Unit-I

Federal System: Organisation of States

Introduction

A federal government is a system of government that separates the power between central
government and state government of the country. It delegates certain responsibilities to each sector so
that the central government has its own task to do and state government has its own.

A Quasi-Federal government is a system of government that separates the power between central
government and state government of the country but in quasi-federal government, the central
government assigned more power than the state government. In a quasi-central government system, the
central government can interfere in the decision which is made by the state government.

Nature of Indian Federal system

The constitution of India has not described India as a federation. However, Article 1 of Indian
constitution describes India as a ‘’Union of States.’’ This means India is a union comprising of various
states which are an integral part of it. Here, the states cannot break away from the union. They do not
have the power to secede from the union. In a true federation, the constituting units or the states have the
freedom to come out of the union.

India is not a true federal government because it combines features of a federal government and the
features of unitary government which can also be called as a quasi-federal government.

Federal features of Indian Constitution

1. Two sets of Governments

There are 2 sets of government in India and that is union government and central government.
Central government looks after the whole country and state government mainly works for the
states. Working of both governments are different.
2. Division of Powers

Division of powers between central government and state government have been divided by
Constitution of India. The seventh schedule of the Indian constitution provides how the division
of powers is made between state and central government. Both central and state governments
have separate power and responsibilities. The 7th schedule of Indian constitution consists of
union list, state list, and concurrent list.

3. Written Constitution

India has the one of the largest constitution in the world which consist of 395 articles 22 parts
and 12 schedules. Every article of Indian constitution is clearly written down and has been
discussed in full detail.

4. Supremacy of Constitution

The Constitution of India is regarded as supreme law of land. No law can be made or passed
against the constitution of India. The Constitution of India is above all citizens and organizations
of the country.

5. Supreme Judiciary

The Supreme Court of India is regarded as the superior court of the country. The decision of the
Supreme Court is binding upon all courts and it has the power to interpret the articles of the
constitution.
 6. Bicameral- Legislation

In India, the legislature is bicameral. It has two houses and that are Lok Sabha and Rajya Sabha.
The upper house of the parliament which represents the states is Rajya Sabha and the lower
house of the parliament which represents the people in general is Lok Sabha.

The constitution of India consists of federalism features such as division of power, supreme
judiciary, two set of government, bicameral-legislation etc which clearly shows its Federal
nature. The division of power between state and central government shows the federal nature of
the India and supremacy of judiciary shows the absolute power of the supreme court that its
decision is supreme and binding upon all courts. However, the powers given to the central
government have more weight in comparison to the state government.

Non-Federal Features of Indian Constitution

1. Division of power is not equal

In India central government has been given more powers than state government. Usually in federal
government powers are divided equally between the two government.

2. Single Constitution

Another non-federal feature of Indian constitution is that it only have single constitution. There are no
separate constitutions for the states in India and it is applicable to both the union as a whole and the
states. In a true federal system there are separate constitutions for the state and union.

3. The constitution is not strictly rigid

Another non-federal feature of Indian constitution is that it can be amended by the Indian parliament.
Parliament on many subject matters does not need the approval of the state legislature to amend the
constitution. However, in true federal government both state and central government take part in the
amendment of the constitution with respect to all matters. Therefore, those constitutions are rigid and
not easy to amend.

4. Central control over states

Another non-federal feature of Indian constitution is that central government has control over state
government. This means that any law made by the central government has to be followed by the state
government and the state government cannot interfere in the matters of central government.

5. Single Citizenship

In India citizens only have single citizenship of the whole country. But in true federal government,
citizens are alloted dual citizenship. First, they are the citizens of their respective provinces or states and
then they are the citizens of their country.

6 Parliament does not represent the states equally

In India the upper house (Rajya Sabha) and lower house (Lok Sabha) do not have equal representation
in states. The state which is more populous have more representatives in the Rajya Sabha than the state
which is less populous. But, in a true federal government the upper house of the legislature has equal
representation from the constituting states.

7. Unified judiciary

The Indian judicial system is unified or integrated and supreme court of India is regarded as the highest
court of justice in the country. High courts and all other subordinate courts are under the supervision of
the supreme court.

8. Proclamation of emergency

President of India has been given emergency powers by the constitution of India. However, he can
execute such powers and declare emergency in the country under three conditions. Once emergency is
declared by the president the central government become dominant and the state governments come
under the total control of it. The state governments lose their liberty and this is against the principles of
a federal government.
 Quasi-Federal System in India

There are many examples which clearly shows that the Indian constitution has federal features but it
also shows that it has been evident with quasi-federal features too. Some of the examples which show
that India is a quasi-federal are followed as-

– Division of power between the central and state government but the central government has been
given more power than the state government.

– Parliament can override the laws which are passed by the states for the reason of national interest.

– Residual powers are vested with the central government.

– Major taxation powers are also vested with the central government.

– Parliament does not represent the states equally, however, in a pure federal government the upper
house of the legislature has equal representation from the constituting states. But in our Rajya Sabha, the
states do not have equal representation. The populous state has more representatives in the Rajya Sabha
that the less populous states.

– In India, citizens are allotted single citizenship which is not a feature of pure federal government. As
in true federal nation, citizens are allotted dual citizenship. First, they are the citizens of their provinces
then they are the citizens of their nation.

Dr. Ambedkar listed several features of the draft constitution which mitigated the rigidity and legalism
of federalism in his historic speech in the constituent assembly in november 1949. The following
features are follows as:

• Article 246 of Indian constitution distributes legislative power between union and states. It
gives union exclusive power to legislate in respect of matters contained in list 1 and
 concurrent power to legislate in respect of matters contained in list 3 of schedule 7 of the
constitution.
• Parliament is given power to legislate on exclusively state subjects matters namely:

• Article 249 of Indian constitution gives power to parliament with respect to matter in the
state list in the national interest.
• Article 250 of Indian constitution gives power to parliament in respect of any matter in the
state list if a proclamation of emergency is in operation.
• Article 252 of Indian constitution gives power to parliament to legislate two or more states
by consent of those states.
• Article 352 and 353 states about provisions for the proclamation of emergency and the effect
of such proclamation.
• There are provisions included in the constitution which are to be operative unless parliament
made any contrary provision or word to the same effect.
• Article 368 of Indian constitution states about provisions regarding the amendment of the
constitution.

In State of Rajasthan v Union of India, 1977 former chief justice Beg, called the
constitution of India as “amphibian” he further stated that if our constitution creates a central
government which is amphibian in the sense that it can be either federal or unitary according
to the need of the situation and the circumstance of the case.

And, also in S.R.Bommai v. Union of India, In this case the court stated that the president
should exercise his powers only after his proclamation is approved by both houses of
parliament. The power of president to dismiss a state government is not absolute.

In State of Haryana v State of Punjab the term semi-federal was used for India and
in Shamsher singh v State of Punjab the constitution was called more unitary than federal.

In West Bengal v. Union of India, This case dealt with the issue of the exercise of
sovereign powers by Indian states. In this case, the Supreme Court held that the Indian constitution does
not promote a principle of absolute federalism. The court further states 4 characteristics highlighting the
facts that the Indian constitution is not a traditional federal constitution.
 1. The first characteristic is highlighted by the court is that constitution of India is the supreme
document which governs all states and there is no provision of separate constitutions for each
state as required in the federal state.
2. The second characteristic is highlighted by the court is that the states have no power to alter
the constitution but only central government has the power to alter the constitution of India.
3. The third characteristic is highlighted by the court is that the Indian constitution renders
supreme power upon the courts to invalidate any action which violates the constitution.
4. The fourth characteristic is highlighted by the court is that the distribution of powers
facilitates national policies matter by central government and local governance by the state
government.

Conclusion

The Indian government is quasi-federal in nature as it contains features of single citizenship, a

single constitution, and flexibility of constitution which are not the features of a pure federal
government which is only followed in the United States of America. Although the Indian government
contains features of Federal government such as division of power, partly rigidity of constitution it does
not consider as pure federal government but as quasi-federal government

Cooperative Federalism

Meaning of Cooperative Federalism

Cooperative Federalism is the branch of Federalism which envisages that all the levels of governance,
which are- central, state and local bodies, should cooperate with one another in order to achieve collective
goals for the benefit of the society. All these bodies put their collaborative efforts towards a common goal
and strive to achieve that for the growth of country. No level of government is supreme in this Federalism;
all share their place at a horizontal line.

Examples of Cooperative Federalism might be given by following situation-

• “There is said to be Cooperative Federalism, when Central and State Governments have a healthy
nexus between their functions. Neither the Central Government imposes some random provisions
upon the States nor the States nor do Local Bodies work in a manner that is completely antithesis to
the working of Central Government.”

and

• “If the Central Government wants that railway stations shall be well maintained in each state, it
might provide a financial aid to those states for the completion of this task. This aid may be given
for the purchase of some equipment or to hire laboures and workers.”
 Cooperative Federalism In India

Indian Constitution has been given the label of “Quasi-Federal” by Prof. K. C. Wheare. We can also call it
a mixture of federal principles and unitary principles. However, there is no mention of word ‘Federalism’ in
India Constitution anywhere; it is apparently seen in the functioning of governments in the country.
Governance in India is done by following federal principles with a slight tilt toward unitary formulas. India
has not adopted a full flesh version of Federalism; rather it has a stronger centre which is created by joining
many states. Now, here is the important thing- some people see the stronger tendency of centre as opposite to
Federalism, however this is something which is the steam of Federalism. A stronger centre is necessary to
bound states in it and to promote a better functioning of the government. Following are some examples of
Cooperative Federalism in India-

• Article 1 - The very first article of the Constitution provides that “India shall be a Union of
States”. This very provision provides for the integrity among the Union and the States, as one is
inseparable to another. This was the first idea of cooperation among states and the centre.
• Seventh Schedule- The Seventh Schedule of the Constitution of India consists of three lists, namely-
the Union list, the State list and the Concurrent list. These lists contain matters of national
importance which have been divided between Central and State Government to legislate upon. This
is an ideal example of coordination among the different levels of government in India.
• Inter State Council- Article 263 of the COI, provides for the establishment of an Inter-State
Council by the President, if he believes that such council is necessary to discuss and investigate
subjects which have a larger public interest. Also, this council is charged with the duty to make
suggestions upon any matter for the better implementation or coordination of policies. This council
promotes cooperation and coordination among states.
• Zonal Councils- Section 15 of the State Reorganization Act, 1956 provides for the constitution of
zonal councils for all the five zones in India. These councils consist of representatives from every
state, union territories and the union. These councils are charged with the function of being an
advisory body in any matter in which some states or the union has a common interest. They stem
cooperation among the states and the union.
• National Development Council- This council was developed as a functionary under the Planning
Commission. This was set up as an agency to support the implementation of five years plan made by
the Planning Commission. This council helped in promoting cooperativeness because it had the
Prime Minister, Union Cabinet Ministers, Chief Ministers of all states and representatives of Union
Territories as its members. However, it has been dissolved after the constitution of Niti Ayog in
2014.
• Niti Ayog- National Institute for Transformation India (NITI AYOG) has replaced the planning
commission in 2014. This institution also has the representation of all states, which promotes
cooperation.
• GST Council- The Constitution (One Hundred and First Amendment) Act, 2016 introduced the
concept of GST & GST Council. This council shall be making recommendations to the Union and
the States on the taxes and surcharges levied by the Union, the States or the Local Bodies. Its
members represent all the levels of the government. Therefore, this council ideally promotes
cooperation among the Centre, States and Local Bodies.
• Taxation Powers- Article 269A (1) of the COI provides that, the GST Council and not the Finance
Commission has the powers to make recommendations about distribution of taxes in inter state
trade. This provision is very important in respect of economic cooperation of states because states
have a right to vote in the GST Council. Similarly, Article 270 provides that the tax collected by the
Union under article 246A and under Inter-State Trade, shall be distributed among the states too.

Restricting cooperation

This is not to say that States have a “right to defy” the Union. The Constitution bars States from
“impeding” the Union’s work and rightly requires them to comply with central laws. However,
constitutional functionaries in States cannot be compelled to defy their oaths and enforce laws that
are contrary to their good faith interpretation of the Constitution.

In abiding by their oaths, States may require the Union to find a constitutional way to fulfil its
purported objective, by withholding cooperation in a federal scheme. New institutional norms can
play an important role on this front. India is not the first democracy that has seen States restrict
cooperation to the federal government on contentious issues.

In the United States, States and cities have limited their cooperation on federal anti-immigration
policies and anti-gun ownership legislation. In contrast, there are also examples of countries that
have strengthened federalism by actively including the provinces or states in national policy. For
example, immigration laws in Australia and Canada empower provinces to nominate immigrants
seeking to settle within their territory.
 In these examples, there is a lesson for India. The Union government can include States in how
decisions are made and enforced, or it can depend on archaic emergency provisions to enforce its
will. Not every disagreement between States and the Union is the same, and the Union must
develop newer conventions to foster cooperation.

