.

● In (type-3 and 4 institutions) Institutions recognized by the State and receiving aid from the State,
religious instruction is permitted on a voluntary basis.
 ● Article 29: Protection of interests of minorities

● Article 29 protects the interests of the minorities by making a provision that any citizen/section of
citizens having a distinct language, script, or culture have the right to conserve the same.

● Article 29 mandates that no discrimination would be done on the ground of religion, race, caste,
language, or any of them.

Principles of Article 29

● The Bombay High Court held that it embodied two important principles under Article 29:

● “One is the right of the citizen to select any educational institution maintained by the State and
receiving aid out of State funds. The State cannot tell a citizen, ‘you shall go to this school which I
maintain and not to the other’. Here we find reproduced the right of the parent to control the
education of the child.”

● To come up for detailed interpretation before the Supreme Court in two cases, both of which were
appeals from decisions of the Madras High Court, relating to admission to educational institutions
maintained by the State. After analysing the facts in detail the Court said:

Features of clauses under Article 29

● It protects the language, script or culture of sections of the citizens.

● It guarantees the fundamental right of an individual citizen. The right to get admission into any
educational institution of the kind mentioned.

● It is a right which an individual citizen has as a citizen and not as a member of any community or
class of citizens.

● On the other hand, if he has the academic qualifications but is refused admission only on grounds
of religion, race, caste, language or any of them, then there is a clear breach of his fundamental
right.”

● But the Court rejected this argument on the ground that this was a Directive Principle, a
nonjusticiable right and it could not override a Fundamental Right which was justiciable. It was the
duty of the Court to enforce a Fundamental Right.

● With the passing of the Forty-Second Amendment of the Constitution, this argument of the Court
has lost much of its force. According to the Amendment where there is a conflict between a
Fundamental Right and Directive Principle, Parliament may by law give precedence to the Directive
Principle.

● Article 29, enunciates the Fundamental Right of any section of citizens residing anywhere in India
to conserve its distinct language, script, or culture. No citizen can be denied admission to any
educational institution maintained or aided by the state on grounds of language or religion.

● Article 30: Right of minorities to establish and administer educational institutions

● Article 30 mandates that all minorities, whether based on religion or language, shall have the right
to establish and administer educational institutions of their choice.
 ● Article 30 is called a Charter of Education Rights.

● Madarasa are administered by Article 30.

● Article 30 provides an absolute right to the minorities that they can establish their own linguistic and
religious institutions and at the same time can also claim for grant-in-aid without any discrimination.

● The term ‘minority’ has not been defined anywhere in the Constitution.

● The right under Article 30 also includes the right of a minority to impart education to its children in
its own language.

● Minority educational institutions are of three types:

○ institutions that seek recognition as well as aid from the State;

○ institutions that seek only recognition from the State and not aid; and

○ institutions that neither seek recognition nor aid from the State.

● Article 31: Repealed

● Article 32: Right to Constitutional Remedies

● Article 32 was called “the very soul of the constitution and the very heart of it” by Dr. B R Ambedkar.

● Mere declaration of the fundamental right is meaningless until and unless there is an effective
machinery for enforcement of the fundamental rights.

● So, a right without a remedy is a worthless declaration. The framers of our constitution adopted the
special provisions in article 32 which provide remedies to the violated fundamental rights of a
citizen.

● Article 32 (1) says: The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

● Article 32 (2) says: The Supreme Court shall have the power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

● Why did Dr. Ambedkar consider the right to constitutional remedies as “heart and soul of the
constitution”?

● Because this right gives a citizen the right to approach a High Court or the Supreme Court to get
any of the fundamental rights restored in case of their violation.

● The Supreme Court and the High Courts can issue orders and give directives to the government
for the enforcement of rights.

What are the writs issued by the court?

● The courts can issue various special orders known as writs.

● Habeas corpus: This means that the court orders that the arrested person should be presented
before it. It can also order to set free an arrested person if the manner or grounds of arrest are not
lawful or satisfactory.

● Mandamus: Issued when the court finds that a particular officeholder is not doing legal duty and
thereby is infringing on the right of an individual.

● Prohibition: Issued by a higher court (High Court or Supreme Court) when a lower court has
considered a case going beyond its jurisdiction.

● Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office,
it issues the writ of quo warranto and restricts that person from acting as an officeholder.

● Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter
pending before it to the higher authority or court.

● ARMED FORCES AND FUNDAMENTAL RIGHTS

● Article 33 & 34 empower the Parliament to restrict, modify or abrogate the fundamental rights to
the members of armed forces, paramilitary forces, police forces, members of intelligence agencies
or similar services.

● This is required to make the proper discharge of their duties which are sensitive and urgent in
nature. This power is available only with parliament and not state legislatures. Further, such an act
cannot be challenged in a court on grounds of its being violative of fundamental rights.

● Further, court-martial (tribunals under the military law) have been exempted from the writ
jurisdiction of the Supreme Court and the high courts under Article 33.

● Using these powers, the parliament enacted various laws such as Army Act (1950), Navy Act
(1950), Air Force Act (1950), Police Forces (Restriction of Rights) Act, 1966 etc.

● Parliament has also the power to indemnify any person or the acts done by such person in the
service of the State if such acts are done by him during the enforcement of martial law in any area
within the territory of India.

● Martial Law and Fundamental Rights

● Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area
within the territory of India.

● It empowers the Parliament to indemnify any government servant or any other person for any act
done by him in connection with the maintenance or restoration of order in any area where martial
law was in force.

● The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of
contravention of any of the fundamental rights.

● The expression ‘martial law’ has not been defined anywhere in the Constitution.

● The Supreme Court held that the declaration of martial law does not ipso facto result in the
suspension of the writ of habeas corpus.
 ● EFFECTING CERTAIN FUNDAMENTAL RIGHTS

● Article 35 lays down that the power to make laws, to give effect to certain specified fundamental
rights, shall vest only in the Parliament and not in the state legislatures.

● This provision ensures that there is uniformity throughout India with regard to the nature of those
fundamental rights and punishment for their infringement.

● The FRs enshrined in Part III of the Constitution have met with a wide range and varied criticism.

Excessive Limitations

● They are subjected to innumerable exceptions, restrictions, qualifications, and explanations.

Hence, the critics remarked that the Constitution grants Fundamental Rights with one hand and
takes them away with the other.

No Social and Economic Rights

● The list is not comprehensive as it mainly consists of political rights. It makes no provision for
important social and economic rights like the right to social security, right to work, right to
employment, right to rest and leisure, and so on.

No Clarity

● It is alleged that the Constitution was made by the lawyers for the lawyers. Sir Ivor Jennings called
the Constitution of India a ‘paradise for lawyers’. The various phrases and words used in the chapter
like ‘public order’, ‘minorities’, ‘reasonable restriction’, ‘public interest’, and so on are not clearly
defined.

No Permanency

● They are not sacrosanct or immutable as the Parliament can curtail or abolish them, as for example,
the abolition of the fundamental right to property in 1978. Hence, they can become a play tool in
the hands of politicians having majority support in the Parliament.

● The judicially innovated ‘doctrine of basic structure’ is the only limitation on the authority of
Parliament to curtail or abolish the fundamental right.

Suspension during Emergency

● The suspension of their enforcement during the operation of National Emergency (except Articles
20 and 21) is another blot on the efficacy of these rights.

Expensive Remedy

● The judicial process is too expensive and hinders the common man from getting his rights enforced
through the courts. Hence, the critics say that the rights benefit mainly from the rich section of the
Indian Society.

Preventive Detention
 ● No democratic country in the world has made preventive detention an integral part of their
Constitution as has been made in India. It confers arbitrary powers on the State and negates
individual liberty.

No Consistent Philosophy

● Sir Ivor Jennings expressed this view when he said that the Fundamental Rights proclaimed by the
Indian Constitution are based on no consistent philosophy.25 The critics say that this creates
difficulty for the Supreme Court and the high courts in interpreting the fundamental rights.

● SIGNIFICANCE OF FUNDAMENTAL RIGHTS

● In spite of the above criticism and shortcomings, the Fundamental Rights are significant in the
following respects:

○ They constitute the bedrock of the democratic system in the country.

○ They provide necessary conditions for the material and moral protection of man.

○ They serve as a formidable bulwark of individual liberty.

○ They facilitate the establishment of rule of law in the country.

○ They protect the interests of minorities and weaker sections of society.

○ They strengthen the secular fabric of the Indian State.

○ They check the absoluteness of the authority of the government.

○ They lay down the foundation stone of social equality and social justice.

○ They ensure the dignity and respect of individuals.

○ They facilitate the participation of people in the political and administrative process.

● IMPORTANT JUDGEMENTS

● Indra Sawhney Case: Also called the mandal case, deals with reservations.

● Minerva Mills Case: Minerva Mills case 1980 was one of the landmark judgments of the Supreme
Court of India. It strengthened the ‘Doctrine of Basic Structure’ which was propounded by the court
in the historic Kesavananda Bharati case 1973

● 42nd CAA: No amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article whether before or after the commencement of
section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in
any court on any ground.

● Maneka Gandhi case: The right to travel and go outside the country is included in the right to
personal liberty guaranteed under Article 21. The Court ruled that the mere existence of an enabling
law was not enough to restrain personal liberty. Such a law must also be “just, fair and reasonable”
● AK Gopalan Case VS State of Madras: Ak Gopalan was a communist leader who was detained
in the Madras Jail under the Preventive Detention Act,1950, and challenged his detention by stating
that his civil liberty was being hampered as he had the right to equality of law.

● The supreme court examined that he was detained according to the procedure established by law
and rejected his argument. The supreme court at that point of the time believed that each article
was separate in the Indian constitution.

● Article 33 & 34

● It empowers the Parliament to restrict, modify, or abrogate the fundamental rights to the members
of armed forces, paramilitary forces, police forces, members of intelligence agencies, or similar
services.

● This is required to make the proper discharge of their duties which are sensitive and urgent in
nature. This power is available only with parliament and not state legislatures. Further, such an act
cannot be challenged in a court on the ground of its being violative of fundamental rights.

● Further, court-martial (tribunals under the military law) have been exempted from the writ
jurisdiction of the Supreme Court and the high courts under Article 33. Using these powers, the
parliament enacted various laws such as the Army Act (1950), Navy Act (1950), Air Force Act
(1950), Police Forces (Restriction of Rights) Act, 1966, etc.
 Chapter 6: Directive Principles of State Policy (DPSP)

● Directive Principle of State Policy provides guidelines to Central and State governments in India,
to be kept in mind while framing laws and policies and are mentioned in part 4 of the constitution.

● Articles 36-51 under Part-IV of Indian Constitution deal with Directive Principles of State Policy
(DPSP).

● The provisions contained in this Part cannot be enforced by any court, but these principles are
fundamental in the governance of the country and it shall be the duty of the State to apply these
principles in making laws.

● The framers of the Constitution borrowed this idea from the Irish Constitution of 1937,

● which had copied it from the Spanish Constitution. The American constitution did not have DPSP.

● While most of the Fundamental Rights are negative obligations on the state, DPSPs are positive
obligations on the state, though not enforceable in a court of law.

● Dr B R Ambedkar described these principles as ‘novel features’ of the Indian Constitution.

● DPSP + FR = Conscience of Indian Constitution

● Features of Directive Principle

● The basic aim of DPSPs is to set up social and economic goals before the lawmakers

● To bring socio-economic change in the country

● To fulfil the basic needs of the common man

● To reshape the structure of Indian society in the direction of greater socio-economic equality.

● DPSPs are fundamentals in the governance of the country and shall be considered dutifully by the
state while making laws, but DPSPs are not enforceable in a court of law.

● If a state fails to fulfil these obligations, one cannot go to a court of law

● DPSPs only provides a yardstick for measuring the success or failure of the government

● Articles 36 to 51 deal with the provisions of the Directive Principles and are broadly classified into:

○ Socialist principles

○ Gandhian principles
 ○ Liberal intellectual principles

Socialist Principles

● To secure a social order for the promotion of the welfare of the people.

● To strive to minimise inequalities of income i.e. operation of the economic system does not result
in the concentration of wealth and means of production to the common detriment;

● ownership and control of the material resources of the community are so distributed as best to
subserve the common good;

● Equal justice and free legal aid.

● Ownership and control of material resources of the community shall be so distributed so as to

subserve the common good.

● Equal pay for equal work.

● The Health and strength of workers and the tender age of children must not be abused.

● Right to work, to education, and to public assistance in certain cases.

● Provision of just and humane conditions for work and maternity relief.

● Participation of workers in the management of the industries.

● Duty of the State to raise the level of nutrition and the standard of living and to improve public
health.

● Children are given opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment.

Liberal Principles

● Uniform Civil Code for the citizens.

● Provide free and compulsory education for children below 14 years.

● Separation of Judiciary from Executive.

● To promote international peace and amity.

● Protection of monuments and places and objects of national importance

● Protection and improvement of the environment and safeguarding of forests and wildlife.

The Gandhian Principles

● Organisation of Village Panchayats (Article -40) and to promote the cottage industry. (Article -43)

● Promotion of educational and economic interests of the SCs, the STs, and the other weaker
sections of the society. (Article -46)
● To bring about the prohibition of intoxicating drinks and drugs that are injurious to health.

● Organisation of agriculture and animal husbandry on modern and scientific lines to prohibit the
slaughter of cows, calves, and other milch and draught animals.

● Article 36: Definition

● In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III.

● Article 37: Application of the principles contained in this Part

● The provisions contained in this Part shall not be enforced by any court, but the principles therein
laid down are nevertheless fundamental in the governance of the country, and it shall be the duty
of the State to apply these principles in making laws.

● Article 38: State to secure a social order for the promotion of welfare of the people

● The State shall strive to promote the welfare of the people by securing and protecting as effectively
as it may a social order in which justice, social, economic, and political, shall inform all the
institutions of national life.

● The State shall, in particular, strive to minimise the inequalities in income, and endeavour to
eliminate inequalities in status, facilities, and opportunities, not only amongst individuals but also
amongst groups of people residing in different areas or engaged in different vocations.

● Article 39: Certain principles of policy to be followed by the State

● The State shall, in particular, direct its policy towards securing –

● that the citizen, men, and women equally, have the right to an adequate means of livelihood;

● that the ownership and control of the material resources of the community are so distributed as
best to subserve the common good;

● that the operation of the economic system does not result in the concentration of wealth and means
of production to the common detriment;

● that there is equal pay for equal work for both men and women;

● that the health and strength of workers, men, and women, and the tender age of children are not
abused and that citizens are not forced by economic necessity to enter avocations unsuited to their
age or strength;

● that children are given opportunities and facilities to develop in a healthy manner and in conditions
of freedom and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment.

● Article 39A: Equal justice and free legal aid

● The State shall secure that the operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in
any other way, to ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities.
 ● Article 40: Organisation of village panchayats

● The State shall take steps to organise village panchayats and endow them with such powers and
authority as may be necessary to enable them to function as units of self-government.

● Article 41: Right to work, to education and to public assistance in certain cases

● The State shall, within the limits of its economic capacity and development, make effective provision
for securing the right to work, to education, and to public assistance in cases of unemployment, old
age, sickness and disablement, and in other cases of undeserved want.

● Article 42: Provision for just and humane conditions of work and maternity relief

● The State shall make provision for securing just and humane conditions of work and for maternity
relief

● Article 43: Living wage, etc., for workers

● The State shall endeavour to secure, by suitable legislation or economic organisation or in any
other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work
ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities
and, in particular, the State shall endeavour to promote cottage industries on an individual or co-
operative basis in rural areas.

● Article 43A: Participation of workers in the management of industries

● The State shall take steps, by suitable legislation or in any other way, to secure the participation of
workers in the management of undertakings, establishments or other organisations engaged in any
industry.

● Article 44: Uniform civil code for the citizen

● The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of
India.

Article 45: Provision for free and compulsory education for children

● Substitution of new article for article 45.- For article 45 of the Constitution, the following article shall
be substituted, namely: -.

● Provision for early childhood care and education to children below the age of six years. The State
shall endeavour to provide early childhood care and education for all children until they complete
the age of six years.”

● Article 46: Promotion of educational and economic interests of Scheduled Castes,

Scheduled Tribes, and other weaker sections

● The State shall promote with special care the educational and economic interests of the weaker
sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and
shall protect them from social injustice and all forms of exploitation.

● Article 47: Duty of the State to raise the level of nutrition and the standard of living and to
improve public health
 ● The State shall regard the raising of the level of nutrition and the standard of living of its people and
the improvement of public health as among its primary duties and, in particular, the State shall
endeavour to bring about prohibition of the consumption except for the medicinal purpose of
intoxicating drinks and of drugs which are injurious to health.

● Article 48: Organisation of agriculture and animal husbandry

● The State shall endeavour to organise agriculture and animal husbandry on modern and scientific
lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting
the slaughter, of cows and calves and other milch and draught cattle.

● Article 48A: Protection and improvement of environment and safeguarding of forests and
wildlife

● The State shall endeavour to protect and improve the environment and to safeguard the forests
and wildlife of the country.

● Article 49: Protection of monuments and places and objects of national importance

● It shall be the obligation of the State to protect every monument or place or object of artistic or
historic interest, declared by or under law made by Parliament to be of national importance, from
spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

● Article 50: Separation of judiciary from the executive

● The State shall take steps to separate the judiciary from the executive in the public services of the
State.

● Article 51: Promotion of international peace and security

a) The State shall endeavour to –

b) promote international peace and security;

c) maintain just and honourable relations between nations;

d) foster respect for international law and treaty obligations in the dealings of organised people with
one another; and

e) encourage settlement of international disputes by arbitration.

The 42nd Amendment Act of 1976 added four new Directive Principles to the original list. They
are:

1) To secure opportunities for the healthy development of children (Article 39).

2) To promote equal justice and to provide free legal aid to the poor (Article 39 A).

3) To take steps to secure the participation of workers in the management of industries (Article 43
A).

4) To protect and improve the environment and to safeguard forests and wildlife (Article 48 A).
 ● The 44th Amendment Act of 1978 added one more Directive Principle, which requires the State
to minimise inequalities in income, status, facilities, and opportunities (Article 38).

● The 86th Amendment Act of 2002 changed the subject-matter of Article 45 and made elementary
education a fundamental right under Article 21 A.

● The 97th Amendment Act of 2011 added a new Directive Principle relating to co-operative
societies.

● It requires the state to promote voluntary formation, autonomous functioning, democratic control,
and professional management of co-operative societies (Article 43B).

● Directives in other parts of the Constitution (Except part IV)

● Article 350 A: It enjoins every State and every local authority within the State to provide adequate
facilities for the instructions in the mother tongue at the primary stage to children of linguistic
minority areas.

● Article 351: It enjoins the Union to promote the spread of the Hindi language so that it may serve
as a medium of expression of all the elements of the composite culture of India.

● Article 335: It says that the claims of SC/ST shall be taken into consideration, consistently with the
maintenance of efficiency of administration, in the making of appointments to services and posts in
connection with affairs of the Union or of a State.

● Under the implementation of DPSP, Zamindari, Jagirdari, and Inamdari systems were abolished
and actual tillers of the soil were made the owner of the land.

● Criticism to DPSP

● Many critics have been very vocal in criticising the existence of unenforceable pious declarations
(Directive Principles) in the Constitution of India.

● K.T. Shah compares DPSP to a cheque payable by the bank at its convenience.

Main Points of Criticism:

● Lack of Legal Force:

○ The critics hold that as unenforceable directives, these principles do not carry any weight.
Their violation or non-realization cannot be challenged in any court.

● Mere Declarations:

○ The Directive Principles are the mere declaration of intentions or instructions which are to
be observed and secured by the State at will. The Constitution neither makes them
justiciable nor fixes the time- limit within which these are to be secured.

● Unsystematic Enumeration and No Classification:

 ○ Another point of criticism against the Directive Principles has been that these have been
neither systematically stated nor properly classified. These appear to be a collection of
some pious declarations which have only a moral value.

● Lack of Clarity:

○ Several Directives lack clarity. Several principles have been repeated in different places.
The Directive to promote international peace and friendly cooperation among all the nations
is a laudable declaration. But the real issue is how to secure it? No clear guideline has
been given for this purpose.

● Reactionary in Nature:

○ Many critics hold that written during 1947-49, several of the Directives appear to be
reactionary in contemporary times. The party in power at a particular time can use some
of the directives for political and selfish ends. Moreover, enumeration of these principles
involves an attempt to unduly bind the present with the past.

● Impracticability of some of the Principles:

○ Part IV includes some directives which cannot be realised in actual practice. The ideal is
to introduce prohibition, but this ideal cannot be really and effectively realised. The states
which introduced prohibition had to, later on, scrap it.

● Obsolete Philosophical Foundations:

○ Most of the Directive Principles incorporated in this part of the Constitution are based on
age-old and foreign philosophical foundations (Fabian Socialism). The philosophy of
Fabian Socialism has lost much of its relevance in contemporary times.

● Superfluous:

○ Many critics hold that the Directive Principles merely restate the objectives and goals
clearly stated in the Preamble of the Constitution. Their description in Part IV has made
things more complex and complicated.

● Mere Promises:

○ Directive principles are designed to serve as pious promises for creating an impression
about a just exercise of the power of the State. Their aim is to secure support through
promise-making and not action. On the basis of these arguments, the critics severely
criticise the existence and scope of Part IV of the Constitution.

● Significance of Directive Principles

● Directive Principles are backed by Public Opinion:

○ It is true that Directive Principles are non-justiciable. These are not backed by legal
sanctions. However, these are backed by public opinion, which is in reality the real sanction
behind every law.

● Provide for a Welfare State:

 ○ The Directive Principles clearly lay down the philosophical foundations of a welfare polity.
These make it a responsibility of the State to secure it through welfare legislation. These
also provide that a welfare state stands for securing Justice - social, economic, and political
for all the people.

● Importance as Moral Ideals:

○ Directive Principles are true of the nature of moral ideals. They constitute a moral code for
the State. This does not reduce their value. Through these, the founding fathers placed
before the nation the goals and ideals which are to be achieved through future legislation.

○ The state is a human social institution. The government is always made and managed by
the people. Just as people have a moral code that guides their behaviour in society,
likewise there is every justification for the existence of a moral code for the men who form
and run the government of the state.

● Directives Constitute a Guide for the State:

○ Directive Principles act as a guide to the government for making policies and laws for the
purpose of securing justice and welfare.

● Source of continuity in Policies:

○ The Directive Principles are a source of continuity in the policies of the government. In a
democratic system, the governments change after regular intervals and each new
government has to make policies and laws. The presence of Directive Principles ensures
that every government, whether it is formed by a rightist or a leftist party, will exercise its
power for implementing Directive Principles.

● Directive Principles are Supplementary to the Fundamental Rights:

○ Directive Principles are the positive directions to the State for securing and strengthening
the socio-economic dimension of Indian democracy. These aim at the establishment of
socio-economic democracy. These are supplementary to Fundamental Rights which
provide for civil and political rights and freedoms.

● Yardstick for measuring the Worth of the Government:

○ Directive Principles of State Policy constitute a yardstick with which the people can
measure the worth of a government. A government that ignores the task of implementing
the Directive Principles can be rejected by the people in favor of a government by another
political party which can be expected to give due importance to the task of securing the
Directive Principles.

● Helpful in the interpretation of the Constitution:

○ The Directive Principles constitute a manifesto of the aims and goals of the nation. These
reflect the wisdom and views of the founding fathers of the constitution. These reflect the
philosophy of the Constitution and hence provide useful help to the courts in their task of
interpreting the Constitution.

● Ambiguity of Directive Principles is Useful:

 ○ The Directive Principles have been couched in words that are not very rigid in their
meanings. This ambiguity has been helpful in so far as it helps the State to interpret and
apply these principles in accordance with the socio-economic environment which prevails
at a given time.

Thus, the inclusion of Part IV containing the Directive Principles of

State Policy in the Constitution has been a welcome, worthwhile, and useful decision. The Directive
Principles provide for necessary and good foundations for the Indian state as a democratic and welfare
polity. The securing of Directive Principles alone can complete our democratic system, supplement the
Fundamental Rights of the people, and build a welfare state characterised by Justice, Liberty, Equality, and
Fraternity. In the words of M.C. Chagla, “If all these principles are carried out, our country would indeed be
a heaven on earth.”

● Inter-relationship between fundamental rights, and directive principles

● The question of the relationship between the Directive Principles and the Fundamental rights has
caused some difficulty, and the judicial attitude has undergone a transformation on this question
over time.

● What if a law enacted to enforce a directive principle infringes a fundamental right? On this
question, the judicial view has veered round from irreconcilability to integration between the
Fundamental Rights and Directive Principles and in some of the more recent cases, to giving
primacy to the Directive Principles.

● Initially, the courts adopted a strict and literal legal position in this respect. The Supreme Court
adopted the literal interpretive approach to Art. 37 ruled that a Directive Principle could not override
a Fundamental right and that in case of conflict between the two, the Fundamental right would
prevail over the Directive Principle.

The Supreme Court in State of Madras v. Champakam Dorairajan,

● “The Directive Principles of state policy, which by Art. 37 are expressly made unenforceable by a
court that cannot override the provisions found in part III (fundamental rights) which,
notwithstanding other provisions, are expressly made enforceable by appropriate writs, orders, or
directions under article 32.

● The chapter on fundamental rights is sacrosanct and not liable to be abridged by any legislative or
executive act or order, except to the extent provided in the appropriate article in part III. The
Directive Principles of state policy have to conform to and run as subsidiary to the chapter on
Fundamental Rights.”

● In course of time, The Supreme Court started giving a good deal of value to the Directive principles
from a legal point of view and started arguing for harmonising the two the Fundamental rights and
Directive Principles.

In Kerala Education Bill the observed -

● “nevertheless, in determining the scope and ambit of the Fundamental rights relied upon by or on
behalf of any person or body, the court may not entirely ignore these Directive Principles of state
policy laid down in part IV of the constitution but should adopt the principle of harmonious
construction and should attempt to give effect to both as much as possible’’.
 ● The Supreme Court began to assert that there is “no conflict on the whole” between the
fundamental rights and the directive principles. ‘They are complementary and complementary to
each other’.

In the Golak Nath case,

● The Supreme Court there emphasised that the fundamental rights and directive principles formed
an “integrated scheme” which was elastic enough to respond to the changing needs of the society.

In Kesavananda Bharati v. State of Kerala, the court observed:

● “the fundamental rights and directive principles constitute the “conscience of the constitution” there
is no antithesis between the fundamental rights and directive principles and one supplement the
other.”

● “both parts III (fundamental rights) and IV (directive principle) have to be balanced and a
harmonised then alone the dignity of the individual can be achieved they were meant to supplement
each other.,”

● The Directive principles and Fundamental rights are not now regarded as exclusionary of each
other. They are regarded as supplementary and complementary to each other. In course of time,
the judicial attitude has veered from irreconcilability to integration of the fundamental rights and the
directive principles. The directive principles which have been declared to be “fundamental” in the
governance of the country cannot be isolated from fundamental rights. The directive principles have
got to be read into the fundamental rights. An example of such a relationship is furnished by the
“right to education”.

In Minerva Mills, -

● The court said that the fundamental rights “are not an end in themselves but are the means to an
end.” The end is specified in the directive principles. It was further observed in the same case that
the fundamental rights and directive principles together “constitute the core of the commitment to
social revolution and they, together, are the conscience of the constitution.” The Indian constitution
is founded on the bedrock of “balance” between the two. “To give absolute primacy to one over the
other is to disturb the harmony of the constitution. This harmony and balance between fundamental
rights and directive principles is an essential feature of the basic structure of the constitution.”

In Dalmia Cement, -

● The Supreme Court has emphasised that the core of the commitment of the constitution to the
social revolution through rule of law lies in effectuation of the fundamental rights and directive
principles as supplementary and complementary to each other. The preamble to the constitution,
fundamental rights, and directive principles-the trinity-are the conscience of the constitution.

● The next step in the direction of giving primacy to all directive principles over the fundamental rights
was taken in 1976 when all directive principles sought to be given precedence over Arts. 14, 19,
and 31 by the 42nd amendment.

● But the Supreme Court did not uphold this Amendment as constitutional. The main theme of the
court’s pronouncement was that the constitution is based on the “bedrock of balance” between the
directive principles and fundamental rights and to give absolute primacy to one over the other would
disturb this balance.
 ● Both can co-exist harmoniously. The goals set out in the directive principles are to be achieved
without abrogating the fundamental rights. Both can flourish happily together.

The principle was restated recently by the Supreme Court in I.R. Coelho v. State of T.N.

● “By enacting fundamental rights and directive principles which are negative and positive,
obligations of the states, the constituent assembly made it the responsibility of the government to
adopt a middle path between individual liberty and the public good. Fundamental rights and
directive principles have to be balanced. The balance can be tilted in favour of the public good. The
balance, however, cannot be overturned by completely overriding individual liberty. This balance is
an essential feature of the constitution.

● Implementation of directive principles

● Since 1950, the successive governments at the Centre and in the states have made several laws
and formulated various programs for implementing the Directive Principles. These are mentioned
below:

● The successive Five-Year Plans aimed at securing socio-economic justice and reducing
inequalities of income, status, and opportunities. In 2015, the Planning Commission was replaced
by a new body called NITI Aayog (National Institution for Transforming India).

● Almost all the states have passed land reform laws to bring changes in the agrarian society and to
improve the conditions of the rural masses. These measures include-

○ abolition of intermediaries like zamindars, jagirdars, inamdars, etc;

○ tenancy reforms like the security of tenure, fair rents, etc;

○ the imposition of ceilings on land holdings;

○ distribution of surplus land among the landless labourers; and

○ cooperative farming.

● The Minimum Wages Act (1948), the Payment of Wages Act (1936), the Payment of Bonus Act
(1965), the Contract Labour Regulation and Abolition Act (1970), the Child Labour Prohibition and
Regulation Act (1986), the Bonded Labour System Abolition Act (1976), the Trade Unions Act
(1926), the Factories Act (1948), the Mines Act (1952), the Industrial Disputes Act (1947), the
Workmen’s Compensation Act (1923) and so on have been enacted to protect the interests of the
labor sections.

● In 2006, the government banned child labor. In 2016, the Child Labour Prohibition and Regulation
Act (1986) was renamed as the Child and Adolescent Labour Prohibition and Regulation Act, 1986.

● The Maternity Benefit Act (1961) and the Equal Remuneration Act (1976) have been made to
protect the interests of women workers.

● Various measures have been taken to utilise the financial resources for promoting the common
good. These include nationalisation of life insurance (1956), the nationalisation of fourteen leading
commercial banks (1969), nationalisation of general insurance (1971), abolition of Privy Purses
(1971), and so on.
● The Legal Services Authorities Act (1987) has established a nation-wide network to provide free
and competent legal aid to the poor and to organise Lok adalats for promoting equal justice. Lok
Adalat is a statutory forum for conciliatory settlement of legal disputes. It has been given the status
of a civil court. Its awards are enforceable, binding on the parties, and final as no appeal lies before
any court against them.
 Chapter 7: Fundamental Duties (Article 51A)

● Fundamental Duties

● Part IV-A of the Indian Constitution deals with Fundamental Duties. As of now, there are 11
Fundamental duties.

● Originally, the Constitution contained only the Fundamental Rights (FRs) and did not contain these
duties.

● Fundamental duties were added by 42nd and 86th Constitutional Amendment acts, which is
inspired by the Constitution of erstwhile the USSR.

● None of the Constitutions of major democracies contain FDs (except Japan)

● Socialist countries gave equal importance to the FRs and FDs of the citizens.

● Swaran Singh Committee Recommendations

● In 1976, the Congress party set up the Sardar Swaran Singh Committee to make recommendations
about FDs the need of which was felt during the operation of the internal emergency (1975 – 1977)

● Committee recommended the inclusion of FDs in the Constitution.

● It stressed that citizens apart from enjoying the rights also have certain duties to perform.

● The Congress govt accepted these recommendations and enacted the 42nd Constitutional
Amendment Act,1976

● The Swaran Singh Committee suggested the incorporation of 8 FDs but 42nd CAA, 1976 included
10 FDs.

● Recommendations of Committee which were not included –

● Parliament may provide for the imposition of penalty/punishment for any noncompliance with or
refusal to observe any duties.

● No law imposing such penalty/punishment shall be called in question in any court on the grounds
of infringement of any FRs or repugnancy to any other provision of the Constitution.

● Duty to pay taxes should also be an FD.

42nd Constitutional Amendment Act, 1976

● This amendment added a new part, PART IV A to the Constitution.

● This new part IV A consists of one Article Article 51 A

● Article 51 A = initially consisted of 10 FDs of the citizens.

86th Constitutional Amendment Act, 2002

● To provide opportunities for education to his child or ward between the age of 6 – 14yrs
List of Fundamental Duties in Article 51 A

● To abide by the Constitution and respect its ideals and institutions, National Flag, and National
Anthem.

● To cherish and follow the noble ideals that inspired the national struggle for freedom.

● To uphold and protect the sovereignty, unity, and integrity of India.

● To defend the country and render national service when called upon to do so.

● To promote harmony and the spirit of brotherhood among all the ppl of India, linguistic and regional
or sectional diversities, and to renounce practices derogatory to the dignity of women.

● To value and preserve the rich heritage of the county’s composite culture.

● To protect and improve the natural environment (forests, lakes, rivers, and wildlife) and to have
compassion for living creatures.

● To develop the scientific temper, humanism, and the spirit of inquiry and reform.

● To safeguard public property and to abjure violence.

● To strive towards excellence in all spheres of individual and collective activity so that the nation
constantly rises to a higher level of endeavour and achievement.

● To provide opportunities for education to his child or ward between the age of 6 – 14yrs – added in
the 86th Constitutional Amendment Act, 2002.

Amendment of article 51A – In article 51A of the Constitution, after clause (J), the following clause
shall be added, namely: “(k) who is a parent or guardian to provide opportunities for education to his
child or, as the case may be, ward between the age of six and fourteen years“.

● Features of the Fundamental Duties

● Some of them are Moral Duties (Ex. Cherishing noble ideals of freedom struggle)

● Some of them are Civic Duties (Ex. Respecting the institution, National Flag/Anthem)

● They refer to such values that have been a part of the Indian tradition, mythology, religions, and
practices.

● Essentially contain just a codification of tasks integral to the Indian way of life.

● FDs are confined to citizens only, do not extend to foreigners (FRs = extend to all: Citizens +
Foreigners)

● Like DPSPs, FDs are also a non-justiciable: Constitution that doesn’t provide for direct enforcement
by the courts.

● There is no legal sanction against their violation (however the Parliament is free to enforce them
by suitable legislation)
● Criticism of Fundamental Duties

● The list of duties is not exhaustive; it doesn’t cover important duties like casting a vote, paying
taxes, family planning, and so on.

● Some of the duties are vague, ambiguous, and difficult to understand (Ex. Phrases like Noble
ideals, scientific temper, etc.)

● They have been described by the critics as – code of moral precepts due to their nonjusticiable
character.

● Their inclusion in the constitution is superfluous: this is because the duties included in the
Constitution would be performed by the people even though they were not incorporated in the
Constitution.

● The inclusion of FDs as an appendage to Part IV has reduced their value and significance; they
should have been added after part III so as to keep them on par with FRs.

● Significance of Fundamental Duties

● It serves as a reminder to the citizens that while enjoying their rights, they should also be conscious
of duties they owe to their country, their society, and fellow citizens.

● It serves as a warning against the national and antisocial activities (destroying public
property/burning national flag)

● Serve as a source of inspiration and promotes discipline and commitment; creates a feeling that
citizens are not mere spectators but active participants in the realisation of national goals.

● They help the courts in determining the constitutional validity of a law.

 ● They are enforceable by law. Hence, Parliament can provide for the imposition of
penalty/punishment for failure to fulfil any of them.

● Their inclusion helps in strengthening democracy.

● Verma Committee Observations (1999)

● Verma Committee Observations (1999) identified the existence of legal provisions in line with FDs

● The Prevention of Insults to National Honour Act (1971): prevents disrespect to the Constitution,
National Flag, and National Anthem.

● Various Criminal Laws – punishments for encouraging enmity between different sections of people.

● The Protection of Civil Rights, 1955, or The Untouchability (Offences) Act, 1976 – punishes for
offences related to caste and religion.

● Indian Penal Code (IPC) – declares the imputations and assertions prejudicial to national
integration as punishable offences.

● The Unlawful Activities (Prevention) Act, 1967 – provides for the declaration of a communal
organisation as an unlawful association.

● The Representation of Peoples Act, 1951 – provides for disqualification of MPs/MLAs for indulging
in corrupt practices or soliciting votes on the grounds of religion or promoting enmity between
different sections of ppl.

● The Wildlife (Protection) Act, 1972 – prohibits trade in rare and endangered species.

● The Forest (Conservation) Act, 1980 – checks indiscriminate deforestation and diversion of forest
lands for non-forest purposes.

● RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND FUNDAMENTAL DUTIES

● As provided in Article 32 of the Constitution (which itself is a fundamental right) fundamental rights
are enforceable through the Supreme Court. The High Court also under Article 226 can issue Writs
etc. for enforcement of fundamental rights. However, Fundamental Duties are not enforceable
through courts.

● The Courts while interpreting Fundamental Rights or any restrictions imposed on such rights may
take into account the Fundamental Duties and also the Directive Principles of the State policy
enshrined in Part IV of the Constitution.

● In-State of Gujarat v. Mirzapur (2005), while considering provisions of Articles 48, 48-A and also
Article 51-A(g), the Supreme Court held:

○ “. It is thus clear that faced with the question of testing the constitutional validity of any
statutory provision or an executive act, or for testing the reasonableness of any restriction
cast by law on the exercise of any fundamental right by way of regulation, control or
prohibition, the directive principles of State policy and fundamental duties as enshrined in
Article 51-A of the Constitution play a significant role.”

In Ramlila Maidan Incident, In Re, (2012) it was held:

● “There has to be a balance and proportionality between the right and restriction on the one hand,
and the right and duty, on the other. It will create an imbalance if the undue or disproportionate
emphasis is placed upon the right of a citizen without considering the significance of the duty. The
true source of right is a duty. When the courts are called upon to examine the reasonableness of a
legislative restriction on the exercise of freedom, the fundamental duties enunciated under Article
51-A are of relevant consideration. Article 51-A requires an individual to abide by the law, to
safeguard public property, and to abjure violence. It also requires the individual to uphold and
protect the sovereignty, unity, and integrity of the country. All these duties are not insignificant.’’

● Fundamental Rights guaranteed under Part III of the Constitution are important natural rights
necessary for the development of human beings. They are enforceable through a court of law. No
law can be made which takes away or abridges any fundamental rights. On the other hand,
Fundamental Duties though not enforceable, are always taken into account while interpreting any
fundamental rights.
 Chapter 8: Important Amendments in Indian Constitution

● The Constitution provides for its amendment in order to adjust itself to the changing conditions and
needs.

● The Indian Constitution is neither flexible nor rigid but a synthesis of both.

● Article 368 in Part XX – deals with the powers of the Parliament to amend the Constitution and its
procedure.

● Article 368 states that “the Parliament may amend by way of addition, variation or repeal any
provision of the Constitution in accordance with the procedure laid down for the purpose”.

● However, the Parliament cannot amend those provisions which form the ‘basic structure’ of the
Constitution – ruled by the Supreme Court in the Kesavananda Bharati v. State of Kerala (1973)
case.
● Procedure for Amendment as Laid Down in Article 368 Part XX

● Amendment of the Constitution can be initiated only by the introduction of a bill in either of the
House and not in the state legislatures.

● The Bill can be introduced either by a minister or by a private member and doesn’t require prior
permission of the President.

● The bill must be passed in each House by a Special Majority**

● Each House must pass the bill separately. In case of a disagreement between the 2 Houses, there
is no provision for holding a joint sitting of the 2 Houses.

● If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the
state legislatures of half of the states by a simple majority#
● After duly passed by both Houses and ratified by the state legislatures, the Bill is presented to the
President for assent.

● The President must give his assent; he can neither withhold his assent to the bill nor return the bill
for reconsideration of the Parliament.

● After the President’s assent, the Bill becomes an Act (CAA).

● Types of Majority

● Simple Majority

○ Simple majority or working majority refers to the majority of more than 50% of the members
present and voting.

○ Example:

■ The total strength of Lok Sabha: 545

 ■ Vacant Seats: 45

■ Members present: 500

■ Members present, but decide to abstain / not to vote: 50

■ Members present and voting: 500-50=450

■ The simple Majority, in this case, would be: 226

■ Most of the normal motions and bills in the house such as No-confidence Motion,
Motion of Confidence, Motion of Thanks, Censure Motion, Adjournment Motion,
Money Bills, Ordinary Bills, etc.

● Absolute Majority

○ The absolute majority refers to the majority of more than 50% of the total strength of the
house.

○ Example:

■ The total strength of Lok Sabha: 545

■ Absolute Majority: 273

■ Such a majority is not required in isolation in the Indian Parliament. There are
instances when such a majority is needed with another majority which would be
thus called a special majority.

● Effective Majority

○ Effective Majority of the house means more than 50% of the effective strength of the house.
This implies that out of the total strength, we deduct the absent and vacant seats.

○ The total strength of Lok Sabha: 545

○ Vacant Seats: 5

○ Effective Strength: 545-5=540

○ Members present, but decide to abstain / not to vote: 50

○ Members present and voting: 540-50=490

○ Effective Majority: 490/2+1=245+1

○ In the constitution of India, the “all the then members” present indicates an effective

○ majority. In the Constitution, effective majorities are needed for removal of VicePresident,
Deputy Chairman of Rajya Sabha, Lok Sabha Speaker, and Deputy Speaker.

● Special Majority
 ○ Any Majority other than a simple, absolute, and effective majority is called a special
majority. These include

○ Majority by two-third strength of the house {example impeachment of the president under
article 61}

○ The majority by two-third of present and voting members {Example Power of Parliament to
legislate with respect to a matter in the State List in the national interest, under article 249};
certain constitution amendment bills, etc.

○ Absolute majority + the majority of two-third present and voting {Example: Removal of
Supreme Court Judge, CAG, etc.

● Examples of Majorities in the Constitution

○ Impeachment of President: Special Majority

■ According to Article 61, When a President is to be impeached for violation of the

Constitution; the charge shall be preferred by either House of Parliament. A 14
days’ notice to move a resolution is given. Then, the resolution has to be passed
by a majority of not less than two-thirds of the total membership of the House. This
is an example of a Special Majority.

○ Removal of the Vice-President: Effective Majority

■ Vice-President may be removed from his office by a resolution of Rajya Sabha

passed by a majority of all the then members of the Rajya Sabha and agreed to
Lok Sabha. This is an example of an effective majority in Rajya Sabha.

○ Removal of Deputy chairman Rajya Sabha: Effective Majority

■ A member holding office as Deputy Chairman of Rajya Sabha may be removed

from his office by a resolution of the Council passed by a majority of all the then
members of the Council. (Simple Majority in Rajya Sabha)

○ Removal of Speaker and Lok Sabha Speaker: Effective Majority

■ Members holding office as Speaker or Deputy Speaker of the House of the People
may be removed from his office by a resolution of the House of the People passed
by a majority of all the then members of the House.

○ Removal of Supreme Court Judge: Absolute + Special Majority

■ 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 (Absolute Majority)
and by a majority of not less than two-thirds of the members of that House present
and voting (Special Majority) voting has been presented to the President in the
same session for such removal on the ground of proved misbehaviour or
incapacity. (Article 124)

○ Abolition of Council of States: Absolute + Special Majority

 ■ Parliament may by law provide for the abolition of the Legislative Council of a State
having such a Counsellor for the creation of such a Council in a State having no
such Council if the Legislative Assembly of the State passes a resolution to that
effect by a majority of the total membership of the Assembly (Absolute Majority)
and by a majority of not less than two-thirds of the members of the Assembly
present and voting. (Special Majority) Article 169 (1).

○ Removal of Speaker or Deputy Speaker of Assembly: (Effective Majority)

■ The Speaker or Deputy Speaker of Assembly may be removed from his office by
a resolution of the Assembly passed by a majority of all the then members of the
Assembly (Effective Majority). Article 179 (C)

○ Removal of Chairman or Deputy Chairman of a Legislative Council: (Effective

Majority)

■ Chairman or Deputy Chairman of a Legislative Council may be removed from his

office by a resolution of the Council passed by a majority of all the then members
of the Council. (Simple Majority) Article 183 (C)

○ Emergency Proclamation (Absolute + Special Majority)

■ According to article 352 (4) an emergency proclamation is laid before each House
of Parliament and shall cease to operate at the expiration of one month unless
before the expiration of that period it has been approved by resolutions of both
Houses of Parliament. Once approved it shall cease to be in force if again not
approved within six months. For both of these purposes, the resolution should be
passed by either House of Parliament only by a majority of the total membership
of that House (Absolute Majority) and by a majority of not less than two-thirds of
the Members of that House present and voting. (Special Majority)

○ Amendment of the Constitution via article 368: (Absolute + Special Majority)

■ According to Article 368(2), the amendment to Constitution may be initiated only

by the introduction of a Bill for the purpose in either House of Parliament, and when
the Bill is passed in each House by a majority of the total membership of that House
(Absolute Majority) and by a majority of not less than two-thirds of the members of
that House present and voting, (special Majority).

■ Further, if the amendment of the constitution also requires the assent of the state
assemblies, they can pass the constitutional Amendment Bill with a simple
majority.

1. By Simple Majority of the Parliament – outside the scope of Article 368

● Admission or establishment of new states.

● Formation of new states or alteration of areas, boundaries, or names of existing states.

● Abolition or creation of legislative councils in states.

 ● 2nd Schedule – emoluments, allowances, privileges, etc. of the
President/Governor/Speakers/Judges.

● Quorum in Parliament.

● Salaries and allowances of MPs.

● Rules of procedure in Parliament.

● Privileges of the Parliament, its members, and its committees.

● Use of English language in Parliament.

● Number of puisne judges in SC.

● Conferment of more jurisdictions on the SC.

● Use of official language.

● Citizenship – acquisition, and termination.

● Election to the Parliament and State legislatures.

● Delimitation of constituencies.

● Union Territories.

● 5th Schedule – administration of scheduled areas and scheduled tribes.

● 6th Schedule – administration of tribal areas.

2. By Special Majority of the Parliament

● FRs

● DPSPs

● All other provision which is not covered under (1) and (3)

3. By Special Majority of the Parliament and the ratification of half of state legislatures

● Election of the President and its manner.

● Extent of the executive power of the Union and the states.

● SCs and HCs.

● Distribution of legislative powers between the Union and the states.

● Any of the lists in the 7th Schedule.

● Representation of states in Parliament.

● Power of Parliament to amend the Constitution and its procedure (Article 368 itself)
 ● Amendability of Fundamental Rights

● The question of whether FRs can be amended by the Parliament under Article 368 came for
consideration of the SC:

● Shankari Prasad vs. Union of India (1951) Case – the constitutional validity of the 1st
Amendment Act (1951) which curtailed the Right to Property was challenged.

○ SC ruled that – “the power of the Parliament to amend the Constitution under Article 368
also includes the power to amend FRs”

● Golak Nath vs. State of Punjab (1967) Case – the constitutional validity of the 7th Amendment
Act which inserted certain state acts in the 9th Schedule was challenged.

○ SC ruled that –“FRs are given a transcendental and immutable position and hence the
Parliament cannot abridge or take away any of the FRs”.

○ The Parliament in response to the Golak Nath Case enacted the 24th CAA (1971) –
declared that “the Parliament can abridge or take away any of the FRs under Article 368”.

● Kesavananda Bharathi vs. State of Kerala (1973) case – SC overruled its judgement in the Golak
Nath Case(1971) and laid down a new doctrine of ‘basic structure’.

○ SC upheld the validity of 24th CAA (1971) and stated that — “the Parliament is empowered
to abridge or take away any of the FRs under Article 368 but does not enable the
Parliament to alter the ‘basic structure’ of the Constitution”. i.e. Parliament cannot abridge
or take away an FR that forms a part of the ‘basic structure’ of the Constitution

○ The Parliament in response to this judicially innovated doctrine of ‘basic structure’, enacted
the 42nd CAA (1976) – amended Article 368 and declared that “there is no limitation on
the constituent power of Parliament and no amendment can be questioned in any court on
any ground including the contravention of any FRs”

● Minerva Mills v. Union of India (1980) – invalidated this provision as it excludes Judicial Review
which is a ‘basic feature’ of the Constitution.

● Waman Rao v. Union of India (1981) – SC adhered to the doctrine of ‘basic structure’ and further
clarified that it would apply to constitutional amendments enacted after April 24, 1973 (i.e., the Date
of judgement in the Kesavananda Bharathi case).

● ‘Basic structure’ of the Constitution

● The present position is that the Parliament under Article 368 can amend any part of the Constitution
including the FRs but without affecting the ‘basic structure’ of the Constitution.

The following have emerged as ‘basic structures’ from various judgments –

● Supremacy of the Constitution.

● Sovereign, democratic and republican nature of the Indian Polity.

● Secular character of the Constitution.

● Separation of powers between the L, E, and J.

● Federal character of the Constitution.

● Unity and integrity of the Nation.

● Welfare State (socio-economic justice)

● Judicial Review

● Harmony and balance between FRs and DPs

● Parliamentary System

● Rule of Law

● Freedom and dignity of the individual

● The principle of Free and fair elections

● Principle of Equality, not every feature of equality, but the quintessence of equal justice

● Independence of Judiciary

● Effective access to justice

● Limitations upon the amending power conferred by Article 368

● Articles 32 and 226

● Powers of the Supreme Court under Articles 32, 136, 141, 142

● Criticism of the Amendment procedure

● No provision of the special body like Constitutional Convention (as in the USA) or Constituent
Assembly for amending the Constitution.

● The constituent power is vested in the Parliament and only in a few cases in the state legislatures
(that too a very minimal role).

● The power to initiate an amendment lies with Parliament (unlike in the USA); the state legislatures
cannot initiate amendment bills except in 1 case.

● SL can pass a resolution requesting the Parliament to create or abolish legislative councils in the
states – here also; the Parliament can either approve or disapprove such a resolution.

● A major part of the Constitution can be amended by the Parliament itself and only in a few cases it
needs the ratification of states.

● The Constitution does not prescribe the time frame within which the state legislatures should ratify
or reject an amendment submitted to them.

● Also, it is silent on the issue of whether the states can withdraw their approval after the same.
 ● No provision of holding Joint Sitting of the Houses.

● The process of amendment is similar to that of a legislative process. Except for the special majority,
the amendment bills are to be passed by the Parliament in the same way as ordinary bills.

● The provisions relating to the amendment procedures are too sketchy. They leave a wide scope
for taking the matters to the judiciary.

● Important Amendments

First Amendment Act, 1951

● Reasons:

○ To remove certain practical difficulties created by the court’s decision in several cases such
as the Kameshwar Singh Case, Romesh Thapar Case, etc.

○ Issues involved in the cases included freedom of speech, acquisition of the Zamindari land,
State monopoly of trade, etc

● Amendments:

○ Empowered the state to make special provisions for the advancement of socially and
economically backward classes.

○ Provided for the saving of laws providing for acquisition of estates, etc.

○ Added Ninth Schedule to protect the land reforms and other laws included in it from the
judicial review. After Article 31, Articles 31A and 31B were inserted.

○ Added three more grounds of restrictions on freedom of speech and expression: public
order, friendly relations with foreign states and incitement to an offence. Also, it made the
restrictions ‘reasonable’ and thus, justiciable in nature.

○ Provided that state trading and nationalisation of any trade or business by the state is not
to be invalid on the ground of violation of the right to trade or business.

Fourth Amendment Act, 1955

● Amendments:

○ Made the scale of compensation given in lieu of compulsory acquisition of private property
beyond the scrutiny of courts.

○ Authorised the state to nationalise any trade.

○ Included some more Acts in the Ninth Schedule.

○ Extended the scope of Article 31 A (savings of laws).

Seventh Amendment Act, 1956

● Reasons:
 ○ To implement the recommendations of the State Reorganisation Committee and to
implement the State Reorganisation Act, 1956.

● Amendments:

○ Second and Seventh Schedules were amended

○ Abolished the existing classification of states into four categories i.e., Part A, Part B, Part
C, and Part D states, and reorganised them into 14 states and 6 union territories.

○ Extended the jurisdiction of high courts to union territories.

○ Provided for the establishment of a common high court for two or more states.

○ Provided for the appointment of additional and acting judges of the high court.

Ninth Amendment Act, 1960

● Reasons:

○ After the Nehru-Noon agreement was signed between India and Pakistan to divide the
territory of Berubari Union, the Government of West Bengal opposed it. After this Union
referred the matter to SC which held that the power of Parliament to diminish the area of a
state (under Article 3) does not cover cession of Indian territory to a foreign country. Hence,
Indian territory can be ceded to a foreign state only by amending the Constitution under
Article 368. Consequently, the 9th Constitutional Amendment Act (1960) was enacted.

● Amendments:

○ Facilitated the cession of the Indian territory of Berubari Union (located in West Bengal) to
Pakistan as provided in the Indo-Pakistan Agreement (1958).

Tenth Amendment Act, 1961

● Amendments:

○ Incorporation of Dadra, Nagar and Haveli as a Union Territory, consequent to acquisition

from Portugal.

Eleventh Amendment Act, 1961

● Amendments:

○ Changed the procedure of election of the vice president by providing for an electoral
college instead of a joint meeting of the two Houses of the Parliament.

○ Provided that the election of the President or vice president cannot be challenged on the
ground of any vacancy in the appropriate electoral college.

Twelfth Amendment Act, 1962

● Amendments:
 ○ Incorporated Goa, Daman and Diu in the Indian Union.

Thirteenth Amendment Act, 1962

● Amendments:

○ Gave the status of a state to Nagaland and made special provisions for it.

Fourteenth Amendment Act, 1962

● Amendments:

○ Incorporated Puducherry in the Indian Union.

○ Provided for the creation of legislatures and council of ministers for the Union Territories of
Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu, and Puducherry.

Seventeenth Amendment Act, 1964

● Amendments:

○ Prohibited the acquisition of land under personal cultivation unless the market value of the
land is paid as compensation.

○ Included 44 more Acts in the Ninth Schedule

Eighteenth Amendment Act, 1966

● Amendments:

○ Made it clear that the power of Parliament to form a new state also includes a power to
form a new state or union territory by uniting a part of a state or a union territory to another
state or union territory.

○ It created new states namely, Punjab and Haryana

Twenty First Amendment Act, 1967

● Amendments:

○ Included Sindhi as the 15th language in the Eighth Schedule.

Twenty Fourth Amendment Act, 1971

● Reasons:

○ Twenty Fourth Constitutional Amendment Act was brought in response to the Golaknath
ruling (1967) of the Supreme Court which held that the Parliament does not have the power
to take away any fundamental rights through amendment to the Constitution.

● Amendments:

○ Affirmed the power of Parliament to amend any part of the Constitution including
fundamental rights by amending Article 13 and 368.
 ○ Made it compulsory for the President to give his assent to a Constitutional Amendment Bill.

Twenty-Fifth Amendment Act, 1971

● Amendments:

○ Curtailed the fundamental right to property.

○ Provided that any law made to give effect to the Directive Principles contained in Article 39
(b) or (c) cannot be challenged on the ground of violation of the rights guaranteed by
Articles 14, 19 and 31.

Twenty-Sixth Amendment Act, 1971

● Amendments:

○ Abolished the privy purses and privileges of the former rulers of princely states.

Thirty First Amendment Act, 1973

● Reasons:

○ An increase in the population of India revealed in the Census of 1971.

● Amendments:

○ Increased the number of Lok Sabha seats from 525 to 545.

Thirty Third Amendment Act, 1974

● Amendments:

○ Amended Articles 101 and 190 and provided that the resignation of the members of
Parliament and the state legislatures may be accepted by the Speaker/Chairman only if he
is satisfied that the resignation is voluntary or genuine

Thirty-Fifth Amendment Act, 1974

● Amendments:

○ Terminated the protectorate status of Sikkim and conferred the status of an associate state
of the Indian Union. The Tenth Schedule was added laying down the terms and conditions
of association of Sikkim with the Indian Union

Thirty Sixth Amendment Act, 1975

● Amendments:

○ Made Sikkim a full-fledged State of the Indian Union and omitted the Tenth Schedule.

Thirty-Eighth Amendment Act, 1975

● Amendments:
 ○ Made the declaration of emergency by the President non-justiciable.

○ Made the promulgation of ordinances by the President, governors and administrators of

Union territories non-justiciable.

○ Empowered the President to declare different proclamations of national emergency on

different grounds simultaneously

Thirty-Ninth Amendment Act, 1975

● Reasons:

○ It was enacted in response to the ruling of the Allahabad High Court who declared the
election of PM Indira Gandhi to Lok Sabha void on the petition of Raj Narain.

● Amendments:

○ Placed the disputes relating to the president, Vice President, prime minister and Speaker
beyond the scope of the judiciary. They are to be decided by such authority as may be
determined by the Parliament.

○ Included certain Central Acts in the Ninth Schedule

Forty Second Amendment Act, 1976

● Amendments:

○ Added three new words (i.e., socialist, secular and integrity) in the Preamble.

○ Added Fundamental Duties by the citizens (new Part IV A).

○ Made the president bound by the advice of the cabinet.

○ Provided for administrative tribunals and tribunals for other matters (Added Part XIV A).

○ Froze the seats in the Lok Sabha and state legislative assemblies on the basis of 1971
census till 2001 – Population Controlling Measure

○ Made the constitutional amendments beyond judicial scrutiny.

○ Curtailed the power of judicial review and writ jurisdiction of the Supreme Court and high
courts.

○ Raised the tenure of Lok Sabha and state legislative assemblies from 5 to 6 years.

○ Provided that the laws made for the implementation of Directive Principles cannot be
declared invalid by the courts on the ground of violation of some Fundamental Rights.

○ Empowered the Parliament to make laws to deal with anti-national activities and such laws
are to take precedence over Fundamental Rights.

○ Added three new Directive Principles viz., equal justice and free legal aid, the participation
of workers in the management of industries and protection of the environment, forests, and
wildlife.
 ○ Facilitated the proclamation of national emergency in a part of the territory of India.

○ Extended the one-time duration of the President’s rule in a state from 6 months to one year.

○ Empowered the Centre to deploy its armed forces in any state to deal with a grave situation
of law and order.

○ Shifted five subjects from the state list to the concurrent list, viz, education, forests,
protection of wild animals and birds, weights and measures and administration of justice,
constitution and organisation of all courts except the Supreme Court and the high courts.

○ Did away with the requirement of quorum in the Parliament and the state legislatures.

○ Empowered the Parliament to decide from time to time the rights and privileges of its
members and committees.

○ Provided for the creation of the All-India Judicial Service.

○ Shortened the procedure for disciplinary action by taking away the right of a civil servant
to make representation at the second stage after the inquiry (i.e., on the penalty proposed).

Forty-Third Amendment Act, 1977

● Amendments:

○ Restored the jurisdiction of the Supreme Court and the High Courts in respect of judicial
review and issue of writs.

○ Deprived the Parliament of its special powers to make laws to deal with anti-national
activities.

Forty-Fourth Amendment Act, 1978

● Amendments:

○ Restored the original term of the Lok Sabha and the state legislative assemblies (i.e., 5
years).

○ Restored the provisions with regard to the quorum in the Parliament and state legislatures.

○ Omitted the reference to the British House of Commons in the provisions pertaining to
parliamentary privileges.

○ Gave constitutional protection to publication in a newspaper of true reports of the

proceedings of the Parliament and the state legislatures.

○ Empowered the president to send back once the advice of the cabinet for reconsideration.
But, the reconsidered advice is to be binding on the president.

○ Deleted the provision which made the satisfaction of the president, governor, and
administrators final in issuing ordinances.

○ Restored some of the powers of the Supreme Court and high courts.
 ○ Replaced the term ‘internal disturbance’ by ‘armed rebellion’ in respect of national
emergency.

○ Made the President declare a national emergency only on the written recommendation of
the cabinet.

○ Made certain procedural safeguards with respect to a national emergency and President’s
rule.

○ Deleted the right to property from the list of Fundamental Rights and made it only a legal
right.

○ Provided that the fundamental rights guaranteed by Articles 20 and 21 cannot be

suspended during a national emergency.

○ Omitted the provisions which took away the power of the court to decide the election
disputes of the president, the vice-president, the prime minister and the Speaker of the Lok
Sabha.

Fiftieth Amendment Act, 1984

● Amendments:

○ Empowered the Parliament to restrict the Fundamental Rights of persons employed in

intelligence organisations and telecommunication systems set up for the armed forces or
intelligence organisations.

Fifty-Second Amendment Act, 1985

● Reasons:

○ To stop defection and the politics of ‘Aaya Ram, Gaya Ram’

● Amendments:

○ Provided for disqualification of members of Parliament and state legislatures on the ground
of defection and added a new Tenth Schedule containing the details in this regard.

Fifty Eighth Amendment Act, 1987

● Amendments:

○ Provided for an authoritative text of the Constitution in Hindi language and gave the same
legal sanctity to the Hindi version of the Constitution.

Sixty-First Amendment Act, 1989

● Amendments:

○ Reduced the voting age from 21 years to 18 years for the Lok Sabha and state legislative
assembly elections.

Sixty-Fifth Amendment Act, 1990

 ● Amendments:

○ Provided for the establishment of a multi-member National Commission for Scheduled

Castes and Scheduled Tribes in the place of a Special Officer for Scheduled Castes and
Scheduled Tribes.

Sixty-Ninth Amendment Act, 1991

● Amendments:

○ Accorded a special status to the Union Territory of Delhi by designing it as the National
Capital Territory of Delhi. The amendment also provided for the creation of a 70-member
legislative assembly and a 7-member council of ministers for Delhi.

Seventy-First Amendment Act, 1992

● Amendments:

○ Included Konkani, Manipuri, and Nepali languages in the Eighth Schedule. With this, the
total number of scheduled languages increased to 18.

Seventy Third Amendment Act, 1992

● Amendment:

○ Granted constitutional status and protection to the Panchayati Raj institutions. For this
purpose, the Amendment has added a new Part-IX entitled as ‘the panchayats’ and a new
Eleventh Schedule containing 29 functional items of the panchayats

Seventy Fourth Amendment Act, 1992

● Amendment:

○ Granted constitutional status and protection to the urban local bodies. For this purpose,
the Amendment has added a new Part IX-A entitled ‘the municipalities’ and a new Twelfth
Schedule containing 18 functional items of the municipalities.

Seventy Seventh Amendment Act, 1995

● Amendment:

○ Provided for reservation in promotions in government jobs for Scheduled Castes and
Scheduled Tribes. This amendment nullified the Supreme Court ruling with regard to
reservation in promotions.

Eightieth Amendment Act, 2000

● Amendment:

○ Provided for an ‘alternative scheme of devolution’ of revenue between the Centre and
states. This was enacted on the basis of the recommendations of the Tenth Finance
Commission which had recommended that out of the total income obtained from Central
taxes and duties, 29% should be distributed among the states.
Eighty First Amendment Act, 2000

● Amendments:

○ Empowered the state to consider the unfilled reserved vacancies of a year as a separate
class of vacancies to be filled up in any succeeding year or years. Such class of vacancies
is not to be combined with the vacancies of the year in which they are being filled up to
determine the ceiling of 50% reservation on total number of vacancies of that year. In brief,
this amendment ended the 50% ceiling on reservation in backlog vacancies.

Eighty Second Amendment Act, 2000

● Amendments:

○ Provided for making of any provision in favour of the SCs and STs for relaxation in
qualifying marks in any examination or lowering the standards of evaluation, for reservation
in matters of promotion to the public services of the Centre and the states

Eighty Fourth Amendment Act, 2001

● Amendments:

■ Extended the ban on the readjustment of seats in the Lok Sabha and the state
legislative assemblies for another 25 years (i.e., up to 2026) with the same
objective of encouraging population limiting measures. In other words, the number
of seats in the Lok Sabha and the assemblies are to remain the same till 2026. It
also provided for the readjustment and rationalisation of territorial constituencies
in the states on the basis of the population figures of 1991 census.

Eighty Fifth Amendment Act, 2001

● Amendments:

○ Provided for ‘consequential seniority’ in the case of promotion by virtue of rule of

reservation for the government servants belonging to the Scheduled Castes and
Scheduled Tribes with retrospective effect from June 1995.

Eighty Sixth Amendment Act, 2002

● Amendments:

○ Made elementary education a fundamental right under the Article 21A

○ Changed the subject matter of Article 45 in Directive Principles

○ Added a new fundamental duty under Article 51-A

Eighty Seventh Amendment Act, 2003

● Amendments:
 ○ Provided for the readjustment and rationalisation of territorial constituencies in the states
on the basis of the population figures of 2001 census and not 1991 census as provided
earlier by the 84th Amendment Act of 2001.

Eighty Ninth Amendment Act, 2003

● Amendments:

○ Bifurcated the erstwhile combined National Commission for Scheduled Castes and
Scheduled Tribes into two separate bodies, namely, National Commission for Scheduled
Castes (Article 338) and National Commission for Scheduled Tribes (Article 338-A).

Ninety First Amendment Act, 2003

● Amendments:

○ Made the following provisions to limit the size of Council of Ministers, to debar defectors
from holding public offices, and to strengthen the anti-defection law:

○ The total number of ministers, including the Prime Minister, in the Central Council of
Ministers, shall not exceed 15% of the total strength of the Lok Sabha.

○ A member of either house of Parliament belonging to any political party who is disqualified
on the ground of defection shall also be disqualified to be appointed as a minister.

○ The total number of ministers, including the Chief Minister, in the Council of Ministers in a
state shall not exceed 15% of the total strength of the Legislative Assembly of that state.
But, the number of ministers, including the Chief Minister, in a state shall not be less than
12.

○ A member of either House of a state legislature belonging to any political party who is
disqualified on the ground of defection shall also be disqualified to be appointed as a
minister.

○ A member of either House of Parliament or either House of a State Legislature belonging

to any political party who is disqualified on the ground of defection shall also be disqualified
to hold any remunerative political post. The expression “remunerative political post” means:

○ Any office under the central government or a state government where the salary or
remuneration for such office is paid out of the public revenue of the concerned government
or,

○ Any office under a body, whether incorporated or not, which is wholly or partially owned by
the central government or a state government and the salary or,

○ Remuneration for such an office is paid by such a body, except where such salary or
remuneration paid is compensatory in nature (Article 361-B).

○ The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from
disqualification in case of split by one-third members of the legislature party has been
deleted. It means that the defectors have no more protection on grounds of splits.

Ninety Second Amendment Act, 2003

 ● Amendments:

○ Included four more languages in the Eighth Schedule. They are Bodo, Dogri (Dongri),
Maithili and Santhali. With this, the total number of constitutionally recognised languages
increased to 22

Ninety Third Amendment Act, 2005

● Amendments:

○ Empowered the state to make special provisions for the socially and educationally
backward classes or the Scheduled Castes or the Scheduled Tribes in educational
institutions including private educational institutions (whether aided or unaided by the
state), except the minority educational institutions (clause (5) in Article 15).

○ This Amendment was enacted to nullify the Supreme Court judgement in the Inamdar case
(2005) where the apex court ruled that the state cannot impose its reservation policy on
minority and non-minority unaided private colleges, including professional colleges. The
court declared that reservation in private, unaided educational institutions was
unconstitutional.

Ninety Sixth Amendment Act, 2011

● Amendments:

○ Substituted “Odia” for “Oriya”. Consequently, the “Oriya” language in the Eighth Schedule
shall be pronounced as “Odia”.

Ninety Seventh Amendment Act, 2011

● Amendments:

○ Gave constitutional status and protection to cooperative societies. It made the following
three changes in the constitution:

○ It made the right to form co-operative societies a fundamental right (Article 19).

○ It included a new Directive Principle of State Policy on the promotion of co-operative

societies.

○ It added a new Part IX-B in the constitution which is entitled “The Co-operative Societies”.

Ninety Ninth Amendment Act 2014

● Amendments:

○ Replaced the collegium system of appointing judges to the Supreme Court and High Courts
with a new body called the National Judicial Appointments Commission (NJAC).

○ However, in 2015, the Supreme Court declared this Amendment Act as unconstitutional
and void. Consequently, the earlier collegium system became operative again.

One Hundredth Amendment Act, 2014

 ● Amendments:

○ Gave effect to the acquiring of certain territories by India and transfer of certain other
territories to Bangladesh (through the exchange of enclaves and retention of adverse
possessions) in pursuance of the Land Boundary Agreement of 1974 and its Protocol of
2011.

○ For this purpose, this amendment act amended the provisions relating to the territories of
four states (Assam, West Bengal, Meghalaya, and Tripura) in the First Schedule of the
Constitution.

One Hundred and First Amendment Act, 2017

● Amendments:

○ Introduction of the Goods and Services Tax

○ Goods and Services Tax (GST) is an indirect tax (or consumption tax) used in India on the
supply of goods and services. It is a comprehensive, multistage, destination-based tax:
comprehensive because it has subsumed almost all the indirect taxes except a few state
taxes.

One Hundred and Second Amendment Act, 2018

● Amendments:

○ Constitutional status was provided to the National Commission for Backward Classes
under India’s Ministry of Social Justice and Empowerment.

○ Article 338B into the Constitution after Articles 338 and 338A which deal with the National
Commission for Scheduled Castes (SC) and National Commission for Scheduled Tribes
(ST) respectively.

One Hundred Third Amendment Act, 2019

● Amendments:

○ It introduced reservations for Economic Weaker Section for the first time in independent
India

○ Amendment in Article 16 allows a 10% reservation to EWS in public employment.

One Hundred Fourth Amendment Act, 2020

● Amendments:

○ Extended the deadline for the cessation of seats for SCs and STs in the Lok Sabha and
states assemblies from Seventy years to Eighty years.

○ Removed the reserved seats for the Anglo-Indian community in the Lok Sabha and state
assemblies.
 Chapter 9: Basic Structure of Constitution

● According to the Constitution, the Parliament and the State Legislatures can make laws within their
jurisdictions. The power to amend the Constitution is only with the Parliament and not the state
legislative assemblies. However, this power of the Parliament is not absolute. The Supreme Court
has the power to declare any law that it finds unconstitutional void.

● The concept of ‘basic structure’ came into existence in the landmark judgement in Kesavananda
Bharati vs State of Kerala case (1973) 47 years ago.

● As per the Basic Structure Doctrine, any amendment that tries to change the basic structure of the
constitution is invalid.

● There is no mention of the term “Basic Structure” anywhere in the Indian Constitution.

● The Constitution of India did not emerge from a vacuum. It is a continuous process of evolution,
reformation, and recreating the existing system of governance by eminent scholars, experts, and
judges, etc.

● No Constitution can remain static. It must respond to new challenges and take account of
unanticipated and unforeseen events that were not within the contemplation of the framers of the
Constitution.

● Ours is the living Constitution which requires an amendment from time to time according to societal
changes. Parliament in its constituent power can amend by way of addition, alteration, variation, or
repeal any provisions of the Constitution.

● On its plain terms, Art.368 is plenary and is not subject to any limitations or exceptions. The
Constituent Assembly debates indicate that the founding fathers did not envisage any limitation on
the amending power.

● Bringing alteration to the Constitution provisions by the Parliament was a very easy process before
Kesavananda Bharathi’s Case because there was no implied or express limitation on its amending
power exercised under the Constitution. But in the Kesavananda case, the uncontrolled power of
the Parliament has been controlled and curtailed by the Doctrine of Basic Structure.

● We did not have this doctrine at the commencement of the Constitution of India. This doctrine was
conceived in the case of Sajjan Singh and took real birth in the case of Kesavananda Bharathi’s
Case.

● It is the product of a long struggle between the Judiciary and the Parliament. Through this basic
structure principle, the Supreme Court changed the course of Constitutional history by denying the
assertion of the supremacy of Parliament in the matter of amending the Constitution solely on the
basis of requisite voting strength, quite unmindful of the basic or fundamental rights of citizens.

● Art.31-B and Ninth Schedule are the main root cause for developing this doctrine by the Judiciary
in so many cases. The reason is, this Schedule made the controlled Constitution uncontrolled by
excluding the judicial review which is also a form part of the Basic Structure.

● Since the adoption of the Indian Constitution, debates have started regarding the power of the
Parliament to amend key provisions of the Constitution.
● In the early years of Independence, the Supreme Court conceded absolute power to Parliament in
amending the Constitution, as was seen in the verdicts in Shankari Prasad case (1951) and Sajjan
Singh case (1965).

● Shankari Prasad Case (1951)

● Case questioning whether fundamental rights can be amended under Article 368 & also questioned
the constitutional validity of the First amendment act that curtailed the right to property.

● SC said that Parliament can amend the Fundamental rights under article 368. Also, laws under
Article 13 are ordinary laws & hence can be taken away by Parliament by amendment.

● Golak Nath Case (1967)

● The case questioned the constitutional validity of putting some state laws under Schedule 9 of the
constitution (by 7th Amendment Act)

● Any law put under Schedule 9 is not available for Judicial Review.

● SC said that its decision in Shankari Prasad Case was wrong & Fundamental rights have an
important position in the constitution & hence can’t be amended under Article 368.

● The constitutional amendment is also law under Article 13 & hence can’t take away the fundamental
rights.

● Parliament after this judgement enacted the 24th amendment act, 1971 which amended Article 13
& Article 368. The new law stated that Parliament can take away any Fundamental right by use of
Article 368 & such a constitutional amendment act will not be considered as a “law” under article
13.

● To get over the judgments of the Supreme Court in the Golaknath case (1967), RC Cooper case
(1970), and Madhavrao Scindia case (1970), the then government headed by Prime Minister Indira
Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th).

● All the four amendments brought by the government were challenged in the Kesavananda Bharati
case.

● Kesavananda Bharati case

● In Kesavananda Bharati case, a relief was sought against the Kerala government vis-à-vis two
state land reform laws, which imposed restrictions on the management of religious property.

● The case was challenged under Article 26, concerning the right to manage religiously owned
property without government interference.

● The question underlying the case: Was the power of Parliament to amend the Constitution
unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution
even to the extent of taking away all fundamental rights?

● SC stated that the 24th Constitutional amendment act is valid & Parliament can take away
Fundamental rights.
● The Constitutional Bench in Kesavananda Bharati case ruled by a 7-6 verdict that Parliament could
amend any part of the Constitution so long as it did not alter or amend the basic structure or
essential features of the Constitution, i.e. Parliament can’t take away those fundamental rights that
are a part of the Basic Structure of the constitution.

● Parliament then enacted the 42nd Constitutional amendment act, 1976. It states that there is no
limit to the power conferred by Article 368 to the Parliament & any change brought about by article
368 cannot be questioned in the court of law.

● Minerva Mills Case (1980)

● The provisions that were laid down by the 42nd Constitutional Amendment Act, 1976 were declared
invalid by the Supreme Court in this 1980 Supreme Court case.

● The judgement makes it clear that the Constitution, and not the Parliament is supreme.

● In this case, the Court added two features to the list of Basic Structure features. They were: judicial
review and balance between Fundamental Rights and DPSP.

● The judges ruled that a limited amending power itself is a basic feature of the Constitution.

● Waman Rao Case (1981)

● The SC again reiterated the Basic Structure doctrine.

● It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati
judgement, and held that it should not be applied retrospectively to reopen the validity of any
amendment to the Constitution which took place prior to that date.

● In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment)
Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th
Schedule of the Constitution.

● The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article
31-B to provide a “protective umbrella” to land reforms laws.

● This was done in order to prevent them from being challenged in court.

● Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and
any law made in contravention of fundamental rights shall be void.

● Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in the
9th Schedule are immune to challenge in a court, even if they go against fundamental rights.

● The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda
judgement are valid, and those passed after that date can be subject to scrutiny.

● Indra Sawhney and Union of India (1992)

● SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in
favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs
with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved
quota should not exceed 50%, etc.)
● Here, ‘Rule of Law’ was added to the list of basic features of the constitution.

● S.R. Bommai case (1994)

● In this judgement, the SC tried to curb the blatant misuse of Article 356 (regarding the imposition
of President’s Rule on states).

● In this case, there was no question of the constitutional amendment but even so, the concept of
basic doctrine was applied.

● The Supreme Court held that policies of a state government directed against an element of the
basic structure of the Constitution would be a valid ground for the exercise of the central power
under Article 356.

● So, as of now, Parliament can do any type of amendment & even amend the Fundamental rights
but which are not changing the “basic structure” of the constitution.

● In I.R.Coelho’s case
The Supreme Court held that Art.31-B gives validation based on fictional immunity. In judging the
validity of the Constitutional amendment, we have to be guided by the impact test i.e. Right Test.
The basic structure doctrine requires the State to justify the degree of invasion of Fundamental
Rights.

● The Parliament is presumed to legislate compatible with the Fundamental Rights and this is where
judicial review comes in. The greater invasion into essential freedoms, the greater is the need for
justification and determination by the Court whether the invasion was necessary and if so to what
extent.

● The degree of invasion is for the court to decide. Compatibility is one of the species of judicial
review which is premised on compatibility with rights regarded as fundamental. The power to grant
immunity, at will, on a fictional basis, without full judicial review, will nullify the entire basic structure
doctrine.

● Thereby Supreme Court reaffirms the Constitution Supremacy through this basic structure and now
we can say that the “Doctrine of Basic Structure made uncontrolled Constitution into Controlled
one.”

● Elements of Basic Structure

● The present position is that the Parliament under Article 368 can amend any part of the Constitution
including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.

● However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’
of the Constitution.

● From the various judgments, the following have emerged as ‘basic features’ of the Constitution or
elements/components/ingredients of the ‘basic structure’ of the constitution:

1. Supremacy of the Constitution.

2. Sovereign, democratic and republican nature of the Indian Polity.

3. Secular character of the Constitution.

4. Separation of powers between the L, E, and J.

5. Federal character of the Constitution.

6. Unity and integrity of the Nation.

7. Welfare State (socio-economic justice)

8. Judicial Review

9. Harmony and balance between FRs and DPs

10. Parliamentary System

11. Rule of Law

12. Freedom and dignity of the individual

13. The principle of Free and fair elections

14. Principle of Equality, not every feature of equality, but the quintessence of equal justice

15. Independence of Judiciary

16. Effective access to justice

17. Principle of reasonableness

18. Limitations upon the amending power conferred by Article 368

19. Articles 32 and 226

20. Powers of the Supreme Court under Articles 32, 136, 141, 142

21. Welfare State

● Significance of Basic Structure

● The basic structure limitation comes out of the realisation that the only way to safeguard the
Constitution from opportunistic destruction and defilement by temporary majorities in Parliament is
to reject those amendments which go to tarnish its identity.

● It arises out of the need to strengthen the Constitution and to prevent its destruction by a temporary
majority in Parliament.

● What is basic structure will depend upon what is vital to Indian democracy and that cannot be
determined except with reference to history, politics, economy, and social milieu in which the
Constitution functions.

● The Court cannot impose on society anything it considers to be basic. What the judges consider to
be basic structure must meet the requirement of national consciousness about the basic structure.
● Whatever may be the merits or demerits of judicial review, to an extent, the basic structure limitation
upon the constituent power has helped arrest such forces to some extent and to stabilise the
democracy.
 Chapter 10: Centre State Relations

● The Constitution of India, being Federal in structure, divides all powers (the legislative, executive,
and financial powers) between the centre and the states, whereas the judiciary is integrated into a
hierarchical structure.

● Centre State Relations

● The roots of India’s present-day federal system are found in the Government of India Acts of 1919
and 1935.

● The Government of India Act of 1919 -

○ Relaxed the central control over the provinces

○ Dyarchy was introduced in the provinces and

○ For the first time, the subjects were divided into Central and State subjects

● The Nehru Report, 1928 had also envisaged that the Constitution of India should be federal in
character.

● The distribution of powers between the Centre and the States in the Indian Constitution is based
on the scheme provided in the Government of India Act of 1935. Though the federal provision was
not implemented, it provided a blueprint for the federal state which India established in the
Constitution of 1950. However, autonomous provinces were created under this Act as the first step
in the establishment of the federation.

● Based on the nature of the relationship between the National government and Regional
government, the governments can be classified as Unitary and Federal systems. Our Federalism
is influenced by American, Canadian, and Australian Federalism.

● The Constitution of India provides for a federal system of government in the country.
● The Indian federal system is based on the ‘Canadian model’, unlike the US model. Indian system
resembles the Canadian federation in its formation (by way of disintegration i.e. a large unitary
state is converted into a federation by granting autonomy to the provinces to promote regional
interests; whereas in ‘U.S model’ federation is formed by way of integration i.eStates come together
to form a big and strong union. Centralising tendency i.e., vesting more powers in the centre and
preference to the term ‘Union’.

● Federalism in the Indian Constitution is not a matter of administrative convenience, but it is the
outcome of our own process and recognition of the ground realities. At the time of Independence,
India was a nascent democratic country suffering from the aftermath of partition. The priority then
was the ‘integrity’ of the country. Hence India adopted a system that is federal in normal times, but
unitary in times of emergency.

● Models of Federalism-

○ Unitary Federalism

○ Cooperative Federalism

○ Bargaining Federalism

● Evolution of Centre-State relation in Post-independence

● Constitutional Scheme of Centre-State Relations

● The Constitution of India provides for elaborate provisions for the purpose of a greater degree of
cooperation between Centre and States. Moreover, the union government has also been active
and set-up various commissions and committees to look after the relationship in light of the ever-
changing dynamics of the relationship. However, the constitutional scheme can be mainly classified
into the following three facets:

○ Legislative Relations

○ Administrative Relation

○ Financial Relation and Planning

 ● Legislative Relations

● Articles 245 to 255 in Part XI deals with different aspects of legislative relations between centre
and states.

● There are 4 aspects in Legislative Relations –

○ Territorial extent of Central & state legislation;

○ Distribution of Legislative subjects;

○ Parliamentary legislation in the state field; and

○ Centre’s control over state legislation

1. Territorial extent of Central & state legislation

● Parliament makes laws for the whole or any part of the territory of India.

● A state legislature makes laws for the whole or any part of its state.

● (The laws made by the state are not applicable outside the state)

● Parliament alone can make ‘extraterritorial legislation’ (hence, the laws are applicable to Indian
citizens & their property in any part of the World).

● Exceptions –

○ The President can make regulations for the peace, progress & good government of the 4
UTs – A&N; D&D; D&NH; Lakshadweep.

○ The Governor is empowered to direct that an act of Parliament does not apply to Scheduled
Areas in the state (Schedule V)

○ The Governor of Assam may likewise direct that an act of Parliament does not apply to
Tribal Areas in the state (Schedule VI)

○ The President enjoys the same power with respect to Tribal Areas in Meghalaya, Tripura
& Mizoram (Be careful here, no Assam)

2. Distribution of Legislative subjects

● GoI Act, 1935 provided for a 3 fold enumeration– Union/State/Concurrent Lists (Schedule VII)

● Parliament has powers to make laws in Union List

● State legislature makes laws in the State list

● Both Parliament & state legislature can make laws in Concurrent List

● The power to make laws with respect to residuary powers is vested in Parliament.

● In case of overlapping between –

 ○ Union v. State => Union prevails

○ Union v. Concurrent => Union prevails

○ Concurrent v. State => Concurrent prevails

● 42nd CAA, 1976 transferred 5 subjects to Concurrent List from State List –

○ Education

○ Forests

○ Weights & Measurements

○ Protection of wild animals & birds

○ Administration of justice, constitution & organisation of all courts (except SC & HCs)

3. Parliamentary legislation in the State field

● Parliament can make laws on any matter enumerated in the State List under the following 5
extraordinary circumstances –

○ When RS passes a resolution

○ During a National Emergency

○ When states make a request

○ To implement International Agreements

○ During President’s Rule

● When RS passes a resolution –

○ If the RS declares that it is necessary for the National Interest that Parliament should make
laws on matter enumerated in the State List

○ Such a resolution must be supported by two-thirds of the members present & voting.

● During a National Emergency –

○ Parliament (makes laws) acquires the power to legislate with respect to matters in the State
List while an emergency is in operation.

○ The laws become inoperative on the expiration of 6 months after the emergency has
ceased to operate.

● When states make a request –

○ When the legislatures of two/more states pass a resolution requesting the Parliament to
enact laws on a matter in the State List.
 ○ A law so enacted applies only to those states which have passed the resolution. Any other
state may adopt it afterward by passing a resolution.

○ Such a law can be repealed/amended only by the Parliament & not by concerned state
legislatures.

○ Ex. Prize Competition Act, 1955; Wildlife (Protection) Act, 1972; Water (Prevention &
Control of Pollution) Act, 1974 etc.

● To implement International Agreements –

○ Parliament can make laws for implementing International treaties, agreements, or

conventions

○ Ex. UN (Privileges & Immunities) Act, 1947; Geneva Convention Act, 1960; legislation
relating to TRIPS etc.

● During President’s Rule –

○ When the President’s rule is imposed on the state, the Parliament can make laws on
matters in the State List.

○ A law made so by the parliament continues to be operative even after the President’s rule.

○ But, such a law can be repealed/altered/re-enacted by the State Legislature.

4. Centre’s control over state legislation (SARKARIA COMMISSION)

● The Governor can reserve certain Bills passed by the state legislature for consideration of the
President – The President enjoys ‘absolute veto’ over the bills.

● Bills on certain matters enumerated in the State List can be introduced by the state legislature only
with the previous sanction of the President.

● The President can direct the states to reserve money bills & other Financial Bills passed by the
state legislature for his consideration during a ‘Financial Emergency’.

● Administrative Relations

● Articles 256 to 263 (PART XI) deal with the Administrative Relations between the Centre & State.

● Aspects under Administrative Relations –

○ Distribution of Executive Powers

○ The obligation of States & the Centre

○ Centre’s directions to the States

○ Mutual Delegation of Functions

○ Cooperation between the C&S

○ All India Services

 ○ Public Service Commissions

○ Integrated Judicial System

○ Relations during Emergencies

○ Other Provisions

○ Extra – Constitutional Devices

1. Distribution of Executive Powers

● Executive powers of the Centre extend to the whole of India:

● Parliament has exclusive powers of legislation to the matters enumerated in the Union List.

● Parliament will have rights, authority & jurisdiction on states if any treaty/agreement is conferred.

● Executive powers of the state extend to its territory:

● With respect to matters enumerated in the State List.

● On matters enumerated in Concurrent List, the Executive Power rests with the states except when
a Constitutional provision or a parliamentary law specifically confers it on the centre.

● “A law on a concurrent subject is enacted by Parliament but executed by the states except when
the constitution or the Parliament has directed otherwise”.

2. Obligation of States & the Centre

● The Constitution has placed 2 restrictions on the Executive Power of the states so that the Centre
can exercise its executive power in an unrestricted manner.

● The executive power of every state is to be exercised in such a way –

● (i) As to ensure compliance(act in accordance) with the laws made by the Parliament & any existing
laws which apply in the state;

● (ii) As not to impede or prejudice the exercise of executive power of the Centre in the state.

● Article 365 says that where any state has failed to comply (act in accordance) with any directions
given by the Centre, the President can hold that a situation has arisen in which the govt. of the
state cannot be carried on in accordance with the Constitution.

● In such a situation, the President’s rule can be imposed in the state under Article 356.

3. Centre’s directions to the States

● Centre gives directions in construction & maintenance of means of communication by the state.

● Directions on the measures to be taken for the protection of railways within the state.

● Provision of adequate facilities for instruction in the mother-tongue at the primary stage of the
education to children belonging to linguistic minority groups of the state.
 ● The drawing up & execution of the specified schemes for the welfare of the Scheduled Tribes in
the state.

4. Mutual Delegation of Functions

● The distribution of executive powers between C&S is rigid and many times lead to conflicts, hence
the Constitution provides for inter-government delegation of executive functions to mitigate rigidity
& avoid a situation of deadlock.

● Accordingly, the President may (with the consent of the state govt.) entrust to that govt. any of the
executive functions of the Centre.

● Conversely, the Governor of a state may (with the consent of the Central govt.) entrust to that govt.
any of the executive functions of the state.

● Constitution also makes a provision for the entrustment of the executive functions of the Centre to
a state (without the consent of that state) here, the delegation is by Parliament (not by President)

● Mutual delegation of functions between the C&S can take place either under an agreement or by
legislation. (Centre can use both the methods but a state can use only the agreement method)

5. Cooperation between the C&S – to secure cooperation & coordination

● Parliament can provide for the adjudication of any dispute w.r.t use/distribution/control of waters of
any inter-state river & valley.

● The President can establish an Inter-State Council (under Art 263) to investigate & discuss common
interests between C&S.

● Full faith & credit is to be given throughout the territory of India to public acts, records & judicial
proceedings of the Centre & every state.

● Parliament can appoint an appropriate authority to carry out the purpose of the constitutional
provision relating to the interstate freedom of trade & commerce.

6. All – India Services

● AIS – IAS, IPS & IFS are recruited & trained by the Centre

● Article 312 authorises Parliament to create new AIS on the basis of an RS resolution to that effect.

● AIS helps in maintaining a high standard of administration in C & S.

● Help to ensure uniformity of the administrative system throughout the country.

● Facilitate liaison, cooperation, coordination & joint action on the issues of common interests
between C&S.

7. Public Service Commissions

● Chairman & members of SPSC – appointed by Governor but removed by President.

● Parliament can established JSPSC(Joint) – for 2/more states on their request [Ch & mem of JSPSC
appointed by President]
 ● UPSC serves the needs of a state on the request of the state Governor & with the approval of the
President.

● UPSC assists the states (when requested by 2/more states) in framing & operating schemes of
Joint Recruitment for any services.

8. Integrated Judicial System

● Judges of a state HC are appointed by the President in consultation with the CJI & Governor of the
state. They can be transferred & removed only by the President.

● Parliament can establish a common HC for 2/more states.

9. Relations during Emergencies

● Art 352 National emergency Centre becomes entitled to give executive directions to a state on
“any” matter.

● Art 356 President’s Rule President can assume himself the functions of the state govt & powers
vested in the Governor or any executive authority.

● Article 360 Financial emergency Centre can direct the states to observe canons of financial
propriety & the President can give directions like the reduction of salaries of persons serving in the
state & HC judges.

● Other Provisions

○ Art 355 Imposes 2 duties on Centre

■ to protect every state from external & internal aggression/disturbance and

■ to ensure that the government of every state is carried on in accordance with the
provisions of the Constitution.

○ The Governor of a state is appointed by the President & holds office during the pleasure of
the President.