Recently, in Govt. of NCT of Delhi v. Union of India, the Supreme Court gently tilted the balance of
executive power in favour of the Government of the National Capital Territory vis- the Lieutenant Governor
(and by extension, the Centre). However, the court’s observations on cooperative federalism were stating the
obvious considering members of both cabinets take an oath to uphold the Constitution. The facts behind the
case and the acrimonious litigation, which the Supreme Court did not examine in its July 2018 ruling, clearly
bring out the yawning gap between the Constitution’s intent and political reality.
 Freedom Trade and Commerce

Introduction

In the Indian Constitution, the provisions regarding the freedom of trade, commerce and intercourse were
adopted from the Constitution of Australia. According to Section 92 of the Australian Constitution, there
should be freedom of trade, commerce and intercourse which may be carried out by ocean navigation or
internal carriage.

While India had borrowed this provision, it also made sure to include the provision that the free flow of
goods is allowed not only between different States but also within a State as well. Thus, in the Indian
Constitution Inter-State trade as well as Intra-State trade is allowed in the country.

Trade:

Trade means buying and selling of goods for profit-making purposes. Under Article 301, the word trade
means an actual, organized & structured activity with a definite motive or purpose. For the motive of Article
301, the word trade is interchangeably used with business.

Commerce:

Commerce means transmission or movement by air, water, telephone, telegraph or any other medium; what
is essential for commerce under Article 301 is transportation or transmission and not gain or profit.

Intercourse :

It means the movement of goods from one place to another. It includes both commercial and non-commercial
movements and dealings. It would include travel and all forms of dealing with others. However, it is argued
that the freedom guaranteed in Article 301 does not reach out to intercourse in its broadest meaning. There
are two reasons for this. First of all, the word “intercourse” is used in juxtaposition with the words ‘trade and
commerce’ and hence this word here will mean “commercial-intercourse” and not purposeless motion.
The second reason being that though Article 301 imposes a limitation on the power of Legislature and
Parliament (provided to them under Article 245 and 246) but the word intercourse is not included as a
subject of legislation under the Seventh Schedule (as the words trade and commerce have been) and so the
word intercourse can not be implied to have the widest of the meaning when used here.

Trade, Commerce and Intercourse

Article 301 of the Indian Constitution provides that the trade, commerce and intercourse in the country
should be free throughout the country.

In trade, goods and services are exchanged between the buyer and the seller and it also includes the
transportation of these goods. In commerce, the focus is more towards the element of transmission of goods
as well as that of men and animals. Thus in commerce, the element of profit is not the primary concern. The
word “intercourse” was included to remove any ambiguity about the intention of the Constitution makers and
thus it has been used to express the intention that, free flow of goods throughout the country is part of the
freedom under Article 301 of the Indian Constitution.

Illustration

If A, a seller lives in Maharashtra wants to sell his goods to B who lives in Madhya Pradesh, then under
Article 301 of the Constitution, they have the freedom to do so and cannot be restricted from selling or
buying the goods.

While the freedom under Article 301 is provided for carrying out trade and commerce freely, this right
cannot be allowed to be exercised in those activities which do not fall within the category of trade or
business.

In the case of State of Bombay v. RMDC, the Bombay Lotteries and Prize Competitions Control and Tax
(Amendment) Act, 1952 was held to be valid and it was stated that it did not violate Article 301 of the Indian
Constitution because the act was imposing restrictions on prize competition which was in the nature of
gambling and therefore it did not require any skill and thus it could not be said that it was restricting trade.
In gambling, there is an element of chance and the person may either win or may not win but such a victory
does not depends on his own ability or effort but only on his luck and therefore such an act is not covered
under the protection of Article 301. There is a maxim for such activities which is res extra commercium
which means the activities which are not part of trade or commerce or business and any act which is res extra
commercium will not be protected under Article 301.

any unlawful trade is not protected by the provisions of Article 301 and if the laws prohibit carrying out such
trade, it cannot be said to be a violation of the freedom of trade. For e.g., if A is trading in illegal drugs and
such an act is restricted by the State then he cannot claim that his right under Article 301 is being violated
because such a trade is unlawful.

The object of Article 301

Article 301 has been included in the Constitution in order to ensure that the unity of the nation is maintained
by removing the geographical barriers which exist in various parts of the country. Also, by removing the
imposition of any restrictions which may be put up, it ensures the free flow of goods throughout the country.

So, the main objective of this provision is to bring the feeling of one nation among all the Indians which may
not be possible if the economic activities face many barriers and which has already been facing problems due
to the existence of regionalism and the language barrier.

Freedom of trade and taxation

While freedom on the free flow of goods is the objective behind Article 301 it does not mean that the State is
barred from completely regulating aspects of the trade. The state has the right to regulate the trade and
therefore if taxes are charged on the goods it does not automatically become a restriction on freedom of trade
and therefore there is a criterion which is followed to understand whether a tax charged on the goods is a
violation of Article 301 or not.
Compensatory tax

The Government charges tax on various goods and services but it does not mean that it is a restriction on
freedom of trade. In many cases, it is necessary for the States to charge these taxes because they are
providing many services which are facilitating the trade activities.

A compensatory tax can be turned as confiscatory which means that it is in violation of the freedom of trade
under Article 301 if any of the following situations arise

1. The amount of tax which is charged is so excessive that it has become a setback in the free flow
of goods.
2. The tax which is charged is not in proportion to the cost of the facilities which are provided
against it.
3. There are no services which are being provided by the state in exchange for the tax being
charged.
4. There is no fixed procedure which has been provided by the state levying the tax as to how are
they assessing and levying the tax.
5. The tax which is charged is discriminating between the goods produced within the State and the
goods which are produced outside it.

Freedom of trade, commerce and intercourse is not absolute

Even though Article 301 provides that trade, commerce and intercourse should be free
throughout the territory India, this freedom is not absolute in nature. It means that certain
restrictions can be imposed on this freedom and such restrictions will no be violative of the
provisions under Article 301. These restrictions have been mentioned in Part XIII of the
constitution and even Article 301 provides that this freedom is subjected to the provisions of this
part.
 Parliament has been provided with the power to impose some restrictions on the free flow of goods
under Article 302 of the Indian Constitution and such a power is subject to the provisions of Article 303.

Under Article 302, the Parliament can restrict the freedom of trade between different states, if it is necessary
for the public interest. This restriction can be applied on any State or it may also be placed in any part of the
territory of India.

In the case of Prag Ice & Oil Mills v. Union of India, it was held by the Supreme Court that even though
Article 302 does not speak about reasonable restrictions, but still the restrictions which can be imposed under
this Article should have a reasonable nexus with the public interest for which the restriction is placed.

Article 304 of the Indian Constitution provides some powers to the State Legislatures for imposing some
restrictions on the freedom of trade. Under this Article, the legislature of a State can charge tax on the goods
which are imported from other States, if such tax is charged on the similar goods which are produced in that
State.

Illustration

If the state of Madhya Pradesh charges tax on X goods which are produced in the state itself and the same
goods are imported from Maharashtra, then the State Legislature of Madhya Pradesh can also charge the tax
on the imported goods because they were being charged on the same goods which were being produced in
the State of Madhya Pradesh.

The State Legislature can also impose other reasonable restrictions in public interest, but a bill for the same
can be brought only when the previous sanction of the President is taken.

In the case of State of Karnataka v. Hansa Corporation, it was held that even though under clause b of Article
304, the previous assent of the President is necessary for bringing a bill for imposing restrictions but in case
it cannot be introduced to the President due to Article 255, then in such cases the Bill may be presented in
the State Legislature and the assent of the President can be taken after the bill is presented.
The relation between Article 301 and 19(1)(g)

There is a complex relationship which exists between Article 301 and 19(1)(g). While both provide the right
of trade and commerce, there have been arguments which state that the rights under Article 301 are for the
trade as a whole whereas, the right under Article 19(1)(g) is provided only to the individual. But this view is
wrong and it cannot be maintained because Article 301 is derived from Section 92 of the Australian
Constitution which includes the rights of the individual as well.

The Concept of Regulatory and compensatory taxation has been applied by the Indian Courts to the State
taxation under entries 56 and 57 of the list II. In case of Atiabari Tea Co. v State of Assam, a tax levied by
the State of Assam on the carriage of tea by road or inland waterways was held bad for as a restriction on the
freedom of trade, commerce and intercourse and was not held as a regulatory taxation or measure.

In case of G.K. Krishna v state of Tamil Nadu, the petitioner challenged the validity of a Government
notification under Madras Motor Vehicle Taxation Act, 1931, enhancing the motor vehicle taxation on
omnibuses from Rs. 30 to Rs. 100 per quarter per seat. It was claimed that the taxation was neither regulatory
nor compensatory and therefore was acting as a restriction on the freedom contemplated under Art. 301. The
Court held that the Tax so levied on the omnibuses is not violative of the Freedom under Art. 301 and are
covered under Regulatory and Compensatory taxes. The Court stated that the Regulatory Measures such as
rules of traffic, collection of toll tax or tax for use of roads and bridges or Aerodromes etc. do not operate as
a barrier to trade and commerce.

Illegal activities, like lottery and gambling, can be an example. The bar on these illegal activities was upheld
by the Supreme Court in the case of State of Bombay v. R.M.D. Chamarbaugwala (1957). In this case, it was
held that all activities of criminal nature or those activities which are undesirable would not be given any
protection under Article 301.

Some examples of such activities can be clicking obscene pictures for money, trafficking of women and
children, hiring goondas or terrorists, etc. Though the forms, methods, and procedures of trade may be
applied these activities are extra-commercium (not subject to private ownership or acquisition), and thus are
not covered under Article 301. Inter-relation between Article 301 and Article 19(1)(g).
In the case of State of Madhya Pradesh v/s Bhailal Bhai,(1964) the State of Madhya Pradesh imposed taxes
on imported tobacco which was not even subject to tax in the very own State i.e State of Madhya Pradesh.
The Court disapproved of the tax statement that it was discriminatory in nature.

Restrictions on trade, commerce, and intercourse among States

Clause (2) of Article 304 guides the States to impose certain reasonable restrictions on the freedom of trade,
commerce, and intercourse as may suit the public interest. But no Bill or Amendment for such shall be put
forward in the State Legislature without the prior approval of the President. A law passed by the State to
regulate interstate trade must thus fulfill the following conditions-

• An approval from the President must be taken beforehand,

• The restriction must be sensible and rational,
• It must be in the interests of the public.

Article 305 of the Indian constitution saves already formed laws and laws providing for State monopolies.
Article 305 can only do so until the President is not ordering something opposite to it or otherwise to the law
already formed. In Saghir Ahmad v/s The State of UP,(1954), the Supreme Court raised the query that
whether an Act that provides for State monopoly in a specific trade or commerce would be held violative of
the Constitution of India under Article 301.

Atiabari Tea Co. vs the State of Assam (1961)

Facts

In this case of Atiabari Tea Co.Ltd. v/s the State of Assam, Assam Taxation Act levies a tax on goods
transmitted through Inland Waterways and road. The petitioner in the present case carried on the business of
transporting tea to Calcutta (now Kolkata) via Assam. Now while passing through Assam for the purpose of
transportation to Calcutta, the tea was liable to tax under the said Act.
Issues

The rationality of The Assam Taxation Act of 1954 was questioned on the grounds that:

• whether it is violative of Article 301 or not?

• whether it could be protected by making it fall under the ambit of Article 304 (b) or not?

Judgment

The Supreme Court said that the disputed law undeniably levied a tax that directly and immediately infringed
the movement of goods and therefore it comes under the purview of Article 301. The Supreme Court further
clarified that these taxes can only be levied after fulfilling the conditions of Article 304(b) which states that
the sanction by the President is required before any State enacts such a law. In this case, the requirements of
Article 304(b) were also not fulfilled. Freedom assured under Article 301 would become non-existent or
imaginary if transmission of goods is obstructed without meeting the criteria set out by Article 302 to Article
304 of the Constitution

Automobile Transport Ltd. vs State of Rajasthan (1963)

Facts

In The Automobile Transport Ltd. v/s State of Rajasthan, case, State of Rajasthan imposed an annual tax on
motor vehicles (Rs 60 on a motor vehicle and Rs 2000 on a goods vehicle).

Issue

The appellant challenged the validity of the tax levied under Article 301. Now whether the tax levied was
constitutionality correct or not had to be checked.
Judgment

It was held by the court that in the present case the tax imposed is valid as it is only a regulatory measure or a
compensatory tax for the facilitation of the smooth running of trade, commerce, and intercourse. The Court
commented that the taxes are the sole key for a state, in order to preserve the financial health of the state at
large. The concept of “Compensatory or Regulatory Taxes” has evolved to ensure that the state will levy
such taxes that are set as an objective in the form of compensation, that is, for the public interest as well as
for regulatory purposes if necessary. They would be used within the state. If the same is challenged in the
Court as being an infringement or as being violative of the freedom under Article 301 then that would not be
considered as an infringement and such a measure or tax does not even need the validation of the provisions
under Article 304(b).

The state of Mysore vs Sanjeeviah (1967)

Facts

In the case of the State of Mysore v/s Sanjeeviah, the government under the Mysore Forest Act, 1900, made a
law banning the movement of forest produce between sunrise and sunset.

Issue

Whether it was violative of the freedom guaranteed Article 301 of the Constitution?

Judgment

The Supreme Court held the law void. It remarked that such a law was restrictive and not regulatory thus
violative of the freedom provided under Article 301.

G.K.Krishna vs State of Tamil Nadu (1975)

Facts

In the case of G.K Krishna v/s State of Tamil Nadu, a govt notification under Madras Motor Vehicles Act
was issued, increasing the motor vehicle tax on omnibuses from Rs 30 to Rs 100. The government’s
argument while imposing this tax was that this was done to stop the unhealthy competition between
omnibuses and regular stage carriage buses and to reduce the misuse of omnibuses.

Issues

The petitioner in his argument questioned:

• whether the tax was compensatory or regulatory?

• whether it was a barrier to the freedom of trade, commerce, and intercourse or not?

Judgment

The Supreme Court held that the tax on carriage charges was of compensatory or regulatory nature and was
not therefore violative of the freedom guaranteed under Article 301. The Courts while explaining its
rationale behind the judgment said that these taxes are not barriers but a medium that facilitates trade. A tax
to become a prohibited tax must be first a direct tax. A direct tax is a tax that infringes the transmission of
goods or services in a trade or business. The Court, however, presented its view in this regard that no citizen
has the right to engage in any service without reimbursing the State for the special service. Here, in this case,
safe and efficient roads are required for the smooth running of vehicles. The maintenance of such roads will
cost the money of the Government and the use of public motor vehicles stands in direct relation to it.
Therefore the imposing of tax should not seem unreasonable i.e. making of a special contribution over and
above the contribution generally provided by the taxpayers to the state. The increase in tax was thus held
correct and valid in the eyes of law.
 Local Self Government

Introduction

Local self-government is panchayats in rural and municipalities in urban areas. Both got
its constitutional recognition after 73rd and 74th Amendments in the Indian constitution respectively. It is
the bottom-most level of government which maintains one on one contact with people within their area
assist them in their representation.

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

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:
• For SC and ST: Reservation to be provided at all the three tiers in accordance with their
population percentage.

• 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.

• 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 –
• before the expiry of its five-year duration.

• 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 –
• Under any law for the time being in force for the purpose of elections to the legislature of the
state concerned.

• 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.

• Further, all questions relating to disqualification shall be referred to an authority determined

by the state legislatures.

7. State election commission:

• The commission is responsible for superintendence, direction and control of the preparation
of electoral rolls and conducting elections for the panchayat.
 • 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:
• the preparation of plans for economic development and social justice.

• 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 –

• Authorize a panchayat to levy, collect and appropriate taxes, duties, tolls and fees.

• Assign to a panchayat taxes, duties, tolls and fees levied and collected by the state
government.

• Provide for making grants-in-aid to the panchayats from the consolidated fund of the state.

• 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,
• The scheduled areas and the tribal areas in the states

• The hill area of Manipur for which a district council exists

• 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.
 President of India

Introduction

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 Union Executive
along with the Vice-President, Prime Minister, Council of Ministers, and Attorney-
General of India. articles related to 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.

How is 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:

1. Lok Sabha and Rajya Sabha

2. Legislative Assemblies of the states (Legislative Councils have no role)
3. Legislative Assemblies of the Union Territories of Delhi and Puducherr

Who does not take part in the President’s elections?

The following group of people is not involved in electing the President of India:

1. Nominated Members of Lok Sabha (2) and Rajya Sabha (12)

2. Nominated Members of State Legislative Assemblies
3. Members of Legislative Councils (Both elected and nominated) in bicameral
legislatures
4. Nominated Members of union territories of Delhi and Puducherry

5. ARTICLE 57 : ELIGIBILITY FOR RE-ELECTION

6. A person who holds, or who has held, office as President shall, subject to the other
provisions of this Constitution be eligible for re-election to that office.
 7. ARTICLE 58 : QUALIFICATIONS FOR ELECTION AS PRESIDENT

8. (1) No person shall be eligible for election as President unless he –

(a) is a citizen of India;
(b) has completed the age of thirty-five years, and
(c) is qualified for election as a member of the House of the People.
(2) A person shall not be eligible for election as President if he holds any office of
profit under the Government of India or the Government of any State or under any
local or other authority subject to the control of any of the said Governments.
Explanation: For the purposes of this article, a person shall not be deemed to hold
any office of profit by reason only that he is the President or Vice-President of the
Union or the Governor of any State or is a Minister either for the Union or for any
State.

Privileges of the President: (Article 361 )

1. The President is not answerable to any court of law for the exercise of his
functions.
2. The President can neither be arrested nor any criminal proceedings can be
instituted against him in any court of law during his tenure.
3. The President cannot be asked to be present in any court of law during his tenure.
4. A prior notice of two months time is to be served before instituting a civil
case against him.

Functions and Powers of the President:

These are divided into three heads-

1. Executive powers
2. Legislative powers
3. Financial powers

Executive Powers of the President of India

• All decisions of the Union Government are communicated to him/her by the Prime
Minister.
• All the functions are performed by the President on the advice of the Prime
Minister.
• All officials appointed by him/her (such as Governors and Ambassadors) may be
removed or recalled by him/her, on the advice of the Union Council of Ministers.
• All laws enacted by the Union Parliament are enforced by him/her.
• All diplomatic work is conducted in his/her name (by the foreign office and Indian
envoys abroad), and all international treaties are negotiated and concluded
in his/her name.
• The President appoints India’s ambassadors and high commissioners in other
countries, and the President receives foreign ambassadors and high commissioners.
• The President can declare war and make peace.
• In his/her capacity as head of state, the President conducts the country’s foreign
affairs.
• The President is the Supreme Commander of the armed forces. He/she makes
appointments of Chiefs of Army, Navy, and Air Force.
• The President appoints the Attorney General, the Comptroller and Auditor General
of India, the Chief Election Commissioner and other
Election Commissioners, the Chairman and Members of Union Public Service
Commission (U.P.S.C.).
• He/she also appoints the Governors of States and Lt. Governors of
Union Territories. All such appointments are made on the advice of the Union
Cabinet.
• The President appoints the Chief Justice and other judges of the Supreme Court and
High Courts, the Chief Justice of India is consulted in these appointments.
• He allocates portfolios among the ministers on the advice of the Prime Minister. He
may remove any Minister on the advice of the
Prime Minister.
• The President appoints the Prime Minister and he appoints other ministers on
the advice of the Prime Minister.
Legislative Powers of the President of India

• The President summons and prorogues the Houses of Parliament. He summons

the Parliament at least twice a year, and the gap between two sessions cannot be
more than six months.
• The President has the power to dissolve the Lok Sabha even before the expiry of its
term on the recommendation of the Prime Minister.
• The President nominates twelve members to Rajya Sabha from amongst persons
having special knowledge in the field of literature, science, art and social service.
• The President may also nominate two members of the Anglo-Indian community to
the Lok Sabha in case that community is not adequately represented in the House.
• The President can call a joint sitting of the two Houses of Parliament in case of a
disagreement between Lok Sabha and Rajya Sabha on a non-money bill.
• The President has the right to address and send messages to Parliament. The
President addresses both Houses of Parliament jointly at the first session after every
general election as well as the commencement of the first session every year.These
addresses contain policies of the government of the day.
• Every bill passed by Parliament is sent to the President for his/her assent. The
President may give his/her assent, or return it once for the reconsideration of the
Parliament. If passed again the President has to give her assent.
• Without his/her assent no bill can become a law.
• The President may promulgate an ordinance when the Parliament is not in
session.The ordinance so issued has the effect of a law.
• Such ordinance should be laid before both Houses of Parliament when they
reassemble. If no action is taken, it automatically lapses six weeks after
the commencement of the next session of Parliament.
Financial Powers of the President

1. All money bills are introduced in the Lok Sabha only with the prior approval of the
President.
2. The President has the control over Contingency Fund of India. It enables the
government to advance money for the purpose of meeting unforeseen expenses.
3. Contingency Fund of India: It is a fund kept by the Union Government to meet any
unforeseen expenditure for which money is immediately needed. The President has
full control over this Fund. The President permits withdrawals from this Fund.
4. Annual budget and railway budget are introduced in the Lok Sabha on the
recommendation of the President.
5. Money bills are never returned for reconsideration.
6. The President appoints the Finance Commission after every five years. It makes
recommendations to the President on some specific financial matters, especially the
distribution of Central taxes between the Union and the States.
7. The President also receives the reports of the Comptroller and Auditor-General of
India and has it laid in the Parliament.

Power to Promulgate Ordinances Except when both Houses of Parliament are in session,
the President may promulgate such Ordinances as the circumstances appear to him to
require (Article 123). Such an ordinance can have the same force and effect of an Act of
Parliament. Such an ordinance shall cease to operate unless passed by both Houses of
Parliament within the stipulated period. A.K. Roy vs. Union of India (1982) illustrates the
proposition that the satisfaction of the President must be as to the existence of a situation
which makes it necessary for the President to promulgate such on Ordinance.

Emergency Powers of the President

1. The constitution of India empowers the President to proclaim three kinds of

Emergencies: National Emergency (Art. 352); 2. Emergency for failure of
Constitutional Machinery in a State (Art. 356); 3. Financial Emergency (Art. 360).
Miscellaneous powers:

• The President, as head of state, can pardon a criminal or reduce the punishment or
suspend, commute or remit the sentence of a criminal convicted by the Supreme
Court or High Courts for an offence against the federal laws.
• Under article 72, The President can also pardon a person convicted by a Court
Martial. His/her power of pardon includes granting of pardon even to a
person awarded death sentence. But, the President performs this function on the
advice of Law Ministry.

Removal of the President:

It is done by impeachment, a quasi-judicial procedure, on the grounds of the violation of
the Constitution. The President can be removed through impeachment. The Constitution
lays down a difficult procedure for the impeachment of the President. He can only be
impeached ‘for violation of the Constitution’.

Impeachment is defined as an act of calling into question the integrity or validity of

something. The term impeachment means the process followed in deciding the removal of
a person in a position from exercising all the powers and responsibilities that the position
demands. The entire process of removal is impeachment. In India, the impeachment is
used in two contexts. 1. Impeachment of President of India 2. Impeachment of the Supreme
Court Judge.

A House starts by levelling charges against the President. The charges are present in a
notice which must be signed by at least a quarter of the total members of that House. The
notice is then sent up to the President and taken up for consideration after 14 days.

An impeachment resolution on the President must be made by a two-thirds majority

(special majority) of the total members of the originating House, to be later sent to the
other House. The other House conducts an investigation of the charges made.

Meanwhile, the President can defend himself through an authorised counsel. But if the
second House also approves the charges levelled by a special majority, the President stands
impeached. Consequently, he is deemed to have vacated his office from the date of passing
the resolution.

In another instance, the Supreme Court inquires and decides disputes or ambiguities about
the election of a President as per Article 71(1) of the Indian Constitution. The Supreme
Court can remove the President for the electoral misconducts or upon becoming ineligible
for Lok Sabha member as laid under the Representation of the People Act, 1951.

The procedure of impeachment of President of India: (Article 61)

• The resolution to impeach the President can be moved in either House of

Parliament after a notice has been given by at least one-fourth of the total number
of members of the House.
• Such resolution must be passed by a majority of not less than two-thirds of
the total membership of that House before it goes to the other House for
investigation.
• The charges levelled against the President are investigated by the second House.
• President has right to be heard or defended when the charges against him are being
investigated. He may defend himself in person or through his counsel.
• If charges accepted by two-thirds majority of the second House, the President
stands removed from the office from the date of resolution passage.

Impeachment of the Chief Justice of India/Judges

Article 124(4) of the Constitution of India lays down the procedure for impeachment of
judges. A Judge of the Supreme Court must be removed from his office by order of the
President. Such an order needs the approval of both the Houses of Parliament. It requires a
special majority of members present and voting in the same session.

The grounds of impeachment are proven misbehaviour or incapacity. It is brought to light

after the submission of notice to the speaker or chairman of Lok Sabha and Rajya Sabha
respectively. A committee of three jurists conducts a detailed investigation. They submit
the report in the next session of both the Houses of Parliament.
************************************************************
 The Governor

Introduction

The Constitution vests in the governor all the executive powers of the state government.
The governor appoints the chief minister, who enjoys the support of the majority in the
State Legislative Assembly. In India, the federal structure of the Government can be seen.
There is a division of powers between the Centre and the States. This division has led to
the creation of the three branches or organs of the Government to be present at both the
levels, therefore, the Legislature, Executive as well as Judiciary exist both at the Central as
well as State Level.