○ Governor acts as an agent of the Centre & submits periodical reports to the Centre about
the administrative affairs of the state.

○ The State Election Commissioner is appointed by the Governor but removed by the
President.

10. Extra – Constitutional Devices

● Includes no. of advisory bodies & conferences held at the Centre level.

● Non-Constitutional Bodies => NITI Aayog, NDC, Central Council of Health, North East Council,
Central Council for Local Govt, Transport Development Council, Zonal Councils, UGC, etc.

● Conferences => Governors’ conference (presided by the President), CMs’ conf (Presided by the
PM), Chief Secretaries’ conf (pres by the Cabinet Secretary), Conf of Inspector General of Police,
CJs’ conf (by CJI), Home Ministers’ conf (Central HM), etc.
 ● Financial Relations

● Articles 268 to 293 in Part XII deal with Financial Relations between Centre and State.

● Aspects under Financial Relations –

○ Allocation of Taxing Powers

○ Distribution of Tax Revenues

○ Distribution of Non-Tax Revenues

○ Grants-in-Aid to the States

○ Finance Commission

○ Protection of the States’ Interest

○ Borrowing by the C & S

○ Intergovernmental Tax Immunities

○ Effects of Emergencies

101st Amendment to the Constitution

● Goods and Services Tax (GST) is an indirect tax that was introduced in India on 1 July 2017 and
was applicable throughout India which replaced multiple cascading taxes levied by the central and
state governments. It was introduced as The Constitution (One Hundred and First Amendment) Act
2017, following the passage of the Constitution 122nd Amendment Bill.

Under GST, goods and services are taxed at the following rates, 0%, 5%, 12%, 18% and 28%.

Article 246 (A)

● This is a new article inserted in the constitution. It says that –

● (1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause
(2), the Legislature of every State, has the power to make laws with respect to goods and services
tax imposed by the Union or by such State.

● (2) Parliament has exclusive power to make laws with respect to goods and services tax where the
supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.

● Both Union and States in India now have “concurrent powers” to make law with respect to goods &
services

● The intra-state trade now comes under the jurisdiction of both centre and state; while inter-state
trade and commerce are “exclusively” under central government jurisdiction.

Article 269A

● Goods and services tax on supplies in the course of inter-State trade or commerce shall be levied
and collected by the Government of India and such tax shall be apportioned between the Union
 and the States in the manner as may be provided by Parliament by law on the recommendations
of the Goods and Services Tax Council.

● The amount apportioned to a State under clause (1) shall not form part of the Consolidated Fund
of India.

● Where an amount collected as tax levied under clause (1) has been used for payment of the tax
levied by a State under article 246A, such amount shall not form part of the Consolidated Fund of
India.

● Where an amount collected as tax levied by a State under article 246A has been used for payment
of the tax levied under clause (1), such amount shall not form part of the Consolidated Fund of the
State.

● Parliament may, by law, formulate the principles for determining the place of supply, and when a
supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.’

Article 279A – Goods and Services Tax Council (GSTC)

● This article provides for the constitution of a GST council by the president within sixty days from
this act coming into force. The GST council will constitute the following members:

● Union Finance Minister as chairman of the council

● Union Minister of State in charge of Revenue or Finance

● One nominated member from each state who is in charge of finance or taxation

● Changes in the 7th Schedule

Union List:

● Entry 84 of Union List earlier comprised the duties on tobacco, alcoholic liquors, opium, Indian
hemp, narcotic drugs and narcotics, medical and toilet preparations. After this amendment, it will
comprise Petroleum crude, high-speed diesel, motor spirit (petrol), natural gas, and aviation turbine
fuel, tobacco, and tobacco products. Thus, these are now out of the ambit of GST and subject to
Union jurisdiction.

● Entry 92 (newspapers and on advertisements published therein) has been deleted thus, they are
now under GST.

● Entry 92-C (Service Tax) has now been deleted from the union list.

State List:

● Under State list, entry 52 (entry tax for sale in state) has been deleted.

● In Entry 54, Taxes on the sale or purchase of goods other than newspapers, subject to the
provisions of Entry 92-A of List I.; has been now replaced by Taxes on the sale of petroleum crude,
high-speed diesel, motor spirit (commonly known as petrol), natural gas, aviation turbine fuel and
alcoholic liquor for human consumption, but not including the sale in the course of inter-State trade
or commerce or sale in the course of international trade or commerce of such goods.”
 ● Entry 55 (advertisement taxes) have been deleted.

● Entry 62 (Taxes on luxuries, including taxes on entertainments, amusements, betting, and

gambling) has been replaced by these taxes only to be levied by local governments (panchayats,
municipality, regional council, or district council.)

Other Important amendments –

● The residuary power of legislation of Parliament under article 248 is now subject to article 246A.

● Article 249 has been changed so that if the 2/3rd majority resolution is passed by Rajya Sabha, the
Parliament will have powers to make necessary laws with respect to GST in the national interest.

● Article 250 has been amended so that parliament will have powers to make laws related to GST
during the emergency period.

● Article 268 has been amended so that excise duty on medicinal and toilet preparation will be omitted
from the state list and will be subsumed in GST.

● Article 268A has been repealed so now service tax is subsumed in GST.

● Article 269 would empower the parliament to make GST related laws for inter-state
trade/commerce.

● Distribution of Non-Tax Revenues

(i) The Centre – receipts from

a) Posts & telegraphs

b) Banking

c) Railways

d) Broadcasting

e) Coinage & currency

f) Escheat & lapse

(ii) The States – receipts from

a) Irrigation

b) Forests

c) Fisheries

d) State PSE

e) Escheat & lapse

● Grants-in-Aid to the States

A. Statutory Grants Article 275

● Article 275 empowers Parliament to make grants to the states

● Grants are provided to only states which are in need of Financial assistance

● Charged on the Consolidated Fund

● Specific grants for promoting the welfare of STs or to rise the administration of the scheduled areas
in a state (Schedule 5)

● Statutory grants are given under the recommendations of FC

B. Discretionary Grants Article 282

● Article 282 empowers both the C & S to make any grants for any public purpose

● Centre makes grants to the states on recommendations of the PC(an extra constitutional body)

● Centre is under no obligation to give these grants

● Grants given to help the state to fulfil plan targets

● Grants also used to influence & coordinate state action to effectuate a national plan

C. Other Grants
 ● Grants for a temporary period

● Ex grants provided in lieu of export duties on jute & jute products to the states of Assam, Bihar, W.
Bengal & Orissa

● Charged on Consolidated Fund

● Recommended by FC

● Finance Commission (Article 280)

● The Finance Commission, set up in 1951 under Article 280 of the Constitution, basically decides
how revenue has to be distributed between the Centre and the States. In addition, the Commission
also decides the principles on which grants-in-aid will be given to the States.

● Article 280 provides for FC (a quasi-judicial body) constituted by the President

● FC make recommendations to the President

a. Distribution of the taxes to be shared between C&S, allocation & respective shares

b. The principles which should govern the Grants-in-Aid by Centre to the states

c. The measures need to augment the Consolidated Fund of the state

d. Any other matters referred to it by the President

● FC = Balancing Wheel of fiscal federalism.

14th Finance Commission Recommendation for Tax Devolution

● States’ share in the net proceeds of Union tax revenues increased to 42% from 32% earlier. This
is the largest ever jump in the percentage of devolution. In the past, changes have ranged between
1-2% increase.

● Many Centrally Sponsored Schemes (CSS) delinked from the support of the Centre. The Finance
Commission has identified over 30 CSS schemes to be delinked from the Centre’s support but all
have not yet been delinked considering the national priorities and legal obligations.

● Sharing pattern under various CSS to undergo a change, with States sharing higher fiscal
responsibility for scheme implementation.

● Distribution of grants to States for local bodies based on 2011 population data (90% weight) and
area (10% weight)

15th Finance Commission

● The 15th Finance Commission was constituted on November 27, 2017, and is headed by former
Revenue Secretary and former Rajya Sabha MP N.K. Singh.

● The terms of reference of the 15th Finance Commission are thus a matter of utmost importance to
the resources available to the States of India.

Concerns:
 ● The terms of reference of this Commission have created apprehension among States about
principles of fairness and equity in the distribution of public resources for development.

Issues:

● Asymmetry in the federal system:

○ The States in India today neither have the resources to fulfil their tasks as laid down in the
Constitution nor do they have the right to raise such resources. There is thus a great
asymmetry in India’s federal system.

○ The Centre’s capacity to mobilise resources is far greater than that of the States, but the
latter are required to undertake development expenditures that far exceed their revenue
generating capabilities.

○ The Constitution of India entrusts the Finance Commission with the responsibility of
addressing this anomaly.

● In the wake of demonetisation and GST:

○ The devolution of resources by the 15th Finance Commission assumes further significance
in the current environment, in which the finances of States have received a double blow in
the form of demonetization and the Goods and Services Tax (GST). The freedom of States
to raise resources has been restricted by the introduction of the GST.

○ They now have hardly any major tax left with them to make a difference to State resources.

● Demographic differences:

○ Using the population data of 2011 as the base for tax devolution should not reduce the
allocation of resources to States that have successfully reduced their rate of population
growth.

○ These States have incurred huge fiscal costs in order to achieve a lower population growth
and healthy demographic indicators. They have made substantial investments on
education, health and directly on family welfare programmes.

○ Many States of India today have achieved a replacement rate of growth of population or
have gone below that rate in a short span of time. An immediate effect of this is a sharp
rise in the proportion of elderly in the population. The care of the elderly is the responsibility
of State governments.

○ The enhanced costs of such care must be considered by the Commission in making its
awards and in deciding the population criterion to be used.

● Beyond the constitutional mandate:

○ The current terms of reference go far beyond the constitutional mandate of the Finance
Commission.

○ They intensify efforts to use the Finance Commission as an instrument of fiscal

consolidation and to impose the ideological and economic agenda of the Central
government on the States.
 ○ It is not the task of a Finance Commission to recommend “road maps for fiscal
management” or to impose its perception of what policies are good for the people of the
States. That is for democratically elected State governments to decide.

○ The terms of reference explicitly privilege the “committed expenditures” of the Centre.

● Performance-based incentives:

○ The terms of reference are unprecedented in asking the 15th Finance Commission to
consider proposing performance-based incentives beyond those relating to fiscal
responsibility, population, and devolution to local bodies.

● Protection of the States’ Interest

● To protect the interest of states in financial matters, the Constitution lays down that following bills
can be introduced in the Parliament only on the recommendation of the President.

● A bill which imposes or varies any tax/duty in which states are interested

● A bill which varies the meaning of Agricultural Income (relating to Income Tax)

● A bill which affects the principles on which money are distributed to states

● A bill which imposes any surcharge on any specified tax or duty

Borrowing by the C & S

● Central govt. can borrow either within India or outside upon the security of the Consolidated Fund
of India or can give guarantees – limits fixed by Parliament.

● A state can borrow within India (and not abroad) upon the security of the Consolidated Fund of
State or can give guarantees – limits fixed by SL

● Central govt. can make loans to any state or give guarantees in respect of loans raised by any state

● A state cannot raise any loan without the consent of the Centre.

Intergovernmental Tax Immunities

● The Indian Constitution contains the rule of ‘immunity from mutual taxation’ & makes the following
provisions.

A. Exemption of Central Property from State Taxation

● The property of Centre is exempted from all taxes imposed by a state

● Parliament is allowed to remove the ban

● The property includes building, land, shares, debts, everything moveable & immovable that has a
money value
 ● Companies or Corporations created by the Central govt (come under separate legal entity) hence
are not immune from state taxation or local taxation.

B. Exemption of State Property from Central Taxation

● The property & income of a state is exempted from Central Taxation

● C can tax the commercial operations of a state if Parliament so provides

● Property & income of local authorities situated within a state are not exempted from Central taxation

● Property & income of corporations & companies owned by a state can be taxed by the Centre

● C can impose Custom Duty on goods imported or exported by a state (or) an excise duty on goods
produced/manufactured by a state.

● Effects of Emergencies

A. National Emergency (Article 352)

● President can modify the constitutional distribution of revenues between C&S

● President can either reduce or cancel the transfer of finances (tax sharing & grants-in-aid)

● Such modifications continue till the end of the financial year in which the emergency ceases to
operate.

B. Financial Emergency (Article 360)

● Centre gives directions to the states –

○ To observe the specified canons of financial propriety

○ To reduce the salaries & allowances of the all-class govt state employees (including HC
judge)

○ To reserve the money bills & other financial bills for the consideration of the President

Tension areas in centre-state relations

● Mode of appointment and dismissal of Governor

● Discriminatory and partisan role of governor

● The imposition of the president’s rule

● Deployment of centre forces in the states to maintain law and order

● Reservation of state bills for the consideration of the president

● Discrimination in financial allocations to the states

● Role of NITI AYOG

● Management of All India Services

● Use of Electronic Media for political purposes

● Appointment of inquiry commissions against the chief ministers

● Sharing of finances between centre and states

● Encroachment by the centre on the state list

● Note- These are just for references.

● Administrative Reform Commission – ARC

● ARC 1966 chairmanship what Morarji Desai followed by K Hanumanthayya – to examine centre
and state relations

● The ARC constituted a study team under M C Setalvad and finalised its report in 1969 – based on
the study team’s report

● Important recommendations are –

○ Establishment of an interstate council under article 263 of the constitution

○ Appointment of persons having long experience in public life and administration and
nonpartisan attitude as Governors

○ Delegation of powers to the maximum extent to the states

○ Transferring of more financial resources to the states to reduce their dependence upon the
centre

○ Deployment of Central armed forces in the states either on their request or otherwise

● No action was taken by the central govt. on the recommendations of the ARC

Chapter 11: Inter State Relations

● The successful functioning of the Indian federal system depends not only on the harmonious
relations and close cooperation between the Center and the States but also between States inter
se.

● Hence Constitution makes the following provisions with regard to inter-state comity or harmony:

○ Adjudication of inter-state water disputes.

○ Coordination through inter-state councils.

○ Mutual recognition of public acts, records, and judicial proceedings.

 ○ Freedom of inter-state trade, commerce, and intercourse.

● In addition, the zonal councils have been established by the Parliament to promote interstate
cooperation and coordination.

● Inter-State Water Disputes

● Art 262 – provides for the adjudication of inter-state water disputes.

● Art – 262 makes two provisions:

○ Parliament may by law provide for the adjudication of any dispute or complaint with respect
to the use, distribution, and control of waters of any inter-state river and river valley.

○ Parliament may also provide that neither the Supreme Court nor any other court is to
exercise jurisdiction in respect of any such dispute or complaint.

● Therefore, under this provision, Parliament has enacted two laws –

○ River Boards Act (1956)

○ Inter-State Water Disputes Act (1956)

1. River Boards Act (1956)

● The River Board Act provides for the establishment of river boards for the regulation and
development of Inter-state River and river valleys.

● A river board is established by the Central government on the request of the state governments
concerned to advise them.

2. Inter-State Water Disputes Act (1956)

● The Inter-State Water Disputes Act empowers the Central government to set up an Ad Hoc tribunal
for the adjudication of a dispute between two or more states in relation to the waters of an inter-
state river or river valley.

● The decision of the tribunal would be final and binding on the parties to the dispute. Neither the
Supreme Court nor any other court is to have jurisdiction in respect of any water dispute which may
be referred to as such a tribunal under this Act.

Why extra-judicial machinery is required for settling inter-state water disputes?

● The Supreme Court would indeed have jurisdiction to decide any dispute between states in
connection with water supplies if legal rights or interests are concerned.

● But the experience of most countries has shown that the main problem with the judicial process
– time-consuming (and potentially endless), cases can drag on for decades and even an SC
verdict can be challenged in front of a larger bench and still after setting up larger the bench
may not reach a satisfactory solution.
 ● The time frame for settling such an issue needs to be small so that the aggrieved population
doesn’t suffer due to a long litigation process that may carry on for years at stretch as many of
their daily water needs like agriculture, drinking water and economic activities are not affected.

● In addition, the concept of “ownership” of an essential natural resource like water is

complicated, unlike the usual judicial disputes where things are straightforward.

● The legal system works on intricately defined laws, but there is no way to make a strict law
regarding all present and future disputes (like for private proprietary interest) regarding rivers
since each case is different and requires an ad-hoc approach. A court will not be entirely
competent to adjudicate on this matter; however, a perceived injustice in a tribunal order can
be appealed in the SC.

● A river water distribution scheme between states would have to take into account the
population, agricultural/industrial/personal needs, and political/strategic considerations. This
kind of dispute straddles the fine line between a legal issue and government policymaking.

● The table below shows the name of tribunals and respective years in which they were
constituted and the states involved in the dispute:

The Inter-State River Water Disputes (Amendment) Bill 2019

● The Inter-State River Water Disputes (Amendment) Bill, 2019 was recently passed in Lok Sabha.
It amends the Inter-State River Water Disputes Act, 1956. The Act provides for the adjudication of
disputes relating to waters of inter-state rivers and river valleys.

○ Under the Act, a state government may request the central government to refer an inter-
state river dispute to a Tribunal for adjudication. If the central government is of the opinion
that the dispute cannot be settled through negotiations, it is required to set up a Water
Disputes Tribunal for adjudication of the dispute, within a year of receiving such a
complaint. The Bill seeks to replace this mechanism.

○ Disputes Resolution Committee: Under the Bill, when a state puts in a request regarding
any water dispute, the central government will set up a Disputes Resolution Committee
(DRC), to resolve the dispute amicably. The DRC will comprise a Chairperson, and experts
with at least 15 years of experience in relevant sectors, to be nominated by the central
 government. It will also comprise one member from each state (at Joint Secretary level),
who are party to the dispute, to be nominated by the concerned state government.

○ The DRC will seek to resolve the dispute through negotiations, within one year (extendable
by six months), and submit its report to the central government. If the dispute cannot be
settled by the DRC, the central government will refer it to the Inter-State River Water
Disputes Tribunal. Such a referral must be made within three months from the receipt of
the report from the DRC.

○ Tribunal: The central government will set up an Inter-State River Water Disputes Tribunal,
for the adjudication of water disputes. This Tribunal can have multiple benches. All existing
Tribunals will be dissolved, and the water disputes pending adjudication before such
existing Tribunals will be transferred to the new Tribunal.

○ Composition of the Tribunal: The Tribunal will consist of a Chairperson, ViceChairperson,

three judicial members, and three expert members. They will be appointed by the central
government on the recommendation of a Selection Committee. Each Tribunal Bench will
consist of a Chairperson or Vice-Chairperson, a judicial member, and an expert member.
The central government may also appoint

○ two experts serving in the Central Water Engineering Service as assessors to advise the
Bench in its proceedings. The assessor should not be from the state which is a party to the
dispute.

○ Time frames: Under the Act, the Tribunal must give its decision within three years, which
may be extended by two years. Under the Bill, the proposed Tribunal must give its decision
on the dispute within two years, which may be extended by another year.

○ Under the Act, if the matter is again referred to the Tribunal by a state for further
consideration, the Tribunal must submit its report to the central government within a period
of one year. This period can be extended by the central government. The Bill amends this
to specify that such extension may be up to a maximum of six months.

○ The decision of the Tribunal: Under the Act, the decision of the Tribunal must be published
by the central government in the official gazette. This decision has the same force as that
of an order of the Supreme Court. The Bill removes the requirement of such publication. It
adds that the decision of the Bench of the

○ Tribunal will be final and binding on the parties involved in the dispute. The Act provided
that the central government may make a scheme to give effect to the decision of the
Tribunal. The Bill is making it mandatory for the central government to make such a
scheme.

○ Data bank: Under the Act, the central government maintains a data bank and information
system at the national level for each river basin. The Bill provides that the central
government will appoint or authorize an agency to maintain such a data bank.

● Inter-State Council

● The Inter-State Council was established under Article 263 of the Constitution of India through a
Presidential Order dated 28th May 1990.
 ● Article 263 establishment of an Inter-State Council to affect coordination between the states and
between Center and states. It is a non-permanent constitutional body.

● The President can establish such a council if at any time it appears to him that the public interest
would be served by its establishment. He can define the nature of duties to be performed by such
a council and its organization and procedure.

● Even though the president is empowered to define the duties of an inter-state council, Article 263
specifies the duties that can be assigned to it in the following manner:

➢ (a) enquiring into and advising upon disputes which may arise between states;

➢ (b) investigating and discussing subjects in which the states or the Center and the states have a
common interest; and

➢ (c) making recommendations upon any such subject, and particularly for the better coordination of
policy and action on it.

● The Council consists of:

○ Prime Minister – Chairman

○ Chief Ministers of all States – Members

○ Chief Ministers of Union Territories having a Legislative Assembly and Administrators of

UTs not having a Legislative Assembly – Members

○ Six Ministers of Cabinet rank in the Union Council of Ministers to be nominated by the
Prime Minister – Members

● “The Inter-state council’s function to enquire and advise upon inter-state disputes is complementary
to the Supreme Court’s jurisdiction under Article 131 to decide a legal controversy between the
governments. The Council can deal with any controversy whether legal or non-legal, but its function
is advisory unlike that of the court which gives a binding decision.”

● Under the above provisions of Article 263, the president has established the following councils to
make recommendations for the better coordination of policy and action in the related subjects:

○ Central Council of Health.

○ Central Council of Local Government and Urban Development.

○ Four Regional Councils for Sales Tax for the Northern, Eastern, Western and Southern
Zones.

● The Central Council of Indian Medicine and the Central Council of Homeopathy were set up under
the Acts of Parliament.

Sarkaria Commission on Center-State Relations: for establishment of permanent InterState Council

● The Sarkaria Commission on Center-State Relations (1983–87) made a strong case for the
establishment of a permanent Inter-State Council under Article 263 of the Constitution.
● It recommended that in order to differentiate the Inter-State Council from other bodies established
under the same Article 263, it must be called the InterGovernmental Council.

● The Commission recommended that the Council should be charged with following duties:

➢ a) investigating and discussing subjects in which the states or the Center and the states have a
common interest; and

➢ b) making recommendations upon any such subject, and particularly for the better coordination of
policy and action on it.

● In pursuance of the above recommendations of the Sarkaria Commission, the Janata Dal
Government headed by V. P. Singh established the Inter-State Council in 1990.

● The council is a recommendatory body on issues relating to inter-state, Center-state, and Center–
union territories relations. It aims at promoting coordination between them by examining,
discussing, and deliberating on such issues.

● Zonal Councils

● Zonal Councils are the statutory (and not the constitutional) bodies.

● They are established by an Act of the Parliament, that is, the States Reorganization Act of 1956.

● The idea of creation of Zonal Councils was mooted by the first Prime Minister of India, Pandit
Jawahar Lal Nehru in 1956 when during the course of the debate on the report of the States
Reorganisation Commission, he suggested that the States proposed to be reorganized may be
grouped into four or five zones having an Advisory Council ‘to develop the habit of cooperative
working” among these States.

● In the light of the vision of Pandit Nehru, five Zonal Councils were set up vide Part-III of the States
Reorganisation Act, 1956. The present composition of each of these Zonal Councils is as under:

○ The Northern Zonal Council, comprising the States of Haryana, Himachal Pradesh, Jammu
& Kashmir, Punjab, Rajasthan, National Capital Territory of Delhi and Union Territory of
Chandigarh;

○ The Central Zonal Council, comprising the States of Chhattisgarh, Uttarakhand, Uttar
Pradesh, and Madhya Pradesh;

○ The Eastern Zonal Council, comprising the States of Bihar, Jharkhand, Orissa, Sikkim, and
West Bengal;

○ The Western Zonal Council, comprising the States of Goa, Gujarat, Maharashtra and the
Union Territories of Daman & Diu and Dadra & Nagar Haveli;

○ The Southern Zonal Council, comprising the States of Andhra Pradesh, Karnataka, Kerala,
Tamil Nadu, and the Union Territory of Puducherry.

● North-Eastern Council (in addition to the above Zonal Councils), a North-Eastern Council was
created by a separate Act of Parliament-the North-Eastern Council Act of 1971.
 ○ The home minister of the Central government is the common chairman of all zonal councils.
Each chief minister acts as a vice-chairman of the council by rotation, holding office for a
period of one year at a time.

○ The zonal councils aim at promoting cooperation and coordination between states, union
territories and the Center. They discuss and make recommendations regarding matters
like economic and social planning, linguistic minorities, border disputes, interstate
transport, and so on. They are only deliberative and advisory bodies.

○ The five zones were formed considering various factors such as – natural divisions of the
country, the river systems and means of communication, the cultural and linguistic affinity,
and the requirements of economic development, security, and law and order.

● Each zonal council consists of the following members:

➢ a) Home Minister of the Central government.

➢ b) Chief Ministers of all the States in the zone.

➢ c) Two other ministers from each state in the zone.

➢ d) Administrator of each union territory in the zone.

● The objectives (or the functions) of the zonal councils, in detail, are as follows:

a. To achieve an emotional integration of the country.

b. To help in arresting the growth of acute state-consciousness, regionalism, linguism and

particularistic trends.

c. To help in removing the after-effects of separation in some cases so that the process of
reorganization, integration, and economic advancement may synchronize.

d. To enable the Center and states to cooperate with each other in social and economic
matters and exchange ideas and experience in order to evolve uniform policies.

e. To cooperate with each other in the successful and speedy execution of major
development projects.

f. To secure some kind of political equilibrium between different regions of the country.
 Chapter 12: Emergency Provisions in Indian Constitution

● The emergency provisions are contained in Part XVIII of the Constitution of India, from Article 352
to 360. These provisions enable the Central government to meet any abnormal situation effectively.

● A state of emergency in India refers to a period of governance that can be proclaimed by the
President of India during certain crisis situations. Under the advice of the cabinet of ministers, the
President can overrule many provisions of the Constitution, which guarantees Fundamental Rights
to the citizens of India.

● Part XVIII Articles 352 to 360 – contain Emergency Provisions.

● The term Emergency may be defined as a difficult situation arising suddenly and demanding
immediate action by public authorities under power specially granted to them by the Constitution
or otherwise to meet exigencies (demands, emergencies).

● Reasons for incorporating emergency provisions:

○ To meet any exceptional or threat full situation.

○ To safeguard the sovereignty, unity, integrity, and security of the country, the democratic
political system, and the Constitution.

○ It has been incorporated to change the Indian political system from federal to unitary as
per the situation and requirements of the country.

● What happens during an emergency?

○ During an Emergency, the Central government becomes all-powerful and the states go into
total control of the Center.

○ It converts the federal structure into a unitary one without a formal amendment of the
Constitution.

○ This kind of transformation of the political system from federal during normal times to
unitary during Emergency is a unique feature of the Indian Constitution.

● The Constitution stipulates three types of emergencies-

○ National Emergency

○ Constitutional Emergency

○ Financial Emergency
● National Emergency

● Art 352 – National Emergency

● An emergency due to –

○ War or

○ external aggression or

○ armed rebellion (internal disturbances)

● Grounds of declaration:

○ Under Article 352, the president can declare a national emergency when the security of
India or a part of it is threatened by war or external aggression, or armed rebellion.

○ The President can declare a national emergency even before the actual occurrence of war
or armed rebellion or external aggression

○ When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it

is known as ‘External Emergency’. On the other hand, when it is declared on the grounds
of ‘armed rebellion’, it is known as ‘Internal Emergency’.

○ This term ‘armed rebellion’ is inserted from the 44th amendment. Before this term, it was
known as an internal disturbance.

○ Only in the year 1975, the National emergency was declared on the grounds of internal
disturbances.

● Parliamentary approval and duration

○ The proclamation of emergency must be approved by both the houses of parliament within
one month from the date of its issue.

○ However, if the proclamation of emergency is issued at a time when the Lok Sabha has
been dissolved or the dissolution takes place during the period of one month without
approving the proclamation, then the proclamation survives until 30 days from the first
sitting of Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime
approved it.
 ○ If approved by both the houses, the Emergency continues for 6 months and can be
extended to an indefinite period with the approval of the Parliament every six months.

○ Every resolution approving the proclamation of emergency or its continuance must be

passed by either House of Parliament by a special majority.

● Revocation of proclamation

○ A proclamation of Emergency may be revoked by the President at any time by a

subsequent proclamation. Such a proclamation does not require parliamentary approval.

○ The emergency must be revoked if the Lok Sabha passes a resolution by a simple majority
disapproving of its continuation.

● Effects of national emergency

● A proclamation of Emergency has drastic and wide-ranging effects on the political system. These
consequences can be grouped into 3 categories:

○ Effects on the center-state relations: While a proclamation of Emergency is in force, the

normal fabric of the Center-State relations undergoes a basic change. this can be studied
under three heads:

■ Executive: Center becomes entitled to give executive directions to a state on ‘any’

matter

■ Legislative: The parliament becomes empowered to make laws on any subject

mentioned in the state list, the president can issue ordinances on State subjects
also, if the parliament is not in session. The laws made on state subjects by the
parliament become inoperative six months after the emergency has ceased to be
in operation.

■ Financial: the president can modify the constitutional distribution of revenues

between the center and the states.

○ Effect on the life of the Lok Sabha and State Assembly:

■ While a proclamation of National Emergency is in operation, the life of the Lok

Sabha may be extended beyond the normal term for one year at a time. However,
this extension cannot continue beyond a period of six months after the emergency
has ceased to operate.

■ Similarly, the Parliament may extend the normal tenure of a state Legislative
Assembly by one year each time during a national emergency, subject to a
maximum period of six months after the emergency has ceased to operate.

○ Effect on fundamental rights: Articles 358 and 359 describes the effect of a National
Emergency on Fundamental Rights. These two provisions are explained below:

■ Suspension of Fundamental rights under Article 19: According to Article 358,

when a proclamation of National Emergency is made, the six fundamental rights
 under article 19 are automatically suspended. Article 19 is automatically revived
after the expiry of the emergency.

● The 44th Amendment Act laid out that Article 19 can only be suspended
when the National Emergency is laid on the grounds of war or external
aggression and not in the case of armed rebellion.

■ Suspension of other Fundamental Rights: Under Article 359, the President is

authorized to suspend, by order, the right to move any court for the enforcement
of Fundamental Rights during a National Emergency. Thus, remedial measures
are suspended and not the Fundamental Rights.

● The suspension of enforcement relates to only those Fundamental Rights

that are specified in the Presidential Order.

● The suspension could be for the period during the operation of an

emergency or for a shorter period.

● The Order should be laid before each House of Parliament for approval.

● The 44 Amendment Act mandates that the President cannot suspend the
right to move the court for the enforcement of Fundamental Rights
guaranteed by Article 20 and 21.

● Declarations made so far:

○ This type of emergency has been proclaimed three times so far- in 1962, 1971 and 1975

○ The first proclamation of National Emergency was issued in October 1962 on account of
Chinese aggression in the NEFA and was in force till January 1968.

○ The second proclamation of National Emergency was made in December 1971 in the wake
of the attack by Pakistan.

○ Even when the emergency was in operation, the third proclamation of National Emergency
was made in June 1975. Both the second and the third proclamations were revoked in
March 1977.

● President’s Rule

● Article 355 imposes a duty on the center to ensure that the government of every state is carried on
in accordance with the provisions of the constitution.

● It is this duty in the performance of which the center takes over the government of a state under
Article 356 in case of failure of constitutional machinery in a state.

● This is popularly known as ‘President’s Rule’.

● Grounds of imposition: the president’s ruler can be proclaimed under Article 356 on two grounds:

○ Article 356 empowers the President to issue a proclamation if he is satisfied that a situation
has arisen in which the government of a state cannot be carried on in accordance with the
provisions of the constitution.
 ○ Article 365 says that whenever a state fails to comply with or to give effect to any direction
from the center, it will be lawful for the President to hold that a situation has arisen in which
the government of the state cannot be carried on in accordance with the provisions of the
constitution.

● Parliamentary approval and duration: A proclamation imposing the president’s rule must be
approved by both the houses of parliament within two months from the date of its issue.

○ The approval takes place through a simple majority in either House, that is, a majority of
the members of the House present and voting.

○ However, if the proclamation of President’s rule is issued at a time when the Lok Sabha
has been dissolved or the dissolution of the Lok Sabha takes place during the period of
two months without approving the proclamation, then the proclamation survives until 30
days from the first sitting of the Lok Sabha after its reconstitution, provided that the Rajya
Sabha approves it in the meantime.

○ Initially valid for six months, the President’s Rule can be extended for a maximum period
of three years with the approval of the Parliament, every six months.

● Consequences of the President’s rule: The President acquires the following extraordinary
powers when the President’s rule is imposed in a state:

○ He can take up the functions of the state government and powers vested in the governor
or any other executive authority in the state.

○ He can declare that the powers of the state legislature are to be exercised by the
parliament.

○ He can take all other necessary steps including the suspension of the constitutional
provisions relating to anybody or authority in the state.

○ Upon the imposition of this rule, there would be no Council of Ministers.

● Scope of judicial review: The 38th Amendment act of 1975 made the satisfaction of the President
in invoking Article 356 final and conclusive which would not be challenged in any court on any
ground.

○ But, this provision was subsequently deleted by the 44th Amendment Act of 1978 implying
that the satisfaction of the President is not beyond judicial review.

● Revocation of President’s Rule

○ President’s Rule can be revoked anytime after such a proclamation has been made by a
subsequent proclamation by the President. A proclamation of revocation does not require
approval by the Parliament.

○ This occurs when the leader of a political party produces letters indicating majority support
for him in the assembly and stakes his claim to form the state government.

What happens when the state government is suspended or dissolved?

1. the Parliament can delegate the power to make laws for the state to the President or to any other
authority specified by him in this regard,

2. the Parliament or in case of delegation, the President or any other specified authority can make
laws conferring powers and imposing duties on the Center or its officers and authorities,

3. the President can authorize, when the Lok Sabha is not in session, expenditure from the state
consolidated fund pending its sanction by the Parliament, and

4. the President can promulgate, when the Parliament is not in session, ordinances for the
governance of the state.

Do you know?

● The laws that are made by the Parliament or issued by the President are valid even after the
termination of the President’s rule.

● The powers of the High Court remain during the President’s rule.

● The President’s rule has no effect on the Fundamental Rights of the citizens.

● The President’s rule was first imposed in Punjab in 1951.

● The Sarkaria Commission (1988) on Center-State relations submitted recommendations

regarding the imposition of the President’s rule.

● Financial Emergency

● Grounds of declaration: Article 360 empowers the president to proclaim a Financial Emergency
if he is satisfied that a situation has arisen due to which the financial stability or credit of India or
any part of its territory is threatened.

● Parliamentary approval and duration: A proclamation declaring a financial emergency must be

approved by both the Houses of Parliament within two months from the date of its issue.

○ However, if the proclamation of Financial Emergency is issued at a time when the Lok
Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period
of two months without approving the proclamation, then the proclamation survives until 30
days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha
has in the meantime approved it.

○ Once approved by both the houses of Parliament, the Financial Emergency continues
indefinitely till it is revoked.

○ The Financial Emergency is revoked by the President at any time by a subsequent

proclamation.

● Effects of Financial Emergency

● Extension of the executive authority of the Union over the financial matters of the States.

○ Reduction of salaries and allowances of all or any class of persons serving in the State.
 ○ Reservation of all money bills or other financial bills for the consideration of the President
after they are passed by the legislature of the State.

○ Direction from the President for the reduction of salaries and allowances of all or any class
of persons serving the Union; and the judges of the Supreme Court and the High Courts.

● Criticism of the Emergency Provision

○ Some members of the Constituent Assembly criticized the incorporation of emergency

provisions in the constitution on the following grounds:

■ The federal character of the constitution will be destroyed and the union will
become all-powerful

■ The powers of the State- both the Union and the Units- will entirely be concentrated
in the hands of the union executive.

■ The president will become a dictator

■ The financial autonomy of the state will be nullified

■ Fundamental rights will become meaningless and, as a result, the democratic

foundation of the constitution will be destroyed.’

○ While defending the emergency provisions in the Constituent Assembly, Dr. Ambedkar
accepted the possibility of their misuse. He observed, ‘I do not altogether deny that there
is a possibility of the Articles being abused or employed for political purposes.’
 Chapter 13: Parliament of India: Lok Sabha & Rajya Sabha

● India has a parliamentary system of government. The Parliament of India is considered as a

bicameral structure. Parliament of India consists of three parts:

○ President

○ Rajya Sabha (Council of States) – Upper House (Second Chamber or House of Elders)

○ Lok Sabha (House of the People) – Lower House (First Chamber or Popular House)

● Parliament of India

● Article 79 to 122 – Part V – deals with the organization, composition, duration, officers, procedures,
powers, and so on of the Parliament.

● Article 79: There shall be a Parliament which shall consist of a President and two Houses to be
known respectively as the Council of States and the House of the People.

● Parliament is the legislative organ of the Union government or supreme legislative body in India.

● President as part of Parliament

○ India’s parliament is constituted on the basis of the principle of “Bicameralism“, so it has

two chambers. The two houses are Lok Sabha (LS) and Rajya Sabha (RS).

○ In India, the Parliament comprises the President, Lok Sabha, and Rajya Sabha but the
President is NOT a part of the legislature.
 ○ This is in line with the British parliamentary system where the Parliament is composed of
Monarch, House of Lords, and House of Commons.

○ Though the President of India is not a member of either House of Parliament and does not
sit in the Parliament to attend its meetings, he is an integral part of the Parliament.

○ Note: In American pattern, the President is not an integral part of the Legislature.

● RAJYA SABHA: Composition of Rajya Sabha

● Article 80 gives the details of the composition of the Rajya Sabha.

● Rajya Sabha or Council of States is the Upper House of our parliament. The other term that is used
is “House of Elders”.

● The Fourth Schedule of the Constitution deals with the allocation of seats in the Rajya Sabha to
the states and union territories.

● The maximum membership to Rajya Sabha is limited to 250. The 250 members are as follows:
 ● A maximum of 238 Members elected by representatives of the States & Union Territories. The
Original Constitution mentioned only states. UTs added by the 7th amendment.

● A maximum of 12 members nominated by the President of India who excel in Literature, Science,
Art, and Social Service.

● Representatives of the states are elected by the elected members of the Legislative Assembly of
the state in accordance with the System of Proportional Representation by means of Single
Transferable Vote. (Indirect Election)

● The present strength of the Rajya Sabha is 245, of whom 233 are representatives of the
States/Union Territories and 12 are nominated by the President.

Election of the Rajya Sabha Members

● 233 members of the Present Rajya Sabha are elected by the various State Legislative Assemblies
so the Council of States is an “Indirectly Elected Body“.

● For this election, each State is allotted a certain number of seats in the council.

● As per article 80(5), the representatives of the Union Territories are chosen as Parliament
prescribed by law. As prescribed by the parliament, the representatives of the Union Territories are
indirectly elected by the members of the Electoral College for that territory.

● The elected members of the States’ Legislative Assemblies elect the members of the Rajya Sabha
on the basis of proportional representation through the single transferable vote system.

Allocation of Seats – Rajya Sabha

 ● This allocation is mainly on the basis of Population but this is NOT the sole consideration. Some
smaller states have been given due weightage in representation in Rajya Sabha.

● Please note: Not all Union Territories are represented in Rajya Sabha.

● Out of the 7 UTs, only two (Delhi and Puducherry) have representation in RS.

● The populations of the other five UTs are too small to have any representative in the RS.

● LOK SABHA: Composition of Lok Sabha

● Article 81 deals with the Composition of the Lok Sabha. This article provides that the maximum
number should be as follows:

● Not more than 530 representatives of the States.

● Not more than 20 representatives from the Union Territories

● Not more than 2 members of the Anglo Indian Community as nominated by the President, only if
he/she is of opinion that the Anglo Indian Community is not adequately represented in the
parliament.

● This makes the total strength of the Lok Sabha i.e. 530+20+2= 552.

● At present, the LS has 545 members.

● Representation of Anglo-Indian Community

○ Representation of the Anglo-Indian Community is provided by the Constitution as per

article 331 and not by article 81.

○ Article 331 says that: Notwithstanding anything in article 81, the President may if he is of
opinion that the Anglo-Indian community is not adequately represented in the House of the
People, nominate not more than two members of that community to the House of the
People.

Change in number of Lok Sabha Seats

● The limit on the maximum number of members chosen directly from territorial constituencies in
States may be exceeded if such an increase is incidental to the reorganization of States by an Act
of Parliament.

● However, the strength of the Lok Sabha may NOT change now or in the near future until the
relevant figures are published of the first census taken after the year 2026.

● As of now, the Constitution limits the Lok Sabha to a maximum of 552 members, including no more
than 20 members representing people from the Union Territories, and two appointed non-partisan
members to represent the Anglo Indian community (if the President feels that the community is not
adequately represented).

104th Constitutional Amendment Act

 ● Between 1952 and 2020, two seats were reserved in the Lok Sabha, the lower house of the
Parliament of India, for members of the Anglo-Indian community. These two members were
nominated by the President of India on the advice of the Government of India. In January 2020,
the Anglo-Indian reserved seats in the Parliament and State Legislatures of India were
discontinued by the 126th Constitutional Amendment Bill of 2019, when enacted as 104th
Constitutional Amendment Act, 2019.

Allocation of Lok Sabha Seats to States

● The seats of Lok Sabha are allocated to the states in such a manner that the ratio between that
number and the population of the State is, so far as practicable, the same for all States.

● Further, each State is divided into territorial constituencies in such a manner that the ratio between
the population of each constituency and the number of seats allotted to it is, so far as practicable,
the same throughout the State.

Election of Lok Sabha Members

● The electors of the Constituencies elect the members directly on the basis of Adult Suffrage as per
Article 326 Constitution of India.

● The age for being eligible to vote, prior to the 61st amendment act was 21 years. The Constitution
61st Amendment Act 1988 reduced the age to be eligible to vote for 18 years.

● Please note that the Constitution provides that the members of the Union territories are to be
chosen in such a manner as Parliament by law may decide, and using this power the parliament
made the law that members from the Union Territories should be chosen by direct election.

● The first General elections were held in 1951-52. The strength of the Lok Sabha at that time was
489.

● Each Constituency chooses 1 member. But this was not like it since the beginning. Prior to 1962,
there were both single-member and multi-member constituencies. These multi-member
constituencies used to elect more than one member. The multi member constituencies were
abolished in 1962.

Duration

● Lok Sabha has a fixed term of 5 years and can be dissolved by the President at any time. The
original Constitution had a term of Lok Sabha as 5 years. It was changed to 6 years by the
Constitution 42nd Amendment Act and later reverted to 5 years by the 44th Amendment Act.

● Rajya Sabha has an indefinite term and is not subject to dissolution (Article 83.1).

● The term of an individual Rajya Sabha member is 6 years and one-third of its members retire every
two years, in accordance with the rules as prescribed by the parliament of India.

● While a Proclamation of Emergency is in operation, a 5 year period for Lok Sabha may be extended
by Parliament by law for a period not exceeding one year at a time and not exceeding in any case
beyond a period of six months after the Proclamation has ceased to operate.
Qualification

● Article 84 of the Constitution lays down the qualifications for membership of Parliament. A person
to be qualified to be an MP is required that he/she:

○ Must be a citizen of India

○ Must be not less than 30 years of age in the case of Rajya Sabha and 25 years in the case
of Lok Sabha.

○ He must make and subscribe to an oath or affirmation before the person authorized by the
election commission for this purpose. In his oath or affirmation, he swears

■ To bear true faith and allegiance to the Constitution of India

■ To uphold the sovereignty and integrity of India

○ Must possess such other qualifications as may be prescribed on that behalf by or under
any law made by Parliament.

● The Parliament has laid down the following additional qualifications in the Representation of People
Act (1951).

○ He must be registered as an elector for a parliamentary constituency. This is the same in

the case of both, the Rajya Sabha and the Lok Sabha.

● Please note: The requirement that a candidate contesting an election to the Rajya Sabha
from a particular state should be an elector in that particular state was dispensed within
2003. In 2006, the Supreme Court upheld the constitutional validity of this change.

● He must be a member of a scheduled caste or scheduled tribe in any state or union territory if he
wants to contest a seat reserved for them. However, a member of scheduled castes or scheduled
tribes can also contest a seat not reserved for them.

Vacation of Seats

● Article 101 lays down the conditions in which a member of parliament shall vacate his/her seat.
The conditions are as follows:

● If a person is chosen to be a member of both the houses of parliament, he/ she must vacate his /
her seat in one of the two houses.

● If a person is elected both as MLA and MP, then he/she must vacate the seat of MLA, otherwise,
the seat of MP shall fall vacant.

● Disqualification: If the person is disqualified as per article 102 or as per the provisions of the Tenth
Schedule, he/she shall vacate the seat.

● Resignation: To speaker in case of Lok Sabha and to Chairman in the case of Rajya Sabha.

● Absence without permission: A seat can be declared vacant if a member absents himself from all
meetings of the house for a period of 60 days.
 ● Other cases: A member has to vacate his seat in the Parliament:

(i) if his election is declared void by the court;

(ii) if he is expelled by the House;

(iii) if he is elected to the office of President or Vice-President; and

(iv) if he is appointed to the office of governor of a state.

● If a disqualified person is elected to the Parliament, the Constitution lays down no procedure to
declare the election void. This matter is dealt with by the Representation of the People Act (1951),
which enables the high court to declare an election void if a disqualified candidate is elected. The
aggrieved party can appeal to the Supreme Court against the order of the high court in this regard.

Disqualification

● There are situations prescribed by the Constitution for Disqualification of the MPs.