Article 153 of the Constitution provides the provision that there shall be a Governor for
each State. This Article also provides that it is not necessary for every State to have a
different Governor and thus a person can be appointed as the Governor of more than one
State.

The Governor’s position in the State is identical to the position of the President of India
and just like the President, the Governor is the Executive Head of the State. This authority
is conferred on him under Article 154 of the Constitution which provides that the
Executive power of the State is vested in the Governor.

Appointment of Governor

The Governor of the state is appointed under Article 155 of the Constitution. He is
appointed by the President of India by a warrant in his hand and seal. Thus in case of
Governor, no elections are held and he is selected directly, unlike the President who is
chosen by election, and a person can be appointed as the Governor by the authority of the
President.

The provisions for the term of the Office of the Governor have been provided in Article
156 of the Constitution. Under this article the following terms are provided:
 • The governor holds his office at the pleasure of the President. It means that a
Governor serves till the time President deems it fit and he can be removed by
him at any time.
• The Governor also has the power to resign from his office during his term. He
can resign by addressing his intention to do so in writing to the President.
• Unless the Governor resigns from his office or the President
• removes him, the normal term of a Governor is provided for a period of 5 years
from the date of him entering his office. (Article 156 (3)).

For a person to become a Governor he has to fulfil some requirements. According to

Article 157, a person is eligible for appointment as the Governor if:

1. He is a citizen of India.
2. He has attained the age of 35 years.

If these two conditions are fulfilled then the appointment of a person to the office of
governor cannot be challenged in the grounds of him being ineligible.

Powers of Governor

The Governor by being the Executive head of the State has been given many powers which
can be broadly categorized into several categories. The powers of the Governor are similar
to those of the President. These categories of the powers of Governor are as follows:

Executive powers

The Executive powers are vested on the governor which is exercised by him either directly
or through subordinate officers. These powers are as follows:

1. The Governor has the authority to make rules about the transactions of the State
Government.
 2. The Governor has the right to seek information from the Chief Minister of the
State about the various decisions taken by the Council of Ministers and Chief
Minister is bound by duty to provide such information to him.
3. The Governor can also require the Chief Minister to provide the decision of an
individual minister to be considered by the Council.
4. The Governor makes the appointments of the members of the Council of
Ministers.
5. In case the Chief Minister loses the confidence of the House, the governor has
the right to dismiss the Chief Minister and his Council of Ministers.

Judicial Powers

The Governor is also provided with some judicial powers under the Constitution. Just like
the President, the Governor also has the power to grant pardon. By allowing the request of
pardon, the Governor can allow a person to be free from any punishment even if the Court
finds him guilty of the offence. The power to grant pardon is discretionary and is not a
right which can be exercised by every offender and thus the Governor has the right to
decide in which cases he wants to grant pardon to a person and in which cases he does not
want to grant such pardon.

Under Article 161 of the Constitution, the Governor has been granted this power. He also
has the power to reprieve, commute, respite or remit the punishment of a person. Thus in
many cases, the Governor can overturn the decision of the High Court but this power has to
be exercised wisely because it can lead to a conflict between the Executive and Judiciary.

Legislative Powers

1. Even though the Governor is part of the Executive branch in the State, he has
been given certain Legislative powers as well. These powers are as follows: The
Governor has the power to summon the House of the State Legislature (and in
2. States where 2 houses are present, both the houses can be summoned by him).
3. He can summon the House(s) at a time and place which he thinks is appropriate
4. but the gap between the last sitting of the House and the next sitting should not
be more than 6 months.
5. The Governor also has the power to prorogue the House(s) of the State
legislature which means that the House gets discontinued without being
dissolved.
6. The Governor can also dissolve the Legislative Assembly of a State under
Article 174 of the Constitution. For e.g., The Governor of Jammu and Kashmir,
7. Satya Pal Malik had dissolved the State Assembly of Jammu and Kashmir in
2018.
8. The Governor can address the House(s) of the State Legislature after each
General Election and also at the first session of the House(s) each year.
9. The Governor’s assent is necessary for the Bills which are passed by the State
legislature to become a law. The Governor can send the bill back to the House
for reconsideration but if the bill is sent back by the House without any change,
the Governor has to give his assent to that bill. Also, he cannot send the bill
back to the State Legislature if it is a Money Bill.
10. The Governor also has the right to reserve some bills for the consideration of the
President.
11. He has the power to nominate members to the House from the fields of Art,
Literature, Social Service, Science etc. and can also nominate members of the
Anglo-Indian community if he feels that they are not adequately represented in
the House.
12. In cases where the House is not in session, the Governor can issue an ordinance
in case some situation arises which requires such an action. The ordinance
remains valid for 6 weeks from the date the State Assembly resumes or it can
cease to operate earlier if the Assembly passes a resolution to disapprove it.
13. If any Bill is pending in the House(s), the governor can send a message to such
House(s) for reminding them about the same.
Financial Powers

The Governor enjoys the following financial powers under the Constitution:

1. The demand for a grant can be made by the state only on the recommendation of
the Governor.
2. The Governor can ask the state Legislature for additional grants under Article
205 of the Constitution.
3. To introduce a Money bill in the State Assembly, the prior recommendation of
the Governor is necessary and in its absence, no money bill can be presented in
the Assembly.
4. The Contingency Fund of the State can be used by the Governor at his disposal.
He can use the fund to meet any unforeseen expenditure if the state Legislature
approves it.
5. The recommendations of the Governor is essential for making amendments
regarding financial matters.
6. The Governor has the authority to ensure that the annual budget is laid before
the House(s) and is also passed by it.

Emergency powers

While the President and the Governor have been provided with similar powers under the
Constitution, a Governor does not have the power to declare emergency in a state because
this power is also vested in the President.

But the governor still plays a great role in the proclamation of emergency in a State. Under
Article 356 the Governor has the power to send a report to the President when he is
satisfied that the Constitutional machinery in the State has failed and the State Government
can no longer function according to the provisions of the Constitution.
Thus the Governor plays an advisory role in the proclamation of Emergency in a State and
in many cases even though President’s rule is imposed in the states, it is the Governor who
assumes the function of the State Government by working as an agent of the President.

**************************************************************
 Bicameralisms

Meaning of Bicameralism

Bicameralism is the practice of having two Houses of Parliament. ... Under Article 169,
Parliament may by law create or abolish the second chamber in a State if the Legislative
Assembly of that State passes a resolution to that effect by a special majority. At present,
seven Indian States have bicameral legislatures.

The definition of bicameral is something with two law making groups. An example of
bicameral is the United States Congress which has the House of Representatives and the
Senate. Composed of or based on two legislative chambers or branches.

The word bicameral is derived from the latin word: ‘bi’ means two and ‘camera’ means
chamber. So, it describes a government that has the two house of Representative and the
senate that make up the U.S. Congress.

A legislature with two houses, or chambers. The British parliament is

a bicameral legislature, made up of the House of Commons and the House of Lords.

Difference between Unicameral and Bicameral is explained here . The two terms,
Unicameral and Bicameral are related to the state legislatures of the world. The legislature
is an important organ of the government which is responsible to administer the laws in the
country. Members are elected/nominated in the legislature and are delegated duties to
perform various functions. If the state legislature has only legislative assembly i.e.,
unicameral if it has two houase like legislative assembly and legislative council its called
as bicameral.

Bicameral Legislature in the simple terms means having two legislature or two houses, i.e.
an upper house and a lower house as law-making institutions.

In India the Bicameral Legislature exist but not in every state.

Central government

First talking about the central government, the Prime Minister leads it. The primary law-
making institution at the central level is the Parliament of India. First one is the upper
house called the “Rajya Sabha”, and another is the lower house called “Lok Sabha”.

It means at the national level we can say that there is Bicameral legislature because there
are two lawmaking authorities combined called as The Parliament. But the scenario at the
state level is not as simple as this.

State-level

Taking about the state government, it is led by the Chief Minister. And unlike the Center,
where there is only one law-making institution at the state level, and it is called as State
Legislative Assembly or “Vidhan Sabha” .

But the Constitution of India has a provision that if the state wants, then it can create
another house with the approval from the parliament. And the newly built house is called
as the Legislative council “Vidhan Parisad”. And after creating the Legislative council, the
state can be considered of having a bicameral parliament. So it means a legislative council
doesn’t exist by defaults in the states, it has to be created.

The point to be noticed here is, wherever the bicameral legislature exists the power are not
equally divided between both the houses. And in most of the cases, the lower house is
always more powerful because members here are elected directly by the people.

And the upper house only has a power related to the general bills. They can not late any
bill related to the matters of taxations or revenue. For example, they can not vote for the
Money Bill or finance bill in the house. They can only give their recommendation, and the
final decision is up to the legislative assembly whether to follow the recommendations or
not—the bicameral legislature in India.
Constitutional Provision for creating a Bicameral Legislature

Lets find out what is the constitutional provision to create the new legislature or to make an
assembly bicameral in India?

If a state government feels that there is not enough representation of the people compared
to the population of the state, in the law-making and number of people needs to be added
then there is a provision in the constitution for that.

According to article 169 of the Indian constitution, a state can create a legislative when
two-third majorities of members of legislative assembly passed a resolution for creating a
new house, and Indian parliament approves that.

It means the final decision of creating a new house is up to the Parliament or in other
words, the Central government and not the state government where it is meant to be
created.

Properties of the Legislative Council (new house created)

Let’s focus on the Legislative council and not the Legislative Assembly. Because most of
the people know about the legislative assembly since they all participate in its election.

But the Legislative Council is entirely unknown to the people, and mostly to those who
don’t have a legislative council in their respective states.

So till now, we know that the parliament can create a new house, and after the creation of a
legislative council, the law-making institution of the state becomes a Bicameral legislature.
The members of the council are not elected directly by the people. The constitution says
that the election of the council will be on the following proportion.
 • One-third member is elected from the local cooperative institution
• One-twelfth member is elected from degree holder of the Universities.
• One-twelfth from the association of teachers of the Secondary schools.
• One-third member is elected by the members of the legislative assembly.
The total number of member cannot be more than one-third of the number of members of
the Legislative assembly and cannot be less than 40. It will always be an indirectly elected
house and the member will be elected by proportional representation and “The single
transferable voting system”.

Importance of having a bicameral legislature or a second house in India

We have already discussed that most of the time, Upper House (secondary one) always has
less power than the lower house. Then the question arises that what are the benefits of
having a second house which usually has less power? And the answer to this is as follows.

A secondary house can delay the decision taken by the lower house in haste, and provide
them more time to think on.

Lower house consists of mostly elected representatives, but the upper house provides an
opportunity for the experts to participate in law-making.

The upper house can initiate a bill of crucial public importance which is not picked by the
lower house.

The upper house can create moral pressure on the lower house by rejecting the bill that
goes against the public interest.

It allows more chances to the people of different sections of society such as teachers,
graduates to represent in the house.

It brings more efficiency and transparency in the working system—bicameral Legislature

in India and its states.
Disadvantages of having a bicameral legislature in Indian as well

The secondary house may restrict the development work done by the government.

Since the members are not from the political parties, they may feel lack responsibilities
towards the public as compared to the elected members. They may also lack constitutional
knowledge.

Running one more house may add some extra burden in states economy for the salaries,
pension and other necessary facilities of the members.

Similar to the upper house of the parliament here as well the duration of members of the
council is six years, and the minimum age requirement to become a member is 30 years.

.
 Parliament of India

Introduction

The Parliament of India ( Bhāratīya Sansad) is the supreme legislative body of the
Republic of India. It is a bicameral legislature composed of the President of India and the
two houses: the Rajya Sabha (Council of States) and the Lok Sabha (House of the People).
... The Parliament meets at Sansad Bhavan in New Delhi. Parliament may be perceived as a
political institution to ensure the realization of what Mahatma Gandhi once envisaged that,
Democracy essentially is the art and science of mobilizing and utilizing the entire physical,
economic and immaterial & metaphysical resources for the common good of all the people.

Composition of Parliament

The Parliament in India comprises the President of India, the Upper House i.e. Rajya
Sabha and the Lower House i.e. Lok Sabha. Hindi names of both the houses, i.e. Rajya
Sabha and Lok Sabha had been adopted by the Upper House and the Lower House
respectively.

The Constitution describes the structure of parliament in Article 79. It states that the
Parliament comprises of the President and the two houses i.e. the Lower House or House of
People and Upper house or Council of States. To understand the functions served by the
President, we can say that the post of president is somewhat equivalent to the role and
functions of the Queen or Crown in the United Kingdom.