● Article 102 of the Constitution lays down that a person shall be disqualified for being chosen as,
and for being, a member of either House of Parliament –

● if he holds any office of profit under the Government of India or the Government of any State, other
than an office declared by Parliament by law not to disqualify its holder;

○ if he is of unsound mind and stands so declared by a competent court;

○ if he is an undischarged insolvent;

○ if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State,
or is under any acknowledgment of allegiance or adherence to a foreign State;

○ if he is so disqualified by or under any law made by Parliament.

● However, for the purpose of this clause, 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/ she is a
Minister either for the Union or for such State.

● The Parliament has laid down the following additional disqualifications in the Representation of
People Act (1951):

○ He must not have been found guilty of certain election offenses or corrupt practices in the
elections.

○ He must not have been convicted for any offense resulting in imprisonment for two or more
years. But, the detention of a person under a preventive detention law is not a
disqualification.

○ He must not have failed to lodge an account of his election expenses within the time.

○ He must not have any interest in government contracts, works, or services.

○ He must not be a director or managing agent nor hold an office of profit in a corporation in
which the government has at least 25 percent share.
 ○ He must not have been dismissed from government service for corruption or disloyalty to
the State.

○ He must not have been convicted for promoting enmity between different groups or for the
offense of bribery.

● On the question of whether a member is subject to any of the above disqualifications, the
president’s decision is final. However, he should obtain the opinion of the election commission and
act accordingly.

Disqualification on Ground of Defection

● The Constitution also lays down that a person shall be disqualified from being a member of
Parliament if he is so disqualified on the ground of defection under the provisions of the Tenth
Schedule.

● A member incurs disqualification under the defection law:

○ if he voluntary gives up the membership of the political party on whose ticket he is elected
to the House;

○ if he votes or abstains from voting in the House contrary to any direction given by his
political party;

○ if any independently elected member joins any political party; and

○ if any nominated member joins any political party after the expiry of six months.

● The question of disqualification under the Tenth Schedule is decided by the Chairman in the case
of Rajya Sabha and Speaker in the case of Lok Sabha (and not by the president of India). In 1992,
the Supreme Court ruled that the decision of the Chairman/Speaker in this regard is subject to
judicial review.
Article 79-122 deals with Chapter II (Parliament) of Part V (Union)
 Chapter 14: Sessions of Indian Parliament

● The president from time to time summons each House of Parliament to meet. But, the maximum
gap between two sessions of Parliament can not be more than six months. In other words, the
Parliament should meet at least twice a year.

● There are usually three sessions in a year, viz,

○ the Budget Session (February to May);

○ the Monsoon Session (July to September); and

○ the Winter Session (November to December).

● A ‘session’ of Parliament is the period spanning between the first sitting of a House and its
prorogation (or dissolution in the case of the Lok Sabha). During a session, the House meets every
day to transact business. The constitution of India has imposed the duty upon the President that
he/she must summon each house at such intervals that the maximum time gap between two
sessions of the parliament is 6 months. So the parliament must meet twice a year. Prorogation is
the end of a session. The time between the Prorogation and reassembly is called “Recess”.

Budget Session

● The budget session is held from February to May every year.

● It is considered to be a highly crucial session of the Parliament.

● The Budget is usually presented on the last working day of the month of February.

● Here, the members discuss the various provisions of the budget and matters concerning taxation,
after the Finance Minister presents the budget.

● The budget session is generally split into two periods with a gap of one month between them.

● This session every year starts with the President’s Address to both Houses.

Monsoon Session

● The monsoon session is held from July to September every year.

● This is after a break of two months after the budget session.

● In this session, matters of public interest are discussed.

Winter Session

● The winter session of Parliament is held in mid-November to mid-December every year.

● It is the shortest session of all.

● It takes up the matters that could not be considered upon earlier and makes up for the absence of
legislative business during the second session of the Parliament.

Joint Session of Parliament

 ● The Constitution of India provides for the joint sitting of the Parliament’s two Houses, the Lok Sabha
and the Rajya Sabha, in order to break any deadlock between the two.

● The joint sitting of the Parliament is called by the country’s President.

● Such a session is presided over by the Speaker, and in his/her absence, by the Deputy Speaker of
the Lok Sabha. In the absence of both, it is presided over by the Deputy Chairman of the Rajya
Sabha.

● If any of the above are not present, any other member of the Parliament can preside by consensus
of both the Houses.

● Article 108 of the Constitution talks about a joint Parliament session.

Prorogation:

● The termination of a session of Rajya Sabha by an order made by the President under article 85(2)
(a) of the Constitution is called Prorogation. A prorogation puts an end to a session and not the Lok
Sabha itself.

Dissolution:

● Dissolution may take place either by end of the 5-year term of Lok Sabha or the end of term as
extended by emergency or by an order of President as mentioned in article 85 (2).

● Dissolution puts an end to the Lok Sabha and fresh elections must be held.

Adjournment:

● Adjournment refers to postponing the further transaction of the business for a specified time.
Adjournment terminates the sitting of the House which meets again at the time appointed for the
next sitting.

● Prorogation: Done by the President ● Adjournment – terminates a sitting.

● Dissolution: Done by the President ● Prorogation – terminates a session.

● Adjournment: Done by Presiding Officer ● Dissolution – terminates the life of a

of the House (Speaker/Deputy Speaker in House.
the Lok Sabha; Chairman/Deputy
Chairman in the Rajya Sabha)

Adjournment of Debate:

● Adjournment of Debate refers to the adjournment on a motion adopted by the House, of the debate
on a Motion or Resolution or Bill on which the House is then engaged until a future day or sine die
as specified in the motion.

Adjournment sine die:

● Adjournment sine die refers to the termination of a sitting of the House without any definite date
being fixed for the next sitting.
Quorum

● Article 100 of the Constitution of India stipulates that at least 10% of the total number of members
of the House must be present to constitute the quorum to constitute a meeting of either House of
Parliament. For example, if the House has a total membership of 250, at least 25 members must
be present for the House to proceed with its business.

● If at any time during a meeting of a House there is no quorum, the Chairman has to either adjourn
the House or suspend it until there is a quorum.

Language in Parliament

● The Constitution has declared Hindi and English to be the languages for transacting business in
the Parliament. However, the presiding officer can permit a member to address the House in his
mother-tongue.

● In both the Houses, arrangements are made for simultaneous translation. Though English was to
be discontinued as a floor language after the expiration of fifteen years from the commencement
of the Constitution (that is, in 1965), the Official Languages Act (1963) allowed English to be
continued along with Hindi.

Lame duck session of Parliament

● It refers to the last session of the existing Lok Sabha after a new Lok Sabha has been elected.
Those members of the existing Lok Sabha who could not get re-elected to the new Lok Sabha are
called lame-ducks.

● President’s Address:

● President’s address is the speech delivered by the President of India to both Houses of Parliament
assembled together at the-

○ Commencement of the first session after each general election to Lok Sabha

○ At the commencement of the first session of each year. Please note that the original
constitution provided for a president’s speech at the beginning of every session. This was
made the first session after an election, and the first session of a new year by Constitution
1st Amendment Act 1951.

Right of Ministers and Attorney-General to take part in proceedings

● Article 88 says that every Minister and the Attorney-General of India shall have the right to speak
in, and otherwise to take part in the proceedings of, either House, any joint sitting of the Houses,
and any committee of Parliament of which he may be named a member, but shall not by virtue of
this article be entitled to vote.

● Question Hour

● The first hour of every parliamentary sitting is slotted for this. During this time, the members ask
questions and the ministers usually give answers. The questions are of three kinds, namely,
starred, unstarred, and short notice.

● Starred Question:
 ○ A starred question is asked by an MP and answered orally by the Minister-in-charge. MPs
are allowed to ask one starred question each, in one sitting. Starred questions are
submitted in advance (15 days) and only 20 questions are picked (through ballot) for oral
answer on a day.

○ The questioning MP can thereafter ask up to two supplementary questions. Other MPs can
then ask supplementary questions based on the Speaker’s discretion.

● Unstarred Question:

○ An unstarred question receives a written reply from the Ministry. They are submitted 15
days in advance. A maximum of 230 unstarred questions is picked for a day.

○ An MP can submit ten questions on a day, of which he may ask a maximum of five. Out of
the five, he may ask, only one may be a starred question.

● Short Notice Question:

○ These relate to a matter of urgent public importance. They can be asked with less than 10
days’ notice. Like starred questions, short notice questions are answered orally followed
by supplementary questions. These are admitted at the discretion of the Speaker. This is
a rarely used procedure. In the 15th Lok Sabha, not a single short notice question was
admitted.

● Zero Hour

● The hour immediately following the Question Hour is popularly known as the Zero Hour. This period
is usually used to raise matters that are urgent and cannot wait for the notice period required under
other procedures.

● For raising matters during the Zero Hour, MPs give notice before 10 am to the Speaker on the day
of the sitting. The notice must state the subject they wish to raise in the House. The Speaker
decides whether to allow the matter to be raised. Short notice questions are taken up during the
Zero Hour.
 ● Offices in the parliament

● Articles 89 to 98 deal with the officers of the parliament. Notable points are here:

Chairman & Deputy Chairman of Rajya Sabha

● Vice President of India is the ex-officio chairman of Rajya Sabha.

● Rajya Sabha members only choose a Member of the Rajya Sabha as Deputy Chairman

● The Deputy Chairman will vacate office if he/ she ceases to be a member of Rajya Sabha.

● The Deputy Chairman of Rajya Sabha will resign by writing a resignation to Chairman

● The deputy chairman can be removed by a majority of the Rajya Sabha members. A 14 days’ notice
is required to be given.

● If the Vice President is not available, the Deputy Chairman will discharge functions as Chairman of
the Rajya Sabha.

● If the Chairman is also not available, a member appointed by the President will discharge the
function.

● The Chairman or Deputy Chairman will not preside while a resolution for his/ her removal from
office is under consideration.

● While a resolution for his/ her removal is under consideration, he/she shall be able to speak but not
eligible to cast the “Casting Vote”.

Speaker and Deputy Speaker of Lok Sabha

● Two members of Lok Sabha will be chosen as Speaker and Deputy Speaker.
 ● The Speaker shall vacate the office if he/ she ceases to be a member of Lok Sabha.

● The Speaker will write resignation to the Deputy Speaker and Deputy Speaker will resign to the
speaker.

● Can be removed by the Lok Sabha members by the majority.

● After the Lok Sabha gets dissolved, the Speaker will not immediately vacate the office but will
continue till the first meeting after the next elections.

● If the Speaker is NOT present, his duty will be carried out by the Deputy Speaker.

● If the Deputy Speaker is also not present, a person appointed by the President will discharge the
duties.

● The speaker or Deputy speaker will not preside over the house, while a resolution for his/her
removal from the office is under consideration.

● The Speaker does not participate in the debates and discussions of the House. He does not even
take part in the voting on bills. Although as a member he has the right to vote. In case of a tie over
any bill, he can exercise his casting vote.

● If a dispute arises over the question as to whether a bill is a Money Bill or not, the decision is made
by the Speaker. Such a decision is final and cannot be challenged inside or outside the house.

● While a resolution for his/ her removal is under consideration, he/she shall be able to speak but not
eligible to cast the “Casting Vote”.

● The salaries and allowances of the Chairman/ Deputy Chairman of the Rajya Sabha and
Speaker/Deputy Speaker will be decided as per the law by parliament.

● Each house of the parliament shall have a separate secretariat staff.

The following provisions ensure the independence and impartiality of the office of the Speaker:

● He is provided with a security of tenure.

● He can be removed only by a resolution passed by the Lok Sabha by an absolute majority (i.e. a
majority of the total members of the House) and not by an ordinary majority (i.e. a majority of the
members present and voting in the House). This motion of removal can be considered and
discussed only when it has the support of at least 50 members.

● His salaries and allowances are fixed by Parliament. They are charged on the Consolidated Fund
of India and thus are not subject to the annual vote of Parliament.

● His work and conduct cannot be discussed and criticized in the Lok Sabha except on a substantive
motion.

● His powers of regulating procedure or conducting business or maintaining order in the House are
not subject to the jurisdiction of any Court.

● He cannot vote in the first instance. He can only exercise a casting vote in the event of a tie. This
makes the position of the Speaker impartial.
 ● He is given a very high position in the order of precedence. He is placed at seventh rank, along
with the Chief Justice of India. This means he has a higher rank than all cabinet ministers, except
the Prime Minister or Deputy Prime Minister.

Pro tem Speaker

● Pro-tem speaker is a temporary speaker appointed for a limited period of time to conduct the works
in the Lower House of Parliament after the General elections.

● After a general election and the formation of a new government, a list of senior Lok Sabha members
prepared by the Legislative Section is submitted to the Minister of Parliamentary Affairs, who
selects a pro tem speaker. The appointment has to be approved by the president.

● The Speaker Pro Tem has all the powers of the Speaker. He presides over the first sitting of the
newly-elected Lok Sabha. His main duty is to administer the oath to the new members. He also
enables the House to elect the new Speaker.

● The first meeting after the election when the Speaker and the Deputy Speaker are selected by
members of the Parliament is held under the pro tem Speaker. In absence of the Speaker, the
Deputy Speaker acts as Speaker, and in the absence of both a committee of six-member selected
by the Speaker will act as Speaker according to their seniority.

Secretary General of Lok Sabha:

● The Secretary-General of the Lok Sabha is the administrative head of the Lok Sabha Secretariat.

● The post of Secretary-General is of the rank of the Cabinet Secretary in the Government of India,
who is the senior-most civil servant to the Indian Government.

● The Secretary-General is appointed by the Speaker of Lok Sabha.

● He is answerable to ONLY Speaker and his action cannot be criticized in or out of Lok Sabha.

● He remains in the office till the age of 60 years (retirement).

● His functions are to provide a link between changing members and keeping the records.

● He summons the members to attend the session of parliament on behalf of the President.

● He authenticates the bill in absence of the Speaker.

● Leader of the House

● Leader of the Lok Sabha, the Lower House of the Indian Parliament, is the Prime Minister by default
if he is a member of the Lok Sabha. If the Prime Minister is not a member of the Lower House of
Parliament, he can nominate another minister as the Leader of the House.

● The Leader of the House is a Rajya Sabha member who is either a cabinet minister or another
nominated minister. The Leader has a seat next to the Chairperson of the Rajya Sabha, in the front
row.

Leader of the Opposition

 ● The Leader of the Opposition is the politician who leads the official opposition in either House of
the Parliament of India.

● While the position also existed in the former Central Legislative Assembly of British India, and
holders of it there included Motilal Nehru, it received statutory recognition through the Salary and
Allowances of Leaders of Opposition in Parliament Act, 1977 which defines the term “Leader of the
Opposition” as that member of the Lok Sabha or the Rajya Sabha who, for the time being, is the
Leader of that House of the Party in Opposition to the Government having the greatest numerical
strength and recognized, as such, by the Chairman of the Rajya Sabha or the Speaker of the Lok
Sabha.

● However, in order to get formal recognition, the concerned party must have at least 10% of the total
strength of the House (55 seats in the Lok Sabha). If any party fails to get 10% seats in opposition,
the House will not have recognized the leader of the opposition. A single party has to meet the 10%
seat criteria, not an alliance.

Whip

● The office of ‘whip’, on the other hand, is mentioned neither in the Constitution of India nor in
the Rules of the House nor in a Parliamentary Statute. It is based on the conventions of the
parliamentary government.

● In India, the concept of the whip was inherited from colonial British rule. Every major political
party appoints a whip who is responsible for the party’s discipline and behaviors on the floor of
the house.

● Usually, he/she directs the party members to stick to the party’s stand on certain issues and
direct them to vote as per the direction of senior party members.

● However, there are some cases such as Indian presidential elections where whips cannot
direct a Member of Parliament (MP) or Member of Legislative Assembly (MLA) on whom to
vote.
 Chapter 15: Motions in Parliament – Substantive Substitute Subsidiary

● Motions and resolutions are procedural devices to raise a discussion in the House on a matter of
general public interest. Motions can be classified under the following categories, namely:

○ Substantive Motions;

○ Substitute Motions; and

○ Subsidiary Motions.

Substantive Motions

● A substantive motion is a self-contained, independent proposal submitted for the approval of the
House and drafted in such a way as to be capable of expressing a decision of the House, e.g. all
resolutions are substantive motions.

● An example of a substantive motion is – “That this House expresses its confidence in the Council
of Ministers.”

Substitute Motions

● Motions moved in substitution of the original motion for taking into consideration a policy or situation
or statement or any other matter are called substitute motions. Such motions, though drafted in
such a way as to be capable of expressing an opinion by themselves are not, strictly speaking,
substantive motions in as much as they depend upon the original motion.

Subsidiary Motions

● They depend upon or relate to other motions or follow upon some proceedings in the House. They
by themselves have no meaning and are not capable of stating the decision of the House without
reference to the original motion or proceedings of the House.

● Subsidiary motions can be further divided into:

○ Ancillary Motions;

○ Superseding Motions; and

○ Amendments.

Closure Motion

● It is a motion moved by a member to cut short the debate on a matter before the House. If the
motion is approved by the House, the debate is stopped forthwith and the matter is put to vote.
There are four kinds of closure motions.

1. Simple Closure: It is one when a member moves that the ‘matter having been sufficiently
discussed be now put to vote’.

2. Closure by Compartments: In this case, the clauses of a bill or a lengthy resolution are
grouped into parts before the commencement of the debate. The debate covers the part
as a whole and the entire part is put to vote.
 3. Kangaroo Closure: Under this type, only important clauses are taken up for debate and
voting and the intervening clauses are skipped over and taken as passed.

4. Guillotine Closure: It is one when the undiscussed clauses of a bill or a resolution are
also put to vote along with the discussed ones due to want of time (as the time allotted for
the discussion is over).

Privilege Motion

● It is concerned with the breach of parliamentary privileges by a minister. It is moved by a member

when he feels that a minister has committed a breach of privilege of the House or one or more of
its members by withholding facts of a case or by giving wrong or distorted facts. Its purpose is to
ensure the concerned minister.

Calling Attention Motion

● It is introduced in the Parliament by a member to call the attention of a minister to a matter of urgent
public importance, and to seek an authoritative statement from him on that matter. Like the zero
hours, it is also an Indian innovation in the parliamentary procedure and has been in existence
since 1954. However, unlike the zero hours, it is mentioned in the Rules of Procedure.

Adjournment motion

● The primary object of an adjournment motion is to draw the attention of Lok Sabha to a recent
matter of urgent public importance having serious consequences and in regard to which a motion
or a resolution with proper notice will be too late.

● Houses in which adjournment motion is allowed only in Lok Sabha {or in state legislative assembly}
and NOT in Rajya Sabha {or in state legislative council} because it has an element of censure
against the government.

● There are few conditions of adjournment motion in Lok Sabha as follows:

○ Such a motion needs the support of at least 50 members.

○ It should be introduced on a matter of definite and urgent public importance. However, it

should not cover more than one matter and be restricted to that matter only.

○ The subject matter should not be the same which is already being discussed in the same
session.

○ A question of privilege or any other questions which can be raised via other distinct motion
cannot be raised in an adjournment motion. Since adjournment motion disrupts the normal
business of the house and this is regarded as an extraordinary tool in parliament. The
discussion on the adjournment motion needs to last at least 2.5 hours.
No-Confidence Motion

● A motion of no-confidence, alternatively vote of no confidence, or (unsuccessful) confidence

motion, is a statement or vote which states that a person(s) in a position of responsibility
(government, managerial, etc.) is no longer deemed fit to hold that position, perhaps because they
are inadequate in some respect, are failing to carry out obligations, or are making decisions that
other members feel detrimental. As a parliamentary motion, it demonstrates to the head of state
that the elected parliament no longer has confidence in (one or more members of) the appointed
government.

● In India, a motion of no confidence can be introduced only in the Lok Sabha (the lower house of
the Parliament of India). The motion is admitted for discussion when a minimum of 50 members of
the house supports the motion.

● If the motion carries, the House debates and votes on the motion. If a majority of the members of
the house vote in favor of the motion, the motion is passed and the Government is bound to vacate
the office.

● Acharya Kripalani moved the first-ever no-confidence motion on the floor of the Lok Sabha in
August 1963, immediately after the disastrous India–China War. As of July 2018, 27 no-confidence
motions have been moved.

Motion of Thanks

● The first session after each general election and the first session of every fiscal year is addressed
by the president. In this address, the president outlines the policies and programs of the
government in the preceding year and the ensuing year.

● This address of the president, which corresponds to the ‘speech from the Throne in Britain’, is
discussed in both the Houses of Parliament on a motion called the ‘Motion of Thanks’.

● At the end of the discussion, the motion is put to vote. This motion must be passed in the House.
Otherwise, it amounts to the defeat of the government. This inaugural speech of the president is
 an occasion available to the members of Parliament to raise discussions and debates to examine
and criticize the government and administration for its lapses and failures.

No-Day-yet-Named Motion

● If the Speaker admits notice of a motion and no date is fixed for its discussion, it is called a “No-
Day-yet-Named Motion” and a copy of the admitted motion is forwarded to the Minister concerned
with the subject matter of the motion.

● Admitted notices of such motions may be placed before the Business Advisory Committee for
selecting the motions for discussion in the House according to the urgency and importance of the
subject matter thereof and allotting time for the same.

Point of Order

● A member can raise a point of order when the proceedings of the House do not follow the normal
rules of procedure.

● A point of order should relate to the interpretation or enforcement of the Rules of the House or such
articles of the Constitution that regulate the business of the House and should raise a question that
is within the cognizance of the Speaker.

● It is usually raised by an opposition member in order to control the government. It is an extraordinary

device as it suspends the proceedings before the House. No debate is allowed on a point of order.

Half-an-Hour Discussion

● Members have a right to get information from the Government on any matter of public concern by
means of questions to Ministers. When a member feels that the answer given to a question, Starred
or Unstarred or Short Notice, is not complete or does not give the desired information or needs
elucidation on a matter of fact, he may be allowed by the Speaker to raise a discussion in the House
for half an hour. The procedure is, therefore, termed as ‘Half-an-Hour Discussion’.

Short Duration Discussion

● With a view to providing opportunities to members to discuss matters of urgent public importance,
a convention was established in March 1953 whereby members could raise discussions for a short
duration without a formal motion or vote thereon. The procedure has now come to form part of the
Rules.

Special Mention

● A matter which is not a point of order or which cannot be raised during question hour, half-an-hour
discussion, short duration discussion, or under adjournment motion, calling attention notice or
under any rule of the House can be raised under the special mention in the Rajya Sabha. Its
equivalent procedural device in the Lok Sabha is known as ‘Notice (Mention) Under Rule 377’.

Resolutions

● The members can move resolutions to draw the attention of the House or the government to matters
of general public interest. The discussion on a resolution is strictly relevant to and within the scope
 of the resolution. A member who has moved a resolution or amendment to a resolution cannot
withdraw the same except by leave of the House.

● Resolutions are classified into three categories:

○ Private Member’s Resolution: It is one that is moved by a private member (other than a
minister). It is discussed only on alternate Fridays and in the afternoon sitting.

○ Government Resolution: It is one that is moved by a minister. It can be taken up any day
from Monday to Thursday.

○ Statutory Resolution: It can be moved either by a private member or a minister. It is so-

called because it is always tabled in pursuance of a provision in the Constitution or an Act
of Parliament.

Types of Budgetary Motions

● The most popular and well-known motions which are used by members in connection with the
budget are three. The demand for grants is considered and passed by the Lok Sabha. Hence, these
motions can be moved only in Lok Sabha.

a. Policy Cut: The member moves that the demand be reduced to one rupee. The member
moving this motion in fact wants to discuss the policy behind the demand in detail and
gives alternative policy suggestions.

b. Economy Cut: In this motion the reduction in the amount of demand is substantial. The
amount to be reduced is clearly stated and the object is to bring about the economy in the
expenditure.

c. Token Cut: In this motion, the demand is sought to be reduced by Rs. 100/-. The object of
the motion is to ventilate specific grievances within the sphere of responsibility of the
Government. Private Member’s Resolution A resolution may be moved by a Minister or by
a private member. For private members generally, afternoons are reserved on alternate
Fridays. Resolutions are selected by ballot. Resolutions may be brought under Rule 200
of the Lok Sabha for the removal of the Speaker or the Deputy Speaker.
 Chapter 16: Parliamentary Procedures in India

● The basic function of Parliament is to make laws, amend them, or repeal them. The process of law-
making or the legislative process, in relation to Parliament, may be defined as the process by which
a legislative proposal brought before it, is translated into the law of the land.

● All legislative proposals are brought before Parliament in the form of Bills. A Bill is a statute in draft
form and cannot become law unless it has received the approval of both the Houses of Parliament
and the assent of the President of India.

● The process of lawmaking begins with the introduction of a Bill in either House of Parliament. A Bill
can be introduced either by a Minister or a Member other than a Minister. In the former case, it is
known as a Government Bill and in the latter case, it is known as a Private Member’s Bill.

● The bills introduced in the Parliament can also be classified into four categories:

1. Ordinary bills, which are concerned with any matter other than financial subjects.

2. Money bills, which are concerned with financial matters like taxation, public expenditure, etc.

3. Financial bills, which are also concerned with financial matters (but are different from money bills).

4. Constitution amendment bills, which are concerned with the amendment of the provisions of the
Constitution.

● The procedures with regard to ordinary bills, money bills, and financial bills are explained here.

● Ordinary Bills

● Every ordinary bill has to pass through the following five stages in the Parliament before it finds a
place on the Statute Book –
First Reading

● It is necessary for a member-in-charge of the Bill to ask for the leave of the House to introduce the
Bill. If leave is granted by the House, the Bill is introduced. This stage is known as the First Reading
of the Bill.

● If the motion for leave to introduce a Bill is opposed, the Speaker may, in his discretion, allow a
brief explanatory statement to be made by the member who opposes the motion and the member-
in-charge who moved the motion.

● Where a motion for leave to introduce a Bill is opposed on the ground that the Bill initiates legislation
outside the legislative competence of the House, the Speaker may permit a full discussion thereon.
Thereafter, the question is put to the vote of the House.

● However, the motion for leave to introduce a Finance Bill or an Appropriation Bill is forthwith put to
the vote of the House. Money/Appropriation Bills and financial bills can be introduced only in Lok
Sabha per Articles 109, 110, and 117. The Speaker of Lok Sabha decides whether a bill is a Money
Bill or not. The Chairman of Rajya Sabha decides whether a bill is a finance bill or not when the bill
is introduced in the Rajya Sabha.

● Later, the bill was published in the Gazette of India. If a bill is published in the Gazette before its
introduction, leave of the House to introduce the bill is not necessary. The introduction of the bill
and its publication in the Gazette constitute the first reading of the bill.

Second Reading

● During this stage, the bill receives not only the general but also the detailed scrutiny and assumes
its final shape. Hence, it forms the most important stage in the enactment of a bill. In fact, this stage
 involves three more sub-stages, namely, the stage of general discussion, the committee stage, and
the consideration stage.

● Stage of General Discussion –

● The printed copies of the bill are distributed to all the members. The principles of the bill and its
provisions are discussed generally, but the details of the bill are not discussed.

● At this stage, the House can take any one of the following four actions:

● 1. It may take the bill into consideration immediately or on some other fixed date;

● 2. It may refer the bill to a select committee of the House;

● 3. It may refer the bill to a joint committee of the two Houses; and

● 4. It may circulate the bill to elicit public opinion.

● Committee Stage

○ The usual practice is to refer the bill to a select committee of the House. This committee
examines the bill thoroughly and in detail, clause by clause. It can also amend its
provisions, but without altering the principles underlying it. After completing the scrutiny
and discussion, the committee reports the bill back to the House.

● Consideration Stage

○ The House, after receiving the bill from the select committee, considers the provisions of
the Bill clause by clause. Each clause is discussed and voted upon separately. The
members can also move amendments and if accepted, they become part of the bill.

Third Reading

● At this stage, the debate is confined to the acceptance or rejection of the bill as a whole and no
amendments are allowed, as the general principles underlying the bill have already been
scrutinized during the stage of second reading.

● If the majority of the members present and voting accept the bill, the bill is regarded as passed by
the House. Thereafter, the bill is authenticated by the presiding officer of the House and transmitted
to the second House for consideration and approval.

● A bill is deemed to have been passed by the Parliament only when both the Houses have agreed
to it, either with or without amendments.

Bill in the Second House

● In the second House also, the bill passes through all the three stages, that is, first reading, second
reading, and third reading.

● There are four alternatives before this House:

○ It may pass the bill as sent by the first house (ie, without amendments);

○ It may pass the bill with amendments and return it to the first House for reconsideration;
 ○ It may reject the bill altogether; and

○ It may not take any action and thus keep the bills pending.

○ If the second House passes the bill without any amendments or the first House accepts
the amendments suggested by the second House, the bill is deemed to have been passed
by both the Houses, and the same is sent to the president for his assent.

● On the other hand, if the first House rejects the amendments suggested by the second House or
the second House rejects the bill altogether or the second House does not take any action for six
months; a deadlock is deemed to have taken place. To resolve such a deadlock, the president can
summon a joint sitting of the two Houses.

● If the majority of the members present and voting in the joint sitting approves the bill, the bill is
deemed to have been passed by both the Houses.

Assent of the President

● Every bill after being passed by both Houses of Parliament either singly or at a joint sitting is
presented to the president for his assent. There are three alternatives before the president:

○ a) he may give his assent to the bill; or

○ b) he may withhold his assent to the bill; or

○ c) he may return the bill for reconsideration of the Houses.

● If the president gives his assent to the bill, the bill becomes an act and is placed on the Statute
Book. If the President withholds his assent to the bill, it ends and does not become an act.

● If the President returns the bill for reconsideration and if it is passed by both the Houses again with
or without amendments and presented to the President for his assent, the president must give his
assent to the bill. Thus, the President enjoys only a “suspensive veto.

● Money Bill

● Money Bill refers to a bill (draft law) introduced in the Lower Chamber of Indian Parliament (Lok
Sabha) which generally covers the issue of receipt and spending of money, such as tax laws, laws
governing borrowing and expenditure of the Government, prevention of black money, etc.

● E.g. of Money bills are Finance Bills and Appropriation Bills, Income Tax Act, 1961, The
Undisclosed Foreign Income And Assets (Imposition Of Tax) Bill, 2015 etc.

● The term “money bill” hence, connotes certain characteristics of the proposed bill.

● Under Article 110(1) of the Constitution of India a money bill is defined as follows–

Article 110 (1)–

● A Bill is deemed to be a Money Bill if it contains only provisions dealing with all or any of the
following matters, namely:

○ (a) the imposition, abolition, remission, alteration, or regulation of any tax;

 ○ (b) the regulation of the borrowing of money or the giving of any guarantee by the
Government of India, or the amendment of the law with respect to any financial obligations
undertaken or to be undertaken by the Government of India;

○ (c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of
moneys into or the withdrawal of moneys from any such fund;

○ (d) the appropriation of moneys out of the Consolidated Fund of India;

○ (e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund
of India or the increasing of the amount of any such expenditure;

○ (f) the receipt of money on account of the Consolidated Fund of India or the public account
of India or the custody or issue of such money or the audit of the accounts of the Union or
of a State;

○ or

○ (g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).

● A Bill is not deemed to be Money Bill by reason only that it provides for the imposition of fines or
other pecuniary penalties, or for the demand or payment of fees for licenses or fees for services
rendered, or by reason that it provides for the imposition, abolition, remission, alteration or
regulation of any tax by any local authority or body for local purposes.

● If any question arises whether a bill is a money bill or not, the decision of the Speaker of the Lok
Sabha is final. His decision in this regard cannot be questioned in any court of law or in either the
House of Parliament or even the president. When a money bill is transmitted to the Rajya Sabha
and presented to the president for assent, the Speaker endorses it as a money bill.

Features of Money Bills

● Essentially a Money bill has the following features:

○ It can be introduced only in the Lok Sabha (lower chamber of the Parliament)

○ The bill is placed in Rajya Sabha (Upper chamber of the Parliament) thereafter and Rajya
Sabha can return the Bill with or without its recommendations.

○ In any case, the Bill has to be returned within a period of 14 days from the date of its receipt
by Rajya Sabha. Otherwise, it is deemed to have been passed by both Houses at the
expiration of the said period in the form in which it was passed by Lok Sabha.

○ If the bill is returned to Lok Sabha without recommendation, a message to that effect is
reported by the Secretary-General to the Lok Sabha if in session or published in the Bulletin
for the information of the members of the Parliament, if it is not in session. The Bill shall
then be presented to the President for his assent.

○ If the bill is returned to the Lok Sabha with amendments it has to be laid on the Table of
the House and taken up for consideration.

○ However, Lok Sabha is not bound to accept these amendments. Lok Sabha, under Article
109 of the Constitution, has the option to accept or reject all or any of the recommendations
 made by Rajya Sabha. In any case, Lok Sabha has to inform Rajya Sabha about the status
of their recommendations, as to whether they have been accepted or not. It is not that Lok
Sabha does not accept any of the recommendations of Rajya Sabha. For instance, in the
Income Tax Bill, 1961, Rajya Sabha did recommend a number of amendments of a
substantial character, all of which were agreed to by Lok Sabha.

○ If Lok Sabha accepts any amendments as recommended by the Rajya Sabha, the Bill shall
be deemed to have been passed by both the Houses of the Parliament ‘with the
amendments recommended by the Rajya Sabha and accepted by the Lok Sabha’ and a
message to that effect has to be sent to the Rajya Sabha.

○ If Lok Sabha does not accept the recommendations of the Rajya Sabha, the Bill shall be
deemed to have been passed by both the Houses in the form in which it ‘was passed by
the Lok Sabha without any of the amendments recommended by the Rajya Sabha’.

○ In all other bills, the final passing of the bill happens at Rajya Sabha. In the case of money
bills, final passing happens at Lok Sabha, and then it is sent to the President for his assent.

○ Unlike other bills, the President cannot return the Money Bill with his recommendations to
the Lok Sabha for reconsideration.

● A defeat of the Money bill in Lok Sabha is deemed a political/parliamentary defeat of the
government of the day. The Speaker has unquestionable powers to decide if a Bill is a Money Bill
or not. It cannot be questioned in any court.

● Rajya Sabha (Upper chamber of the Parliament)’s dissent on a Money Bill is of no political
significance, as the Lok Sabha has overriding powers on Money Bills.

● A money bill cannot be referred to even joint committees of the two Houses of the Parliament (to
resolve differences between the two Houses), as is in the case of other bills.

● The Standing Committee of the Parliament also cannot scrutinize a Money Bill.
● Financial Bills

● Financial bills are those bills that deal with fiscal matters, that is, revenue or expenditure. However,
the Constitution uses the term ‘financial bill’ in a technical sense. Financial bills are of three kinds:

○ Money bills—Article 110

○ Financial bills (I)—Article 117 (1)

○ Financial bills (II)—Article 117 (3)

● This classification implies that money bills are simply a species of financial bills. Hence, all money
bills are financial bills, but all financial bills are not money bills.

● Only those financial bills are money bills which contain exclusively those matters which are
mentioned in Article 110 of the Constitution. These are also certified by the Speaker of Lok Sabha
 as money bills. The financial bills (I) and (II), on the other hand, have been dealt with in Article 117
of the Constitution.

Article 108 Joint sitting of both Houses in certain cases –

● (1) If after a Bill has been passed by one House and transmitted to the other House-

○ (a) The Bill is rejected by the other House; or

○ (b) the Houses have finally disagreed as to the amendments to be made in the Bill; or more
then six months elapse from the date of the reception of the Bill by the other House without
the Bill being passed by it, the President may, unless the Bill has elapsed by reason of a
dissolution of the House of the People, notify to the Houses by message if they are sitting
or by public notification, if they are not sitting, his intention to summon them to meet in a
 joint sitting for the purpose of deliberating and voting on the Bill: Provided that nothing in
this the clause shall apply to a Money, Bill.

● (2) In reckoning any such period of six months as is referred to in clause (1), no account shall
be taken of any period during which the House referred to in sub-clause (c) of that clause is
prorogued or adjourned for more than four consecutive days.

● (3) Where the President has under clause (1) notified his intention of summoning the Houses to
meet in a joint sitting, neither House shall proceed further with the Bill, but the President may at
any time after the date of his notification summon the Houses to meet in a joint sitting for the
purpose specified in the notification and, if he does so, the Houses shall meet accordingly.

● (4) If at the joint sitting of the two Houses the Bill, with such amendments, if any, as are agreed
to in joint sitting, is passed by a majority of the total number of members of both Houses present
and voting, it shall be deemed for the purposes of this Constitution to have been passed by both
Houses: Provided that at a joint sitting-

○ (a) if the Bill, having been passed by one House, has not been passed by the other House
with amendments and returned to the House in which it originated, no the amendment shall
be proposed to the Bill other than such amendments (if any) as are made necessary by
the delay in the passage of the Bill;

○ (b) if the Bill has been so passed and returned, only such amendments as aforesaid shall
be proposed to the Bill and such other amendments as are relevant to the matters with
respect to which the Houses have not agreed; and the decision of the person presiding as
to the amendments which are admissible under this clause shall be final.

● (5) A joint sitting may be held under this article and a Bill passed thereafter, notwithstanding
that dissolution of the House of the People has intervened since the President notified his intention
to summon the Houses to meet therein.

○ Since 1950, the provision regarding the joint sitting of the two Houses has been invoked
only thrice. The bills that have been passed at joint sittings are:

■ Dowry Prohibition Bill, 1960.

■ Banking Service Commission (Repeal) Bill, 1977.

■ Prevention of Terrorism Bill, 2002.

● Types of Amendments & Constitutional Amendment Process

● Article 368 of Part XX of Indian Constitution provides for two types of amendments.

○ By a special majority of Parliament

○ By a special majority of the Parliament with the ratification by half of the total States

● But, some other articles provide for the amendment of certain provisions of the Constitution by a
simple majority of Parliament, that is, a majority of the members of each House present and voting
(similar to the ordinary legislative process). Notably, these amendments are not deemed to be
amendments of the Constitution for the purposes of Article 368.
 ● There are three ways in which the Constitution can be amended:

○ Amendment by a simple majority of the Parliament

○ Amendment by a special majority of the Parliament

○ Amendment by a special majority of the Parliament and the ratification of at least half of
the state legislatures.

By Simple Majority of Parliament

● A number of provisions in the Constitution can be amended by a simple majority of the two houses
of Parliament outside the scope of Article 368. These provisions include:

○ Admission or establishment of new states.

○ Formation of new states and alteration of areas, boundaries, or names of existing states.

○ Abolition or creation of legislative councils in states.

○ Second Schedule-emoluments,

○ Allowances, privileges, and so on of the president, the governors, the Speakers, judges,
etc.

○ Quorum in Parliament.

○ Salaries and allowances of the members of Parliament.

○ Rules of procedure in Parliament.

○ Privileges of the Parliament, its members, and its committees.

○ Use of the English language in Parliament.

○ The number of puisne judges in the Supreme Court.

○ Conferment of more jurisdiction on the Supreme Court.

○ Conferment of more jurisdiction on the Supreme Court.

○ Citizenship-acquisition and termination.

○ Elections to Parliament and state legislatures.

○ Delimitation of constituencies.

○ Union territories

○ Fifth Schedule-administration of scheduled areas and scheduled tribes.

○ Sixth Schedule-administration of tribal areas.

By Special Majority of Parliament

 ● The majority of the provisions in the Constitution need to be amended by a special majority of the
Parliament, that is, a majority (that is, more than 50 percent) of the total membership of each House
and a majority of two-thirds of the members of each House present and voting. The expression
‘total membership’ means the total number of members comprising the House irrespective of the
fact whether there are vacancies or absentees.

● The special majority is required only for voting at the third reading stage of the bill but by way of
abundant caution, the requirement for the special majority has been provided for in the rules of the
Houses in respect of all the effective stages of the bill.

● The provisions which can be amended by this way include (i) Fundamental Rights; (ii) Directive
Principles of State Policy; and (iii) All other provisions which are not covered by the first and third
categories.

By Special Majority of Parliament and Consent of States

● Those provisions of the Constitution which are related to the federal structure of the polity can be
amended by a special majority of the Parliament and also with the consent of half of the state
legislatures by a simple majority. If one or some or all the remaining states take no action on the
bill, it does not matter; the moment half of the states give their consent, the formality is completed.
There is no time limit within which the states should give their consent to the bill. The following
provisions can be amended in this way:

○ Election of the President and its manner.

○ The extent of the executive power of the Union and the states.

○ Supreme Court and high courts.

○ Distribution of legislative powers between

○ the Union and the states.

○ Any of the lists in the Seventh Schedule.

○ Representation of states in Parliament.

○ Power of Parliament to amend the Constitution and its procedure (Article 368 itself).
 Chapter 17: Budgetary Procedure in India (Enactments of Budget)

● In India, the Union Budget is prepared by the Department of Economic Affairs of the Ministry of
Finance. Earlier the budget was presented in two categories i.e. Railway budget and General
budget, but now there will be no separate budget for Indian Railway which has been “merged” with
the General Budget (in August 2016).

● Budget

● The Constitution refers to the budget as the ‘annual financial statement’. In other words, the term
‘budget’ has nowhere been used in the Constitution. It is the popular name for the ‘annual financial
statement’ that has been dealt with in Article 112 of the Constitution.

● Budget is a money bill introduced in Lok Sabha.

● According to Article 112 of the Indian Constitution, the President is responsible for presenting the
budget to the Lok Sabha. The annual financial statement takes into account a period of one financial
year.

● According to Article 77 (3), the Union Finance Minister has been made responsible by the President
to prepare the budget also called the annual financial statement, and pilot it through the parliament.
Budget embodies the estimated receipts and expenditure of the Government of India for one
financial year. The financial year commences on 1st April each year.

● The Union Budget is divided into Revenue Budget and Capital Budget.

● Revenue Receipt:

○ The receipts received which cannot be recovered by the government

○ It comprises income amassed by the Government through taxes and non-tax sources like
interest, dividends on investments.

● Revenue Expenditure:

○ Expenditure incurred by the Union Government for purposes other than for the creation of
physical or financial assets.
 ○ It includes those expenditures incurred for the usual functioning of the government
departments, grants given to state governments and interest payments on the debt of the
Union Government, etc.

● Capital Receipt:

○ Receipts which generate liability or decrease the financial assets of the government

○ It includes borrowings from the Reserve Bank of India and commercial banks and other
financial institutions

○ It also consists of loans received from foreign governments and international organization
and repayment of loans granted by the Union government

● Capital Expenditure:

○ Spending incurred by the government which results in the formation of physical or financial
possessions of the Union government or decrease in financial liabilities of the Union
Government.

○ It contains expenditure on procuring land, equipment, infrastructure, expenditure in shares.

○ It also includes mortgages by the Union government to Public Sector Undertakings, state
and union territories.

● Constitutional Provisions

● The Constitution of India contains the following provisions with regard to the enactment of budget:

1. The President shall in respect of every financial year cause to be laid before both the Houses of
Parliament a statement of estimated receipts and expenditure of the Government of India for that
year.

2. No demand for a grant shall be made except on the recommendation of the President.

3. No money shall be withdrawn from the Consolidated Fund of India except under appropriation
made by law.

4. No money bill imposing the tax shall be introduced in the Parliament except on the recommendation
of the President, and such a bill shall not be introduced in the Rajya Sabha.

5. No tax shall be levied or collected except by authority of law.

6. Parliament can reduce or abolish a tax but cannot increase it.

7. The Constitution has also defined the relative roles or position of both the Houses of Parliament
with regard to the enactment of the budget in the following way:

○ A money bill or finance bill dealing with taxation cannot be introduced in the Rajya Sabha—
it must be introduced only in the Lok Sabha.

○ The Rajya Sabha has no power to vote on the demand for grants; it is the exclusive
privilege of the Lok Sabha.
 ○ The Rajya Sabha should return the Money bill (or Finance bill) to the Lok Sabha within
fourteen days. The Lok Sabha can either accept or reject the recommendations made by
Rajya Sabha in this regard.

8. The estimates of expenditure embodied in the budget shall show separately the expenditure
charged on the Consolidated Fund of India and the expenditure made (Votable) from the
Consolidated Fund of India.

9. The budget shall distinguish expenditure on revenue account from other expenditure.

10. The expenditure charged (Non-votable) on the Consolidated Fund of India shall not be submitted
to the vote of Parliament. However, it can be discussed by Parliament.

● Charged Expenditure

● In India’s democratic system, the government cannot spend from the Consolidated Fund unless
the expenditure is voted in the lower house of Parliament or State Assemblies. However, according
to Article 112 (3) and Article 202 (3) of the Constitution of India, the following expenditure does not
require a vote and is charged to the Consolidated Fund.

● The following expenses are charged on the Consolidated Fund of India:

○ President’s Emoluments and allowances and other expenditure relating to his office

○ Chairman and the Deputy Chairman of the Rajya Sabha and the Speaker and the Deputy
Speaker of the Lok Sabha – Salaries and allowances

○ Salaries, allowances, and pensions of the Supreme Court’s judges

○ Pensions of the High Courts’ judges

○ Comptroller and Auditor General of India’s salaries, allowances, and pensions

○ Salaries, allowances, and pension of the chairman and members of the Union Public
Service Commission

○ Administrative expenses of the Supreme Court, the office of the Comptroller and Auditor
General of India, and the Union Public Service Commission including the salaries,
allowances, and pensions of the persons serving in these offices

○ The debt charges for which the Government of India is liable, including interest, sinking
fund charges, and redemption charges, and other expenditure relating to the raising of
loans and the service and redemption of debt

○ Any sum required to satisfy any judgment, decree, or award of any court or arbitral tribunal

○ Any other expenditure declared by the Parliament to be so charged

● Budgetary Procedure – Enactments of Budget in the Parliament

● It is also called ‘enactments of budget’ which means converting the two bills into acts. The passage
in Parliament has five stages:
 1. Presentation of the budget with the Finance Minister’s speech

2. General discussion of the budget. After this, there is an adjournment of houses so that
standing committees scrutinize the demand for grants for a month.