The Rajya Sabha

Rajya Sabha is the Upper House of the Indian Parliament. This house is permanent in
nature as it can never be dissolved. This is because every member elected to the Rajya
Sabha serves for a term of 6 years and one-third of members do retire biennially, while the
other members continue their tenure. It’s like an election in different batches. Retired
members are subject to re-election.
This house consists of 250 members out of which, 238 members are elected by means of a
single transferable vote. 12 members are nominated by the President on the advice of the
council of ministers. The method of election of these members is listed in Article 80(1) of
the Indian Constitution.

Article 84 of the Indian Constitution provides for the qualification to become a

member of Rajya Sabha, i.e. one must have the nationality of India, doesn’t holds any
office of profit and must have completed 30 years of age. Article 102 of the Indian
Constitution provides for conditions on which one can be disqualified from either of the
houses. It says that one must be disqualified as a member of the house if,

• he/she holds any office of profit;

• he/she is of unsound mind;
• he/she is discharged insolvent;
• he/she is not a citizen of India and has voluntarily accepted the nationality of
other nations;
• he/she is disqualified under any law made by the Parliament.

Chairperson and Deputy Chairperson of Rajya Sabha

• In Rajya Sabha, the Vice-President of India presides of its sessions and is ex-
officio chairperson of the house.

• However, to take care of its day-to-day affairs, and to preside over the sessions in
the absence of the Chairperson, i.e. the Vice-President, a member of the house itself
is chosen internally by the Rajya Sabha as Deputy Chairperson of the house.

The Lok Sabha

• The provisions of Article 331 of the Indian Constitution provides for the existence
of the house of the people and shall consist of a maximum of 530 chosen members
from different states, not more than 20 members to be chosen from the Union
Territories.
 If President feels that there is a lack of representation of the Anglo-Indian
Community in parliament he may nominate two members of the Anglo-Indian
Community.

Some seats are also reserved for the Scheduled Caste and Scheduled tribes
communities especially laid aside for them all over the country. The representation
is allocated to the states and the Union Territories according to the Representation
of the people Act passed by the Parliament of India in 1951. The Lok Sabha, unless
dissolved midway, continues its tenure for 5 years from the day of its first meeting.

Qualification for Membership of Parliament

Qualifications necessary for becoming a member of parliament is provided in Article 84 of

the Indian Constitution.

Following are the qualifications:

• he/she should be a citizen of India.

• In the case of Upper House,i.e. Rajya Sabha, he/she should have completed at
least 30 years of age and for Lower House,i.e. Lok Sabha, he/she should have
completed 25 years of age .
• he/she need to comply with other such qualifications as prescribed in any law by
the Indian Parliament.

Disqualification

Now, Article 102 of the Indian Constitution lays the grounds on which a legislator can be
disqualified as a member of the Parliament.
Those grounds are:

• If he/she holds any office of profit under the Government of India or any of the
states;
• If he/she is declared of unsound mind by a Court;
• If he/she is an undischarged insolvent;
• If he/she is not a citizen of India anymore;
• If he/she is disqualified by virtue of any law passed by the parliament of India.

Disqualifications under the Representation of Peoples Act

A member of parliament can also be disqualified under the Representation of Peoples Act,
1951. This act was passed by the Parliament under Article 327 of the Indian Constitution,
which provides for the procedure and the conduct to be followed during the election to
Parliament and state legislatures.

Following are the grounds:

• If he/she is convicted for indulging in corrupt practices during the election or

any other election-related offenses.
• If he/she is convicted under certain acts of Indian Penal Code, Unlawful
Activities Prevention Act, Prevention of Terrorism Act 2002, etc.
• If he/she is convicted under any law that results for at least two years of
imprisonment and will remain disqualified for a further 6 years after his release.
• If he/she is convicted under any law relating to drugs or dowry prevention.
• Dismissal from the government due to disloyalty or involvement in corrupt
practices.
• If he/she fails to lodge their election expenses.
Disqualification on ground of defection

The need for an anti-defection law was felt in India when in 1967, one legislator from
Haryana, Gaya Lal, changed his party thrice in a single day. Also, the General Elections of
1967 saw a great number of defections was seen as around 150 MPs flitted their political
parties.

However, an act tackling such problems was passed by Parliament in the year 1985.

With 52nd amendment to Indian Constitution, provisions regarding disqualification of the

basis of defection were inserted in the 10th schedule of the Indian Constitution.

As per the provisions, the members can be disqualified on the following grounds:

• When members of a political party don’t abide by his/her party leadership or

voluntarily resigns from the party.
• When members don’t votes or refrains from voting according to his/her party
whip.
• An Independent member stands disqualified if he/she joins a political party.
• For nominated members, if he/she is not a member of any political party, he/she
if want, has to join a political party within 6 months of nomination or
membership stands canceled.

However, voluntarily giving up membership has quite a broader meaning. In the case
of Ravi Naik vs Union of India, giving up membership doesn’t necessarily mean resigning,
but it can also be inferred by the conduct of the member.

The chairman, in the case of Rajya Sabha and the Speaker, in the case of Lok Sabha has
powers to disqualify a member on grounds of defection. And, regarding complaints of
Speaker/Chairperson involved in defecation, a member elected by the house itself will take
necessary actions regarding the same. This law also has some exceptions, specifically when
political parties merge with some other political party.
Sessions of Parliament

Now coming to Sessions of the Parliament, let’s first understand what exactly a session is.
So, whenever either of the houses meets for the conduct of its business, for the period it
meets, is called a session. With not more than a 6-months gap, the president can summon
either of the houses for conducting a session. Thus, the Parliament must necessarily meet at
least two times a year. As per convention, three sessions are conducted by the Indian
Parliament in a year:

• Budget Session between February and May.

• Monsoon Session between July and September.
• Winter Session between November and December.

Prorogation

Prorogation of the house essentially means termination of a session of the house.

• The notice of prorogation is issued by the Speaker or the Chairperson of the House.
After a session is ended, the presiding officer adjourns the house sine die, i.e with
no appointed date for resuming the house and then after a few days, the notice is
issued. However, houses of the Parliament can also be adjourned or prorogued
when in session. This is provided under Article 85(2) of the Indian Constitution.

Dissolution

The power to dissolve the Lok Sabha is placed with the President of India in accordance
with Article 85 of the Indian Constitution.
In two cases, dissolution of the Lok Sabha is possible:

• When the term of the Lok Sabha, i.e 5 years complete and is dissolved by the
leader of the ruling party.
• When the government loses the majority and floor test is about to happen, in that
case, the president can dissolve the house.

And, it is completely different from adjournment or prorogation as Dissolution means the

end of the term of that particular Lok Sabha.

Effect of Dissolution on the business pending in the House

Articles 107 and 108 of the Indian Constitution deals with these situations. It states that
whenever the Lok Sabha is dissolved, be it after completing its whole term or midway, all
the business, which includes bills, notices, petitions, motions, etc, do lapses. When a new
Lok Sabha is elected and it begins with its sittings, all the motions, bills and notices need
re-introduction in the house.

Functions of the Parliament

From the gist of what our constitution provides, we may infer that Parliament is an
institution which exerts an amalgamation of executive and legislative authority. There are
certain functions that the Parliament of India serves.

Following are the functions:

Legislation

The basic function which the Parliament serves is of legislating. Legislating essentially
means making laws and provisions for the smooth functioning of the government and the
nation at large.
This function is embedded in Article 107-108 of the Indian Constitution. Raison d’etre of
this function is the realization of the constitutional objective of India as a welfare state.

Providing the cabinet

Another basic function of the parliament is providing the cabinet, which stands responsible
for the Parliament itself and provides the proper aide to the President.

However, the cabinet is accountable only towards the Lok Sabha, it may consist of
members from Rajya Sabha too.

Control of the cabinet

It is a function of the parliament to see if the cabinet is able to maintain its trust through the
majority of the ruling party, i.e. if the ruling party loses trust or majority, the cabinet must
have to resign. The same is expressed in Article 75(3) of the Indian Constitution.

Criticism and evaluation of the cabinet

Criticizing and evaluating the cabinet and the ministers is the foremost function of the
parliament.As the cabinet is responsible for the Parliament, evaluation of the actions and
decisions of the cabinet must be done by other members. This serves as a safety valve and
provides for a system of checks.

It bars the government to act in a dictatorial way while avoiding the public interest. This
function can be discharged by both the houses of the parliament.
 Financial control

The legislature has exclusive authority to allocate expenditures and finances for public
services and other affairs. It also provides with the measures to be taken for raising revenue
and receipts to be appropriated according to needs.

These authorities are wielded in such a way that keeps the democracy basic essence of our
constitution alive.

Ordinary Bill

Any bill, which is proposed in the Parliament is an ordinary bill except those which get the
certificate of money bill by the Speaker of the Lok Sabha.

It can be proposed/introduced in either of the houses, i.e. Rajya Sabha or Lok Sabha. It can
be introduced by a minister as well as a private member and those introduced by a private
member is known as a private member bill.

For introducing such bills, the president’s recommendation is not required and necessary.
Unlike the money bill, these bills can be rejected or amended even in the Rajya Sabha and
the Upper House can detain such bills for a period of up to 6 months, not further than that.

Also, if such bills were defeated in the Lok Sabha, it may lead to the resignation of the
whole government if introduced by a member. Once sent for approval of the President,
these bills can be accepted, rejected or returned for reconsideration to the house.

Joint Sitting of Houses

In case of a deadlock between both, the houses of parliament regarding the passing of a
bill, the President of India may summon a joint sitting of both the houses.
The joint sitting of both the houses is presided over by the Speaker of the Lok Sabha and in
his absence, the Deputy Speaker of the Lok Sabha discharges this function.

Article 108 of the Indian Constitution provides provisions for this mechanism which breaks
the deadlock between both the houses.

According to this Article, a joint session can be called upon only if:

• A bill, after being passed out in one house, and the other house rejects it;
• One of the houses doesn’t accept the amendments passed by the other house;
• When 6 months elapse, and the other house doesn’t pass the bill.

There are some exceptions available to the Joint Sitting of the Houses:

• Money Bill: According to the Constitution, Money bills only require approval from
the Lok Sabha, thus, in case of money bill the situation arises for a Joint Sitting of
the Houses.

• Constitutional Amendment Bills: A Constitutional amendment bill can be passed

on through a 2/3rd majority of both the houses and doesn’t have a provision for
Joint Sittings in case of disagreement between the houses.

President’s Assent

According to Article 111 of the Indian Constitution, when a bill is passed by both the houses of
the Parliament it must be presented to the President and he/she needs to declare that he/she
assents to the bill or withholds assent.

Money Bill

According to Article 110 of the Indian Constitution, a bill can be defined as a money bill if it
deals with imposition, abolition, alteration or regulation of any taxes and such bills can only be
introduced in the Lok Sabha and only by a member having a ministerial portfolio.
It can only be introduced on the recommendation of the president. Also, it requires certification
of the Lok Sabha Speaker, when transferred to the Rajya Sabha. If this bill is defeated in the
Lok Sabha, the entire cabinet has to resign, and also, it can’t be returned for review by the
President.

Financial Bills

Financial bills are quite similar to those of Money bills.

To understand what a Financial bill is, we may assert that any such bill which carries some of
the provisions of Article 110 of the Indian Constitution relating to expenditure and taxation is a
financial bill. Such bills are introduced only in Lok Sabha on the recommendation of the
President and it needs to be passed in both the houses.

Now, the question which arises is what are the differences between a Money Bill and a
Financial Bill? To understand easily, we may say that Money Bills are a kind of subset of
Financial Bills, i.e. all the Money Bills are Financial bills but the same is not true vice-versa.

The distinction between Money Bills, Financial Bills and Bills involving expenditures

The major difference between a Money Bill and a Financial Bill is that Rajya Sabha can’t
amend the Money bill but this is not the case with the Financial Bills.

Also, a Money Bill strictly deals only with the provisions as laid down in Article 110 of the
Indian Constitution while a Financial bill can also cover other provisions than taxation and
expenditure.

A Money bill needs certification from the Speaker of the Lower House, while a Financial
Bill doesn’t need any such certification.
Annual Financial Statement (Budget)

The Annual Financial Statement or as often called, budget is an important document

dealing with the finances of a nation. Provisions relating to Budget are discussed in Article
112 of the Indian Constitution. The budget is presented in such a way that expenditure and
receipts regarding fiscal and deficits of the current year, the previous year and the year for
which budget is presented. The Annual Financial Statement consists of three parts i.e
Consolidated fund of India, Public Account of India and Contingency Fund of India. It also
includes an account of loans advanced by the government or the loans to be recovered by it
including borrowing from Reserve Bank of India.

Discussion and voting on Budget

So, after a budget is proposed by the Finance Minister, it is followed by Extensive

discussion in the house and lastly, voting is done. The voting is done on the Demands of
Grants. Now, what are the Demands of Grants? Demands of Grants basically mean
expected spending by a particular department or ministry. Now after this voting is done,
the parliament happens to be in recess. After the recess is over, then all the standing
committees submit their respect reports followed by discussion and voting. This is all how
discussion and voting are done during the tabling of the budget in the budget session of
parliament.

Parliamentary Control over Financial Matters

Financial matters in India are largely controlled by the Parliament. This control includes
control over revenue matters and expenditure related issues.

As stated in the Constitution in Article 265, no tax can be collected or levied by the
executive authorities without any law supporting it. So, if tax is imposed upon anyone
without having legislative backing, then the person can go to court for redressal.
As Parliament holds control over the Consolidated Fund of India, its control over the
expenditure is pivotal. As the Consolidated fund of India is the reservoir of all the expenses
and finances of India, the parliament thus exerts full control over expenditure.

Language to be used in Parliament

The official languages of India can be used in the Parliament of India, i.e. Hindi and
English.

Article 343 of the Indian Constitution provides for the official language of India. However,
the members can use any of the scheduled languages while in discussion or
debate.

Restriction on discussion in Parliament

To keep the doctrine of Separation of Power intact, the Constitution of India forbids the
Parliament to legislate and discuss certain matters.

Article 121 discusses these provisions. This includes any discussion regarding the conduct
of the judges of the Supreme Court or judges of any of the High Courts. However, the
discussion can happen in the question of the impeachment of a judge.

Courts not to inquire into proceedings of Parliament

This may be seen as vice-versa provision of Article 121. Article 122 of the Constitution
provides for the provision that the courts can not inquire into the proceedings of the
legislation. Also, any officer or member of the Parliament while exercising his powers
endowed upon him/her by parliament is not subject to the jurisdiction of any of the Courts.
The Comptroller and Auditor-General of India ( article 148 -151)

In the words of the architect of the Indian Constitution, Dr.B.R. Ambedkar, the
Comptroller and Auditor-General of India is one of the most important officers which the
Constitution provides for as he/she looks after finances and expenditure by the Parliament.

CAG of India is not accountable towards anyone but the public as he/she looks after the
public purse of the nation.

Article 148 of the Constitution talks about the appointment of CAG and its oath. He/she
also derives authority from The Comptroller and Auditor General’s (Duties, Powers and
Conditions of Service) Act, 1971.

Duties and Powers of CAG

The major duties and functions of the CAG, according to the Indian Constitution are:

• All the accounts of Union Government and State Governments come under the
ambit of Audit by the CAG.
• All the expenditures from the Contingency Fund and the Public Account are
also audited by the CAG.
• CAG also audits all the expenditures and receipts by all the Government
authorities and Undertakings.
• CAG can also audit account of the local bodies on request of the President or the
Governor.
• CAG also acts as a guide to the Public Accounts Committee in Parliament.
POWERS AND FUNCTIONS OF COUNCIL MNISTER IN INDIA

Introduction

There is a Council of Ministers headed by the Prime Minister to aid and advise the
President in exercise of his functions. The Prime Minister is appointed by the President,
who also appoints other ministers on the advice of Prime Minister. The Council is
collectively responsible to the Lok Sabha.

Article 74 of the Constitution of India provides for the real executive i.e. the Union
Council of Ministers with the Prime Minister as its head. Theoretically the Council of
Ministers and Prime Minister are to aid and advise the President in the exercise of his
powers. However in actual practice, in reality all powers of the President are used by the
PM and his ministry… The President is bound by the advice of the PM and his Council of
Ministers.

Organisation of the Council of Ministers

Art. 75 of the Constitution lays down following basic rules regarding the organisation

of the Union Council of Ministers:

(a) The Prime Minister is appointed by the President. All other ministers are appointed by

the President upon the advice of the Prime Minister.

(b) The ministers hold office during the pleasure of the President.

(c) The Council of Ministers is collectively responsible to the House of the People (Lok

Sabha).

(d) Before a minister takes over his office, the President administers to him the oath of

office and secrecy.

(e) The salaries and allowances of ministers are such as the Parliament determines by law.
Process of Formation of the Union Council of Ministers:

The process of formation of the Council of Ministers begins with the appointment of the

Prime Minister by the President. After the election of each new Lok Sabha, the President
appoints the leader of the majority in Lok Sabha, as the Prime Minister.

After his appointment, the Prime Minister prepares the list of the persons whom he

recommends for appointment as ministers. The President appoints all other ministers upon

his recommendation. The President always accepts the advice of the Prime Minister.

Further, acting upon the advice of the Prime Minister, the President distributes portfolios

among the ministers. The Prime Minister is the sole judge to decide who shall be a

minister? Which portfolio a minister will hold? and Who will be a Cabinet Minister, or a

Minister of State or a Deputy Minister ?

The Constitution gives a free hand to the Prime Minister to constitute the Council

Ministers. Normally only a member of either House of the Parliament is appointed as a

minister. However, the Prime Minister can also appoint a non-member as a minister, but

such a minister has to get the membership of either house, (through an election or a

nomination) within six months of his appointment. In case of failure to do so within 6

months, the concerned minister has to quit his minister-ship after the expiry of six months.

Size and Composition of the Council of Ministers

To begin with there was no formal rule regarding the size of the Council of Ministers. The

decision in this respect used to rest with the Prime Minister. But now the number of

ministers cannot be more than 15% of the total membership of the Lok Sabha. It now a

clear rule.
(iii) Categories of Ministers:

(a) Cabinet Ministers:

Their number is between 15- 20. They are important ministers hold key portfolios. They

constitute the Cabinet i.e. the powerful policymaking and decision-making part of the

Council of Ministers.

(b) Ministers of State:

They constitute the second category of ministers. They are not the members of the Cabinet.

A minister of state either holds an independent charge of a small department or is attached

to a Cabinet Minister. While some departments like Home, External Affairs, Defence,

Finance, Agriculture have 2 or 3 Ministers of State, the departments like Civil Aviation,

Information and Broadcasting, Labour Welfare, Surface Transport and Textiles; each is

headed by a Minister of State.

(c) Deputy Ministers:

They are helping ministers attached to the Cabinet Ministers or the Ministers of State. No

Deputy Minister holds an independent charge of any department. The present Union

Council of Ministers has no Deputy Minister as its member.

Parliamentary Secretaries:

They are neither minister nor are they assigned any administrative work. Their sole

function is to help the ministers in the Parliament. They do not draw any salary.

Office of Deputy Prime Minister:

The Constitution does not provide for the office of the Deputy Prime Minister. As such it is

the sweet will of the Prime Minister to have or not to have a Deputy Prime Minister in his

Council of Ministers. In 2002 P.M. Vajpayee decided to make Mr. L.K. Advani as Deputy

Prime Minister. However in 2004 and again in 2009 PM Manmohan Singh decided not to
have a deputy prime minister in his cabinet.
Term of Office:

Theoretically ministers hold office during the pleasure of the President. It really means so

long as they continue to enjoy the confidence of the majority in the Lok Sabha. The Prime

Minister can, at any time demand a resignation from any minister and the latter has to

comply.

Prime Minister can recommend to the President the dismissal of any minister and the

President always acts upon his advice. The resignation of the Prime Minister means the

resignation of the entire Council of Ministers.

Thus, the tenure of the ministry or a minister is not fixed. A ministry/each minister remains

in office so long as it enjoys the confidence of the majority in Lok Sabha, or so long as the

Prime Minister does not resign. The maximum term for which a ministry can remain in

office in 5 years, i.e., for one full term of the Lok Sabha. After every new general election

to the Lok Sabha, a new ministry has to be constituted even if the same party which

enjoyed the majority in the previous Lok Sabha, may return with a majority in the new Lok

Sabha.

Oath of Office and Secrecy:

Every new minister has to undertake the Oath of Office and Secrecy before entering into

his office. The oath is administered to him by the President of India.

Committees of the Cabinet:

The Cabinet carries out its work through its several Standing Committees— Political

Affairs Committee, Defence Committee, Planning Committee, Economic Policy

Committee, Foreign Affairs Committee, Parliamentary Affairs Committee and some other

such committees. The Prime Minister heads some of these committees, while others are

headed by some senior ministers.

These committees help the Cabinet in its task of policy-making. Now Prime Minister’s

Office (PMO) works as a coordinating office. It coordinates the working of all other

ministries. PMO is now a centre of power and importance.

Powers of the Union Council of Ministers:

(a) Executive Powers:

(i) Real Executive:
The Council of Ministers is the real executive. All executive powers of the

President of India are really used by the Council of Ministers.

(ii) Policy-Making:

The Cabinet formulates the policies which are to be submitted to the Parliament for

approval. It gets these policies approved from the Parliament and then implements

these. It runs the administration of the Union in accordance with the approved

policies. The Cabinet/ PM coordinate and control the working of all departments of

the government. The Cabinet formulates the foreign policy as well as all domestic

policies deemed necessary for all round development of the country.

(iii) Running of Administration:

The Cabinet runs the administration in accordance with the laws and policies. It has

the responsibility to maintain law and order in the country. Every minister heads

one or more departments. It is under his headship that the administration of a

department is run. The day to day decisions are taken by the departments in

accordance with the policies of the Cabinet.

(iv) Functions during as Emergency:

The exercise of Emergency Powers by the President is always done in accordance with the

advice of the Prime Minister and his Council of Ministers. The President can declare an

emergency only under the advice of the Cabinet. He takes all steps for meeting the

emergency in accordance with the advice of the Prime Minister and his Council of
Ministers. The real responsibility to meet an emergency is of the Cabinet.
(v) Appointment-Making Powers:

The President makes all the higher appointments—Governors, Ambassadors, Envoys, High

Commissioners, Consuls, Judges of the Supreme Court and High Courts, Military

Commanders, members of UPSC, Election Commission, Planning Commission and others,

in accordance with the advice of the prime Minister and the Cabinet.

(vi) Treaty-Making and Defence Functions: All treaties and other international

agreements are negotiated and signed by the ministers on behalf of the President. To

prepare for the defence of the country through the organisation and modernisation of the

Army, Air Force and Navy, and by formulating a suitable defence and nuclear policy, is a

fundamental function of the Cabinet. Thus the Council of Ministers exercises real

executive powers. In its working, it is dominated by the Prime Minister and the Cabinet.

Legislative Powers:

Though the legislative powers of the Union are in the hands of the Parliament, the Council

of Ministers plays an important role in the sphere of legislation. The ministers are both the

heads of government departments as well as members of the Parliament. They take full and

active part in the working of the Parliament.

Most of the bills are introduced and piloted by them. 95 % of the time of the Parliament is

utilized for handling governmental business, which is managed by the ministers. A bill not

supported by the Council of Ministers cannot get passed from the Parliament because the

ministry enjoys the support of the majority in Parliament.

If the Lok Sabha either passes a bill not supported by the Council of Ministers or rejects a

bill supported by it, or rejects the budget of the Cabinet, it is taken to be a vote of no-

confidence against the government and the entire Council of Ministers resigns. While

doing so the Prime Minister/Cabinet can advice the President to dissolve the Lok Sabha,
Financial Powers:

The Parliament is the custodian of national finances. However, the Cabinet plays a leading

role in this sphere also. The budget is prepared by the Cabinet. It lays down the fiscal

policies of the government. The Cabinet gets the budget passed from the Parliament. The

Cabinet runs the financial administration in accordance with the provisions of the budget as

passed by the Parliament.

All proposals for additional taxes come from the Cabinet. Money Bills can be introduced

only in the Lok Sabha and only by the ministers. The Parliament can modify financial bills

but only with the consent of the Cabinet. Any action of the Parliament against the wishes

of the Cabinet amounts to a vote of no-confidence against the Government. Such a

situation, however, arises only when the ministry loses the support of the majority.

Normally, the Cabinet is in a position to get its wishes accepted by the Parliament.

Position of the Union Council of Ministers:

The above account of the powers and functions of the Council of Ministers reveals the

strong and central position that it occupies as the real and powerful executive in the Indian

political system. All the powers of the President of India are really exercised by the

Council of Ministers.

Within the Council of Ministers, the Cabinet is the most powerful body. It is the central

institution which uses all these powers. The Cabinet directs, supervises and controls the

formulation of national policies and the running of the administration.

As the maker of all policies, the director of administration and the supreme coordinator of

government activity, the Cabinet enjoys an enviable position. It is indeed the steering

wheel of the ship of the state. It is the centre of power and the most powerful institution of

the Indian political system.

1. The main function of the Council of the Ministers is to aid and advice the President.

2. The Council of Ministers determines the legislative programme of the Union and uses its

initiative in the introduction and passage of Government legislation.

3. The Council of Ministers prepares the budget of the Union Government and moves

demand for grants.

4. The foreign policy of India is formulated by the Council of Ministers and the emergency

powers of the President are mostly exercised by the Ministers.