3. Voting on demand for grants in Lok Sabha

4. Passing of appropriation bills

5. Passing of Finance bills.

● Article 112 of the Constitution enjoins upon the President of India to get the budget presented
before both of the houses of Parliament. Being a Money Bill, it has to be presented to the Lok
Sabha first and must classify the charge on the Consolidated Fund and expenditure on the
Consolidated Fund of India separately.

● There is a prescribed legislative procedure in each house and the Rajya Sabha should not delay it
for more than fourteen days. The Consolidated Fund, Contingency Fund, and public account
transactions are updated to appraise the Parliament which operates the Consolidated Fund at the
President’s disposal and takes stock of public account assets and liabilities without voting on them.
The budget in India had to pass through three readings without any committee stage.

1. Budget Presentation

● The first reading is called the presentation of the budget which includes the following documents:

1. The economic survey report,

2. Economic classification of the budget,

3. Annual reports of the ministries,

4. An explanatory memorandum on the budget,

5. An Appropriation Bill, and

6. A Finance Bill containing the taxation proposals.

● The Budget is presented on 1st February (until 2016, it was presented on the last working day of
February) so that it can materialize before the commencement of the new financial year which
starts on 1st April. The finance minister presents the General Budget with a speech known as the
‘budget speech’. At the end of the budget speech in the Lok Sabha, the budget is laid before the
Rajya Sabha which can only discuss it and has no power to vote on the demand for grants.

2. General Discussion

● The general discussion on a budget takes place during the budget session. It lasts for three to four
days. During this stage, the Lok Sabha can discuss the budget as a whole or on any question of
principle involved therein but no motion is moved or submitted for the vote of the House. The
finance minister has a right to reply at the end of the discussion. After the general discussion on
budget, the Lok Sabha takes upvoting of demands for grants.

● Scrutiny by Departmental Committees

 ○ After the general discussion on the budget is over, the Houses are adjourned for about
three to four weeks. During this gap period, the 24 departmental standing committees of
Parliament examine and discuss in detail the demands for grants of the concerned
ministers and prepare reports on them. These reports are submitted to both the Houses of
Parliament for consideration.

3. Voting on Demands for Grants

● They are presented ministry-wise and demand becomes a grant after it has been voted. The voting
of demands for grants is the exclusive privilege of the Lok Sabha and not of Rajya Sabha. The
voting is confined to the votable part of the budget but the expenditure charged on the Consolidated
Fund of India can only be discussed.

● The General Budget has 109 demands (103 for civil expenditure and 6 for defense expenditure),
the Railway Budget has 32 demands. Each demand is voted separately by the Lok Sabha. During
this stage, the members of Parliament can discuss the details of the budget. They can also move
to reduce any demand for grants. But increase or upward revisions of estimates are not permissible.

● The members who propose a reduction of grant bring three kinds of cut motions which are either
withdrawn or dropped because their passing will be tantamount to a vote of no confidence in the
government. Still, to attract the attention of the government, the cut motions are moved to bring
moral pressure on the executive.

● These cut motions are:

○ (1) Token Cut Motion: It expresses a specific grievance that is within the sphere of
responsibility of the government. It states that the amount of the demand will be reduced
by Rs 100. On the 26th day, the Speaker puts all the remaining demands to vote and
disposes of them whether they have been discussed by the members or not. This is called
‘Guillotine closer’.

○ (2) Policy Cut Motion shows disapproval of the policy underlying a demand. It states that
the amount of the demand will be reduced to Re 1.

○ (3) Economy Cut Motion asks for the economy in the proposed expenditure. It states that
the amount of the demand be reduced by a specified amount which may be either a lump-
sum reduction or omission or reduction of an item in the demand.

● Article 113 and 114 provide for the presentation of various kinds of demands for grants by
the Parliament. Some of them are:

● (1) Vote on credit

○ It is granted for meeting an unexpected demand upon the resources of India when on
account of the magnitude or the indefinite character of the service, the demand cannot be
stated with the details ordinarily given in a budget. Hence, it is like a blank cheque given to
the Executive by the Lok Sabha.

● (2) Vote on accounts

○ Vote on Account is a grant in advance to enable the government to carry on until the voting
of demands for grants and the passing of the Appropriation Bill and Finance Bill.
 ● (3) Vote on exceptional grants

○ It is granted for a special purpose and forms no part of the current service of any financial
year.

● (4) Supplementary grants

○ It is granted when the amount authorized by the Parliament through the appropriation act
for a particular service for the current financial year is found to be insufficient for that year.

● (5) Excess grants

○ It is granted when money has been spent on any service during a financial year in excess
of the amount granted for that service in the budget for that year. It is voted by the Lok
Sabha after the financial year. Before the demands for excess grants are submitted to the
Lok Sabha for voting, they must be approved by the Public Accounts Committee of
Parliament.

● (6) Token grants

○ It is granted when funds to meet the proposed expenditure on a new service can be made
available by reappropriation. Demand for the grant of a token sum (of Re 1) is submitted
to the vote of the Lok Sabha and if assented, funds are made available. Reappropriation
involves the transfer of funds from one head to another. It does not involve any additional
expenditure.

● In addition to the budget, various other kinds of grants are made by the Parliament under
extraordinary or special circumstances. When the amount authorized by the Parliament through
the Appropriation Act for a particular service for the current financial year is found to be insufficient
for the purposes of that year supplementary grants are sanctioned by the Parliament.

● Similarly, when a need has arisen during the current financial year for additional expenditure upon
some new service not contemplated in the budget, Parliament may consider additional grants.
Excess grants are given when money has been spent on any service during a financial year in
excess of the amount granted for that service in the budget for that year.

● It is voted by the Lok Sabha after the financial year. Only, if approved by the Public Accounts
Committee to meet an unexpected demand upon resources and if the account is huge or of
indefinite character, the vote on credit is resorted to like a blank cheque given to the executive by
the Lok Sabha.

● For special purposes that form no part of the current service of any financial year, exceptional
grants can be made. Parliament makes token grants available if funds to meet the proposed
expenditure on a new service are available by re-appropriation. Demand for the grant of a token
sum (of Re 1) is submitted to the vote of the Lok Sabha and if assented, funds follow.
Supplementary, additional, excess, and exceptional grants and vote of credit are regulated by the
same procedure which is applicable in the case of a regular budget.

4. Passing of Appropriation Bill

● The Appropriation Bill and Finance Bill after the debate is put to vote on the floor of the Parliament
sequentially. The Appropriation Bill comes first and then the Finance Bill has to make revenue
 provisions for the stipulated expenditure sanctioned by the Parliament. No amendment can be
proposed to the Appropriation Bill in either house of the Parliament which will have the effect of
varying the amount or altering the destination of any grant voted.

● The Appropriation Bill becomes the Appropriation Act after it is assented to by the President. This
Act authorizes the payments from the Consolidated Fund of India. If the government needs money
to carry on its normal activities after 31st March, the Constitution authorizes the Lok Sabha to make
a grant in advance in respect to the estimated expenditure for a part of the financial year, pending
the enactment of the Appropriation Bill. This ‘Vote on Account’ is passed after a general discussion
on budget and is generally granted for two months for an amount equivalent to one-sixth of the total
estimation.

5. Passing of Finance Bill

● The Finance Bill when passed legalizes the income side of the budget. According to the Provisional
Collection of Taxes Act 1931, the Finance Bill in India has to be passed within 75 days. The bill
gives effect to supplementary financial proposals for any period.

● It is a money bill for procedural purposes and unlike the Appropriation Bill, the members can move
amendments to reject or reduce a tax in a prescribed manner. The proposals for new taxation
require the previous consent of the President before the presentation.
 Chapter 18: Types of Central Government Funds

● The Constitution of India provides for the following three kinds of funds for the Central government:

○ Consolidated Fund of India (Article 266)

○ Public Account of India (Article 266)

○ Contingency Fund of India (Article 267)

● Consolidated Fund of India (Article 266)

● This term derives its origin from the Constitution of India.

● Under Article 266 (1) of the Constitution of India, all revenues (for example tax revenue from
personal income tax, corporate income tax, customs, and excise duties as well as non-tax revenue
such as license fees, dividends, and profits from public sector undertakings, etc.) received by the
Union government as well as all loans raised by the issue of treasury bills, internal and external
loans and all money received by the Union Government in repayment of loans shall form a
consolidated fund entitled the ‘Consolidated Fund of India’ for the Union Government.

● Similarly, under Article 266 (1) of the Constitution of India, a Consolidated Fund of State (a separate
fund for each state) has been established where all revenues (both tax revenues such as Sales
tax/VAT, stamp duty, etc.. And non-tax revenues such as user charges levied by State
governments) received by the State government as well as all loans raised by the issue of treasury
 bills, internal and external loans and all money received by the State Government in repayment of
loans shall form part of the fund.

● The Comptroller and Auditor General of India audits these Funds and reports to the Union/State
legislatures when proper accounting procedures have not been followed.

● Public Account of India (Article 266)

● All other public money (other than those which are credited to the Consolidated Fund of India)
received by or on behalf of the Government of India shall be credited to the Public Account of India.

● This includes provident fund deposits, judicial deposits, savings bank deposits, departmental
deposits, remittances, and so on. This account is operated by executive action, that is, the
payments from this account can be made without parliamentary appropriation. Such payments are
mostly in the nature of banking transactions.

● Contingency Fund of India

● The Contingency Fund of India is established under Article 267(1)of the Indian Constitution. It is in
the nature of an imprest (money maintained for a specific purpose). Accordingly, Parliament
enacted the contingency fund of India Act 1950.

● The fund is held by the Finance Secretary (Department of Economic Affairs) on behalf of the
President of India and it can be operated by executive action. The Contingency Fund of India exists
for disasters and related unforeseen expenditures.

● In 2005, it was raised from Rs. 50 crores to Rs 500 crore. Approval of the Parliament of India for
such expenditure and for withdrawal of an equivalent amount from the Consolidated Fund is
subsequently obtained to ensure that the corpus of the Contingency Fund remains intact.

● Similarly, the Contingency Fund of each State Government is established under Article 267(2) of
the Constitution – this is in the nature of an imprest placed at the disposal of the Governor to enable
him/her to make advances to meet urgent unforeseen expenditure, pending authorization by the
State Legislature.

● Approval of the Legislature for such expenditure and for withdrawal of an equivalent amount from
the Consolidated Fund is subsequently obtained, whereupon the advances from the Contingency
Fund are recouped to the Fund. The corpus varies across states and the quantum is decided by
the State legislatures.

● Controller General of Accounts (CGA)

● The CGA is the Principal Accounting Adviser to the Government of India. The office is in the
Department of Expenditure, Ministry of Finance, GOI.

● CGA is the Principal Accounting Adviser to the Government of India and is responsible for
establishing and maintaining a technically sound Management Accounting System.

● It also prepares and submits the accounts of the Central Government.

● It is also in charge of the exchequer control and internal audits.

 ● Functions

○ The Office of CGA prepares monthly and annual analyses of expenditure, revenues,
borrowings, and various fiscal indicators for the Union Government.

○ Under Article 150 of the Constitution, the Annual Appropriation Accounts (Civil) and Union
Finance Accounts are submitted to Parliament on the advice of the Comptroller and Auditor
General of India.

○ Along with these documents, an M.I.S Report titled ‘Accounts at a Glance’ is prepared and
circulated to Hon’ble Members of Parliament.

○ It is also responsible for the coordination and monitoring the progress of submission of
corrective/remedial action taken notes (ATNs) on the recommendations contained in Public
Accounts Committee’s (PAC) reports as well as the Comptroller & Auditor General (CAG)
reports through its web-based Audit Para Monitoring System (APMS).

Controller General of Accounts Mandate

● The Allocation of Business Rules 1961 gives the duties and responsibilities of the CGA, as
mentioned below:

○ General accounting principles related to the Central and State governments and form of
accounts, and framing/revising rules and manuals.

○ Reconciling the cash balance of GOI with the Reserve Bank of India in general, and the
reserve deposits about civil ministries or departments in particular.

○ Supervising whether adequate standards of accounting are maintained by central civil

accounts offices.

○ Consolidating monthly accounts, preparing a review of trends of revenue realization and

significant features of expenditure, etc. & preparing annual accounts, annual receipts, and
disbursements.

○ Administering the Central Government Account (Receipt and Payment Rules 1983) and
Central Treasury Rules.

○ Coordinating and assisting in the introduction of management accounting systems in civil

ministries and departments.

○ Cadre management of Group ‘A’ (Indian Civil Accounts Service) and Group ‘B’ Officers of
the Central Civil Accounts Offices.

○ Matters about the Central Civil Accounts staff belonging to Group ‘C’ and ‘D’.

○ Disbursing pension to central civil pensioners, high court judges, ex-presidents, ex-MPs,
and freedom fighters.

Note:

● The CGA is not a constitutional body, but the CAG is a constitutional body. Another difference
 between the CGA and the CAG is that the CAG is an independent body while the CGA is not. It
is under the Department of Expenditure.

● The President lays down general principles of government accounting on the CAG’s advice, the
CGA performs the function of maintaining them.
 Chapter 19: Position of Rajya Sabha: Lok Sabha vs Rajya Sabha

● Constitutional status of Rajya Sabha w.r.t Lok Sabha to be discussed in three heads –

○ Where Rajya Sabha is equal to Lok Sabha

○ Where Rajya Sabha is unequal to Lok Sabha

○ Special powers of Rajya Sabha which are not shared with Lok Sabha

● Rajya Sabha is equal to Lok Sabha

● In the following matters, the powers and status of the Rajya Sabha are equal to that of the Lok
Sabha:

○ Introduction and passage of ordinary bills.

○ Introduction and passage of Constitutional amendment bills.

○ Introduction and passage of financial bills involving expenditure from the Consolidated
Fund of India.

○ Election and impeachment of the president.

○ Election and removal of the Vice-President. However, Rajya Sabha alone can initiate the
removal of the vice-president. He is removed by a resolution passed by the Rajya Sabha
by a special majority and agreed to by the Lok Sabha by a simple majority.

○ Making recommendations to the President for the removal of Chief Justice and judges of
Supreme Court and high courts, chief election commissioner and comptroller and auditor
general.

○ Approval of ordinances issued by the President.

○ Approval of proclamation of all three types of emergencies by the President.

○ Selection of ministers including the Prime Minister. Under the Constitution, the ministers
including the Prime Minister can be members of either House. However, irrespective of
their membership, they are responsible only to the Lok Sabha.

○ Consideration of the reports of the constitutional bodies like Finance Commission, Union
Public Service Commission, comptroller and auditor general, etc.

○ Enlargement of the jurisdiction of the Supreme Court and the Union Public Service
Commission.

● Rajya Sabha is unequal to Lok Sabha

● In the following matters, the powers and status of the Rajya Sabha are unequal to that of the Lok
Sabha:

○ A Money Bill can be introduced only in the Lok Sabha and not in the Rajya Sabha.
 ○ Rajya Sabha cannot amend or reject a Money Bill. It should return the bill to the Lok Sabha
within 14 days, either with recommendations or without recommendations.

○ The Lok Sabha can either accept or reject all or any of the recommendations of the Rajya
Sabha. In both cases, the money bill is deemed to have been passed by the two Houses.

○ A financial bill, not containing solely the matters of Article 110, also can be introduced only
in the Lok Sabha and not in the Rajya Sabha. But, with regard to its passage, both the
Houses have equal powers.

○ The final power to decide whether a particular bill is a Money Bill or not is vested in the
Speaker of the Lok Sabha.

○ The Speaker of Lok Sabha presides over the joint sitting of both the Houses.

○ The Lok Sabha with a greater number wins the battle in a joint sitting except when the
combined strength of the ruling party in both the Houses is less than that of the opposition
parties.

○ Rajya Sabha can only discuss the budget but cannot vote on the demands for grants (which
is the exclusive privilege of the Lok Sabha).

○ A resolution for the discontinuance of the national emergency can be passed only by the
Lok Sabha and not by the Rajya Sabha.

○ The Rajya Sabha cannot remove the council of ministers by passing a no-confidence
motion. This is because the Council of Ministers is collectively responsible only to the Lok
Sabha. But, the Rajya Sabha can discuss and criticize the policies and activities of the
government.

● Special powers of Rajya Sabha

● Due to its federal character, the Rajya Sabha has been given two exclusive or special powers that
are not enjoyed by the Lok Sabha:

○ It can authorize the Parliament to make a law on a subject enumerated in the State List
(Article 249).

○ It can authorize the Parliament to create new All-India Services common to both the Center
and states (Article 312).

● Even though the Rajya Sabha has been given less powers as compared with the Lok Sabha, its
utility is supported on the following grounds:

○ It checks hasty, defective, careless, and ill-considered legislation made by the Lok Sabha
by making provision for revision and thought.

○ It facilitates giving representation to eminent professionals and experts who cannot face
the direct election. The President nominates 12 such persons to the Rajya Sabha.

○ It maintains the federal equilibrium by protecting the interests of the states against the
undue interference of the Center.
 Chapter 20: Parliamentary Privileges and Immunities in India

● Parliamentary privileges are defined in Article 105 of the Indian Constitution.

● The members of Parliament are exempted from any civil or criminal liability for any statement made
or act done in the course of their duties.

● The privileges are claimed only when the person is a member of the house. As soon as he ends to
be a member, the privileges are said to be called off. The privileges given to the members are
necessary for exercising constitutional functions.

● These privileges are essential so that the proceedings and functions can be made in a disciplined
and undisturbed manner.

● The privileges individually enjoyed by the members are

Freedom of speech in parliament

● The members of the parliament have been vested with the freedom of speech and expression. As
the very essence of our parliamentary democracy is a free and fearless discussion, anything said
by them expressing their views and thoughts are exempted from any liability and cannot be tried in
the court of law.

● The freedom of speech and expression guaranteed to a citizen under Article 19(2) is different from
the freedom of speech and expression provided to a member of the parliament. It has been
guaranteed under Article 105(1) of the Indian constitution. But freedom is subject to rules and
orders which regulate the proceedings of the parliament.

● This right is given even to non-members who have a right to speak in the house. For example, the
attorney general of India. So that, there is fearless participation of the members in the debate and
every member can put forward his thoughts without any fear or favor.

● Some limitations are also present which should be followed in order to claim immunity.

● Freedom of speech should be in accordance with the constitutional provisions and subject to rules
and procedures of the parliament, stated under Article 118 of the Constitution.

● Under Article 121 of the Constitution, the members of the parliament are restricted from discussing
the conduct of the judges of the Supreme Court and the High Court. But, even if this happens, it is
the matter of the parliament and the court cannot interfere.

● No privilege and immunity can be claimed by the member for anything which is said outside the
proceedings of the house.

Freedom from arrest

● The members enjoy freedom from arrest in any civil case 40 days before and after the adjournment
of the house and also when the house is in session. No member can be arrested from the limits of
the parliament without the permission of the house to which he/she belongs so that there is no
hindrance in performing their duties.

● If the detention of any members of the parliament is made, the chairman or the speaker should be
informed by the concerned authority, the reason for the arrest. But, a member can be arrested
 outside the limits of the house on criminal charges against him under The Preventive Detention
Act, The Essential Services Maintenance Act (ESMA), The National Security Act (NSA), or any
such act.

Freedom from appearing as a witness

● The members of the parliament enjoy special privileges and are exempted from attending court as
a witness. They are given complete liberty to attend the house and perform their duties without any
interference from the court.

● Privileges enjoyed by the members collectively as part of parliament:

Right to prohibit the publication of proceedings

● As stated in Article 105(2) of the Constitution, no person shall be held liable for publishing any
reports, discussions, etc. of the house under the authority of the member of the house. For
paramount and national importance, it is essential that the proceedings should be communicated
to the public to make them aware of what is going on in the parliament.

● But, any partial report of the detached part of proceedings or any publication made with malice
intention is disentitled for the protection. Protection is only granted if it reflects the true proceedings
of the house. If any expunged proceedings are published or any misrepresentation or misreporting
is found, it is held to be a breach of the privilege and contempt of the house.

Right to exclude strangers

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

The right to punish members and outsiders for breach of its privileges

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

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

The right to regulate the internal affairs of the house

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

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

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

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

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

● What constitutes parliamentary breach or contempt of the house?

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

Giving any misleading statement in the house

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

Disturbance by the outsiders

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

Any kind of assault on the members

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

Writings or speeches about the character of the member

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

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

Freedom of press and the parliamentary privileges

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

1. Publishing any matter concerning the character of any member of the parliament

2. Any pre-mature publication of the proceedings

3. Misreporting or misrepresenting the proceeding of the house

4. Publishing the expunged portion of the proceedings

● In spite of the fact that the freedom of the press is subject to parliamentary privileges, certain
enactments have been made for the protection of the freedom of the press. If the fundamental right
is being violated, there is no meaning of democracy. The freedom of the press has to be protected
because we need to be informed about the acts of our representatives. Parliamentary Proceedings
(Protection of the publication) Act, 1977 protects the rights of the press under certain given
circumstances.

○ The reports of the proceedings are substantially true.

○ The report is made without malice.

○ The report is made for the public good.

○ The report should not constitute any secret meeting of the house.

● Codification of the parliamentary privileges

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

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

● It is mostly resisted by the members because then it will be subject to the fundamental rights and
would be in the purview of judicial review. Justice M.N. Venkatachaliah heading the Constitution
Review Commission also recommended defining and delimiting the privileges for the free and
independent functioning of the legislature. This is based on the apprehension that codification will
involve interference of the court as the matters would be presented in the court of law. Non-
codification of privileges has led to greater powers

● being enjoyed by the members. But, now the time has come to codify and define the privileges and
actions must be taken so that there is the smooth functioning of the parliament without any conflict.
● Judicial review of the parliamentary privileges

● The Indian judiciary has been vested with the responsibility of the protection of fundamental rights.
Parliament members claim absolute sovereignty over their powers and in any case do not want the
judiciary to interfere. But, the judiciary is regarded as the guardian of our Constitution and it cannot
sit quietly if any fundamental right of a citizen is violated due to privileges or when there is an
escape from any criminal liability.

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

● The Supreme Court has also held that any conflict arising between the privileges and the
fundamental rights would be resolved by adopting harmonious construction. The judiciary is very
well aware of the fact that it does not have jurisdiction over parliamentary matters, but it is
necessary for the society that any violation should be resolved by the court as it deems fit.
 Chapter 21: Parliamentary Committees: Roles, and Functions

● Indian Constitution mentions two kinds of Parliamentary Committees – Standing Committees and
Ad Hoc Committees. Any subject related to these committees is dealt with Article 118 (1) of the
Indian Constitution.

● Parliamentary Committees

● As is the case with several other practices of Indian parliamentary democracy, the institution of
Parliamentary Committees also has its origins in the British Parliament. In independent India, the
first Public Accounts Committee was constituted in April 1950.

● Parliamentary committees draw their authority from Article 105 (on privileges of Parliament
members) and Article 118 (on Parliament’s authority to make rules for regulating its procedure and
conduct of business).

○ Parliamentary committees are important institutions of the Indian Parliament without which
parliamentary functions could not be deposed effectively.

○ The work done by the Parliament in modern times is not only varied and complex in nature
but also considerable in volume. On the other hand, the Minister’s time is considerably
engrossed by the day-to-day affairs of Parliament. It cannot, therefore, give close
consideration to all the legislative and other matters that come up before it.

○ A major portion of its business is, therefore, transacted in various committees of the House,
known as parliamentary committees.

○ Parliamentary committees are therefore the backbone of parliamentary power and

autonomy. To put it in other words, the Indian Parliament has entrusted its business to
various committees. These committees are constituted in such a way to represent a replica
of the House.

○ The committees of the parliament are considered to be a necessary adjunct of the work of
the parliament as they make the parliamentary work smooth, time-saving, and expeditious.
They exercise effective control of government activities on a regular basis.

● Parliamentary committees not only help in achieving the objectives of a government but also they
save valuable time of the Parliament.

● By their nature, parliamentary committees are of two kinds:

○ Standing committees

○ Ad Hoc committees
Standing committees

● Standing committees are permanent and regular committees. They are constituted from time to
time by the Chairman of Rajya Sabha or Speaker of Lok Sabha, as the case may be, in pursuance
of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Lok
Sabha. The works of these committees are of continuous nature.

● The Financial Committees, Committees to Inquire, Committee to Scrutinize and Control,

Committees for Welfare, etc. are few committees that come under the category of Standing
Committee.

● As per the “Rules of Procedure and Conduct of Business in the Lok Sabha”, there are 19 Standing
Parliamentary Committees and 24 Departmentally Related Standing Committees. Out of the 19
Standing Parliamentary Committees, 3 are Financial Committees viz. Committee on Public
Accounts, Committee on Estimates, and Committee on Public Undertakings. Some committees
have members only from Lok Sabha while some have members from both Rajya Sabha and Lok
Sabha.

● Standing Committees – there are six types of standing committees in India. They are
permanent in nature.

1. Financial Committees

a. Public Accounts Committee

b. Estimates Committee

c. Committee on Public Undertakings

2. Departmental Standing Committees (Total-24)

3. Committees to Inquire

a. Committee on Petitions

b. Committee of Privilege

c. Ethics Committee

4. Committees to Scrutinize and Control

 a. Committee on Government Assurances

b. Committee on Subordinate Legislation

c. Committee on Papers Laid on the Table

d. Committee on Welfare of SCs and STs

e. Committee on Empowerment of Women

f. Joint Committee on Offices of Profit

5. Committees Relating to the Day-to-Day Business of the House

a. Business Advisory Committee

b. Committee on Private Members’ Bills and Resolutions

c. Rules Committee

d. Committee on Absence of Members from Sittings of the House

6. House-Keeping Committees or Service Committees

a. General Purposes Committee

b. House Committee

c. Library Committee

d. Joint Committee on Salaries and Allowances of Members

Ad Hoc committees

● On the other hand, Ad Hoc committees are appointed for a specific purpose and they cease to exist
when they finish the task assigned to them. Examples of principal ad hoc committees are
Parliamentary Select Committees or Joint Committees on Bills, Railway Convention Committee.

● Ad Hoc Committees – there are two types of ad-hoc committees. They are temporary in nature.

○ Inquiry Committees

○ Advisory Committees

1. Inquiry Committees

● These committees can be proposed by either house or can also be appointed by the
speaker/chairman of the respective house. Few examples of Inquire Committees are:

○ Joint Committee on Bofors Contract

○ Joint Committee on Fertilizer Pricing

○ Joint Committee to Enquire into Irregularities in Securities and Banking Transactions

 ○ Joint Committee on Stock Market Scam, etc.

2. Advisory Committees

● These committees are select or joint committees appointed for the matters of bills. They report on
particular bills. They are different from the inquiry committees as the procedure that they follow are
laid down in the Rules of Procedure and also are directed by the Lok Sabha speaker of Rajya
Sabha chairman.

● Important Points on these committees are noted as follows:

Committee on Public Accounts:

● The Public Accounts Committee examines the manners and results of spending the public funds.
It examines the accounts showing the appropriation of the funds granted by the parliament to
various ministries and ensures that the money was used for the purpose for which it was
sanctioned.

● The Comptroller & Auditor General of India support this committee.

● Apart from the Reports of Comptroller and Auditor General of India on Appropriation Accounts of
the Union Government, the Committee examines the various Audit Reports of the Comptroller and
Auditor General on revenue receipts, expenditure by various Ministries/Departments of
Government, and accounts of autonomous bodies.

● This committee oversees the regularization of the excess in the manner envisaged in Article 115
of the Constitution.

● It has 22 members comprising 15 Members of Lok Sabha elected by Lok Sabha from amongst its
members according to the principle of proportional representation by means of the single
transferable vote for a term not exceeding one year and not more than 7 members of Rajya Sabha
to be nominated by the House for being associated with the Committee.

● The Chairman of this committee is appointed by the Speaker amongst the Members of Lok Sabha.
A Minister is not eligible to be elected as a member of the Committee, and if a member after his
election to the Committee is appointed to hold such an office he ceases to be a member of the
Committee from the date of such appointment.

● Please note that for the first time, the Public Accounts Committee was set up by the central
legislative Assembly in 1923.

Estimates Committee:

● The difference between the Estimates Committee and the Public Accounts Committee is that the
Estimates committee scrutinizes the Estimates while the Public Accounts Committee scrutinizes
the appropriation and manner of spending.

● Estimates Committee’s functions are –

○ To examine the annual estimates and suggest alternative policies to the Government to
ensure the efficiency and economy in administration.
 ○ To report what economies, improvements in organization, efficiency, or administrative
reform, consistent with the policy underlying the estimates, may be affected.

○ To report whether the money laid down in estimates is well within the limits of the policy
implied.

○ This Committee has 30 members elected annually by the Lok Sabha from amongst its
members according to the principle of proportional representation by means of the single
transferable vote.

○ The Chairman of the Committee is appointed by the Speaker.

○ A Minister cannot be a member of this committee and if the member is appointed as

Minister, he/she shall cease to be a member of this committee.

Committee on Public Undertakings:

● The Committee on Public Undertakings was for the first time in November 1963 by a resolution of
Lok Sabha and at that time it was having 15 members viz. 10 from Lok Sabha and 5 from Rajya
Sabha.

● Now it has not more than 22 members out of whom 15 members are elected by Lok Sabha from
amongst its members according to the principle of proportional representation by means of the
single transferable vote and not more than 7 members from Rajya Sabha to be nominated by that
House.

● The term of office of members is 1 year.

● The Chairman is appointed by the Speaker.

● A Minister is not eligible to become a member and if a member is appointed Minister, he/she shall
cease to be a member on such an appointment.

● This committee examines the reports and accounts of the Public Undertakings and reports of the
Comptroller and Auditor General thereon if any.

● This committee oversees whether, in the context of their autonomy and efficiency, the affairs of the
Public Undertakings are being managed in accordance with sound business principles and prudent
commercial practices.

● The companies include all the Government Companies whose Annual Reports are placed before
the Houses of Parliament under section 619A (1) of the Companies Act, 1956, and statutory
Corporations whose names have been specified in the Fourth Schedule to the Rules of Procedure
come within the purview of the Committee.

Business Advisory Committee:

● The Business Advisory Committee is constituted at the commencement of the new Lok Sabha after
the general elections and thereafter from time to time under the provisions of Rules of Lok Sabha.

● No specific term of its office is laid down in the rules but like other parliamentary committees, it
holds office until a new committee is nominated by the Speaker.
 ● In practice, however, the Committee is usually reconstituted every year and assumes office in the
first week of June. It consists of 15 members including the Speaker who is the ex-officio Chairman
of the Committee.

● The members of the Committee are nominated by the Speaker.

● The function of the Committee is to recommend the time that should be allocated for the discussion
of the stage or stages of Government Bills and other business as the Speaker, in consultation with
the Leader of the House, may direct for being referred to the Committee.

● The committee plans and regulates the Business of the house and renders advice regarding the
allocation of time for various discussions.

Committee on Petitions:

● The Committee on Petitions consists of 15 members nominated by the Speaker.

● A Minister is not nominated a member of the Committee and if a member after his nomination to
the Committee is appointed to such an office, he ceases to be a member of the Committee.

● The Chairman of the Committee is appointed by the Speaker from amongst the members of the
Committee. Normally the Committee is reconstituted every year.

● The major function is to examine every petition referred to it and if the petition complies with the
rules to direct that it be circulated.

Committee of Privileges:

● The Committee of Privileges consists of 15 members nominated by the Speaker.

● The Chairman of the Committee is appointed by the Speaker from amongst the members of the
Committee.

● The committee examines the cases regarding the violation of privileges of the members of
parliament and also recommends appropriate action.

● After March 1986 when Members of Lok Sabha (Disqualification on Ground of Defection) Rules,
1985, became effective, the Speaker may refer to the Committee any petition regarding
disqualification of a member on the ground of defection for making a preliminary inquiry and
submitting a report to him.

● The procedure to be followed by the Committee in these cases is so far as may be the same as is
applicable to questions of breach of privilege.

Committee on Subordinate Legislation:

● The major function of this committee is to examine the rules and regulations enacted by the
executive to fill the gaps in the laws enacted by the parliament and report how far these rules are
within limits prescribed in the main law.

Committee on Government Assurances:

 ● Committee on Government Assurances scrutinizes the assurances, promises, undertakings, etc.,
given by the Minister on the floor of the House from time to time during the Question Hour as also
during the discussion on Bills, Resolutions, motions, etc., and to report to the House, the extent to
which such assurances, promises or undertakings, etc., have been implemented and where
implemented whether such implementation has taken place within the minimum time necessary for
the purpose.

Committee on Absence of Members from the Sittings of the House:

● Committee on Absence of Members from the Sittings of the House examines the leave applications
of the members.

● It also examines if any member is absent from the house without permission for more than 2
months.

Rules Committee:

● Rules committee considers the matters of procedure and conduct of business in the House and
recommends any amendments or additions to the rules that may be deemed necessary.

General Purposes Committee:

● This committee consists of the Speaker, Deputy Speaker, Members of the Panel of Chairmen,
Chairman of all Standing Parliamentary Committees of Lok Sabha, Leaders of recognized parties
and groups in Lok Sabha, and such other Members as may be nominated by the Speaker.

● The Speaker is the ex-officio Chairman of the Committee.

● This committee considers and advises on such matters concerning the affairs of the House as may
be referred to it by the Speaker from time to time.

House Committee

● The House Committee deals with all questions relating to residential accommodation for members
of Lok Sabha and exercises supervision over facilities for accommodation, food, medical aid, and
other amenities accorded to members in members’ residences and hostels in Delhi.

Joint Committee on Salaries and Allowances of Members of Parliament:

● As per the provisions of Salary, Allowances, and Pension of Members of Parliament Act, 1954 a
Joint Committee of both Houses of Parliament consisting of five members from the Rajya Sabha
nominated by the Chairman and ten members from the Lok Sabha nominated by the Speaker is
constituted.

● It is empowered to frame the rules for regulating the salaries and amenities such as housing,
Telephone, Postal, Secretarial, and medical facilities.

Joint Committee on Offices of Profit:

● The Joint Committee on Offices of Profit is constituted in pursuance of a Government motion

adopted by Lok Sabha and concurred in by Rajya Sabha for the duration of Lok Sabha.
 ● It examines the composition of the various committees and bodies constituted by the Union and
State Governments and recommends whether the persons holding these offices and reports
whether the persons holding these offices should be disqualified from being elected as MPs or not.

Committee on the Welfare of Scheduled Castes and Scheduled Tribes

● This 30 member committee examines the report of the National Commission for the Scheduled
Castes and the National Commission for the Scheduled Tribes under Articles 338 (5)(d) and
338A(5) (d), respectively of the Constitution and to report as to the measures that should be taken
by the Union Government in respect of matters within the purview of the Union Government
including the Administrations of the Union Territories.

Departmentally Related Standing Committees (DRSCs)

● Departmentally Related Standing Committees (DRSCs) were constituted on 29th March 1993
covering all Government Ministries/Departments. These DRSCs replaced the earlier three subject
Committees constituted in August 1989. The 17 DRSCs were formally constituted with effect from
8th April 1993. At present, there are 24 Departmentally Related Standing Committees (DRSCs).

● Consultative Committees

● These committees are constituted by the Ministry of Parliamentary Affairs.

● These are normally constituted after the new Lok Sabha is constituted.

● This implies that these committees stand dissolved upon dissolution of every Lok Sabha and thus,
are reconstituted upon the constitution of each Lok Sabha.

● The Consultative Committees are not Parliamentary Committees.

Composition

● The guidelines regarding the composition, functions, and procedures of these committees are
formulated by the Ministry of Parliamentary Affairs.

● The same Ministry also makes arrangements for holding their meetings both during the session
and the intersession period of Parliament.

● These consist of members of both the Houses of Parliament.

● However, the membership of these committees is voluntary and is left to the choice of the members
and the leaders of their parties.

● The maximum membership of a committee is 30 and the minimum is 10.

Functions

● These committees are attached to various ministries/departments of the Central Government.

● The Minister/Minister of State in charge of the Ministry concerned acts as the chairman of the
consultative committee of that ministry.
● These provide a forum for informal discussions between the ministers and the members of
Parliament on policies and programmes of the government and the manner of their implementation.
 Chapter 22: Cabinet Committees

The following are the features of Cabinet Committees:

● They are extra-constitutional in emergence. In other words, they are not mentioned in the
Constitution. However, the Rules of Business provide for their establishment.

● They are of two types-standing and ad hoc. The former are of a permanent nature while the latter
are of a temporary nature. The ad hoc committees are constituted from time to time to deal with
special problems. They are disbanded after their task is completed.

● They are set up by the Prime Minister according to the exigencies of the time and requirements of
the situation. Hence, their number, nomenclature, and composition vary from time to time.

● Their membership varies from three to eight. They usually include only Cabinet Ministers. However,
the non-cabinet Ministers are not debarred from their membership.

● They not only include the Ministers in charge of subjects covered by them but also include other
senior Ministers.

● They are mostly headed by the Prime Minister. Sometimes other Cabinet Ministers, particularly the
Home Minister or the Finance Minister, also acts as their Chairman. But, in case the Prime Minister
is a member of a committee, he invariably presides over it.

● They not only sort out issues and formulate proposals for the consideration of the Cabinet, but also
take decisions. However, the Cabinet can review their decisions.

● They are an organizational device to reduce the enormous workload of the Cabinet. They also
facilitate in-depth examination of policy issues and effective coordination. They are based on the
principles of division of labor and effective delegation.

The following four are the more important cabinet committees:

● The Political Affairs Committee deals with all policy matters pertaining to domestic and foreign
affairs.

● The Economic Affairs Committee directs and coordinates governmental activities in the economic
sphere.

● The Appointments Committee decides all higher level appointments in the Central Secretariat,
Public Enterprises, Banks and Financial Institutions.

● Parliamentary Affairs Committee looks after the progress of government business in the
Parliament.

● The first three committees are chaired by the Prime Minister and the last one by the Home Minister.
Of all the Cabinet Committees, the most powerful is the Political Affairs Committee, often described
as a “Super-Cabinet”.

Some important quotes:

● The various comments made by the eminent political scientists and constitutional experts on the
role of cabinet in Britain holds good in the Indian context also. These are mentioned below.
● Ramsay Muir “The Cabinet is the steering wheel of the ship of the state.”

● Lowell “The Cabinet is the keystone of the political arch”.

● Sir John Marriott “The Cabinet is the pivot around which the whole political machinery revolves”.

● Gladstone “The Cabinet is the solar orb around which the other bodies revolve”.

● Barker “The Cabinet is the magnet of policy”.

● Bagehot “The Cabinet is a hyphen that joins, the buckle that binds the executive and legislative
departments together”.
 Chapter 23: Cabinet Secretariat

● The Cabinet Secretariat is responsible for the administration of the Government of India
(Transaction of Business) Rules, 1961 and the Government of India (Allocation of Business) Rules
1961, facilitating smooth transaction of business in Ministries/ Departments of the Government by
ensuring adherence to these rules. The Secretariat assists in decision making in Government by
ensuring Inter-Ministerial coordination, ironing out differences amongst Ministries/ Departments
and evolving consensus through the instrumentality of the standing/ad hoc Committees of
Secretaries. Through this mechanism new policy initiatives are also promoted.

● The Cabinet Secretariat ensures that the President, the Vice President and Ministers are kept
informed of the major activities of all Ministries/Departments by means of a monthly summary of
their activities. Management of major crisis situations in the country and coordinating activities of
various Ministries in such a situation is also one of the functions of the Cabinet Secretariat.

Functions

● The Cabinet Secretariat functions directly under the Prime Minister. The administrative head of the
Secretariat is the Cabinet Secretary who is also the ex-officio Chairman of the Civil Services Board.

Support to Cabinet Committees

● The secretarial assistance provided by Cabinet Secretariat to the Cabinet and Cabinet committees,
includes

○ Convening of the meetings of the Cabinet on the orders of the Prime Minister.

○ Preparation and circulation of the agenda.

○ Circulating papers related to the cases on the agenda.

○ Preparing a record of discussions taken.

○ Circulation of the record after obtaining the approval of the Prime Minister.

○ Watching implementation of the decisions taken by the Cabinet.

● The Cabinet Secretariat is the custodian of the papers of the Cabinet meetings.

Promotion of Inter-Ministerial Coordination

● Among the inter-Ministerial matters, the coordination is required for:

○ Removing difficulties.

○ Removing differences.

○ Overcoming delays.

○ Coordination in administrative action.

○ Coordination of policies.

● There are other important functions which it discharges, viz.

 ○ Monitoring.

○ Coordination.

○ Promoting new policy initiatives.

● The Cabinet Secretariat is seen as a useful mechanism by the departments for promoting inter-
Ministerial coordination since the Cabinet Secretary is also the head of the civil services. The
Secretaries felt it necessary to keep the Cabinet Secretary informed of developments from time to
time. The Transaction of Business Rules also requires them to keep the Cabinet Secretary informed
of developments from time to time, especially if there are any departures from these rules.
 Chapter 24: Federal System

Federalism is a system of government in which powers have been divided between the centre and its
constituent parts such as states or provinces. It is an institutional mechanism to accommodate two sets of
politics, one at the centre or national level and second at the regional or provincial level.

Two Types of Federations

● In a federation system, there are two seats of power that are autonomous in their own spheres. A
federal system is different from a unitary system in that sovereignty is constitutionally split between
two territorial levels so that each level can act independently of each other in some areas.

● There are two kinds of federations:

1. Holding Together Federation – In this type, powers are shared between various
constituent parts to accommodate the diversity in the whole entity. Here, powers are
generally tilted towards the central authority. Example: India, Spain, Belgium.

2. Coming Together Federation – In this type, independent states come together to form a
larger unit. Here, states enjoy more autonomy as compared to the holding together kind of
federation. Example: USA, Australia, Switzerland.

Features of the Federal System of India

○ Dual government polity

○ Division of powers between various levels

○ Rigidity of constitution

○ Independence judiciary

○ Dual citizenship

○ Bicameralism

● All federations might not have all the above features. Some of them may be incorporated depending
on what type of federation it is.

Federalism in India

● India is a federal system but with more tilt towards a unitary system of government. It is sometimes
considered a quasi-federal system as it has features of both a federal and a unitary system. Article
1 of the Indian Constitution states, ‘India, that is Bharat, shall be a union of states’. The word
federation is not mentioned in the constitution.

● Elements of federalism were introduced into modern India by the Government of India Act of 1919
which separated powers between the centre and the provincial legislatures.

Federal Features of the Indian Union

● Governments at two levels – centre and states

 ● Division of powers between the centre and states – there are three lists given in the Seventh
Schedule of the Constitution which gives the subjects each level has jurisdiction in:

○ Union List

○ State List

○ Concurrent List

● Supremacy of the constitution – the basic structure of the constitution is indestructible as laid out
by the judiciary. The constitution is the supreme law in India.

● Independent judiciary – the constitution provides for an independent and integrated judiciary. The
lower and district courts are at the bottom levels, the high courts are at the state levels and at the
topmost position is the Supreme Court of India. All courts are subordinate to the Supreme Court.

Unitary Features of the Indian Union

● The flexibility of the constitution – the constitution is a blend of flexibility and rigidity. Certain
provisions of the constitution can be easily amended. In case the amendments seek to change
aspects of federalism in India, the provision to bring about such amendments is not easy. (Read
about types of majorities in the India Parliament using which amendments or certain other
provisions are introduced.)

● More power vests with the Center – the constitution guarantees more powers with the Union List.
On the Concurrent List subjects, the parliament can make laws that can override the laws made by
a state legislature on some matters. The parliament can also make laws regarding certain subjects
in the State List.

● Unequal representation of states in the Rajya Sabha – the representation of the states in the
upper house is based on the states’ populations. For example, Uttar Pradesh has 31 seats and
Goa, 1 in the Rajya Sabha. In an ideal federal system, all the states should have equal
representation.

● The executive is a part of the legislature – in India, the executive in both the center and the
states is a part of the legislature. This goes against the principle of division of powers between the
different organs of the government.

● Lok Sabha is more powerful than the Rajya Sabha – in our system, the Lok Sabha is more
powerful than the upper house and unequal powers to two houses is against the principle of
federalism.

● Emergency powers – the center is provided with emergency powers. When an emergency is
imposed, the center has increased control over states. This undermines the autonomy of the states.
(You may also read about the President's rule – Article 356 in the linked article.)

● Integrated judiciary – the judiciary in India is integrated. There is no separate judiciary at the
center and the state levels. (Gain more information about Indian Judiciary from the notes mentioned
in the linked article. )

● Single citizenship – in India, only single citizenship is available to citizens. They cannot be citizens
of the state as well. This helps in increasing the feeling of nationality as it forges unity amidst
 regional and cultural differences. It also augments fundamental rights such as the freedom of
movement and residence in any part of the nation.

● Governor’s appointment – the governor of a state acts as the center’s representative in the state.
The state government does not appoint the governor, the center does.