Collective Responsibilities of the Council of Ministers

“The principle of collective responsibility may be regarded as fundamental to the working

of a parliamentary government, as it is in the solidarity its main strength lies.” The
underlying principle behind the collective responsibility of the Council of Ministers is that
it should be responsible as a body for general conduct of the affairs of the government. The
term “collective” means that all ministers in the Council of Ministers should swim or sink
together or stand and fall together. Collective responsibility envisages that each minister in
the entire government assumes responsibility for the cabinet decision and action taken to
implement the same.

The policies, programmes or any other schemes of the cabinet have to be supported by
each minister till they are a part of such cabinet. There can be no room for any difference
of opinion with respect to any decision taken by the cabinet whether inside or outside the
legislature. The principle of collective responsibility not at all means that every minister
must take an active participation in the formulation of policy, or that he should be present
in the committee room whenever the decision is taken because it is not possible in today’s
time as the size of the cabinet are very large. It just means, in the words of the Supreme
Court of India, the principle of collective responsibility is that “for every decision is taken
by the cabinet, each one of the ministers is responsible to the legislature concerned.”

Further the principle of collective responsibility is both salutary and necessary, and can be
seen with the help of few case laws: Firstly in the case of SP Anand v. HD Dev Gowda, it
was held that “once a Prime Minister is appointed, he is also a minister and collectively
responsible to the house as the Council of Ministers.” Further Gujarat High Court
described the collective responsibility as follows: “collective responsibility means all
Ministers share collective responsibility for every decision taken whether they have
dissented or not to such decisions. It means that their decisions must have unanimity and
confidentiality.” Now if we look at the term confidentiality it takes us to the idea of secrecy
which means that all the decision taken or the deliberations discussed in the cabinet
meeting must not be disclosed in the public and should remain only with the Council of
Ministers because if the dissents or deliberation are presented in the public, it becomes a
threat to both, the government and the nation. Thirdly the Supreme Court held in another
case that “all the ministers in the Council should exhibit unanimity in their decision even if
they might have expressed a different view in the meeting of the cabinet.”

So does this mean that individual opinions or dissents can never be expressed or put
forward? The answer to the question is itself in a dissent because a minister can oppose or
dissent to any policy or programme of the government but for doing the same, he must
have to resign from the cabinet, as he cannot both remain a minister and simultaneously
criticize a cabinet decision. This provision has been entailed to prevent the essence of
democracy and the people’s faith in the government because if each minister is allowed to
dissent publically then the faith of the people in the elected government will fall and
eventually the government will lose majority in the Lok Sabha and owing to this reason
there will be no government in the long run. In the past there have been numerous
instances where ministers have resigned from the cabinet to criticize a particular
government policy like John Maithi resigned as the Finance Minister to oppose the
government policy.

If the newly formed Council fails to establish the majority support then the previous
Council of Ministers will continue until a new government is formed. No confidence
motion has been initiated against many governments like the Nehru Government, Lal
Bahadur Shastri’s Government and many others but the only two occasions where no
confidence motion was successful was against the Morarji Desai Government and
Vajpayee’s Government. Therefore, showing that the want of confidence in the Lok Sabha
is necessary for any government to survive.

Now looking at the above discussion the conclusion that can be drawn is that the Council
of Ministers are collectively responsible to the Lok Sabha and must maintain a majority in
the House of People to be in the power and do not hold office only at the whims and
fancies of the President. The Council of Ministers with the Prime Minister is indispensable.
However if the ministers were holding office at the pleasure of the President it would have
been an undemocratic process.
Individual Responsibility of Ministers

The principle of collective responsibility emphasizes that every decision should be taken
unanimously among the Council of Ministers but it is not possible in today’s time as
among the Council of Ministers, each minister has a different portfolio and the exigencies
of that portfolio can lead to individual decisions. The decisions so taken are not under the
head of collective responsibility of the Council of Ministers but under the individual
responsibility of that minister.

Article 77(3) envisages that there should be a distribution of business among the ministers.
Therefore along with the principle of collective responsibility, the principle of individual
responsibility of ministers should also be there as it is more positive in character that every
minister should be personally accountable for his action to the legislature. The positive
liability of each minister is essential if the parliament is to effectively perform its role of
criticizing the executive.

The concept of individual responsibility has been very explicitly spelt out by the Supreme
Court in the case of Secretary, Jaipur Development Authority v. Daulat Mal Jain that
“each minister is personally and collectively responsible for the action, acts and policies.
He is accountable and answerable to the people. The legal and the moral responsibility or
liability for the acts done or omissions, duties performed and policy laid down rest solely
on the minister of the department. Accordingly, he is indictable for his conduct or omission
or misconduct or misappropriation”. But when a particular minister is under fire in
Parliament the principle of collective responsibility ensures that other ministers should
come to his rescue or defend his action.

Ordinarily the support of the Council for such ministers depends upon the exigencies of the
situation. On some occasions cabinet may feel bound to back a minister but there are
instances, when the cabinet has decided to throw the offending Minister off because to
accept full responsibility for such an offending act may cost the downfall of the entire
government. And the most outstanding example of a minister going out instead of the
Council of Ministers is that of Krishna Menon who resigned as the Defense Minister
because of the debacle of the Indian Arms during the Indo-China war in 1962. Another
instance was when K D Malviya resigned after an enquiry commission was set up against
him by the Supreme Court and the charges to be investigated were of corruption and
misfeasance.

Prima facie, it may seem that it depends upon the situation that the Council will support
such individual ministers or not but the truth is somewhat different. The truth in reality is
that it is the choice of the Prime Minister to decide whether he will drop a particular
minister or not because of criticism against him in the parliament. “It appears to be most
unlikely today that the House could force a Prime Minister to remove an individual
Minister from his office until the Prime Minister has seized confidence in him”. Therefore
the removal of an individual minister is entirely based on the confidence that he enjoys
from his co-ministers.

Now after discussing individual and collective responsibility, one thing is quite evident that
the Council of Minister owes a collective responsibility for every decision taken by the
Cabinet but should not be allowed to suffer for any illegal or immoral act committed by
any of the Individual Ministers. The responsibility of such an act should only be taken by
that Individual Minister.

Non-Justiciability of Cabinet Advice

The next question is with respect to the scope of article 74(2) which restrains the courts
from embarking an inquiry as to the nature of cabinet advice provided. This article deals
with the judicial review on the cabinet advice and protects and preserves the secrecy of the
deliberations between the President and his Council of Ministers. Its scope is limited. It
does not immunize orders and acts done by the President in exercise of his functions.

The Supreme Court has clarified the implications of Art. 74(2) in S.R. Bommai v. Union
of India. No court is concerned with what advice was tendered by the Minister to the
President. The court is only concerned with the validity of the order and not with what
happened in the inner councils of the President and the Minister. An order cannot be
challenged on the ground that it is not in accordance with the advice tendered by the
Minister or that it is based on no advice. If, in a given case, the President acts without, or
contrary to, the advice tendered to him, it may be a case warranting his impeachment, but
so far as the court is concerned, it is the act of the President. Article 74(2) protects the
secrecy of the deliberations between the President and his Council of Ministers.

The Court disagreed in this respect with the reasoning of its own earlier decision in State
of Rajasthan v. Union of India. The view expressed in Bommai’s case was affirmed and
extended in Rameshwar Prasad v. Union of India And the views to the contrary in State
of Rajasthan v. Union of India, were held to be no longer the law.

The Position of Prime Minister

Introduction

The prime minister is the senior-most member of cabinet in the executive of government
in a parliamentary system. The prime minister selects and can dismiss members of the
cabinet; allocates posts to members within the government; and is the presiding member
and chairperson of the cabinet.

The office of the Prime Minister is the most powerful office in India. If Cabinet is the
strongest institution, the Prime Minister is the strongest person in the cabinet under the
Constitution of India, the real centre of power is the office of the Prime Minister. He is the
Head of the Government of India. He is the real custodian of all executive authority.

The Constitution simply lays down that the Prime Minister is to be appointed by the

President. In doing so the President follows the rules of the parliamentary system. He

appoints the leader of the majority in the Lok Sabha as the Prime Minister. Whenever a

party gets a clear majority in Lok Sabha elections, the President plays a little role and he

appoints the leader of such a party or a coalition group as the Prime Minister. However, in

case no party gets a majority and some parties are even unable to elect a common candidate

as their leader, the President can play a real role in the appointment of the Prime Minister.
Prime Minister need not be always from Lok Sabha:

Between 1950-96 the Prime Ministers always belonged to the Lok Sabha. But it was a

convention and not a law. This convention was broken in June 1996, April 1997, May 2004

and May 2009. Since May 2004 (for the second consecutive time since May 2009) Dr

Manmohan Singh has been the Prime Minster and that time he was a member of the Rajya

Sabha. Thus the convention that Prime Minister always belongs to Lok Sabha now stands

broken. The Prime Minister can be from either House of the Parliament. The only essential

condition is that he must be the adopted or elected leader of majority in the Lok Sabha.

No Formal Qualifications:

The Constitution lays down no formal qualifications for the office of the Prime Minister.

Since no person who is not a member or cannot become a member of the Parliament can be

appointed as the Prime Minister, it can be said that the qualifications essential for the

membership of the Parliament are also the essential qualifications for the office of the
Prime Minister.

Powers and Functions of the Prime Minister:

1. Formation of the Council of Ministers:

The task of formation of the ministry begins with the appointment of the Prime Minister by

the President. After the appointment of Prime Minister, the President appoints all other

ministers on the advice of the Prime Minister. The PM determines the strength of his

ministry and selects his team of ministers. However this number cannot be more than 15%

of the total membership of the Lok Sabha.

2. Allocation of Portfolios:

It is an undisputed privilege of the Prime Minister to allocate portfolios to his ministers.

Which particular department is to be given to which minister is determined by him. Any

minister objecting to such an allotment invites the wrath of the Prime Minister and can get

completely ignored from the ministry.

3. Change of Portfolios: The Prime Minister has the power to change the

departments (portfolios) of the ministers at any time. It is his privilege to shuffle

and re-shuffle his ministry any time and as many times as he may like.

4. Chairman of the Cabinet:

The Prime Minister is the leader of the Cabinet. He presides over its meetings. He decides

the agenda of its meetings. In fact all matters in the Cabinet are decided with the approval

and consent of the Prime Minister. It is up to him to accept or reject proposals for

discussions in the Cabinet. All ministers conform to his views and policies. There is scope

for deliberations and discussions but not for opposition.

5. Removal of Ministers: The Prime Minister can demand resignation from any minister

at any time, and the latter has to accept the wishes of the former. However, if any minister

may fail to resign, the Prime Minister can get him dismissed from the President. In April

2010 Mr. Shashi Throor had to submit his resignation because PM Manmohan Singh had

asked him to do so.

6. Chief Link between the President and the Cabinet:

The Prime Minister is the main channel of communication between the President and the

Cabinet. He communicates to the President all decisions of the Cabinet, and puts before the

Cabinet the views of the Presidsent. This is the sole privilege of the Prime Minister and no

other minister can, of his own convey the decisions or reveal to the President the nature or

summary of the issues discussed in the Cabinet.

7. Chief Coordinator: The Prime Minister acts as the general manager of the state and the

chief coordinator. It is his responsibility to co-ordinate the activities of all the departments

and to secure co-operation amongst all government departments. He resolves all

differences, among the ministers.

8. Leader of the Parliament:

As the leader of the majority in the Lok Sabha, the Prime Minister is also the leader of the

Parliament. In this capacity, it is the PM who, in consultation with the Speaker of this Lok

Sabha, decides the agenda of the House. The summoning and the proroguing of Parliament

is in fact decided by him and the President only acts upon his advice.

9. Power to get the Parliament Dissolved:

The Prime Minister has the power to advise the President in favour of a dissolution of the

Lok Sabha. This power of dissolution really means that the members hold their seats in the

House at the mercy of the Prime Minister.

No member likes to contest frequent elections as these involve huge expenditures and

uncertainties. It has been rightly remarked that this is such an important weapon in the

hands of the Prime Minister that it binds his party men, and even the members of

opposition.

10. Director of Foreign Affairs:

As the powerful and real head of the government, the Prime Minister always plays a key

role in determining Indian foreign policy and relations with other countries. He may or

may not hold the portfolio of foreign affairs but he always influences all foreign policy

decisions.
11. Role as the Leader of the Nation:

Besides being the leader of his party and the Lok Sabha, Prime Minister is also the leader

of the nation. General elections are fought in his name. We know that it was the

charismatic and charming personality of Pt. Nehru that used to sweep popular votes in

favour of the Congress party. The personality of the Prime Minister and the respect and

love, that he commands act as a source of strength for his party as well as the nation. He

leads the nation both in times of peace and war.

12. Power of Patronage:

All important appointments are really made by the Prime Minister. These appointments

include Governors, Attorney-General, Auditor General, Members and Chairman of Public

Service Commission, Ambassadors, Consular etc. All high ranking appointments and

promotions are made by the President with the advice of the Prime Minister.