● New states formation – the parliament has the power to alter the territory of a state by increasing
or reducing the area of the state. It can also change the name of a state.

● All India Services – through the All India Services such as the IAS, IPS, etc. the center interferes
in the executive powers of the states. These services also offer uniformity in administration
throughout the nation.

● Integrated election machinery – the Election Commission of India is responsible for conducting
free and fair elections at both the center and the state levels in India. The members of the EC are
appointed by the president.

● Veto over state bills – The governor of a state can reserve certain kinds of bills for the president’s
consideration. The president enjoys absolute veto on these bills. He can even reject the bill at the
second instance that is when the bill is sent after reconsideration by the state legislature. This
provision is a departure from the principles of federalism. (Read in detail about veto power in the
linked article.)

● Integrated audit machinery – the president of the country appoints the CAG who audits accounts
of both the center and the states.

● Power to remove key officials – the state government or state legislature does not have the
authority to remove certain key government officials even at the state level like the election
commissioner of a state, judges of the high courts, or the chairman of the state public service
commissions.
 Chapter 25: President of India

● The Indian President is the head of the state and he is also called the first citizen of India. He is a
part of the Union Executive, provisions of which are dealt with in Article 52-78 including articles
related to the President (Article 52-62). Under these articles, information on how a President is
elected, his powers and functions, and also his impeachment process is given.

● The Indian President is the head of the state. He is the first citizen of India and is a symbol of
solidarity, unity, and integrity of the nation. He is a part of the Union Executive along with the Vice-
President, Prime Minister, Council of Ministers, and Attorney-General of India.

How is the President elected?

● There is no direct election for the Indian President. An electoral college elects him. The electoral
college responsible for President’s elections comprises elected members of:

○ Lok Sabha and Rajya Sabha

○ Legislative Assemblies of the states (Legislative Councils have no role)

○ Legislative Assemblies of the Union Territories of Delhi and Puducherry

● The value of the vote of an MLA is given below:

● The value of the vote of an MP is given below:

Who does not take part in the President’s elections?

● The following group of people is not involved in electing the President of India:

○ Nominated Members of Lok Sabha (2) and Rajya Sabha (12)

○ Nominated Members of State Legislative Assemblies

 ○ Members of Legislative Councils (Both elected and nominated) in bicameral legislatures

○ Nominated Members of union territories of Delhi and Puducherry

What is the term of the President’s office?

● Once a President is elected, he holds office for five years. He sits in the office even after the
completion of five years given no new election has taken place or no new President has been
elected till then. He can also be re-elected and there is no cap on his re-election.

What are the qualifications of the President?

● A candidate has to meet some qualifications to be elected as the president. Those qualifications of
the President are:

○ He should be an Indian Citizen

○ His age should be a minimum of 35 years

○ He should qualify the conditions to be elected as a member of the Lok Sabha

○ He should not hold any office of profit under the central government, state government, or
any public authority
What are the conditions of the President’s office?

● There are a few conditions for the candidate running for the President’s elections:

○ He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of either
of the house, he should vacate the seat on his first day as President in the office

○ He should not hold any office of profit

○ For his residence, Rashtrapati Bhavan is provided to him without the payment of rent

○ Parliament decides his emoluments, allowances and privileges

○ Parliament cannot diminish his emoluments and allowances during his term of office

○ He is given immunity from any criminal proceedings, even in respect of his personal acts

○ Arrest or imprisonment of the President cannot take place. Only civil proceedings can be
initiated for his personal acts that too after giving two months’ of prior notice.

What is the procedure for impeachment of a President?

● The only condition for the initiation of impeachment of the Indian president is the ‘violation of the
constitution.’

● Note: Indian Constitution contains no definition of ‘violation of the constitution.’

● The impeachment process of the President is given below. (We have taken Lok Sabha as the first
house to initiate the impeachment charges, however, Rajya Sabha too can initiate the impeachment
charges against the President and in that case, it will pass the resolution and send the charges to
Lok Sabha which will investigate and pass it if it finds those charges valid.)
Can the President’s office be vacant?

● Yes, his office can be vacant in the following ways:

○ When the President of India completes his term of five years in the office

○ If the President resigns by putting forward his resignation to the Vice-President of India

○ If Lok Sabha/Rajya Sabha initiates an impeachment charge and they stand valid, he is
removed

○ If he dies in the office

○ If the Supreme Court declares his election invalid

● Note: Vice-President discharges the duties as President; if the latter’s office falls vacant in the
circumstances mentioned above, except by the expiry of the term. As per the President’s Act
1969; if the Vice-President office is vacant too, Chief Justice of India (CJI) (or in his absence);
Supreme Court’s senior-most judge, discharges the functions of the President (till new President
is elected.)

Powers and functions of the President of India

 Pardoning powers of the president includes the following types:

● Pardon with the grant of pardon convicts both conviction and sentence completely absolved

● Commutation with this nature of the punishment of the convict can be changed

● Remission reduces the term of the imprisonment

● Respite awards lesser punishment than original punishment by looking at the special condition
of a convict

● Reprieve stays the execution of the awarded sentence for a temporary period

Veto Power of the President At a Glance

 Chapter 26: Vice President of India

● The post of Vice-President of India is modeled on the lines of an American Vice-President. In India,
Vice-President has the second-highest office in the country. Article 63 of the Indian Constitution
mentions the post of Vice-President.

How the Vice President is elected in India?

● There is no direct election for the Vice-President of India however, he/she is indirectly elected by
an Electoral College. The election process is quite similar to that of the President of India but the
electoral college that elects the President is different from the electoral college responsible for the
election of Vice-President of India.

● The difference between the electoral college that elects President and the one electing Vice-
President of India is given below:

○ In the electoral college for Vice President, both elected and nominated members of both
the Houses of Parliament take part. In presidential elections, nominated members are not
a part of the electoral college.

○ For Vice President’s elections, states have no role to play unlike in President’s elections
where state legislative assemblies’ elected members are a part of the electoral college.

● Note: The principle of election used in Vice President’s elections is ‘Proportional Representation’
by means of a single transferable vote. (It is similar to that of the President's.)

Who can be a Vice President of India?

● An Indian citizen can qualify for the post of Vice President if he is 35 years old or more. Another
qualification for a candidate to run for vice-presidential elections is to be qualified to be elected as
Rajya Sabha member. Read in detail about the Rajya Sabha on the linked page. An office of profit
cannot be held by the Vice President of India. The qualifications of this post are on the same lines
of Presidential qualifications.

Who participates in the Vice President election?

● An electoral college comprising below-given categories of people elect the Vice President. The
mode of election hence is termed as ‘indirect election’. The principle of election used is Proportional
Representation by means of Single Transferable Vote.

○ Elected members of both Lok Sabha and Rajya Sabha. To know more about Lok Sabha,
visit the given link.

○ Nominated members of both Lok Sabha and Rajya Sabha.

● Note: There can be no more than 2 nominated members in Lok Sabha and 12 in Rajya Sabha. (To
know more on differences between Lok Sabha and Rajya Sabha, aspirants may check the linked
article.)

■ State Legislative Assemblies in case of unilateral legislatures and State legislative

councils along with Assemblies in case of bilateral legislatures; don’t participate in
the election of Vice President
Who is qualified to become Vice President of India?

● An Indian Citizen who has completed 35 years of age is qualified to become the Vice-President of
India given, he is also qualified to be a Rajya Sabha member. However, he should not be a member
of either Lok Sabha or Rajya Sabha and if he is elected as Vice President when he has a seat in
either of the houses, he is deemed to have vacated that seat on his first day in the office. He also
is not allowed to hold any office of profit under union government, state government, public authority
and local authority.

● Note: The following people are also qualified to become the Vice President of India:

○ Sitting President of India

○ Sitting Vice President of India

○ Governor of State

○ MPs/MLAs

What is the term of office of the Vice President?

● From the date he enters his office, the Vice President holds the position for five years. However,
he can resign before five years by handing over his resignation to the President. The other ways
where a vacancy is created in the office of Vice President are given below:

○ When he completes his term of five years

○ When he resigns

○ When he is removed

○ On his death

○ When his election is declared void

Is the Vice President also impeached as President of India?

● No, unlike the President of India who can be impeached formally; there is no formal impeachment
for the Vice President. Rajya Sabha simply can pass a resolution with a majority and Lok Sabha
can pass it. Also, unlike the President of India who can be impeached on the ground of ‘Violation
of Constitution,’ there is no ground mentioned in the constitution for the removal of the Vice
President of India.

● Note: Supreme Court decides election disputes related to the office of Vice President.

Powers and Functions of Vice President

● The functions of Vice-President are two-fold:

○ He acts as the ex-officio Chairman of Rajya Sabha. In this capacity, his powers and
functions are similar to those of the Speaker of Lok Sabha. In this respect, he resembles
the American vice-president, who also acts as the Chairman of the Senate – the Upper
House of the American legislature.
 ○ He acts as President when a vacancy occurs in the office of the President due to his
resignation, removal, death or otherwise. He can act as President only for a maximum
period of six months, within which a new President has to be elected. Further, when the
sitting President is unable to discharge his functions due to absence, illness or any other
cause, the Vice-President discharges his functions until the President resumes his office.

○ The election of a person as Vice-President cannot be challenged on the ground that the
electoral college was incomplete (i.e., existence of any vacancy among the members of
the electoral college).

○ If the election of a person as Vice-President is declared void by the Supreme Court, acts
done by him before the date of such declaration of the Supreme Court are not invalidated
(i.e., they continue to remain in force).

● Note: While acting as President or discharging the functions of President, the Vice-President does
not perform the duties of the office of the chairman of Rajya Sabha. During this period, those duties
are performed by the Deputy Chairman of Rajya Sabha.

Articles Related to Vice-President at a Glance

 Chapter 27: Prime Minister & Council of Ministers

● Article 75 of the Indian Constitution mentions that a Prime Minister is one who is appointed by the
President. There is no specific procedure for his election or appointment. Article 74(1) states that
there shall be a Council of Ministers with a Prime Minister at the head to aid and advise the
President. Thus, the Indian Constitution itself recognizes a Council of Ministers.

● Note: President can also appoint Prime Minister on his own discretion but only when no party has
a clear majority in the Lok Sabha.

Power and Function of Prime Minister

● The Prime Minister of India serves the country by following various functions. He performs his
functions taking responsibilities as:

○ The leader of the Country: The Prime Minister of India is the Head of the Government of
India.

○ Portfolio allocation: The Prime Minister has the authority to assign portfolios to the
Ministers.

○ Chairman of the Cabinet: The Prime Minister is the chairman of the cabinet and presides
over the meetings of the Cabinet. He can impose his decision if there is a crucial opinion
difference among the members.

○ Official Representative of the country: Prime minister represents the country for high-
level international meetings

○ The link between the President and the Cabinet: The Prime Minister acts as the link
between the President and cabinet. He communicates all decisions of the Cabinet to the
President which are related to the administration of the affairs of the Union and proposals
for legislation.

○ Head: The Prime Minister is the head of Nuclear Command Authority, NITI Aayog,
Appointments Committee of the Cabinet, Department of Atomic Energy, Department of
Space and Ministry of Personnel, Public Grievances and Pensions.
 ○ Chief Advisor: He acts as the chief advisor to the President

● Like the Prime Minister is the head of the Union Parliament, the Chief Minister is the head of state
parliament.

Who is eligible to be a Prime Minister?

● To become an Indian prime minister one has to be

○ A citizen of India.

○ A member of either Rajya Sabha or Lok Sabha

○ He should have completed his 30 years if he is a member of the Rajya Sabha or can be 25
years of age if he is a member of the Lok Sabha

Position of the Prime Minister

● Right from the days of the first Prime Minister Pandit Jawaharlal Nehru, the Prime Minister is treated
at a much higher pedestal. His preeminence rests on his commanding position in the Cabinet,
coupled with the fact that he is the leader of the majority party.

● All these positions of power when combined in one person make him rank much above an ordinary
Minister. The death or resignation of the Prime Minister automatically brings about the dissolution
of the Council of Ministers. It generates a vacuum. The demise, resignation or dismissal of a
Minister creates only a vacancy which the Prime Minister may or may not like to fill. The
Government cannot function without a Prime Minister but the absence of a Minister can be easily
compensated.

Relationship between the Prime Minister and the President of India

● There are a few articles in the Indian Constitution that deal with the relationship both the Prime
Minister and the President share with each other.
 ● Council of Ministers

Which articles in the Constitution deal with the Council of Ministers?

● Two articles – Article 74 and Article 75 of the Indian Constitution deal with the Council of Ministers.
Where article 74 mentions that the council will be headed by the Prime Minister of India and will aid
and advise the President, article 75 mentions the following things:

○ They are appointed by the President on the advice of Prime Minister

○ They along with the Prime Minister of India form 15% of the total strength of the lower
house i.e. Lok Sabha. (The number cannot exceed 15%)

○ 91st Amendment Act provided for the disqualification of the minister when he stands
disqualified as a member of Parliament. (Difference between Lok Sabha and Rajya Sabha
can be referred to in the linked article.)
 ○ A Minister ceases to exist as one if he is not a member of either house of Parliament for
six consecutive months.

○ Parliament decides the salary and allowances of the council of ministers.

Is the advice tendered by the Council of Ministers’ binding on the President?

● Yes, the advice is binding on the President and this provision was introduced by the 42nd
Amendment Act 1976 and 44th Amendment Act 1978. The acts also mentioned that the advice
given by the council cannot be inquired into by any court.

Collective Responsibility of the Council of Ministers

● In England, the Cabinet system is based on conventions. The framers of our Constitution
considered it fit to incorporate the system in the Constitution.

● The principle of collective responsibility finds a place in Art. 75(3) where it is stated that the Council
of Ministers shall be collectively responsible to the Lok Sabha. In other words, this provision means
that a Ministry which loses confidence in the Lok Sabha is obliged to resign.

● The loss of confidence is expressed by rejecting a Money Bill or Finance Bill or any other important
policy measure or by passing a motion of no-confidence or rejecting a motion expressing
confidence in the Ministry.

● When a Ministry loses the confidence of the Lok Sabha the whole of the Ministry has to resign
including those Ministers who are from the Rajya Sabha. The Ministers fall and stand together. In
certain cases, the Ministry may advise the President to dissolve Lok Sabha and call for fresh
elections.

Types of Ministers

● The Indian Constitution does not categorize ministers into ranks, however, in practice seen in India,
ministers are of four types:

1. Cabinet Ministers—He is present and he participates in every meeting of the Cabinet.

2. Minister of State with independent charge—He is a Minister of State who does not work
under a Cabinet Minister. When any matter concerning his Department is on the agenda
of the Cabinet, he is invited to attend the meeting.

3. Minister of State—He is a Minister who does not have independent charge of any
Department and works under a Cabinet Minister. The work to such a Minister is allotted by
his Cabinet Minister.

4. Deputy Minister—He is a Minister who works under a Cabinet Minister or a Minister of

State with independent charge. His work is allotted by the Minister under whom he is
working.

Distinction Between Council of Ministers and Cabinet

 Chapter 28: Governor

● The state executive is made up of the Governor, Chief Minister, Council of Ministers, and Advocate-
General of State. The Governor, as President, heads the state government. Article 153-167 in the
Indian Constitution deals with the provisions related to the state governments of the country.

● The Governor is a titular head or constitutional head and at the same time, he is the agent of the
center as the union government nominates the Governor in each state.

● Governor is a nominal executive head of the state. He forms an important part of the state executive
where he acts as the chief executive head. The Central Government nominates the governor for
each state.

How is a Governor Appointed?

● The Indian President appoints the Governor for each state by warrant under his hand and seal.
The Central Government is responsible to nominate the governor for each state.

● Note:

○ Unlike elections of the President, there is no direct or indirect election for the post of
Governor.

○ The office of a governor is not a part of the union executive and is an independent
constitutional office. The governor doesn’t serve the union government and neither is
subordinate to it.

○ The nomination of a governor by the Union and his appointment by the President in India
is based on the Canadian model of government.

What is the term of the Governor’s office?

● Since the Governor holds the office under the pleasure of the President, his office has no fixed
term. The President can remove the Governor and the grounds upon which he may be removed
are not laid down in the constitution.

● Governors may also get transferred from one state to another by the President. He also can be
reappointed.

● Note:

○ An interregnum is not allowed; following which a Governor may sit in the office beyond 5
years (expiry of the term) till the new governor assumes the charge of the office.

○ At the President's discretion, the Chief Justice of the High Court of the concerned state can
also be appointed as the Governor on a temporary basis when and how the President
thinks fit. (Example – On the governor’s death, the Chief Justice of HC can be appointed
as the governor.)

Who is qualified to become a Governor?

● Unlike Lok Sabha or Rajya Sabha members or even in the case of Prime Minister or President who
have a set of qualifications to meet to hold the office; Governor has to meet only two qualifications:
 ○ He should be an Indian Citizen

○ He should be 35 years old or more

● Note: There are two conventions that the government follows before nominating a person as a
Governor:

○ That person is not appointed as the governor who belongs to the state. He shall be an
outsider having no relation with the state he is being appointed to.

○ Consultation of the Chief Minister is taken by the President before appointing a governor

○ It should also be noted that both the above conventions are not absolute and have been
ignored by the union government in many instances.

What are the conditions of his office?

● There are a few conditions for a person to be appointed as a Governor:

○ He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of either
of the houses, he should vacate the seat on his first day as Governor in the office.

○ He should not hold any office of profit.

○ For his residence, Raj Bhavan is provided to him without the payment of rent.

○ Parliament decides his emoluments, allowances, and privileges.

○ When a governor is responsible for two or more states, the emoluments and allowances
payable to him are shared by the states in such proportion as the President may determine.

○ Parliament cannot diminish his emoluments and allowances during his term of office.

○ He is given immunity from any criminal proceedings, even in respect of his personal acts

○ Arrest or imprisonment of the Governor cannot take place. Only civil proceedings can be
initiated for his personal acts that too after giving two months’ of prior notice.
What is the Constitutional Position of Governor?

Governor’s Discretionary Powers

 ● The Governor of state, unlike the President of India, is conferred with power to act at his own
discretion. There are two categories of discretion for the governor. One is Constitutional Discretion
and the other is Situational Discretion.

Comparing Veto Powers of President and Governor

Comparing Ordinance-Making Power of President and Governor
Comparing Pardoning Powers of President and Governor
Articles Related to Governor at a Glance
 Chapter 29: Chief Minister and Council of Ministers

● As a real executive authority, the Chief Minister is called the head of the government. He is assisted
by his council of ministers who are a part of the state executive along with the Governor and
Advocate-General of State. Similar to the Prime Minister who is the head of the government at the
center, the Chief Minister is the head of the government at the state level.

● He is the head of the state government. While the governor is the nominal executive of the state
government, the person who becomes the chief minister is the real executive of the government.
The real executive is called ‘de facto’ executive that means, ‘in fact, whether by right or not.’

Articles Related to Chief Minister at a Glance

How is a Chief Minister appointed?

● Just like the Prime Minister, provisions of whose appointment are not mentioned in the Indian
Constitution, Chief Minister’s appointment particulars are not mentioned in the Constitution.
According to Article 164 in the Indian Constitution, the Governor appoints the Chief Minister.
However, the Governor cannot appoint any random person as the Chief Minister but has to follow
a provision.

● A leader of the party that has got the majority share of votes in the assembly elections, is appointed
as the Chief Minister of the state.

● Note:

○ When no party gets a majority in the elections, the governor exercises his own discretion
and appoints a Chief Minister accordingly.

○ In a case where no party has won the majority votes, Governor appoints the member of
the largest party or one from the coalition (if occurs) as the Chief Minister and then he is
given 1 month time to prove confidence in the house.

○ If the incumbent dies in office, the Governor at his own discretion can appoint a Chief
Minister; however, the ruling party nominates a member and the Governor usually appoints
that person as the Chief Minister. This person then has to prove confidence within a
specified time.
 ○ A person not belonging to either house (Legislative Assembly & Council) can also be
appointed as the Chief Minister, however, within six months of his tenure as a CM he should
be elected to either house without which he ceases to be a CM.

○ The Chief Minister can belong to any house in the State Legislature.

What is the term of the Chief Minister’s office?

● Aspirants should clearly understand that the term of Chief Minister is not fixed and he holds his
office during the pleasure of the governor.

● Note:

○ Governor cannot remove him any time.

○ Governor cannot even dismiss him till the time he enjoys the support of the majority of the
house.

○ When CM loses his majority support, he has to resign and the Governor dismisses him
then.

What is the main function of the Chief Minister?

● The CM of the state performs functions in relation to the different categories of people:

○ In relation to the Council of Ministers

○ In relation to the Governor

○ In relation to the State Legislature

● Other than that, he also performs the following functions:

○ He chairs the State Planning Board

○ He is a vice-chairperson of the concerned zonal council by rotation, holding that office for
a period of one year at a time

○ He is a member of Inter-State Council and National Development Council which are

headed by the Prime Minister.

➢ In Relation to the Council of Ministers

● The Chief Minister is the head of the state council of ministers. He performs the following functions:

1. He recommends to the governor on who to appoint as ministers

2. He designates or reshuffles the portfolios of the ministers

3. He can ask a minister to resign

4. Meeting of the council of ministers is headed by him

5. All activities of the ministers are guided and controlled by the Chief Minister
 6. If he resigns, the entire council of ministers collapses.

● Note: If the CM dies (or resigns), the council automatically dissolves.

➢ In Relation to the Governor

● In relation to the governor, the Chief Minister performs the following functions:

○ All the activities, decisions that are taken up by the council of ministers are communicated
to the governor by the chief minister

○ To report to the governor, information about the administrative affairs if and when asked
by the governor

○ If any minister has decided on any issue, the same has to be reported to the Governor by
the Chief Minister when the same has not been considered by the council.

○ He gives his advice to the governor for the appointment of the following persons:

■ Advocate-General

■ Chairman of state public service commission

■ The state election commission, etc.

➢ In Relation to the State Legislature

● He is the leader of the house and holding this position, he performs the following functions:

○ Before a governor prorogues and summons the sessions of the state legislature, the Chief
Minister’s advice is a must

○ Legislative Assembly can be dissolved at any time on his recommendation to the governor

○ All government policies are announced by him on the floor of the house.

Chief Minister and the Governor

● State Council of Ministers

● The State Council of Ministers is similar to the Central Council of Ministers. The state council is
headed by the Chief Minister. The council comprises ministers appointed by the governor on the
recommendation of the CM.

How are the Council of Ministers appointed?

 ● They are appointed by the governor on the advice of the CM. Governor also appoints a tribal affairs
minister for the following states:

○ Chhattisgarh

○ Jharkhand

○ Madhya Pradesh

○ Odisha

● Note: Bihar was also one of the states to have a tribal affairs minister, however, 94th Amendment
Act 2006 freed Bihar from this obligation.

Composition of Council of Ministers

● The size of the council is not mentioned in the Indian Constitution. The Chief Minister decides the
size and the rank of the ministers as per the requirement in the State Legislature.

● There are three categories of Council of Ministers:

○ Cabinet Ministers

○ Ministers of State

○ Deputy Ministers

Collective Responsibility

● The provision of collective responsibility is dealt with by Article 164. The Article mentions that the
council of ministers are collectively responsible to the state legislature. (To read more about the
important articles in the Indian Constitution, refer to the linked article.) This means that all the
ministers own joint responsibility to the legislative assembly for all their acts of omission and
commission.

● Note:

● When the legislative assembly passes a no-confidence motion against the council, all the ministers
of the council have to resign including those belonging to the Legislative Council too.

● The council of ministers can advise the governor to dissolve the legislative assembly on the ground
that the House does not represent the views of the electorate faithfully and call for fresh elections.
The governor may not oblige the council of ministers which has lost the confidence of the legislative
assembly.

Articles related to State Council of Ministers

 Chapter 30: State Legislature

● Chapter III of Part VI of the Constitution is concerned with the State Legislature. It comprises the
state legislature and executives. This topic is an important concept in polity for the IAS Exam.
Articles 168 to 212 in Part VI of the Constitution deal with the organization, composition, duration,
officers, procedures, privileges, powers and so on of the state legislature.

Bicameral and Unicameral States

● Unicameral State: It is a form of the legislature where only one house (one central unit) exists to
make and implement laws for the state/country.

● Bicameral State: It is a legislative body with two houses. India is one such example where there
are two houses both at union and also at 6 of its 28 states. In a bicameral legislature, the function
to administer and implement the laws are shared between the two houses.

● Though a uniform pattern of Government is prescribed for the States, it is not so in the matter of
the composition of the Legislature. While the Legislature of every State shall consist of the
Governor and the State Legislature, in some of the States, the Legislature shall consist of two
Houses, namely, the Legislative Assembly and the Legislative Council, while in the rest, there shall
be only one House, namely the legislative assembly.

○ The constitution provides for the abolition of the second chamber in a state where it exists
as well as for the creation of such a chamber in a state where there is none at present.

○ If a state Legislature passes a resolution by an absolute majority, together with not less
than two-thirds of the members actually present and voting in favour of the creation of the
second chamber and if Parliament gives concurrence to such a resolution, the concerned
State can have two Houses in the Legislature.

○ Similar is the procedure for the abolition of the Upper houses. The State of Punjab and
West Bengal abolished the second chambers in 1969 and 1970 respectively. The
Legislative Council in Tamil Nadu was abolished in 1986.

○ The State Legislature which has only one House is known as the Legislative Assembly
(Vidhan Sabha) and in the State which has two houses, the Upper House is known as the
Legislative Council (Vidhan Parishad) and the lower House is known as the Legislative
Assembly (Vidhan Sabha).

○ Owing to changes introduced since the inauguration of the Constitution, in accordance with
the procedure laid down in Article 169, the States having two Houses are Bihar,
Maharashtra, Karnataka, Andhra Pradesh, Telangana and Uttar Pradesh.

State Legislature – Legislative Assembly

● The Legislative Assembly is the popularly elected chamber and is the real Centre of power in a
State. The maximum strength of an assembly must not exceed 500 or its minimum strength falls
below 60. But some of the States have been allowed to have smaller Legislative Assemblies, e.g.
Sikkim, Arunachal Pradesh, Goa, etc.
 ● The territorial constituencies demarcation should be done as far as possible, such that the ratio
between the population of each constituency and the number of seats allotted to it is the same all
over the State.

● Apart from these general provisions, there are also special provisions with respect to the
representation of SC and ST. In case the Governor feels that the Anglo-Indian community is not
adequately represented, he can nominate one member of that community to the assembly.

State Legislature – Legislative Council

● The Legislative Council of a State Comprises not more than one-third of the total number of
members in the Legislative Assembly of the State and in no case less than 40 members. However,
in Jammu and Kashmir, the strength is only 36. The system of the composition of the Council as
provided for in the Constitution is not final. The final power is given to the Parliament of the Union.
But until the Parliament legislates on the subject, it shall be as provided for in the Constitution,
which is described below:

● Duration of Legislative Assembly & Legislative Council

○ It will be a partly nominated and partly elected body, the election being an indirect one and
in accordance with the principle of proportional representation by the single transferable
vote. The members being drawn from various sources, the Council shall have a variegated
composition. Broadly speaking 5/6 of the total number of members of the Council shall be
indirectly elected and 1/6 will be nominated.

○ The duration of the Legislative Assembly is five years. The Governor has the power to
dissolve the Assembly even before the expiry of its term. The period of five years, may,
while a proclamation of emergency is in operation, be extended by the Parliament by law
for a period not exceeding one year at a time and not extending in any case beyond a
period of six months after proclamation has ceased to operate (Article 172(1)). Unlike the
Legislative Assembly, the Legislative Council is not subject to dissolution. It is a permanent
body unless abolished by the Legislative Assembly and Parliament by due procedure. But
no person can be a permanent member of the Council as one-third of the members of the
Council retire on the expiry of every second year. It amounts to a term of six years for each
member. There is no bar on a member getting re-elected on the expiry of his term.

■ (a) one-third of the total number of members of the Council would be elected by
electorates consisting of members of local bodies like the municipalities and the
district boards.

■ (b) one-twelfth of the members would be elected by electorates composed of

graduates of the standing of three years dwelling in that particular state.

■ (c) one-twelfth of the members would be elected by electorates consisting of

teachers who have been in the teaching profession for at least 3 years in
educational institutes in that state, which are not lower than secondary schools in
the standard.

■ (d) one-third would be elected by members of the Legislative Assembly from

amongst people who are not Assembly members.
 ■ (e) The rest would be nominated by the Governor from persons having knowledge
or practical experience in matters like science, literature, cooperative movement,
art and social service. (The Courts can’t question the propriety or bonafide of the
Governor’s nomination.)

● Qualifications of Members of Legislative Assembly

○ A person shall not be qualified to be selected to occupy a seat in the Legislature of a State
unless he/she

■ (a) is an Indian citizen;

■ (b) is 25 years or above for Legislative Assembly, and is 30 or above for Legislative
Council, and

■ (c) possess such other qualifications as may be prescribed by the Parliament.

○ Thus, the Representation of the People Act, 1951, has provided that a person shall not be
elected either to the Legislative Assembly or the Council unless he is himself an elector for
any Legislative Assembly constituency in that State. A person can be disqualified for being
selected as and for being a member of the Legislative Assembly or Legislative Council of
a State if he/she

■ (a) holds an office of profit under GOI or any State Government, other than that of
a Minister at the center or any state or an office declared by a law of the State not
to disqualify its holder (many States have passed such laws declaring certain
offices to be offices the holding of which does not disqualify its holder for being a
member of the Legislature of that States)

■ (b) is mentally unsound as declared by a competent Court

■ (c) is an undischarged insolvent

■ (d) is not an Indian citizen or has voluntarily got the citizenship of a foreign State
or is under any acknowledgement of adherence/allegiance to a foreign nation

■ (e) is so disqualified by or under any law made by Parliament

○ Thus, the Representation of the People Act, 1951, has laid down some grounds of
disqualification, like conviction by a Court, having been found guilty of electoral
malpractice, being a manager or director of a corporation in which the Government
possesses a financial interest. Article 192 says that if any question arises as to whether a
member of a House of the Legislature of a State has become subject to any of the
disqualifications mentioned above, the matter will be referred to the Governor of the state
who has to act in accordance with the opinion of the Election Commission. His decision is
final and not liable to be questioned in Court.

Who are the officers of the state legislature?

● Facts about Speaker & Deputy Speaker:

○ A Speaker vacates his office if he ceases to be a member of the Assembly.

 ○ He may also resign his office at any time.

○ A speaker may be removed from office by a resolution of the Assembly passed by a

majority of all the then members of the Assembly after fourteen days’ notice of the intention
to move such a resolution.

○ The Speaker does not vacate his office on the dissolution of the Assembly.

○ He continued to be the Speaker until immediately before the first sitting of the Assembly
after the dissolution.

○ While the office of the Speaker is vacant, the Deputy Speaker performs his duties.

○ The duties and powers of the Speaker are, broadly speaking, the same as those of the
Speaker of the House of the People (Lok Sabha).

● Facts about Chairman & Deputy Chairman:

○ The Council chooses from amongst its members a Chairman and a Deputy Chairman.

○ Both vacate their offices if they cease to be members of the Council or resign from its
membership.

○ They can also be removed by a resolution of the Council passed by a majority of all the
then members of the Council, provided fourteen days notice to move such resolution of
removal has been given.

○ When the resolution for removal is under discussion against the Chairman or the Deputy
Chairman, the concerned person shall not preside at the sitting of the Council, although he
may be present at such a sitting and has the right to speak in, and otherwise to take part
in the proceedings of the Council.

○ He shall be entitled to vote only in the first instance on such resolution or on any other
matter during such proceedings.

○ In case of an equality of votes, he does not exercise a casting vote to which he is otherwise
entitled under Article 189.

○ The Chairman presides at all sittings of the Council and in his absence the Deputy
Chairman.

○ During the absence of both the Chairman and the Deputy Chairman, such other person as
may be determined by the rules of procedure of the Council shall preside; or, if no such
person is present, such other person as may be determined by the Council shall act as
Chairman.

○ While the office of the Chairman is vacant, the duties of his office are performed by the
Deputy Chairman. If the office of the Deputy Chairman is also vacant, such members of
the Council as the Governor may appoint shall perform all such duties connected with the
office of the Chairman.

Powers & Functions of State Legislature

● The functions of the states’ Legislative Council are only advisory in nature. If any Bill is passed by
the Legislative Assembly and sent to the Council, and the Council refuses to give its approval, then
the Assembly has the right to reconsider it. The assembly may pass it with or without the
amendments proposed by the Council, and again send it to the Council. When a bill approved by
the Assembly is sent to the Council for the first time, it may retain it for three months, but in the
case when it is sent for the second time and is kept in the Council for one month only, the bill is
deemed as having been passed. This evidently demonstrates the Assembly’s absolute superiority
over the LC. In the case of Money Bills, the State Assembly’s powers are the same as those of the
Lok Sabha. It is evident that the position of the Vidhan Parishad is haplessly weak. Even, in theory,
it cannot be compared to the Rajya Sabha that, in spite of being the upper chamber of the Union
Legislature, has some effective powers.

1. All the LC can do is delay the passing of a money bill by 14 days, a non-money bill by 3
months or a non-money bill that is sent back to it with recommendations by 1 month.

2. There is no provision in the Constitution for a joint sitting of the State Legislature. It is to be
noted that while the Vidhan Sabha can override the Vidhan Parishad, the vice versa is
never possible. A non-money bill that is passed by the Vidhan Parishad can be rejected by
the Vidhan Sabha more than once.

3. The LC members do not participate in the election of the President of the country. Apart
from that, they do not have any meaningful role in any bill’s rectification nor in a
constitutional amendment. In practical terms, the Legislature of a State implies its
Legislative Assembly which possesses the following major powers and functions:

a. It can create laws on any subject in the State List; it can also create laws on the
Concurrent List provided the law does not contradict or conflict any law already
made by the Parliament.

b. The Assembly asserts control over the Council of Ministers. Assembly members
can question the ministers, move motions and resolutions, and also pass a vote of
censure in order to dismiss the state government. The government ministry is
collectively accountable to the Legislative Assembly. If the ministry is defeated in
the Assembly, it amounts to the passing of a no-confidence vote against the
government.

c. The assembly controls the State’s finances. A money Bill can emerge from the
Assembly and it is considered passed by the LC after a lapse of fourteen days
after reference made to it by the Sabha. It could reject or pass the grants or reduce
their amount indicating rejection or adoption of the budget and hence, implying
victory or defeat of the State Government. Therefore, no tax can be levied or
withdrawn without the consent of the Vidhan Sabha.

4. The Assembly has constituent powers. With reference to Article 368, certain Bills of
Constitutional amendment after being passed by the Parliament would be referred to the
States for the process of ratification. In these cases, the Vidhan Sabha has a role to play.
It should give its judgement by passing a resolution by a simple majority indicating approval
or disapproval of the said Bill. There is a provision wherein the President shall refer to the
state assembly of a state before he recommends the introduction of a bill which concerns
 with the alteration of the concerned state’s boundary lines or its reorganisation in such a
manner that its territory is increased or decreased.

5. Some other powers of the State Assembly are as under:

a. It elects its Speaker as well as Deputy Speaker. It can also remove them by a no-
confidence vote.

b. It participates in the election of India’s President.

c. It also considers reports presented by agencies such as the Auditor-General, State

Public Service Commission, and others. Hence, it is evident that the Vidhan Sabha
is the powerful and popular chamber of the State Legislature. In theory, it is
somewhat parallel to the Lok Sabha.

Limitations on the powers of State Legislature

● Certain types of Bills cannot be moved in the State Legislature without the previous sanction of the
President of India

● Certain Bills passed by the State Legislature cannot become operative until they receive the
President’s assent after having been reserved for his consideration by the Governor;

● The Constitution empowers Parliament to frame laws on subjects included in the State List if the
Council of States declares that it is necessary and expedient in the national interest that Parliament
should Legislate on these subjects

● Parliament can exercise the power to make laws for the whole or any part of the territory of India
with respect to any of the matters enumerated in the State List, while a Proclamation of emergency
is in operation

● The Legislative competence of Parliament can also extend to the subjects enumerated in the State
List during the operation of a proclamation of the breakdown of the Constitutional machinery.

Legislative Procedure

● The Parliamentary procedure followed in the Assembly and the Council is the same as in
Parliament.

● The State Legislature must meet at least twice a year and the interval between any two sessions
should not be more than six months.

● The Governor delivers the opening address at the beginning of a new session in which he outlines
the policy of the State Government.

● Any Bill may be introduced in either House of the Legislature except a Money Bill, which can be
introduced only in the Assembly. It has to go through three readings, after which it goes to the
Governor for his assent. The Governor may send it back for reconsideration but once it is passed
again by the Legislature, he cannot withhold his assent.

● He may reserve certain Bills for the consideration of the President, who may ask him to place it
before the Legislature for reconsideration. When it is passed again with or without amendment it
goes to the President for his consideration.
 ● The President is not bound to give his assent even though the Bill has been considered and passed
for a second time by the State Legislature. In case the Assembly is dissolved before a Bill is passed,
or it is passed by the Assembly but is pending before the Council, it will lapse.

● But in case of Bills which have been duly passed by the Assembly, if there is only one House in the
State, and by the Assembly and the Council where there are two House, and is awaiting the assent
of the Governor or the President it does not lapse.

● A bill which has been returned either by the Governor or the President for reconsideration can be
considered and passed by the newly constituted Assembly, even though the Bill was originally
passed by the dissolved House.

Comparing Legislative Procedure in the Parliament and State Legislature

 Chapter 31: Local Governments: Panchayati Raj - 73rd Constitutional Amendment Act

● A three-tier structure of the Indian administration for rural development is called Panchayati Raj.
The aim of the Panchayati Raj is to develop local self-governments in districts, zones and villages.

● Rural development is one of the main objectives of Panchayati Raj and this has been established
in all states of India except Nagaland, Meghalaya and Mizoram, in all Union Territories except
Delhi. and certain other areas. These areas include:

○ The scheduled areas and the tribal areas in the states

○ The hill area of Manipur for which a district council exists and

○ Darjeeling district of West Bengal for which Darjeeling Gorkha Hill Council exists

Evolution of Panchayati Raj

● The Panchayati system in India is not purely a post-independence phenomenon. In fact, the
dominant political institution in rural India has been the village panchayat for centuries. In ancient
India, panchayats were usually elected councils with executive and judicial powers. Foreign
domination, especially Mughal and British, and the natural and forced socio-economic changes had
undermined the importance of the village panchayats. In the pre-independence period, however,
the panchayats were instruments for the dominance of the upper castes over the rest of the village,
which furthered the divide based on either the socio-economic status or the caste hierarchy.

● The evolution of the Panchayati Raj System, however, got a fillip after the attainment of
independence after the drafting of the Constitution. The Constitution of India in Article 40 enjoined:
“The state shall take steps to organise village panchayats and endow them with such powers and
authority as may be necessary to enable them to function as units of self-government”.

● There were a number of committees appointed by the Government of India to study the
implementation of self-government at the rural level and also recommend steps in achieving this
goal.

● The committees appointed are as follows:

○ Balwant Rai Mehta Committee

○ Ashok Mehta Committee

○ G V K Rao Committee
 ○ L M Singhvi Committee

Balwant Rai Mehta Committee & Panchayati Raj

● The committee was appointed in 1957, to examine and suggest measures for better working of the
Community Development Programme and the National Extension Service. The committee
suggested the establishment of a democratic decentralised local government which came to be
known as the Panchayati Raj.

● Recommendations by the Committee:

○ Three-tier Panchayati Raj system: Gram Panchayat, Panchayat Samiti and Zila Parishad.

○ Directly elected representatives to constitute the gram panchayat and indirectly elected
representatives to constitute the Panchayat Samiti and Zila Parishad.

○ Planning and development are the primary objectives of the Panchayati Raj system.

○ Panchayat Samiti should be the executive body and Zila Parishad will act as the advisory
and supervisory body.

○ District Collector to be made the chairman of the Zila Parishad.

○ It also requested for provisioning resources so as to help them discharge their duties and
responsibilities.

● The Balwant Rai Mehta Committee further revitalised the development of panchayats in the
country, the report recommended that the Panchayati Raj institutions can play a substantial role in
community development programmes throughout the country. The objective of the Panchayats
thus was the democratic decentralisation through the effective participation of locals with the help
of well-planned programmes. Even the then Prime Minister of India, Pandit Jawaharlal Nehru,
defended the panchayat system by saying, “. . . authority and power must be given to the people
in the villages …. Let us give power to the panchayats.”

Ashok Mehta Committee & Panchayati Raj

● The committee was appointed in 1977 to suggest measures to revive and strengthen the declining
Panchayati Raj system in India.

● The key recommendations are:

○ The three-tier system should be replaced with a two-tier system: Zila Parishad (district
level) and the Mandal Panchayat (a group of villages).

○ District level as the first level of supervision after the state level.

○ Zila Parishad should be the executive body and responsible for planning at the district level.

○ The institutions (Zila Parishad and the Mandal Panchayat) to have compulsory taxation
powers to mobilise their own financial resources.

G V K Rao Committee & Panchayati Raj

 ● The committee was appointed by the planning commission in 1985. It recognised that development
was not seen at the grassroot level due to bureaucratisation resulting in Panchayat Raj institutions
being addressed as ‘grass without roots’.

● Hence, it made some key recommendations which are as follows:

○ Zila Parishad to be the most important body in the scheme of democratic decentralisation.
Zila Parishad to be the principal body to manage the developmental programmes at the
district level.

○ The district and the lower levels of the Panchayati Raj system to be assigned with specific
planning, implementation and monitoring of the rural developmental programmes.

○ Post of District Development Commissioner to be created. He will be the chief executive

officer of the Zila Parishad.

○ Elections to the levels of Panchayati Raj systems should be held regularly.

L M Singhvi Committee & Panchayati Raj

● The committee was appointed by the Government of India in 1986 with the main objective to
recommend steps to revitalise the Panchayati Raj systems for democracy and development. The
following recommendations were made by the committee:

○ The committee recommended that the Panchayati Raj systems should be constitutionally
recognised. It also recommended constitutional provisions to recognise free and fair
elections for the Panchayati Raj systems.

○ The committee recommended reorganisation of villages to make the gram panchayat more
viable.

○ It recommended that village panchayats should have more finances for their activities.

○ Judicial tribunals to be set up in each state to adjudicate matters relating to the elections
to the Panchayati Raj institutions and other matters relating to their functioning.

● All these things further the argument that panchayats can be very effective in identifying and solving
local problems, involve the people in the villages in the developmental activities, improve the
communication between different levels at which politics operates, develop leadership skills and in
short help the basic development in the states without making too many structural changes.
Rajasthan and Andhra Pradesh were the first to adopt Panchayati raj in 1959, other states followed
them later.

● Though there are variations among states, there are some features that are common. In most of
the states, for example, a three-tier structure including panchayats at the village level, panchayat
samitis at the block level and the zila parishads at the district level-has been institutionalised. Due
to the sustained effort of the civil society organisations, intellectuals and progressive political
leaders, the Parliament passed two amendments to the Constitution – the 73rd Constitution
Amendment for rural local bodies (panchayats) and the 74th Constitution Amendment for urban
local bodies (municipalities) making them ‘institutions of self-government’. Within a year all the
states passed their own acts in conformity to the amended constitutional provisions.
73rd Constitutional Amendment Act of 1992

● Significance of the Act

○ The Act added Part IX to the Constitution, “The Panchayats” and also added the Eleventh
Schedule which consists of the 29 functional items of the panchayats.

○ Part IX of the Constitution contains Article 243 to Article 243 O.

○ The Amendment Act provides shape to Article 40 of the Constitution, (directive principles
of state policy), which directs the state to organise the village panchayats and provide them
powers and authority so that they can function as self-government.

○ With the Act, Panchayati Raj systems come under the purview of the justiciable part of the
Constitution and mandates states to adopt the system. Further, the election process in the
Panchayati Raj institutions will be held independent of the state government’s will.

○ The Act has two parts: compulsory and voluntary. Compulsory provisions must be added
to state laws, which includes the creation of the new Panchayati Raj systems. Voluntary
provisions, on the other hand, is the discretion of the state government.

○ The Act is a very significant step in creating democratic institutions at the grassroots level
in the country. The Act has transformed the representative democracy into participatory
democracy.

● Salient Features of the Act

1. Gram Sabha: Gram Sabha is the primary body of the Panchayati Raj system. It is a village
assembly consisting of all the registered voters within the area of the panchayat. It will exercise
powers and perform such functions as determined by the state legislature. Candidates can refer to
the functions of gram panchayat and gram panchayat work, on the government official website –
https://grammanchitra.gov.in/.

2. Three-tier system: The Act provides for the establishment of the three-tier system of Panchayati
Raj in the states (village, intermediate and district level). States with a population of less than 20
lakhs may not constitute the intermediate level.

3. Election of members and chairperson: The members to all the levels of the Panchayati Raj are
elected directly and the chairpersons to the intermediate and the district level are elected indirectly
from the elected members and at the village level the Chairperson is elected as determined by the
state government.

4. Reservation of seats:

a. For SC and ST: Reservation to be provided at all the three tiers in accordance with their
population percentage.

b. For women: Not less than one-third of the total number of seats to be reserved for women,
further not less than one-third of the total number of offices for chairperson at all levels of
the panchayat to be reserved for women.
 c. The state legislatures are also given the provision to decide on the reservation of seats in
any level of panchayat or office of chairperson in favour of backward classes.

5. Duration of Panchayat: The Act provides for a five-year term of office to all the levels of the
panchayat. However, the panchayat can be dissolved before the completion of its term. But fresh
elections to constitute the new panchayat shall be completed –

a. before the expiry of its five-year duration.

b. in case of dissolution, before the expiry of a period of six months from the date of its
dissolution.

6. Disqualification: A person shall be disqualified for being chosen as or for being a member of
panchayat if he is so disqualified –

a. Under any law for the time being in force for the purpose of elections to the legislature of
the state concerned.

b. Under any law made by the state legislature. However, no person shall be disqualified on
the ground that he is less than 25 years of age if he has attained the age of 21 years.

c. Further, all questions relating to disqualification shall be referred to an authority determined

by the state legislatures.

7. State election commission:

a. The commission is responsible for superintendence, direction and control of the

preparation of electoral rolls and conducting elections for the panchayat.

b. The state legislature may make provisions with respect to all matters relating to elections
to the panchayats.

8. Powers and Functions: The state legislature may endow the Panchayats with such powers and
authority as may be necessary to enable them to function as institutions of self-government. Such
a scheme may contain provisions related to Gram Panchayat work with respect to:

a. the preparation of plans for economic development and social justice.

b. the implementation of schemes for economic development and social justice as may be
entrusted to them, including those in relation to the 29 matters listed in the Eleventh
Schedule.

9. Finances: The state legislature may –

a. Authorise a panchayat to levy, collect and appropriate taxes, duties, tolls and fees.

b. Assign to a panchayat taxes, duties, tolls and fees levied and collected by the state
government.

c. Provide for making grants-in-aid to the panchayats from the consolidated fund of the state.

d. Provide for the constitution of funds for crediting all money of the panchayats.
 10. Finance Commission: The state finance commission reviews the financial position of the
panchayats and provides recommendations for the necessary steps to be taken to supplement
resources to the panchayat.

11. Audit of Accounts: State legislature may make provisions for the maintenance and audit of
panchayat accounts.

12. Application to Union Territories: The President may direct the provisions of the Act to be applied
on any union territory subject to exceptions and modifications he specifies.

13. Exempted states and areas: The Act does not apply to the states of Nagaland, Meghalaya and
Mizoram and certain other areas. These areas include,

a. The scheduled areas and the tribal areas in the states

b. The hill area of Manipur for which a district council exists

c. Darjeeling district of West Bengal for which Darjeeling Gorkha Hill Council exists. However,
Parliament can extend this part to these areas subject to the exception and modification it
specifies. Thus, the PESA Act was enacted.

14. Continuance of existing law: All the state laws relating to panchayats shall continue to be in force
until the expiry of one year from the commencement of this Act. In other words, the states have to
adopt the new Panchayati raj system based on this Act within the maximum period of one year
from 24 April 1993, which was the date of the commencement of this Act. However, all the
Panchayats existing immediately before the commencement of the Act shall continue till the expiry
of their term, unless dissolved by the state legislature sooner.

15. Bar to interference by courts: The Act bars the courts from interfering in the electoral matters of
panchayats. It declares that the validity of any law relating to the delimitation of constituencies or
the allotment of seats to such constituencies cannot be questioned in any court. It further lays down
that no election to any panchayat is to be questioned except by an election petition presented to
such authority and in such manner as provided by the state legislature.

PESA Act of 1996

● The provisions of Part IX are not applicable to the Fifth Schedule areas. The Parliament can extend
this Part to such areas with modifications and exceptions as it may specify. Under these provisions,
Parliament enacted Provisions of the Panchayats (Extension to the Scheduled Areas) Act,
popularly known as PESA Act or the extension act.

● Objectives of the PESA Act:

○ To extend the provisions of Part IX to the scheduled areas.

○ To provide self-rule for the tribal population.

○ To have village governance with participatory democracy.

○ To evolve participatory governance consistent with the traditional practices.

○ To preserve and safeguard traditions and customs of tribal population.

 ○ To empower panchayats with powers conducive to tribal requirements.

○ To prevent panchayats at a higher level from assuming powers and authority of panchayats
at a lower level.

● As a result of these constitutional steps taken by the union and state governments, India has moved
towards what has been described as ‘multilevel federalism’, and more significantly, it has widened
the democratic base of the Indian polity. Before the amendments, the Indian democratic structure
through elected representatives was restricted to the two houses of Parliament, state assemblies
and certain union territories. The system has brought governance and issue redressal to the
grassroot levels in the country but there are other issues too. These issues, if addressed, will go a
long way in creating an environment where some of the basic human rights are respected.

● After the new generation of panchayats had started functioning, several issues have come to the
fore, which have a bearing on human rights. The important factor which has contributed to the
human rights situation vis-a-vis the panchayat system is the nature of Indian society, which of
course determines the nature of the state. Indian society is known for its inequality, social hierarchy
and the rich and poor divide. The social hierarchy is the result of the caste system, which is unique
to India. Therefore, caste and class are the two factors, which deserve attention in this context.

● Thus, the local governance system has challenged the age old practices of hierarchy in the rural
areas of the country particularly those related to caste, religion and discrimination against women.

● The Panchayati Raj system constitutes an integral part of the IAS prelims and UPSC mains
syllabus. Aspirants preparing for the upcoming CSE must be aware of the administrative set in the
country.

Study Teams and Committees on Panchayati Raj

Milestones in the Evolution of Panchayati Raj
Committees Related to Panchayati Raj (After Constitutionalisation)
 ● Municipalities [243P - 243ZG]

● The system of Municipalities or Urban Local Governments was constitutionalised through the 74th
Constitutional Amendment Act of 1992. The provisions in this amendment are included in Part IXA
which came into force on June 1, 1993. Therefore, it gave a constitutional foundation to the local
self-government units in urban areas.

Evolution of Urban Bodies

● The institutions of urban local government originated and developed in modern India during the
period of British rule. The major events in this context are as follows:

○ In 1687-88, the first municipal corporation in India was set up at Madras.

 ○ In 1726, the municipal corporations were set up in Bombay and Calcutta.

○ Lord Mayo’s Resolution of 1870 on financial decentralisation visualised the development

of local self-government institutions.

○ Lord Ripon’s Resolution of 1882 has been hailed as the ‘Magna Carta’ of local self-
government. He is called the father of the local-self government in India.

○ The Royal Commission on decentralisation was appointed in 1907, and it submitted its
report in 1909. Its chairman was Hobhouse.

○ Under the dyarchical scheme introduced in Provinces by the Government of India Act,
1919, local self-government became a transferred subject under the charge of a
responsible Indian minister.

○ In 1924, the Cantonments Act was passed by the Central legislature.

○ Under the provincial autonomy scheme introduced by the Government of India Act, 1935,
local self-government was declared a provincial subject.

74th Constitutional Amendment

● The 74th Amendment Act of 1992 provides a basic framework of decentralisation of powers and
authorities to the Municipal bodies at different levels. However, responsibility for giving it a practical
shape rests with the States.

● The term ‘Urban Local Government’ in India signifies the governance of an urban area by the
people through their elected representatives. The jurisdiction of an urban local government is
limited to a specific urban area, which is demarcated for this purpose by the state government.

● The 74th Amendment Act has added a new Part IX-A to the Constitution of India.

● This part is entitled as ‘The Municipalities’ and consists of provisions from Articles 243-P to 243-
ZG.

● Additionally, the act also added a new Twelfth Schedule to the Constitution. This schedule contains
18 functional items of municipalities.

● The Act has brought Municipalities under the purview of the justiciable part of the Constitution.

● In other words, state governments are under constitutional obligation to adopt the new system of
municipalities in accordance with the provisions of the act [Article 243 Q].

● The act aims at revitalising and strengthening the urban governments so that they function
effectively as units of local government.

Historical Background

● In 1989, the Rajiv Gandhi government introduced the 65th Constitutional Amendment Bill
(Nagarpalika bill) in the Lok Sabha. The bill aimed at strengthening and revamping the municipal
bodies by conferring constitutional status on them.
 ● Although the bill was passed in the Lok Sabha, it was defeated in the Rajya Sabha in October 1989
and, hence, lapsed.

● The National Front Government under V P Singh introduced the revised Nagarpalika Bill in the Lok
Sabha again in September 1990. However, the bill was not passed and finally lapsed due to the
dissolution of the Lok Sabha.

● P V Narasimha Rao’s Government also introduced the modified Municipalities Bill in the Lok Sabha
in September 1991. It finally emerged as the 74th Constitutional Amendment Act of 1992 and came
into force on 1 June 1993.

Significance

● Towns and cities contribute substantially to the economic development of the country.

● These urban centres also play an important support role in the development of the rural hinterland.

● To keep this economic transformation in line with needs and realities at the grass-root level, it is
necessary that the people and their representatives are fully involved in the planning and
implementation of the programmes at the local level.

● If democracy in Parliament and State Legislatures is to remain strong and stable, its roots must
reach towns and villages and the cities where the people live.

Features of 74th Amendment Act, 1992

● The main provisions introduced by the above Act were as follows:-

● Constitution of Municipalities

○ The Act provides for the constitution of 3 types of municipalities, depending upon the size
and area in every state.

○ Nagar Panchayat (for an area in transition from rural to the urban area);

○ Municipal Council for the smaller urban area; and

○ Municipal Corporation for a larger urban area.

● Composition of Municipalities

○ The seats shall be filled by direct elections. For this purpose, each municipal area shall be
divided into territorial constituencies to be known as wards.

○ The state legislature may provide the manner of election of the chairperson of a
municipality.

○ It may also provide for the representation of the following persons in a municipality.

○ Persons having special knowledge and experience in municipal administration without the
right to vote in the meetings of the municipality.

○ The members of the Lok Sabha and the state legislative assembly representing
constituencies that comprise wholly or partly the municipal area.
 ○ The members of the Rajya Sabha and the State Legislative Council registered as electors
within the municipal area.

○ The chairpersons of committees (other than ward committees).

● Constitution of Wards Committees

○ This provides for the constitution of Ward Committees in all municipalities with a population
of 3 lakhs or more.

● Reservation of seats

○ The Act provides for the reservation of seats for the scheduled castes and the scheduled
tribes in every municipality in the proportion of their population to the total population in the
municipal area.

○ Further, it provides for the reservation of not less than one-third of the total number of seats
for women (including the number of seats reserved for women belonging to the SCs and
the STs).

○ The state legislature may provide for the manner of reservation of offices of chairpersons
in the municipalities for SCs, STs and women.

○ It may also make any provision for the reservation of seats in any Municipality or offices of
chairpersons in municipalities in favour of backward classes.

● Duration of Municipalities

○ The municipality has a fixed term of 5 years from the date appointed for its first meeting.

○ Elections to constitute a municipality are required to be completed before the expiration of

the duration of the municipality.

○ If the municipality is dissolved before the expiry of 5 years, the elections for constituting a
new municipality are required to be completed within a period of 6 months from the date of
its dissolution.

● Powers and Functions of the Municipalities

○ All municipalities would be empowered with such powers and responsibilities as may be
necessary to enable them to function as effective institutions of self-government.

○ The State Legislature may, by law, specify what powers and responsibilities would be given
to the municipalities in respect of preparation of plans for economic development and social
justice and for implementation of schemes as may be entrusted to them.

○ An illustrative list of functions that may be entrusted to the municipalities has been
incorporated as the Twelfth Schedule of the Constitution.

● Finances of Municipalities

○ It has been left to the Legislature of a State to specify by law matters relating to imposition
of taxes. Such law may specify:
 ■ Taxes, duties, fees, etc. which could be levied and collected by the Municipalities,
as per the procedure to be laid down in the State law.

■ Taxes, duties, fees, etc. which would be levied and collected by the State
Government and a share passed on to the Municipalities.

■ Grant-in-aid that would be given to the Municipalities from the State.

■ Constitution of funds for crediting and withdrawal of money by the Municipality.

● Finance Commission

○ The Finance Commission, constituted under Article 243-I to review the financial positions
of Panchayati Raj Institutions, shall also review the financial position of the municipalities
and will make recommendations to the Governor.

■ The recommendations of the Finance Commission will cover the following:

■ The distribution between the State Government and Municipalities of the net
proceeds of the taxes, duties, tolls and fees leviable by the State.

■ Allocation of share of such proceeds between the Municipalities at all levels in the
State.

■ Determination of taxes, duties, tolls and fees to be assigned or appropriated by the

Municipalities.

■ Grants-in-aid to Municipalities from the Consolidated Fund of the State.

○ Measures needed to improve the financial position of the Municipalities.

○ The governor shall place the recommendations of the commission along with the action
taken report before the state legislature.

● Elections to Municipalities

○ The superintendence, direction and control of the preparation of the electoral rolls for, and
the conduct of, all elections to the panchayats and municipalities shall be vested in the
State Election Commissions.

● Audit and Accounts

○ The maintenance of the accounts of the municipalities and other audits shall be done in
accordance with the provisions in the State law. The State Legislatures will be free to make
appropriate provisions in this regard, depending upon the local needs and institutional
framework available for this purpose.

● Committee for District Planning

○ Every state shall constitute, at the district level, a district planning committee to consolidate
the plans prepared by panchayats and municipalities in the district, and to prepare a draft
development plan for the district as a whole.
 ○ Planning and allocation of resources at the district level for the Panchayati Raj institutions
are normally to be done by the Zila Parishad.

● Metropolitan Planning Committees

○ Every metropolitan area shall have a metropolitan planning committee to prepare a draft
development plan.

○ Continuance of Existing Laws and Municipalities

■ All the state laws relating to municipalities shall continue to be in force until the
expiry of one year from the commencement of this act.

■ In other words, the states have to adopt the new system of municipalities based
on this act within the maximum period of one year from 1 June 1993, which is the
date of commencement of this act.

■ However, all municipalities existing immediately before the commencement of this

act shall continue till the expiry of their term, unless dissolved by the state
legislature sooner.

○ Bar to Interference by Courts in Electoral Matters

■ The act bars the interference by courts in the electoral matters of municipalities.

■ It declares that the validity of any law relating to the delimitation of constituencies
or the allotment of seats to such constituencies cannot be questioned in any court.

■ It further lays down that no election to any municipality is to be questioned except

by an election petition presented to such authority and in such a manner as
provided by the state legislature.

Types of Urban Governments

● The following eight types of urban local bodies are created in India for the administration of urban
areas:

○ Municipal corporation

○ Municipality

○ Notified Area Committee

○ Town Area Committee

○ Cantonment Board

○ Township

○ Port Trust

○ Special Purpose Agency

Municipal Personnel
 ● There are three types of municipal personnel systems in India. The personnel working in the urban
governments may belong to any one or all three types. These are:

○ Separate Personnel System

○ Unified Personnel System

○ Integrated Personnel System

Municipal Revenue

● There are five sources of income for urban local bodies. These are as follows:

○ Tax Revenue

○ Non-Tax Revenue

○ Grants

○ Devolution

○ Loans

Committees and Commissions on Urban Local Governments

Articles Related to Municipalities at a Glance
 Chapter 32: Supreme Court of India

● The Supreme Court of India is the country’s highest judicial court. It is the final court of appeal in
the country.

● The Federal Court of India was created as per the Government of India Act 1935.

● This court settled disputes between provinces and federal states and heard appeals against
judgements of the high courts.

● After independence, the Federal Court and the Judicial Committee of the Privy Council were
replaced by the Supreme Court of India, which came into being in January 1950.

● The Constitution of 1950 envisaged a Supreme Court with one Chief Justice and 7 puisne Judges.

● The number of SC judges was increased by the Parliament and currently, there are 34 judges
including the Chief Justice of India (CJI).
Supreme Court of India – Functions

● It takes up appeals against the verdicts of the High Courts, other courts and tribunals.

● It settles disputes between various government authorities, between state governments, and
between the centre and any state government.

● It also hears matters which the President refers to, in its advisory role.

● The SC can also take up cases suo moto (on its own).

● The law that SC declares is binding on all the courts in India and on the Union as well as the state
governments.

Supreme Court Jurisdiction

 ● The jurisdiction of the SC is of three types:

● Original

● Advisory

● Appellate

Supreme Court Composition

● Including the CJI, there are 34 judges in the Supreme Court.

● The judges sit in benches of 2 or 3 (called a Division Bench) or in benches of 5 or more (called a
Constitutional Bench) when there are matters of fundamental questions of the law to be decided.

The Procedure of the Supreme Court of India

● The Supreme Court of India has powers to consult the President to regulate the practice and
procedure of the Court.

● Constitutional Cases are usually decided by a bench consisting of five judges whereas other cases
are decided by a bench of at least three judges.

● The seat of the Supreme Court: As per the Constitution of India, Delhi is declared as the seat of
the Supreme Court of India. However, the Chief Justice of India has the power to assign another
place (s) as the seat of the Supreme Court. This is only an optional provision and not mandatory.

SC Judge Eligibility

● As per Article 124, an Indian citizen who is below 65 years of age is eligible to be recommended
for appointment as a judge of the SC if:

○ he/she has been a judge of one or more High Courts, for at least 5 years, or

○ he/she has been an advocate in one or more High Courts for at least 10 years, or

○ he/she is in the opinion of the President, a distinguished jurist.

 ● Independence of Judiciary

○ The Constitution has many provisions to ensure the judiciary’s independence. They are
discussed below:

■ Security of tenure: The judges of the SC are given security of tenure. Once
appointed, they will retain their office until the age of 65 years. They can be
removed only by a presidential order on grounds of proven misbehaviour and/or
incapacity. This requires a Special Majority according to Article 368. Read more
about the types of majorities in Parliament in the linked article.

■ Salaries and allowances: The judges of the SC enjoy good salaries and allowances
and these cannot be decreased except in the case of a financial emergency. The
expenses of the High Court are charged on the Consolidated Fund of the State,
which is not subject to vote in the state legislature.

■ Powers and Jurisdiction: The SC’s powers and jurisdiction can only be added by
the Parliament and not be curtailed.

■ The conduct of any judge of the Supreme Court in the discharge of his/her duties
cannot be discussed in the legislature.

■ The SC has the power to punish any person for its contempt, as per Article 129.
(Read about Contempt of Court in India in the linked article.)

■ Separation of the Judiciary from the Executive: A Directive Principle of State Policy
says that the state shall take steps to separate the judiciary from the executive in
the public services of the state. According to Article 50, there shall be a separate
judicial service free from executive control.

Comparing Indian and American Supreme Courts

Articles Related to Supreme Court at a Glance
 Chapter 33: High Courts of India

● The highest judicial court in a state is the High Court. It is termed as the second-highest in the
country after the Supreme Court of India. Currently, India has 25 High Courts established in
different states of the country.

● There are 25 High Courts in India. Candidates can find the list of High Courts in India in the linked
article.
 ● It was in 1858 when on the recommendation of the Law Commission, the Parliament passed the
Indian High Courts Act 1861 which suggested the establishment of High Courts in place of the
Supreme Court in three Presidencies: Calcutta, Madras, and Bombay. The Charter of the High
Court of Calcutta was ordered in May 1862 and those of Madras and Bombay were ordered in June
1862. Thereby, making the Calcutta High Court the first High Court of the country.

● The reason for the implementation of this act was the need for a separate judiciary body for different
states. The British Government, therefore, decided to abolish the then-existing Supreme Court and
Sadar Adalat and replaced it with the High Court.

● Certain rules and eligibility criteria were set for the appointment of a Judge in any High Court and
later after independence as per Article 214 of the Indian Constitution, it was declared that every
Indian state must have its own High Court.

● The British-created laws were different from the ones that were stated in the Indian Penal code and
the entire legal system of the country changed after the independence of the country.

Which is the Newest High Court of India?

● Andhra Pradesh is the recent state to have the High Court. The High Court was established in
Andhra Pradesh on 1st January 2019.

● Constitution of High Court – Under British rule, each High Court has a Chief Justice and maximum
15 other puisne judges. But later certain changes were brought about in the composition of the
High Court in India:

○ Every High Court shall have a Chief Justice appointed by the President

○ Unlike before, there was no fixed number of Judges who could be appointed for each High
Court

○ Additional Judges can also be appointed for the clearance of cases pending in the court.
But their tenure cannot exceed more than two years

● One thing that must be noted is that no one above the age of 62 years can be appointed as a High
Court Judge. There is no uniformity among the High Courts regarding the number of Judges they
will have. A smaller state shall have less number of judges in comparison to a larger state.

High Court Jurisdiction

● The High Court is the highest court of appeal in the state vested with the power to interpret the
Constitution. It is the protector of the Fundamental Rights of the citizens. Besides, it has supervisory
and consultative roles. However, the Constitution does not contain detailed provisions with regard
to the jurisdiction and powers of a high court.

● At present, the following jurisdictions are enjoyed by a High Court-

○ Original jurisdiction

○ Writ jurisdiction

○ Appellate jurisdiction
 ○ Supervisory jurisdiction

○ Control over subordinate courts

○ A court of record

○ Power of judicial review

The Jurisdiction of Highcourt are as mentioned below –

● Original Jurisdiction – In such cases the applicant can directly go to the High Court and does not
require to raise an appeal. It is mostly applicable for cases related to the State Legislative
Assembly, marriages, enforcement of fundamental rights and transfer cases from other courts.

● Power of Superintendence – It is a special power enjoyed only by the High Court and no other
subordinate court has this power of superintendence. Under this, the High Court holds the right to
order its subordinate offices and courts the way of maintaining records, prescribe rules for holding
proceedings in the court and also settle the fees paid to sheriff clerks, officers and legal
practitioners.

● Court of Record – It involves recording the judgments, proceedings and acts of high courts for
perpetual memory. These records cannot be further questioned in any court. It has the power to
punish for contempt of itself.

● Control over Subordinate Courts – This is an extension of the supervisory and appellate
jurisdiction. It states that the High Court can withdraw a case pending before any subordinate court
if it involves the substantial question of law. The case can be disposed of itself or solve the question
of law and return back to the same court.

● Appellate Jurisdiction – This is for cases where people have raised a complaint about a review
of the judgement given by the district level or subordinate court of that territory. This power is further
divided into two categories:

○ Civil Jurisdiction – this includes orders and judgements of the district court, civil district
court and subordinate court

○ Criminal Jurisdiction – this includes judgements and orders of the sessions court and
additional sessions court.

● Power of Judicial Review – This power of the High Court includes the power to examine the
constitutionality of legislative and executive orders of both central and state governments. It is to
be noted that the word judicial review is nowhere mentioned in our constitution but Article 13 and
226 explicitly provide the High Court with this power.

● Writ Jurisdiction of High Court – Article 226 of the Constitution empowers a high court to issue
writs including habeas corpus, mandamus, certiorari, prohibition, and quo warranto for the
enforcement of the fundamental rights of the citizens and for any other purpose. Read in detail
about the following –

○ Habeas Corpus

○ Writ of Mandamus
 ● The phrase ‘for any other purpose’ refers to the enforcement of an ordinary legal right. The high
court can issue writs to any person, authority and government not only within its territorial
jurisdiction but also outside its territorial jurisdiction if the cause of action arises within its territorial
jurisdiction (15th Constitutional Amendment Act of 1963).

○ In the Chandra Kumar case (1997), the Supreme Court ruled that the writ jurisdiction of
both the high court and the Supreme Court constitute a part of the basic structure of the
Constitution. Hence, it cannot be ousted or excluded even by way of an amendment to the
Constitution.

○ In Shah Faesal’s Case, his case is justified because the cause of action happened in Delhi
and then he was taken outside the territory of Delhi.

How is a High Court Judge Appointed?

● A High Court Judge is appointed by the President of India. He is solely responsible for the
appointment of any judge in a High Court. However, he may consult the Governor of the State, the
acting Chief Justice of India and Chief Justice of that particular state’s High Court.

● A High Court judge is also liable to get transferred to other High Courts. This decision is entirely
dependent on the Chief Justice of India. Transfer of judges is done with an aim to ensure proper
and just trial for every case fought in the court of law.

Eligibility Criteria for High Court Judge

● There are certain eligibility criteria that need to be fulfilled to be appointed as a judge in any High
court in India. Given below are the set of eligibility criteria mandatory for the appointment of High
Court judges:

● Any of the given qualifications must be fulfilled:

○ The person should have been a Barrister for more than five years

○ Has been a civil servant for over 10 years along with serving the Zila court for at least 3
years

○ A person who has been a pleader for over 10 years in any High Court.

● No judge should be of more than 62 years of age

● The law states that every state must have a separate High Court, however, there still are certain
states that do not have an individual High Court. For example – both Punjab and Haryana come
under the jurisdiction of Punjab High Court sitting at Chandigarh. Besides, there is a common High
Court for seven states – Assam, Nagaland, Manipur, Tripura, Meghalaya, Arunachal Pradesh and
Mizoram.
 Chapter 34: Subordinate Judiciary

● In the judicial organisation of every state, the High Court is the apex body. Below the High Court,
there are other courts that constitute the subordinate judiciary. The jurisdiction and nomenclature
of subordinate courts in the various States of the country are different. At present, there are three
or more tiers of civil and criminal courts below the High Court.

● The subordinate courts are so-called because of their subordination to the state high court. In each
district of India, there are various types of subordinate or lower courts. They are:

○ Civil courts,

○ Criminal courts and

○ Revenue courts.

● These Courts hear civil cases, criminal cases and revenue cases, respectively.

Civil Courts

● Civil cases pertain to disputes between two or more persons regarding property, breach of
agreement or contract, divorce or landlord-tenant disputes.

● Civil Courts settle these disputes. They do not award any punishment for violation of law, which is
not involved in civil cases.

● The disputes relating to property, succession, ownership and other such rights come under the
jurisdiction of Civil Courts, which dispose of these cases in accordance with the Civil Procedure
Code.

Criminal Courts
 ● Criminal cases are related to the violation of laws.

● These cases involve theft, dacoity, rape, pickpocketing, physical assault, murder, etc. These cases
are filed in the lower court by the police, on behalf of the state, against the accused.

● In such cases the accused, if found guilty, is awarded punishment like fine, imprisonment or even
death sentence.

● These cases are disposed of by the Criminal Courts in accordance with the Criminal Procedure
Code and Indian Penal Code.

Revenue Courts

● Revenue courts deal with cases of land revenue in the State.

● The highest revenue court in the district is the Board of Revenue.

● Under it are the Courts of Commissioners, Collectors, Tehsildars and Assistant Tehsildars.

● The Board of Revenue hears the final appeals against all the lower revenue courts under it.

Structure and Jurisdiction of Subordinate Courts

● The organisational structure, jurisdiction and nomenclature of the subordinate judiciary are laid
down by the states.

● Hence, they differ slightly from state to state.

● Generally, there are three tiers of civil and criminal courts below the high court.

● The district judge is the highest judicial authority in the district. He possesses original and appellate
jurisdiction in both civil and criminal matters.

● In other words, the district judge is also the sessions judge.

● When he deals with civil cases, he is known as a district judge and when he deals with criminal
cases, he is known as a sessions judge.

● The sessions judge has the power to impose any sentence, including life imprisonment and capital
punishment (death sentence).

● However, a capital punishment passed by him is subject to confirmation by the High Court, whether
there is an appeal or not.

● In some states, Panchayat Courts try petty civil and criminal cases. They are variously known as
Nyaya Panchayat, Gram Kutchery, Adalati Panchayat, Panchayat Adalat and so on.

Constitutional Provisions – Subordinate Courts

● Articles 233 to 237 in Part VI of the Indian Constitution has provisions to regulate the organisation
of subordinate courts and to ensure their independence from the executive.

● The 20th Amendment Act of 1966 added a new Article – 233A, which retrospectively validated the
appointment of certain district judges as well as the judgements delivered by them.
Appointment of District Judges

● The judges of subordinate courts are appointed by the Governor in consultation with the Chief
Justice of the High Court of the concerned State.

● Qualifications of district judge:

○ He should not already be in the service of the Central or the state government.

○ He should have been an advocate or a leader for seven years.

○ He should be recommended by the high court for appointment.

Appointment of Other Judges

● The appointment of persons (other than district judges) to the judicial service of a state are made
by the governor of the state after consultation with the State Public Service Commission and the
high court.

● In practice, the State Public Service Commission conducts a competitive examination for
recruitment to the judicial service of the state.

Control over Subordinate Courts

● The control over district courts and other subordinate courts including posting, promotion and leave
of persons belonging to the judicial service of a state and holding any post inferior to the post of
district judge is vested in the high court.

Interpretation

● The expression ‘district judge’ includes judge of a city civil court, additional district judge, joint
district judge, assistant district judge, chief judge of a small cause court, chief presidency
magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and
assistant sessions judge.

● The expression ‘judicial service’ means a service consisting exclusively of persons intended to fill
the post of district judge and other civil judicial posts inferior to the post of the district judge.
Application of the above Provisions to Certain Magistrates

● The Governor may direct that the above-mentioned provisions relating to persons in the state
judicial service would apply to any class or classes of magistrates in the state.

Challenges

● The infrastructural development of Courts needs urgent attention.

● Inadequacy of infrastructure facilities in District and Subordinate courts has remained a major
bottleneck in the judicial system, largely contributing to the accumulation of arrears.

● Judicial infrastructure is a crucial component, which had been ignored for a long time, especially in
respect of Subordinate Courts. It is the responsibility of both the Central Government and State
Governments to treat this as an area of prime concern to improve justice delivery.

● The shortage of judicial personnel at Subordinate Courts is also a matter of concern.

● Some major reasons leading to the high pendency of cases in Subordinate Courts are:

○ Poor Judge population ratio,

○ Prolonged and costly litigation caused by procedures and lawyers interests,

○ Poor infrastructure,

● Shortage of judicial personnel,

● Weak alternate dispute resolution mechanisms and so on.

 Chapter 35: Gram Nyayalayas

● The Gram Nyayalayas Act, 2008 was enacted to provide for the establishment of Gram Nyayalayas
at the grassroots level for the purposes of providing access to justice to the citizens at their
doorsteps and to ensure that opportunities for securing justice are not denied to any citizen due to
social, economic or other disabilities.

● Nyaya Panchayats (NPs) or village courts, where disputes are settled between villagers, have been
in existence in one form or the other since before independence.

● In ancient India, the communities settled their disputes among themselves and this settlement was
done by village elders or respected persons known for their integrity and honesty.

● The rising concern over mounting backlogs in courts leading to unreasonable delays in justice
dispensation gave way to various Alternative Dispute Resolution (ADR) mechanisms that have
been introduced into the judicial system, to facilitate speedy justice.

● Procedures under the Arbitration and Conciliation Act, 1996 are useful to avoid the complex
procedures of courts, but are still expensive and out of the reach of village communities.

● Lok Adalats, presided over by retired judges, were also not effective in reaching speedy justice to
village areas at appropriate times.

● It is for this reason that it is considered important to devolve some judicial functions to a village-
level body to ensure speedy justice and reduce expenses of the formal judiciary, which spends
time and money handling a large number of disputes of lesser gravity.

● Hence, the Gram Nyayalayas Act, 2008 has been enacted to provide for the establishment of Gram
Nyayalayas at the block level in the country, as the lowest tier of the judiciary for rural areas.

Features of Gram Nyayalayas Act, 2008

● Nyayadhikari

○ The State Government shall, in consultation with the High Court, appoint a Nyayadhikari
for every Gram Nyayalaya.

● Qualifications:

○ A person shall not be qualified to be appointed as a Nyayadhikari unless he is eligible to

be appointed as a Judicial Magistrate of the first class.

○ While appointing a Nyayadhikari, representation shall be given to the members of the

Scheduled Castes, the Scheduled Tribes, women and such other classes or communities
as may be specified by notification, by the State Government from time to time.

● The salary and other allowances payable to, and the other terms and conditions of service of, a
Nyayadhikari shall be such as may be applicable to the Judicial Magistrate of the first class.

● The Nyayadhikari shall not preside over the proceedings of a Gram Nyayalaya in which he has any
interest or is otherwise involved in the subject matter of the dispute or is related to any party to such
proceedings and in such a case, the Nyayadhikari shall refer the matter to the District Court or the
Court of Session, as the case may be, for transferring it to any other Nyayadhikari.
 ● Nyayadhikari shall periodically visit the villages falling under his jurisdiction to hold mobile courts
and conduct proceedings in villages.

● Other important features of the Act

○ The proceedings before the Gram Nyayalaya and its judgement shall, as far as practicable,
be in one of the official languages of the State other than the English language.

○ The Gram Nyayalaya shall not be bound by the rules of evidence provided in the Indian
Evidence Act, 1872 but shall be guided by the principles of natural justice and subject to
any rule made by the High Court.

Jurisdiction of Gram Nyayalayas

● A Gram Nyayalaya can try only certain cases on the criminal and civil sides, as provided in the
Schedules to the Act.

● The Gram Nyayalaya shall be a mobile court and shall exercise the powers of both Criminal and
Civil courts.

● The Gram Nyayalayas shall try criminal cases, civil suits, claims or disputes which are specified in
the First Schedule and the Second Schedule to the Act.

● The Gram Nyayalaya shall follow the summary procedure in the criminal trials.

● The Gram Nyayalaya shall deliver a copy of its judgement immediately to both the parties free of
cost.

● A person accused of an offence may file an application for plea bargaining.

Limitations of the Act

● The risk of the improper dispensation of justice remains, as the judges are not chosen through
merit-based examinations.

● Further, Nyayadhikaris, being state appointees, may not be accessible to the people.

● The Act seeks to establish Gram Nyayalayas as the lowest tier of the judiciary for rural areas. A
similar provision should be made for urban areas too.

● The Act states that a Gram Nyayalaya shall be the lowest court of the subordinate judiciary in a
state. According to the CrPC, the Court of a Magistrate of the Second Class is the lowest court.
Both courts have jurisdiction over cases where punishment does not exceed imprisonment for a
year. This issue of overlapping jurisdiction over cases where punishment does not exceed
imprisonment for a year needs to be addressed.
 Chapter 36: Lok Adalats

● The Lok Adalats are formed to fulfil the promise given by the preamble of the Indian Constitution–
securing Justice – social, economic, and political of every citizen of India. Article 39A of the
Constitution provides for free legal aid to the deprived and weaker sections of society and to
promote justice on the basis of equal opportunity. Articles 14 and 22(1) of the Constitution also
make it compulsory for the State to guarantee equality before the law.

● In 1987, the Legal Services Authorities Act was enacted by the Parliament, which came into force
on 9th November 1995 to establish a nationwide uniform network for providing free and competent
legal services to the weaker sections of the society.

Definition of Lok Adalats

● A Lok Adalat is one of the substitute dispute redressal mechanisms.

● National Legal Services Authority alongside other Legal Services Institutions conducts Lok Adalats.

● It is a forum where cases or disputes incomplete in the court of law are compromised cordially.

What is its composition?

● The Lok Adalat is chairman, two members, and one social worker.

● The chairman must be a sitting or retired judicial officer.

● The other two members should be a lawyer

● Members
 ○ The individuals determining the cases in the Lok Adalats are called the Members of the
Lok Adalats

○ They have the role of statutory intermediaries only

○ They do not have any judicial role

● Statutory

○ Under the Legal Services Authorities Act, 1987 Lok Adalats have been given statutory
status.

● Final award

○ Under the Legal Services Authorities Act, 1987 the decision made by the Lok Adalats is
considered to be a verdict of a civil court and is ultimate and binding on all parties.

● No appeal

○ There is no provision for an appeal against the verdict made by Lok Adalat

○ If the parties are not satisfied with the award of the Lok Adalat though there is no provision
for an appeal, they are free to initiate litigation.

● No fee

○ There is no court fee payable when a dispute is filed in a Lok Adalat.

○ If a dispute pending in the court of law is referred to the Lok Adalat and is settled later, the
court fee originally paid in the court on the petition is also reimbursed back to the parties.

● Amicable Resolutions

○ The Lok Adalat shall not decide the dispute so mentioned at its own instance, instead the
same would be decided on the basis of the compromise between the parties.

○ The members shall assist the parties in a sovereign and impartial manner in their attempt
to reach a cordial settlement of their dispute.

Importance of Lok Adalats

● 16.9% of all cases in taluka and district courts are three to five years old. (source: National Judicial
Data Grid)

● 17% are 10-20 years old, and over 20.4% of all cases are 5-10years old in High courts.

● 66,000 cases are pending before the SC, over 57 lakh cases before various High Courts, and over
3cr cases are pending before various subordinate and district courts.

● Litigants are forced to approach Lok Adalats because it is a party-driven process that allows them
to reach an amicable settlement.

Benefits of Lok Adalats

 ● Lok Adalats offer the parties speed of settlement and most cases are disposed of in a single day.

● There is no strict application of procedural laws such as the Code of Civil Procedure, 1908, and the
Indian Evidence Act, 1872. So the Lok Adalats are fast due to flexibility.

● The award issued by a Lok Adalat, after the filing of a joint compromise petition, has the status of
a civil court decree. The award is binding.

● There is no court fee and if the court fee is already paid, the amount will be refunded if the dispute
is settled at Lok Adalat.

Concerns

● In a majority of cases, litigants are pitted against entities with deep pockets, such as electricity
boards, insurance companies, banks, etc.

● In most cases, compromises are imposed on the poor who often have no choice but to accept
them.

● As compromise is its central idea, there is a concern that in the endeavour for speedy disposal of
cases, it undermines the idea of justice.

● In State of Punjab vs Jalour Singh (2008), held that a Lok Adalat is purely conciliatory, and it has
no adjudicatory or judicial function.
 Chapter 37: Special Provisions for Some States

● Part XXI of the Constitution of India is a compilation of laws pertaining to the constitution of India
as a country and the union of states that it is made of. This part of the constitution consists of
Articles on Temporary, Transitional and Special Provisions

Part XXI of the Constitution of India – Article 371

● Articles 371 to 371-J in Part XXI of the Constitution of India contain special provisions for twelve
states:

○ Maharashtra

○ Andhra Pradesh

○ Telangana

○ Sikkim

○ Mizoram

○ Arunachal Pradesh

○ Gujarat

○ Nagaland

○ Assam

○ Manipur

○ Goa

○ Karnataka

● The purpose behind them is to meet the aspiration of the people of backward regions of the states
or to protect the cultural and economic interests of the tribal people of the states or to deal with the
disturbed law and order condition in some parts of the states or to protect the interests of the local
people of the states

● Originally, the constitution did not make any special provisions for these states. They have been
incorporated by the various subsequent amendments made in the context of reorganisation of the
states or conferment of statehood on the Union Territories.
Provisions for Maharashtra and Gujarat

● Under Article 371, the President is authorised to provide that the Governor of Maharashtra and that
of Gujarat would have special responsibility for:

● The establishment of separate development boards for Vidarbha, Marathwada and the rest of
Maharashtra, Saurashtra, Kutch and the rest of Gujarat.

● Making a provision that a report on the working of these boards would be placed every year before
the State Legislative Assembly.

● The equitable allocation of funds for developmental expenditure over the above-mentioned areas.

● An equal arrangement providing adequate facilities for technical education and vocational training,
and adequate employment opportunities in the state service in respect of the above-mentioned
areas.

Provisions for Nagaland

● Article 371-A makes the following special provisions for Nagaland:

1. The Acts of Parliament relating to the following matters would not apply to Nagaland unless the
State Legislature Assembly so decides:

a. Religious or social practices of the Naga

b. Naga customary law and procedure

c. Administration of civil and criminal justice involving decisions according to Naga customary
law

d. Ownership and transfer of land and its resources.

 2. The Governor of Nagaland shall have special responsibility for law and order in the state so long
as internal disturbance caused by the hostile Nagas continue. In the discharge of this responsibility,
the Governor, after consulting the Council of Ministers exercises individual judgement and the
decisions are final. This special responsibility of the Governor shall cease when the President
directs.

3. The Governor has to ensure that the money provided by the Central Government for any specific
purpose is included in the demand for a grant relating to that purpose and not in any other demand
moved in the State Legislature Assembly.

4. A regional council consisting of 35 members should be established for the Tuensang district of the
state. The Governor should make rules for the composition of the council, manner of choosing its
members, their qualifications, term, salaries and allowances, the procedure and conduct of the
businesses of the council and their service conditions and any other matter relating to the
constitutions and proper functioning of the council.

5. For a period of ten years from the formation of Nagaland or for such further period as the Governor
may specify on the recommendation of the regional council, the following provisions would be
operative for the Tuensang district:

○ The administration of the Tuensang district shall be carried out by the Governor

○ The Governor shall in his discretion arrange for equitable distribution of money provided
by the Center between Tuensang district and the rest of Nagland

○ Any Act of the Nagaland Legislature shall not apply to Tuensang district unless the
Governor so directs at the recommendation of the regional council

○ The Governor can make Regulations for the peace, progress and good government of the
Tuensang district. Any such Regulations may repeal or amend an Act of Parliament or any
other law applicable to that district.

○ There shall be a Minister for Tuensang affairs in the State Council of Ministers. He is to be
appointed from amongst the members representing Tuensang district in the Nagaland
Legislative Assembly.

○ The final decision on all matters relating to Tuensang district shall be made by the Governor
in his desecration.

Provisions for Assam and Manipur

● For Assam

○ Under Article 371-B, the President is empowered to provide for the creation of a committee
of the Assam Legislative Assembly consisting of the members elected from the Tribal
Areas of the state and such other embers as he may specify

● For Manipur

○ Article 371-C makes the following special provisions for Manipur:

 ○ The President is authorised to provide for the creation of a committee of the Manipur
Legislative Assembly consisting of the members elected from the Hill Areas of the state

○ The President can also direct that the Governor shall have special responsibility to secure
the proper functioning of that committee.

○ The Governors should submit an annual report to the President regarding the
administration of the Hill Areas.

○ The Central Government can give directions to the State Government as to administration
of the Hill Areas.

Provisions for Andhra Pradesh or Telangana

● Articles 371-D and 371-E contain the special provisions for Andhra Pradesh. In 2014, Article 371-
D was extended to the State of Telangana by the Andhra Pradesh Reorganisation Act of 2014.
Under Article 371-D, the following are mentioned:

○ The President is empowered to provide for equitable opportunities and facilities for the
people belonging to different parts of the state in the matter of public employment and
education

○ For the above-mentioned purpose, the President may require the State Government to
organise civil posts in local cadres for different parts of the state and provide for direct
recruitment to posts in any local cadre.

○ The President may provide for the establishment of an Administrative Tribunal in the state
to deal with certain disputes and grievances relating to appointment, allotment or
promotion of civil posts in the state. The tribunal is to function outside the purview of the
state High Court.

● Article 371 – empowers the Parliament to provide for the establishment of a Central University in
the state of Andhra Pradesh.

Provisions for Sikkim

● The 36th Constitutional Amendment Act of 1975 made Sikkim a full-fledged state of the Indian
Union. It included a new Article 371-F containing special provisions with respect to Sikkim.

● These are as follows:

○ The Sikkim Legislative Assembly is to consists of not less than 30 members

○ One Seat is allotted to Sikkim in the Lok Sabha and Sikkim forms one Parliamentary
constituency

○ For the purpose of protecting the rights and interests of the different sections of the Sikkim
populations, the Parliament is empowered to provide for the number of seats in the Sikkim
Legislative Assembly which may be filled by cadres belonging to such sections and
delimitation of the assembly constituencies from which candidate belonging to such
sections alone.
 ○ The Governor shall have special responsibilities for peace and for an equitable
arrangement for ensuring the social and economic advancement of the different sections
of the Sikkim population.

○ The President can extend to Sikkim any law which is in force in a state of the Indian Union

Provisions for Mizoram

● Articles 371-G specifies the following special provisions for Mizoram:

1. The Acts of Parliament relating to the following matters would not apply to Mizoram unless the
State Legislative Assembly so decides:

● Religious or social practices of the Mizos

● Mizo customary law and procedure

● Administration of civil and criminal justice, involving decisions according to Mizo customary
law

● Ownership and transfer of land and its resources

2. The Mizoram Legislative Assembly is to consist of not less than 40 members

Provisions for Arunachal Pradesh and Goa

● For Arunachal Pradesh

○ Under Article 371-H the following provisions are made for Arunachal Pradesh:

○ The Governor of Arunachal Pradesh shall have special responsibility for law and order in
the state. In the discharge of this responsibility for law and order in the state. In the
discharge of this responsibility, the Governor, after consulting the Council of Ministers,
exercises his individual judgement and his decisions are final. This special responsibility of
the Governor shall cease when the President so directs

○ The Arunachal Pradesh Legislative Assembly is to consist of not less than 30 members.

● For Goa

○ Article 371-I provides that the Goa Legislative Assembly is to consist of not less than 30
members.

Provisions for Karnataka

● Under Article 371-J, the President is empowered to provide that the Governor of Karnataka would
have special responsibility for:

○ The establishment of a separate development board for Hyderabad-Karnataka region

○ Making a provision that a report on the working of the board would be placed every year
before the State Legislative Assembly

○ The equitable allocation of funds for developmental expenditure over region

 ○ The reservation of seats in educational and vocational training institutions in the region for
students who belong to the region

○ The reservation in state government posts in the region for persons who belong to the
region.

● In 2010, the Legislative Assembly as well as the Legislative Council of Karnataka passed a
resolution seeking special provisions for the Hyderabad-Karnataka region of the state of Karnataka.
The Government of Karnataka also endorsed the need for special provisions for the region. The
Resolution sought to accelerate development of the most backward region of the state and promote
inclusive growth with a view to reduce inter-district and inter-regional disparities in the state.
 Chapter 38: Status of Jammu & Kashmir

● On 5th of August 2019, the President of India promulgated the Constitution (Application to Jammu
and Kashmir) Order, 2019.

● The order effectively abrogates the special status accorded to Jammu and Kashmir under the
provision of Article 370 - whereby provisions of the Constitution which were applicable to other
states were not applicable to Jammu and Kashmir (J&K).

● According to the Order, provisions of the Indian Constitution are now applicable in the State.

● This Order comes into force “at once”, and shall “supersede the Constitution (Application to Jammu
and Kashmir) Order, 1954.”

● A separate Bill - the Jammu and Kashmir Reorganisation Bill 2019 - was introduced to bifurcate
the State into two separate union territories of Jammu and Kashmir (with legislature), and Ladakh
(without legislature).

● Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 was also introduced to extend
the reservation for Economically Weaker Sections (EWS) in educational institutions and
government jobs in Jammu and Kashmir.
History

● J&K acceded to the Dominion of India after the Instrument of Accession was signed by Maharaja
Hari Singh, the ruler of the princely state of Jammu and Kashmir, on 26 October 1947.

● Article 370 of the Indian Constitution provided that only Articles 1 and 370 itself would apply to J&K.
The application of other Articles was to be determined by the President in consultation with the
government of the state.

● The Constitution Order of 1950 specified the matters on which the Union Parliament would be
competent to make laws for J&K, in concurrence with the Instrument of Accession - 38 Subjects
from the Union List were added.

● The Constitution (Application to Jammu and Kashmir) Order, 1954 settled the constitutional
relationship of J&K and the Union of India. It made the following provisions -

○ Indian citizenship and all related benefits (fundamental rights) were extended to the
'permanent residents' of Jammu and Kashmir.
 ○ Article 35A was added to the Constitution (empowering the state legislature to legislate on
the privileges of permanent residents with regard to immovable property, settlement in the
state and employment)

○ The jurisdiction of the Supreme Court of India was extended to the State.

○ The Central Government was given the power to declare a national emergency in the event
of external aggression. The power in case of internal disturbances could be exercised only
with the concurrence of the State Government.

○ Normalised the financial relations between the Centre and J&K

Article 370 - Features and Provisions

● Present in part XXI of the Indian Constitution which comprises Temporary, Transitional and Special
Provisions with rest to various states of India.

● Forms the basis of the “Special Status” of J&K.

● Provides for a separate Constitution of J&K.

● Limits the Union Parliament’s power to make laws for J&K to those subjects mentioned in the
Instrument of Accession (defence, foreign affairs, and communications) and others as and when
declared by the Presidential Orders with the concurrence of the Government of the State.

● Specified the mechanism by which the Article shall cease to be operative. That is, on the
recommendation of the Constituent Assembly of the State before the President issues such a
notification. However, this provision has been amended by the Constitution (Application to Jammu
and Kashmir) Order, 2019.

Was it Temporary

● The Article was introduced to accommodate the apprehensions of Maharaja Hari Singh who would
not have acceded to India without certain concessions.

● Territorial integrity was of paramount importance to India post-independence, thus, such a special
provision was inducted in the constitution.

● The provision, however, is part of the “Temporary, Transitional and Special Provisions” of our
constitution.

● Moreover, Article 370 could be interpreted as temporary in the sense that the J&K Constituent
Assembly had a right to modify/delete/retain it; it decided to retain it.

● Another interpretation was that accession was temporary until a plebiscite.

Issues in Revoking

● Article 370 is the bedrock of the constitutional relationship between Jammu and Kashmir and the
rest of India.

● It has been described as a tunnel through which the Constitution is applied to J&K.
● India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K.
This is the only way through which, by mere Presidential Orders, India has almost nullified the effect
of J&K’s special status.

● By the 1954 order, almost the entire Constitution was extended to J&K including most Constitutional
amendments.

● However, abrogating the article altogether may threaten the peace in the state which is already a
hotspot of conflicts and militancy.

● It will completely change the relationship between the state and the rest of India.

● It will also clear the path for abrogating Article 35A which would allow Indian citizens to purchase
land and settle permanently in J&K.

● Thus, the move is bound to have a significant impact on the demography, culture, and politics of
J&K.
 Chapter 39: Scheduled and Tribal Areas

● Article 244 (1) of the Indian Constitution defines Scheduled Areas as the areas defined so by the
President of India and are mentioned in the fifth schedule of the Constitution. In India, there are 10
states having scheduled areas. Article 244 deals with the Scheduled and Tribal Areas.

● The Sixth Schedule under Article 244 (2) of the Constitution relates to those areas in the States of
Assam, Meghalaya, Tripura and Mizoram which are declared as “tribal areas” and provides for
District or Regional Autonomous Councils for such areas.

● The areas inhabited by the socially and educationally backward ‘Aboriginals’ are called Scheduled
Areas.

Fifth Schedule and Sixth Schedule of the Constitution

Article 244 and Article 244 A of the Indian Constitution

Quick Facts about Scheduled Areas

● Part 10 of the Indian Constitution entails the provisions related to Scheduled and Tribal Areas with
Articles 244 – 244 A.

● President is empowered to declare an area as Scheduled Area

● With the consultation of the governor of the state, the President can alter, add, diminish the
boundary of a Scheduled Area

● Both the Centre and the State have their roles to play in the administration of the Scheduled areas.
While the governor of the state has to report annually to the President over the management of
such areas, the Centre gives directions to the state regarding the administration of such areas.
 ● A tribal advisory council is a must for the states having scheduled areas

○ It has 20 members (Three-Fourth of which are Scheduled Tribes’ representatives in that

state legislative assembly.)

● The power to decide whether any central or state legislation implies over the state having scheduled
areas, lies in the hands of the Governor.

● Governor can also repeal or amend any regulations w.r.t to the state having scheduled areas but
only with the assent of the President of India

● The first commission to report on the administration and welfare of the Scheduled Areas was
established in 1960 and was headed by UN Dhebar

● There are 10 states having 5th scheduled areas:

○ Andhra Pradesh

○ Chhattisgarh

○ Gujarat

○ Himachal Pradesh

○ Jharkhand

○ Madhya Pradesh

○ Maharashtra

○ Odisha

○ Rajasthan and

○ Telangana

● Criteria for the declaration of the Scheduled Area:

○ Prominent numbers of tribal population, i.e. when tribal people are in majority in an area

○ Compactness and reasonable size of the area

○ A viable administrative entity such as a district, block or taluk, and

○ Economic backwardness of the area as compared to the neighbouring areas.

Quick Facts about Tribal Areas

● Sixth Schedule mentions the provisions related to the tribal areas of the four states – Assam,
Meghalaya, Tripura and Mizoram

● Sizeable amount of autonomy has been given to the people belonging to the tribal areas of these
four states to govern themselves
● The tribal areas in these four states come under the name of ‘Autonomous Districts,’ but the state
still has its executive authority over them

● The power to organise and reorganise the tribal areas as autonomous districts lie with the governor
of the state. He can also alter the name, boundary of such tribal areas.

● One autonomous district can have different tribes, which for better administration is divided into
autonomous regions by the governor

● There is a district council for each autonomous district:

○ It has 30 members

■ Four are nominated by the governor – They perform their duties during the
pleasure of the governor

■ 26 are elected using the adult franchise – Their term of office is five years.

● There is a separate regional council for each autonomous district

● The laws related to the following can be made by the regional and autonomous councils with the
assent of the governor:

○ Land

○ Forests

○ Canal water

○ Shifting cultivation

○ Village administration

○ Inheritance of property

○ Marriage and divorce

○ Social customs

● The territorial jurisdictions of autonomous and regional councils may or may not have village
councils and courts of trials of suits to mend issues rising between tribes. Such cases can also be
taken over by the High Court but only after being specified by the governor.

● The central and state acts do not apply to these autonomous and regional councils (unless modified
and accepted.)

● The tribal areas in the four states are given below:

 Chapter 40: Tribunals in India

● Tribunals are not originally a part of the Constitution of India. They were introduced in 1985.

● Tribunals were constituted with the objective of delivering speedy, inexpensive and decentralised
adjudication of disputes in various matters.

● Tribunals are created to avoid the regular courts’ route for dispensation of disputes.

● Some tribunals are specialised government agencies like boards and they also have decision-
making powers conferred upon them by law.

● The provision for tribunals was not present in the Constitution originally.

○ The 42nd Amendment Act introduced these provisions in accordance with the
recommendations of the Swaran Singh Committee.

○ The Amendment introduced Part XIV-A to the Constitution.

○ This Part is called ‘Tribunals’. It contains two articles.

■ Article 323A: Administrative Tribunals. Administrative tribunals are quasi-judicial

institutions that resolve disputes related to the recruitment and service conditions
of persons engaged in public service. Article 323A provides for this and the Central
Administrative Tribunal was created under this Section.

■ Article 323B: Tribunals for other subjects such as:

● Taxation

● Industrial and labour

● Foreign exchange, import and export

● Land reforms

● Food

● The ceiling on urban property

● Elections to Parliament and state legislatures

● Rent and tenancy rights

■ While 323A deals with administrative tribunals, 323B deals with other types of
tribunals (like National Green Tribunal, Competition Appellate Tribunal (COMPAT),
Securities Appellate Tribunal (SAT), etc.

■ Tribunals under 323A can be established only by the Parliament. However,

tribunals under 323B can be established by both the Parliament and the State
Legislature.

■ Under 323A, there can be only one tribunal at the centre and one for each state
(or two or more states), but under 323B, there can be a hierarchy of tribunals.
Administrative Tribunals

● They are of statutory origin, and so must be created by a statute by Parliament/Legislatures.

● They are quasi-judicial in nature, which means, they have some, not all the features of a court.

● They function on the principles of natural justice and are not bound by the Civil Procedure Code.

● They have the power to summon witnesses, administer oaths and compel the submission of
documents, etc. like other courts.

● The writs of prohibition and certiorari are available against decisions of such tribunals.

● They are independent bodies and are not subject to administrative interference.

● Administrative Tribunals Advantages

○ Tribunals offer flexibility when compared to ordinary courts that have to adhere to strict
procedures.

○ They are cheaper and offer speedy justice.

○ The procedure followed by the tribunals is simple and easy to understand even for the
layman.

○ They also offer relief to the ordinary courts that are already overburdened with suits.

● Administrative Tribunals Disadvantages

○ They go against the spirit of the “Rule of Law”.

○ Rule of Law ensures that arbitrary power is not exercised by institutions or individuals.

○ It is the principle that everybody is subject to and accountable to the law (which is fair).

○ Ordinary courts have a uniform code of procedure for civil and criminal cases. But,
administrative tribunals have no uniform code of procedure.

○ Such tribunals are sometimes handled by subject matter experts who have no experience
in dealing with judicial proceedings. Hence, they end up adopting summary procedures as
well.

Challenges of Administrative Tribunals

● Although tribunals were constituted to deliver speedy and quick justice to people, there are some
challenges in their functioning.

○ There is a lack of autonomy in the appointment and funding of tribunals.

○ In the Chandra Kumar case (1997), the Supreme Court had held that appeals against the
orders of a tribunal could be made in the High Court. This defeats the purpose of reducing
the burden of the normal courts.

○ Currently, there is a lack of infrastructure for the tribunals to function efficiently.

 ○ Generally, the government appoints retired judges as chairpersons to tribunals. Because
of this, current judges could show favouritism towards certain things so that they may be
appointed post-retirement.

○ The autonomy of the tribunals should be maintained and there is a need for structural and
functional reforms of tribunals so that they are removed from the influence of the executive.

○ There should be some form of judicial control over tribunals so that the Rule of Law is
maintained.

Other Tribunals

● Armed Forces Tribunal

○ This is a military tribunal established under the Armed Forces Tribunal Act, 2007.

○ It settles disputes with respect to the commission, emoluments, appointments and service
conditions of personnel in the armed forces.

○ Its Principal Bench is in New Delhi. It also has ten Regional Benches.

● National Green Tribunal

○ It was formed in 2010 for effective and expeditious disposal of cases that are related to the
protection and conservation of the environment, forests and other natural resources.

● Water Disputes Tribunal

○ These are constituted for the purpose of settling disputes between Indian states on the
question of water-sharing between rivers that flow through multiple states.

● Income Tax Appellate Tribunal (ITAT)

○ Established in 1941, the ITAT deals with appeals under the direct taxes acts.

○ The orders passed by this tribunal are final and an appeal lies to the High Court only if a
substantial question of law arises for determination.

○ Currently, the tribunal has 63 Benches.

Tribunal vs Court

● Both tribunals and courts deal with settling disputes between parties that affect the subjects’ rights.
Tribunals are like courts in many respects but there are differences between the two. The following
table summarises the difference between tribunals and courts.
 Chapter 41: Constitutional Bodies in India

1. Union Public Service Commission

2. State Public Service Commission
3. Finance Commission
4. Comptroller and Auditor General of India
5. Special Officer for Linguistic Minorities
6. National Commission for Backward Classes
7. Election Commission of India
8. National Commission for Scheduled Castes
9. National Commission for Scheduled Tribes
10. Attorney General for India
11. Advocate General of The State
 Chapter 42: Non - Constitutional Bodies in India

1. Planning Commission

2. NITI Aayog - National Institution for Transforming India

3. National Development Council
4. National Human Rights Commission of India

5. Central Information Commission

6. Central Vigilance Commission

7. Central Bureau Of Investigation (CBI)

● The CBI was established as the Special Police Establishment in 1941, to investigate cases of
corruption in the procurement during the Second World War.

● Later, the Santhanam Committee on Prevention of Corruption recommended the establishment of

the CBI. The CBI was then formed by a resolution of the Home Affairs Ministry. The Ministry of
 Personnel, later on, took over the responsibility of the CBI and now it plays the role of an attached
office.

Functions of CBI

● The CBI is the main investigating agency of the GOI. It is not a statutory body; it derives its powers
from the Delhi Special Police Establishment Act, 1946.

● Its important role is to prevent corruption and maintain integrity in administration. It works under the
supervision of the CVC (Central Vigilance Commission) in matters pertaining to the Prevention of
Corruption Act, 1988.

● Investigate cases connected to infringement of economic and fiscal laws, i.e., breach of laws
concerning customs and central excise, export and import control, income tax, foreign exchange
regulations, etc. But cases of this nature are taken up by the CBI either at the request of the
department concerned or in consultation with the concerned department.

● Investigate crimes of a serious nature, that have national and international ramifications, and
committed by professional criminals or organised gangs.

● To coordinate the activities of the various state police forces and anti-corruption agencies.

● At the behest of a state govt., the CBI can also take up any case of public importance and
investigate it.

● Maintaining crime statistics and disseminating criminal information.

● The CBI is India’s representative for correspondence with the INTERPOL.

Cases Handled by the CBI

● Special Crimes – for investigation of serious and organized crime under the Indian Penal Code
and other laws on the requests of State Governments or on the orders of the Supreme Court and
High Courts – such as cases of terrorism, bomb blasts, kidnapping for ransom and crimes
committed by the mafia/the underworld.

● Economic Crimes – for investigation of major financial scams and serious economic frauds,
including crimes relating to Fake Indian Currency Notes, Bank Frauds and Cyber Crime, bank
frauds, Import Export & Foreign Exchange violations, large-scale smuggling of narcotics, antiques,
cultural property and smuggling of other contraband items etc.

● Anti-Corruption Crimes – for investigation of cases under the Prevention of Corruption Act against
Public officials and the employees of Central Government, Public Sector Undertakings,
Corporations or Bodies owned or controlled by the Government of India.

● Suo Moto Cases – CBI can suo-moto take up investigation of offences only in the Union Territories.

○ The Central Government can authorise CBI to investigate a crime in a State but only with
the consent of the concerned State Government.

○ The Supreme Court and High Courts, however, can order CBI to investigate a crime
anywhere in the country without the consent of the State.
Issue of Consent:

● Since police is a State subject under the Constitution, and the CBI acts as per the procedure
prescribed by the Code of Criminal Procedure (CrPC), which makes it a police agency, the CBI
needs the consent of the State government in question before it can make its presence in that
State. This can lead to certain cases not being investigated and seeing a silent deadlock. Recently,
states like Andhra Pradesh (consent is again given after change of government in-state) and West
Bengal withdrew consent.

● There are two kinds of consent:

○ case-specific and general– Given that the CBI has jurisdiction only over central
government departments and employees, it can investigate a case involving state
government employees or a violent crime in a given state only after that particular state
government gives its consent.

○ “General consent” is in general, provided to aid the CBI easily perform its investigation
into cases of corruption against central government employees in the concerned state.
Almost all states have given such consent. Or else, the bureau would need consent in all
cases.

● As per Section 6 of the Delhi Special Police Establishment Act,1946, the state governments can
withdraw the general consent accorded.

● The CBI would still have the authority to probe old cases registered when general consent existed.
Also, cases registered elsewhere in India, but involving people stationed in states which have
withdrawn consent, would allow CBI’s jurisdiction to extend to these states as well.

● Withdrawal of consent will only bar the CBI from registering a case within the jurisdiction of states
which have withdrawn consent. But, the CBI could still file cases in Delhi and continue to investigate
people inside such states.

Director of CBI

● Director, CBI as Inspector General of Police, Delhi Special Police Establishment, is responsible for
the administration of the organisation.

● Till 2014, the CBI Director was appointed on the basis of the DSPE Act, 1946. In 2014, the Lokpal
Act provided a committee for the appointment of CBI Director:

○ Headed by Prime Minister

○ Other members – Leader of Opposition/ Leader of the single largest opposition party, Chief
Justice of India/ a Supreme Court Judge.

○ The Home Ministry sends a list of eligible candidates to DoPT. Then, the DoPT prepares
the final list on the basis of seniority, integrity, and experience in the investigation of anti-
corruption cases, and sends it to the committee.

● Director of CBI has been provided security for two year tenure, by the CVC Act, 2003.
 Chapter 43: Lokpal and Lokayukta

● The Lokpal and Lokayuktas Act, 2013, commonly known as The Lokpal Act, is an anti-corruption
Act of the Indian Parliament in India. The Bill was tabled in the Lok Sabha on 22 December 2011
and was passed by the House on 27 December as The Lokpal and Lokayuktas Bill, 2011. It was
subsequently tabled in the Rajya Sabha on 29 December.

● It was passed in the Rajya Sabha on 17 December 2013 after making certain amendments to the
earlier Bill and in the Lok Sabha the next day. It received assent from the then President Pranab
Mukherjee on 1 January 2014 and came into force on 16 January.

Background of the Lokpal and Lokayukta Act, 2013

● The word ‘Lokpal’ was first used by a member of parliament, Laxmi Mall Singhvi in 1963 during a
debate on grievance redressal mechanisms. Administrative Reforms Commissions under Morarji
Desai submitted a report which recommended the creation of two special authorities: Lokayukta
and Lokpal for the purpose of redressing citizen grievances.

● Maharashtra was the first state to introduce Lokayukta through The Maharashtra Lokayukta and
Upa-Lokayuktas Act in 1971. Presently, there are no Lokayuktas in the states of Andhra Pradesh,
Arunachal Pradesh, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tamil
Nadu, Tripura.

● The Lokpal Bill was first introduced in the Lok Sabha in 1968. The version enacted in 2013 was
from a draft prepared in 2010. The bill is an implementation of the Prevention of Corruption Act,
1988.

● The bill was passed following the backdrop of huge anti-corruption protests led by Anna Hazare
that shook the nation.

Features of Lokpal and Lokayukta Act 2013

● It seeks to establish the institution of Lokpal at the centre and Lokayuktas at the state level and
thus provide an anti-corruption roadmap for the nations at the Centre and at the States. The
jurisdiction of lokpal includes the Prime Ministers, Ministers, Members of Parliament and Groups
A, B,C and D officers and officials of the Central Government

● The Lokpal Consists of a chairperson with a maximum of 8 members of which 50% shall be judicial
members.

● About 50 % of members of the Lokpal shall come from amongst the SCs, the STs, the OBCs,
minorities and women.

● The selection of the Chairperson and the members of Lokpal shall be through a Selection
Committee consisting of the Prime Minister, the Speaker of the Lok Sabha, the Leader of the
Opposition, the Chief Justice of India or a sitting Supreme Court Judge nominated by the Chief
Justice of India and an eminent person nominated by the President of India.

● A Search Committee will assist the Selection Committee in the process of selection. 50% of the
members of the Search Committee shall also be from amongst the SCs, the STs, the OBCs,
minorities and women
 ● The Prime Minister has been brought under the purview of the Lokpal with subject matter
exclusions and specific process for handling complaints against him/her

● Lokpal’s jurisdiction will cover all categories of public servants including Group A, Group B, Group
C and Group D officers and employees of the government

● The Lokpal will have the power of superintendence and direction over any investigative agency
including the CBI for cases referred to by the Lokpal.

● A High-Powered Committee chaired by the Prime Minister will recommend the selection of the
Director of the CBI.

● It lays down clear timelines. For preliminary enquiry, it is three months extendable by three months.
For investigation, it is six months which may be extended by six months at a time. For trial it is one
year extendable by one year and to achieve this, special courts are to be set up.

● It enhances maximum punishment under the Prevention of Corruption Act from 7 to 10 years. The
minimum punishment under sections 7,8,9 and 12 of the Act will now be three years and the
minimum punishment under section 15 (punishment for attempt) will now be two years.

● Institutions that are financed fully or partly by the Government are under the jurisdiction of the
Lokpal, but institutions aided by the governments are excluded

● All Entities receiving donations from a foreign source within the context of the Foreign Contribution
Regulation Act in excess of Rs 10 Lakhs per year are brought under the jurisdiction of Lokpal

● It contains a mandate for setting up of the institutions of Lokayukta through enactment of law by
the State Legislature within a period of 365 days from the date of commencement of this Act.

Drawbacks of the Lokpal and Lokayukta Act 2013

● Lokpal cannot suo motu proceed against any public servant

● Emphasis on form of complaint rather than substance

● Heavy punishment for false and frivolous complaints against public servants may deter complaints
being filed to the Lokpal

● Anonymous complaints not allowed – Can’t just make a complaint on plain paper and drop it in a
box with supporting documents

● Legal assistance to public servant against whom complaint is filed

● Limitation period of 7 years to file complaints

● Very non-transparent procedures for dealing with complaints against the PM

Salient Features of Lokayuktas

● Structural Variations: The structure of the lokayukta is not the same in all states. Some states like
Rajasthan, Karnataka, Andhra pradesh and Maharashtra have created the lokayukta and as well
as upalokayukta while Himachal Pradesh, Bihar and Uttar Pradesh have created only the
 lokayukta. There are states like Punjab and Orissa that have designated officials as Lokpal. This
was not as per recommendations of the ARC reports

● Appointment: The Lokayukta and Upalokayukta are appointed by the governor of the state. While
appointing them, governor in most of the states consults:

○ The Chief Justice of the state high court

○ The leader of the Opposition in the state legislative assembly

● Qualification: Judicial qualifications are prescribed for the lokayukta in the States of Uttar Pradesh,
Himachal Pradesh, Andhra Pradesh, Gujarat, Orissa, Karnataka and Assam. But no specific
qualifications are prescribed in the states of Bihar, Maharashtra and Rajasthan.

● Tenure: In most of the states, the term of office fixed for lokayukta is of 5 years duration or 65 years
of age, whichever comes first. He is not eligible for reappointment

● Investigations: In most of the states, the lokayukta can initiate investigations either on the basis
of a complaint received from the citizen against unfair administrative action or suo moto. But he
does not enjoy the power to start investigations on his own initiative in the states of Uttar Pradesh,
Himachal Pradesh and Assam.
 Chapter 44: Co-operative Societies

● A cooperative is an autonomous association of persons united voluntarily to meet their common

economic, social and cultural needs and aspirations through a jointly-owned and democratically
controlled

● The need for profitability is balanced by the needs of the members and the wider interest of the
community.

● The Co-operative Society is formed for the mutual benefit of all the members.

● When they work together they will have better bargaining power for buying and selling raw
materials and agricultural output respectively.

CO-OPERATIVE MOVEMENT IN PRE-INDEPENDENCE ERA

● The term cooperative Societies came into existence when the farmers of Poona and Ahmednagar
spearheaded an agitation against the money lenders who were charging exorbitant rates of
interest.

● Hence, the British government came forward and passed three acts- the Deccan Agricultural
Relief Act (1879), the Land Improvement Loan Act (1883) and the Agriculturists Loan Act (1884).

● But the Cooperative move came with structure and shape when the British enactment of the
Cooperative Credit Societies Act, 1904. In 1919, cooperation became a provincial subject and the
provinces were authorised to make their own cooperative laws under the Montague-Chelmsford
Reforms.

● This categorization carried on to the Government of India Act, 1935. In 1942, the Government of
British India enacted the Multi-Unit Cooperative Societies Act to cover Cooperative Societies with
membership from more than one province.

CO-OPERATIVE MOVEMENT IN POST-INDEPENDENCE

● After independence cooperatives became an integral part of Five-Year Plans.

● In 1958, the National Development Council (NDC) had recommended a National Policy on
Cooperatives and also for training of personnel and setting up of Co-operative Marketing
Societies.

● In 1984, the PARLIAMENT of India enacted the Multi-State Cooperative Societies Act to remove
the plethora of different laws governing the same types of societies.

● The most important success stories lie behind the success of White Revolution which made the
country the world’s largest producer of milk and milk products; and the Green Revolution and the
conversion of villages into model villages have assumed great importance in the wake of the
Green Revolution.

CONSTITUTIONAL PROVISION
 ● Part IX – Art 243 – 243 (0) – Panchayats

● Part IX A – Art 243P – 243ZG – Municipalities

● Part IX B – Art 243ZH – 243ZT – Cooperatives

Ministry of Co-operation

● A separate ‘Ministry of Co-operation’ has been created by the Central Government for realising
the vision of ‘Sahakar se Samriddhi’ (Prosperity through Cooperation) and to give a new push to
the cooperative movement.

● The Government has signalled its deep commitment to community based developmental
partnership. It also fulfils the budget announcement made by the Finance Minister in 2021.
 Chapter 45: Political Parties

● As per the provisions of the Peoples Representation Act, 1951 political parties are registered with
the Election Commission of India.

● The Anti-defection law, passed in 1985, prevents the MPs or the' MLAs elected as candidates
from one party forming or joining a new party unless they comprise more than one-third of the
original party, in the Legislature.

Recognition and Reservation of Symbols

● A party registered with the Election Commission may be granted recognition as a National or a
State party on the basis of its performance in polls.

Political Parties

○ Meaning: Group of persons who agree on some ideology & seek to capture the power &
form the government on the basis of collective leadership.

○ Type of Party System in India: Multi-Party System:

○ Functions

■ (i) Representation

■ (ii) Elite Formation & Recruitment

■ (iii) Goal Formulation

■ (iv) Interest Articulation & Aggregation

■ (v) Socialisation & Mobilisation

■ (vi) Organisation of Government,

■ Category of Political Party in India

 Chapter 46: Election of Government and Electoral Reforms

● For an electoral process to find true value in a democratic set up of a society and deliver on
expected terms, it is imperative that the methods through which an election process for a
government is held, must be appropriate. Its appropriateness can be judged only when a detailed
and fine analysis of the methods is conducted by going through the advantages and disadvantages.

Methods of Election in India

● First Past the Post System

○ In this method, the elections are held for each constituency fixed by the Election
Commission and the candidate who gets the maximum number of votes is declared as a
winner.

○ Merits:

■ It is a very simple method of election which is very easy to administer

■ It is an inexpensive method

■ Considering the fact that still not many citizens are literate in the country, it seems
to be a very convenient method for the majority of the people

○ Demerits:

○ Since in India, there are multiple parties and some independent candidates too,
who compete for the same seat, it is often the case that a majority of the votes are
distributed amongst different parties or candidates and finally the one which gets
highest amongst them is declared the winner. This may mean that the winning
party or candidate may not have won the votes of the majority

○ In this system, there is a huge possibility that the voices of the minority section are
left unheard, thus reducing the very essence of a true democracy.

○ Proportional Representation System

■ It is a method in which the seats in the legislature are given in proportion to the
amount of votes.

■ Merits:

● It works well for a multi-party system such as in India which would give
weightage to each party irrespective of their size and the total number of
votes won

● The minority voice is not left unheard

● It gives ample space to all the parties new or old, big or small

■ Demerits:
 ● Since it provides a government which is not in majority, it results in a
coalition government, which implies that there may be chances of a weak
coalition

● As stated above regarding the low literacy levels of the majority of the
voters in India, this system does not do much justice as it seems like a
very complicated system for a simple population

● Understanding the complications of the proportional representative

system and the very simple nature of the first past the post system, the
Law Commission of India recommended the Additional Member System
in 1999. It recommended a mix of both the above systems to reap the
benefits of both as well get the best possible mixture for an efficient
conduct of the electoral process.

Types of Election in India

● Members of the Parliament in Lok Sabha and Rajya Sabha – Lok Sabha elections are held after
every five years and the state and centre representatives are elected by the people of the country.
On the other hand, Rajya Sabha Members are elected by the elected members of state legislative
assemblies using a method of proportional representation

● Members of State Legislative Assemblies

● Members of State Legislative Councils

● Members in village panchayats or city corporation councils

● By-election – Such elections are held if a person of a particular constituency dies, resigns, or is
disqualified

Electoral Reforms in India

● It is generally accepted that while the first three general elections were held in a free and fair
manner, a plummeting of standards started during the fourth general elections in 1967. Many
consider the electoral system in the country as the basis of political corruption. In the next sections,
we will talk about the challenges in this regard, and some of the previous attempts at electoral
reform.

Issues in Electoral Politics in India

● Money Power

○ In every constituency, candidates have to spend crores of rupees for campaigning,

publicity, etc. Most candidates far exceed the permissible limit of expenses.

● Muscle Power

○ In certain parts of the country, there are widespread reports of illegal and untoward
incidents during polling such as the use of violence, intimidation, booth capturing, etc.

● Criminalisation of Politics and Politicisation of Criminals

 ○ Criminals enter into politics and ensure that money and muscle power wins them elections,
so that the cases against them are not proceeded with. Political parties are also happy as
long as they have winnable candidates. Political parties field criminals in elections for funds
and in return provide them with political patronage and protection.

● Misuse of Government Machinery

○ There is a general opinion that the party in power uses government machinery such as
using government vehicles for canvassing, advertisements at the cost of the exchequer,
disbursements out of the discretionary funds at the disposal of the ministers, and other
such means to improve the chances of their candidates winning.

● Non-serious Independent candidates

○ Serious candidates float non-serious candidates in elections to cut a good portion of the
votes that would otherwise have gone to rival candidates.

● Casteism

○ There are cases of certain caste groups lending strong support to particular political parties.
Thus, political parties make offers to win over different caste groups, and caste groups also
try to pressurise parties to offer tickets for their members’ elections. Voting on caste lines
is prevalent in the country and this is a serious blotch on democracy and equality. This also
creates rifts in the country.

● Communalism

○ Communal polarisation poses a serious threat to the Indian political ethos of pluralism,
parliamentarianism, secularism and federalism. Read more about Communalism in the
linked article.

● Lack of Moral Values in Politics

○ The political corruption in India has led to politics becoming a business. People enter the
political arena for making money and retaining their money and power. There are very few
leaders who enter politics to make a difference in the lives of their people. The Gandhian
values of service and sacrifice are missing from the Indian political scene.

Electoral Reforms Pre-2000

● Lowering of Voting Age: The 61st Amendment Act to the Constitution reduced the minimum age
for voting from 21 to 18 years.

● Deputation to Election Commission: All personnel working in preparing, revising and correcting
the electoral rolls for elections shall be considered to be on deputation to the EC for the period of
such employment, and they shall be supervised by the EC.

● Increase in the number of proposers and the security deposit: The number of electors required
to sign as proposers in the nomination papers for elections to the Rajya Sabha and the State
Legislative Councils has been raised to 10% of the electors of the constituency or ten such electors,
whichever is less chiefly to prevent frivolous candidates. The security deposit has also been hiked
to prevent non-serious candidates.
 ● Electronic Voting Machine (EVMs): First introduced in 1998 during the state elections of Delhi,
Madhya Pradesh and Rajasthan, EVMs are used widely now as they are fool-proof, efficient and a
better option in terms of the environment.

● Disqualification on conviction for violating the National Honours Act, 1971: This shall lead to
disqualification of the person for 6 years from contesting to the Parliament and the state
legislatures.

● Restriction on contesting from more than 2 constituencies: A candidate cannot contest from
more than 2 constituencies.

● Death of a contesting candidate: Previously, the election was countermanded on the death of a
contesting candidate. In the future, no election will be countermanded on the death of a contesting
candidate. If the deceased candidate, however, was set up by a recognized national or state party,
then the party concerned will be given an option to nominate another candidate within 7 days of
the issue of a notice to that effect to the party concerned by the Election Commission.

● It is prohibited by law to go to or near a polling booth bearing arms. This is punishable by

imprisonment for up to 2 years.

● On poll days, employees of organisations get a paid holiday and violation of this is punishable by
a fine.

● Prohibition on sale of liquor: No liquor or other intoxicants shall be sold or given or distributed
at any shop, eating place, or any other place, whether private or public, within a polling area during
the period of 48 hours ending with the hour fixed for the conclusion of poll.

● Time limit for bye-elections: Bye-elections to any House of Parliament or a State Legislature will
now be held within six months of the occurrence of the vacancy in that House.

● The period of campaigning has been reduced.

Electoral Reforms Post 2000

● Ceiling on election expenditure: At present, there is no limit on the amount a political party can
spend in an election or on a candidate. But, the Commission has put a cap on individual candidates’
spending. For the Lok Sabha elections, it is Rs. 50 – 70 lakh (depending on the state they are
contesting the Lok Sabha seat from), and Rs. 20 – 28 lakh for an assembly election.

● Restriction on exit polls: The EC issued a statement before the 2019 Lok Sabha elections saying
that exit poll results could be broadcast only after the final phase of the elections were over. This
was done to avoid prospective voters being misguided or prejudiced in any manner.

● Voting through postal ballot: In 2013, the EC decided to expand the ambit of postal ballot voting
in the country. Previously, only Indian staff in missions abroad and defence personnel in a limited
way, could vote via postal ballots. Now, there are 6 categories of voters who can use the postal
ballot: service voters; special voters; wives of service voters and special voters; voters subjected
to preventive detention; voters on election duty and Notified voters.

● Awareness Creation: The government decided to observe January 25th as ‘National Voters Day’
to mark the EC’s founding day. Read more on the National Voters’ Day here.
● Political parties need to report any contribution in excess of Rs 20000 to the EC for claiming income
tax benefit.

● Declaring of criminal antecedents, assets, etc. by the candidates is required and declaring false
information in the affidavit is now an electoral offence punishable with imprisonment up to 6 months
or fine or both.
 Chapter 47: Anti-defection

● The 10th Schedule of the Indian Constitution (which talks about the anti-defection law) is designed
to prevent political defections prompted by the lure of office or material benefits or other like
considerations. The Anti-defection law was passed by Parliament in 1985 and reinforced in 2002.

● The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-Defection Law’ was
inserted by the 52nd Amendment (1985) to the Constitution.

● ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing
group”.

● The anti-defection law was enacted to ensure that a party member does not violate the mandate of
the party and in case he does so, he will lose his membership of the House. The law applies to
both Parliament and state assemblies.

● The Anti-Defection Law aims to prevent MPs from switching political parties for any personal
motive.

10th Schedule – Provisions under Anti-Defection Law

● The Tenth Schedule includes the following provisions with regard to the disqualification of MPs and
MLAs on the grounds of defection:

● Grounds for disqualification:

○ If an elected member gives up his membership of a political party voluntarily.

○ If he votes or abstains from voting in the House, contrary to any direction issued by his
political party.

○ If any member who is independently elected joins any party.

○ If any nominated member joins any political party after the end of 6 months.

○ The decision on disqualification questions on the ground of defection is referred to the

Speaker or the Chairman of the House, and his/her decision is final.

○ All proceedings in relation to disqualification under this Schedule are considered to be

proceedings in Parliament or the Legislature of a state as is the case.

Exceptions under the Anti Defection Law

● In the situation where two-thirds of the legislators of a political party decide to merge into another
party, neither the members who decide to join nor the ones who stay with the original party will face
disqualification.

● Any person elected as chairman or speaker can resign from his party, and rejoin the party if he
admits that post.

● Earlier, the law allowed parties to be split, but at present, this has been outlawed.

Deciding Authority
 ● Any question regarding disqualification arising out of defection is to be decided by the presiding
officer of the House.

Is the decision of the Presiding Officer subject to judicial review?

● Originally, the Act provided that the presiding officer’s decision was final and could not be
questioned in any court of law. But, in the Kihoto Hollohan case (1992), the Supreme Court declared
this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the SC
and the high courts.

● The court held that while deciding a question under the 10th Schedule, the presiding officer should
function as a tribunal. Hence, his/her decision (like that of any other tribunal) was subject to judicial
review on the grounds of mala fides, perversity, etc. But, the court rejected the argument that the
vesting of adjudicatory powers in the presiding officer is by itself invalid on the ground of political
bias.

● However, it held that there might not be any judicial intervention until the Presiding Officer gave his
order. A good example to quote in this respect was from 2015 when the Hyderabad High Court
declined to intervene after hearing a petition which alleged that there had been a delay by the
Telangana Assembly Speaker in taking action against a member under the anti-defection law.

Is there a time limit within which the Presiding Officer should decide?

● There is no time limit as per the law within which the Presiding Officers should decide on a plea for
disqualification. The courts also can intervene only after the officer has made a decision, and so
the only option for the petitioner is to wait until the decision is made.

● There have been several cases where the Courts have expressed concern about the unnecessary
delay in deciding such petitions.

● In a few cases, there have been situations where members who had defected from their political
parties continued to be House members, because of the delay in decision-making by the Speaker
or Chairman.

● There have also been instances where opposition members have been appointed ministers in the
government while still being members of their original political parties in the state legislature.

How have the Courts interpreted the law while deciding on related matters?

● The SC has interpreted different provisions of the law.

● The phrase ‘Voluntarily gives up his membership’ has a wider suggestion than resignation.

● The law says that a member can be disqualified if he ‘voluntarily gives up his membership’.
However, the SC has interpreted that without a formal resignation by the member, the giving up of
membership can be inferred by his conduct.

● In other judgments, members who have publicly expressed opposition to their party or support for
another party were considered as having resigned. Recently, the Chairman of the Upper House of
Parliament disqualified two Janata Dal leaders from the house based on the allegation that was
indulging in anti-party politics, and they had “voluntarily” given up their membership of the party
(which is not synonymous to resignation as per the SC orders).
Does the anti-defection law affect legislators’ ability to make decisions?

● The anti-defection law aims to maintain a stable government by ensuring that the legislators do not
switch sides. However, this law also limits a legislator from voting according to his conscience,
judgement and electorate’s interests.

● This kind of a situation hinders the oversight functions of the legislature over the government, by
making sure that members vote based on the decisions taken by the party leadership, and not
based on what their constituents would like them to vote for.

● Political parties issue directions to MPs on how to vote on most issues, irrespective of the nature
of the issue.

● Anti-defection does not provide sufficient incentive to an MP or MLA to examine an issue in-depth
and ponder over it to participate in the debate.

● The Law breaks the link between the elected legislator and his elector.

● Importantly, several experts have suggested that the law should be valid only for those votes that
determine the stability of the government (passage of the annual budget or no-confidence motions).

Several recommendations have come up regarding Anti-Defection:

● Dinesh Goswami Committee: Recommendations include that disqualification should be only for
cases such as:

○ Member giving up the membership of his political party voluntarily.

○ Member voting or abstaining from voting opposed to party directions.

● Law Commission 170th Report:

○ Delete the exemption in case of splits and mergers.

○ Consider the pre-poll electoral fronts as one party under the 10th Schedule.

○ Parties should issue whips only on critical situations or votes.

● Election Commission:

○ Make the President/Governor the decision-maker with respect to disqualification subject to

binding advice from the Election Commission on the lines of disqualifications based on the
Representation of Peoples Act’s provisions regarding the Office of Profit.
 Chapter 48: Representation of People's Act (RPA)

● The Indian Constitution, under its article 324 to 329 empowers the government to make provisions
for the conduct of free and fair elections in the country. Based on this power, the government of
India has devised some acts like the Representation of People Act 1950 and Representation of
People Act 1951.

Representation of People Act 1950

● In an attempt to regulate elections in the country for the first time, the government came up with
the Representation of People Act, 1950. The act provides for:

○ Allocation of seats in Lok Sabha and Vidhan Sabha.

○ Delimitation of constituencies for elections in Lok Sabha and Vidhan Sabha

○ Qualification of voters for such elections

○ Preparation of electoral roll

● Salient features of the Act

○ The act provides for direct elections for filling seats in every constituency.

○ The Delimitation Commission will determine the extent of the constituency of each state
and Union Territory (except Sikkim and Arunachal Pradesh).

○ The Election Commission shall identify constituencies reserved for Scheduled Tribes in the
states of Meghalaya, Mizoram, Tripura, and Nagaland.

○ The President of India has the power to alter constituencies after consulting the Election
Commission of India.

○ The Election Commission, after consulting the Governor of the state, will nominate a Chief
Electoral officer and a district-level Election Commissioner after consulting the state
government.

○ An electoral roll will be prepared for every constituency. No person shall be enrolled for
more than one constituency and may be disqualified if he/she is not a citizen of India or
maybe of unsound mind and is debarred from voting.

○ Only the Union government after consulting the Election Commission of India amend the
rules under the act and any such amendment will not be available for judicial scrutiny under
any Civil Court.

Representation of People Act, 1951

● The Representation of People Act, 1951 is enacted by the provincial government of India to
scrutinise the election process before the first general elections. The act provides for:

○ The actual conduct of elections

 ○ Qualification and grounds for disqualification of the members of both the houses of
parliament and the state legislature

○ The corrupt practices and other offences related to elections

○ Dispute redressal regarding elections

● Salient Features of the Act

○ Only a qualified voter can contest elections of Lok Sabha and Rajya Sabha.

○ On the seats reserved for SCs and STs, only candidates belonging to that category can
contest the election.

○ The elector can contest election in any constituency irrespective of the state/Union Territory
where the electorate is present for which he/she is eligible to vote.

○ If a person is found guilty for promoting enmity, hatred between classes, bribery,
influencing elections, rape or other heinous crimes against women, or spread religious
disharmony, practice untouchability, import-export prohibited goods, sell or consume illegal
drugs and other chemicals or terrorism in any form or may have been imprisoned for at
least 2 years shall be disqualified for six years after his/her release from the jail to contest
elections.

○ The person shall also be disqualified if he/she is found engaged in corrupt practices or
excluded for related government contracts.

○ Declaration of electoral expenses is a must, failing which will lead to disqualification of the
candidate.

○ Every political party must be registered with the Election Commission of India whose
decision regarding this will be final.

○ In case of any changes in the name or address of the political party, the party must intimate
the Election Commission as soon as it does so.

○ A political party may take donations from any person or company within India except the
government-owned companies. Foreign contributions are not allowed.

○ Every political party must report the donation of more than ₹20,000 received from any
person or company.

○ National Party: If a party gets minimum 6 percent of valid votes for assembly elections in
more than four states or wins at least 2 per cent seats in Lok Sabha from at least three
states is recognized as a National Party.

○ State Party: If a political party gets a minimum 6 percent of the votes in the state assembly
elections or wins at least 3 percent of total seats in the state assembly, it will be a state
political party.

○ The candidate must declare his/her assets and liabilities within 90 days from his/her oath-
taking day.
 ○ Petitions related to elections shall be filled in the High Court and can be appealed in the
Supreme Court. The High Court must conclude the petition within six months of its filling.
The decision in such a case should be intimated to the Election Commission. It can be
appealed in the Supreme Court within 30 days.

○ The Election Commission has powers similar to the Civil Court to summon and enforce any
person or any evidence. It can regulate its procedure.

○ For elections-related works, people from local authorities, universities, government

companies, and other institutions under state or centre governments shall be provided to
the Election Commission.

○ The candidate should deposit ₹25000 as security for Lok Sabha elections, and all other
polls ₹12500 should be deposited. SC/St candidates get 50 percent concession in security
deposition.

Various Offences related to Elections defined under the act

● Promoting enmity and hatred

● Booth capturing and removal of ballot papers

● Breach of official duty and supporting any candidate

● Selling liquor within two days before polling to its conclusion

● Calling for public meetings within 48 hours before voting and creating disturbances

Representation of the People (Amendment) Act, 1966

● It abolished the election tribunals and transferred the election petitions to the high court’s whose
orders can be appealed to the Supreme Court.

● However, election disputes regarding the election of President and Vice-President are directly
heard by the Supreme Court.

Representation of the People (Amendment) Act, 1988

● It provided for adjournment of poll due to booth capturing and Election Voting Machines.
Representation of the People (Amendment) Act, 2002

● New section 33A related to Right to Information was inserted in the 1951 act.

Representation of People (Amendment) Bill, 2017

● The bill seeks to amend the Representation of People Act, 1950 and the Representation of People
Act, 1951 to allow proxy voting by NRIs by inserting a sub-section in section 60 of Representation
of People Act, 1951 and to make provisions of the acts gender-neutral, like, replacing the term
‘wife’ in section 20A of the Representation of People Act, 1950 with ‘spouse’.

● The amendment will satisfy the demand for voting rights by NRIs.