13. Role of Prime Minister during an Emergency:

The emergency powers of the President are in reality the powers of the Prime Minister. The

President declares an emergency only under the advice of the Cabinet, which in reality

means the advice of the Prime Minister. All decisions taken to meet an emergency are

really the decisions of the Prime Minister.

The Prime Minister can get the imposition of President’s rule in a State. The Presidential

decision in favour of imposing an emergency in a state is always governed by the decision

of the Prime Minister and his Cabinet.

Position of the Prime Minister:

(a) The office of PM is very powerful:

A study of the powers and functions of the Prime Minister clearly brings out the fact that

he holds the most powerful office in the Indian. He exercises real and formidable powers in
all spheres of governmental activity—executive, legislative and financial. The Prime
Minister is the captain of the ship of state, the key stone of cabinet arch, the steering wheel

of government, and the moon amongst lesser stars.

The whole organisation and working of the Council of Ministers depend upon the Prime

Minister. The President always acts in accordance with the advice of the Prime Minister.

The ministry-making is the sole right of the Prime Minister. The resignation or removal of

the Prime Minister always means the resignation of the Council of Ministers. Hence, Prime
Minister is the centre of gravity and the foundation stone of the Council of Ministers.

(b) The President of India always acts upon the advice of the PM:

The President always acts upon the advice of the Prime Minister. The constitution assigns

to the latter the role of being the chief advisor to the President. All the powers of the

President, both the normal powers and the emergency powers, are really the powers of the

Prime Minister.

As the head of the government, leader of the Cabinet, leader of the majority, leader of the

Parliament and the leader of the nation, the Prime Minister plays an important an powerful

role in the Indian Political System. Indeed the Prime Minister occupies a very powerful

rather the most powerful position in India.

(c) The PM cannot become a dictator:

Undoubtedly, the Prime Minister of India enjoys a very strong position, yet he can neither

be a dictator nor even behave like a dictator. His office is a democratic office to which he

rises only through an effective participation in the democratic process.

The party to which the Prime Minister belongs, his own ministerial colleagues who are also

his competitors, the leaders of the opposition parties, the President of India, the Parliament,

the Press, the Constitution, and the public in general, all act as limitations upon him. These

prevent him from becoming a dictator and from acting in an arbitrary way. His personality

and skills are continuously on test. Any failure or lapse can cause his exit.
The office of the Prime Minister of India is a powerful democratic office. Its actual

working depends upon the personal qualities and political status of the person who holds

this office. However no one can convert his office into an authoritarian or dictatorial office.

A person can remain Prime Minister only so long as he follows democratic norms and

values.

******************************************************

References

1.:(https://www.yourarticlelibrary.com/political-science/prime-minister-of-india-power-

and-position-of-the-prime-minister/40355)

2. Professional’s Constitutionalof India

3. M.P/Jain ‘Indian Constitutional law”

 Position of the Chief Minister in States

Introduction

At the state level, the chief minister though selected as leader of the majority party in the

state legislature works with his team of ministers under the formal frame of ‘Governor’s

government’.

The chief minister and his council of ministers should enjoy the confidence of the state

legislature which implies several kinds of relationships of the chief minister with the

Governor, the council of ministers and the state legislative assembly.

Constitutionally speaking, the chief minister is the principal channel of communication

between the Governor and the council of ministers (Article 167). He makes it imperative

for the chief minister to communicate to the Governor all decisions of the council of

ministers relating to administration of the affairs of the state and proposals for legislation.

He must furnish such information relating to state administration and proposals for

legislation as the Governor may call for.

The Chief Minister is appointed by the governor. Art.164 of the Constitution provides that

there shall be a Council of Ministers with the Chief Minister at its hand to aid and advise

the governor.

Once the election to the Legislative Assembly is over the task of forming the government

begins. The party with the majority in the Legislative Assembly (Vidhan Sabha) is entitled
to form the government. It is upon his recommendation that ministers are appointed.

However, some of the important powers and functions of the Chief Minister are as under

Powers and Functions of the Chief Minister:

The Chief Minister holds a pivotal position in the working of the State Government. He has

enormous powers and vast responsibilities.

1. To Aid and Advice the Governor:

The Chief Minister is the link between the Cabinet and the Governor. It is he who

communicates to the Governor all decisions of the Council of Ministers. He has to furnish

such information relating to the administration of the State as the Governor may call for.

The Governor can submit to the consideration of the Council of Ministers any matter on

which decision has been taken by a Minister but which has not been considered by the

Council of Ministers.

The Governor appoints a large number of top officials of the State. He also summons and

prorogues the sessions of State Legislature. All such powers are exercised by the Governor

on the advice of the Chief Minister. The Chief Minister, however, has no right to give

advice to the Governor in relation to the functions which he exercises in his discretion.

2. The Chief Minister is at the Head of the Council of Ministers:

As Head of the State Cabinet, the Chief Minister enjoys the following powers:

(i) Formation of the Ministry:

The other Ministers are appointed by the Governor on the advice of the Chief Minister. The

Chief Minister has a free hand in preparing the list of his colleagues. The Governor may
suggest the names of the persons to be included in the Ministry, but he cannot insist upon
any person to be included in the Ministry. Assigning departments or portfolios to the

Ministers is done by the Governor on the advice of the Chief Minister.

(ii) Removal of Ministers:

The Ministers hold office during the pleasure of the Governor. This, however, does not

mean that the Governor can dismiss his Ministers at his will. The Government is in fact

dependent on the Chief Minister. Therefore, the Chief Minister can reconstruct his Ministry

as and when he likes. He may ask anyone of his colleagues to resign. If he declines, he will

be dismissed by the Governor.

(iii) The Chief Minister Presides over the Meetings:

As Chairman of the Cabinet, the Chief Minister has a position which enables him to

impose his decision. It ‘is he who controls the agenda for the Cabinet meetings. It is for the

Chief Minister to accept or reject proposals for Cabinet discussion.

iv) Co-ordinates the Working of various Departments:

The Chief Minister supervises and coordinates policies of the several Ministers and

Departments. Several ministries are involved in the formulation and implementation of a

policy.

The Chief Minister must bring these activities into reasonable relationship with one-

another. In matters of public order, roads and bridges agriculture, land revenue and

production, supply and distribution of goods, he plays a special role in directing the policy

of the Government.

3. The Chief Minister is the Leader of the House:

The Chief Minister is the leader of the State Legislative Assembly. All principal

announcements of policy are made by him. The Chief Minister intervenes in debates of

general importance. He can appease an angry House by promising immediate relief or

concessions when needed.

Position of the Chief Minister:

The Chief Minister’s position is pre-eminent in the State governmental system. In practice,

his position will be imposing only when his party commands a clear majority in the State
Legislature.

When it is a coalition government, it becomes difficult to safeguard the principle of

collective responsibility also. Much of the time and energy of the Chief Minister will, in
that case, be wasted on keeping his team united and sufficiently disciplined.

Other than this the CM has the following important powers; 1. The activities of all ministers are

coordinated, guided and controlled by the chief minister. 2. The meetings of the council of

ministers are presided by him 3. He influences the decision of the council of ministers. 4. He can

ask the governor to dismiss any minister or he can ask a minister to resign. 5. If the chief minister

resigns that the government also collapses.

Under Article 167 of our constitution:

The Chief Minister acts as a link between Governor and state council of ministers. The
functions with respect to the Governor are as follows:
1). CM has to communicate to the Governor all the decisions of the council of ministers
relating to the administration of the states.
2). Whenever the Governor calls for any information relating to the decisions taken or
regarding the administration, the CM has to provide him the same
3). The Governor can ask for consideration of council of ministers when a decision has
been taken without the consideration of the cabinet.
4). CM advises Governor regarding the appointment of important officials like Attorney
General, State Public Service Commission (Chairman and Members), State Election
commission.
6) All the policies are announced by him on the floor of the house.
7) He recommends dissolution of legislative assembly to the Governor.
8) He advises the Governor regarding summoning, proroguing the sessions of
State Legislative Assembly from time to time.

State Legislature
Introduction
A state legislature is a legislative branch or body of a political subdivision in a federal
system. Two federations literally use the term "state legislature": Chapter III of Part VI of
the Constitution is concerned with the State Legislature. It comprises state legislature and
executives. This topic is an important concept in polity . Articles 168 to 212 in Part VI of
the Constitution deal with the organisation, composition, duration, officers, procedures,
privileges, powers and so on of the state legislature.

Composition of the House

Art 170 of the Indian Constitution talks about the configuration of the Legislative

Assemblies. This Article simply put emphasis on what will be the structure of the

Legislative Assemblies in the state. On the other hand, the configuration of the Legislative

Council is given in Article 171 of the Indian Constitution.

Legislative Assembly (Vidhan Sabha)

According to Article 170, there should be a Legislative Assembly in every State of India.
However, these assemblies should be according to the provisions of Article 333 of the
Indian Constitution. The Legislative Assembly of state can have at most 500 constituencies
and at least 60 constituencies. These constituencies would be represented by the members
who would be selected through the process of direct election. However, the division of
territorial constituencies would be determined in such a manner that it becomes dependent
on the population of that constituency. Here by the term “ population” we mean population
which has been published in the precedent census. The composition of the Legislative
Assembly in any state can change according to the change in the population of that state. It
is determined by the census of population. However, there are several exceptions to the
composition of the Legislative Assembly. Let’s take the example of Mizoram, Sikkim, and
Goa which has less than 60 constituencies.

The tenure or duration of the Legislative Assembly is mentioned in Article 172 of the
Indian Constitution. The Legislative Assembly should work for a time period of five years.
Its tenure starts from the day of its first meeting. However, it can be dissolved earlier by
the special procedure established by the law. However, there can be an extension in the
tenure of the Legislative Assembly. This can be done during the National Emergency.
During the period of the National Emergency, the Parliament can extend the tenure of the
Legislative Assembly for a period of maximum one year. Also, this extension should not
be more than six months after the proclamation has ceased to operate.

Legislative Council (Vidhan Parishad)

The composition of the Legislative Council is given in Article 171 of the Indian
Constitution. The total members in the Legislative Council should not exceed one-third of
the total members in the state Legislative Assembly. There is another criteria for the
composition of the Legislative Council. The member in the Legislative Council should not
be less than 40 in any case. There is an exception in the composition of Vidhan Parishad.
The Legislative Council of Jammu and Kashmir has only 36 Member in Legislative
Council, unlike the other Legislative Council.

The composition of the Legislative Council can be further divided in the following way:

• One-third of the members of the Legislative Council should be elected from the
district boards, municipalities and other local authorities which is specified by
the Parliament according to law.
 • One-twelfth of its members shall be elected from the person who has been
residing in the same state for the time period of at least three years and
graduated from the university which is in the territory of India.
• One- twelfth of its total member should be elected from the person who is
engaged in the teaching profession for at least three years in the educational
institution of the state itself.
• One third should be elected by Legislative Assemblies and none of them should
be a member of the Legislative Assembly.

• The remainder of the members should be nominated by the Governor according

to the established law.

Qualifications of Membership

The qualification of membership is given in Article 173 of the Indian Constitution.

For the membership or for filling a seat in the legislature of the State, a person must
be a citizen of India. A person will not be granted membership if he/ she is not a
citizen of that country. Also, the qualification of the membership is somewhat
similar to the qualification to the membership of the center legislature. The member
of the Legislative Assembly should be more than 25 years. For being a member of
the Legislative Council one should be more than 30 years. Also, a necessary
condition for being a member of legislatures includes that he/she must be a voter
from any of the constituencies of the state.

Disqualifications of Membership

After being elected/ nominated as a member of the legislature, one cannot be a permanent
member of the legislature. There are certain reasons mentioned in the Constitution by
which a person may be disqualified from his/her membership to the Legislature. Article
191 talks about the disqualification of the members of the Legislature.

Disqualification of MLA/ MLC can be made on the following grounds:

 1. If one holds the office of profit under the state or central government.
2. If one is of unsound mind and is declared so by the competent court.
3. If one is an undischarged insolvent.
4. If one is not a citizen of the country anymore or when he/ she voluntarily took
the citizenship of another country.
5. If one is disqualified by the law of the Parliament. Example- Anti defection law’

Decisions on disqualifications

Article 192 of the Indian Constitution talks about the decision on the disqualification of a
member of the state legislature. If any question arises about the disqualification of a
member of the House of the legislature on any ground mentioned in Article 191 in the
Indian Constitution, then Article 192 comes into play. Article 192 mentions that in such
cases the decision about disqualification would be determined by the Governor of that state
and his decision would be final. However, the Governor needs to consult the Election
Commission for the same and he needs to act accordingly. Here, grounds of
disqualification would be the same as mentioned in Article 191.

Sessions of the State Legislature

Moving further on the next topic we will discuss the sessions of these State Legislatures.
Its time of prorogation and dissolution will also be discussed by us here. Also, one thing is
quite clear after a lot of analysis of State Legislature is that the Legislative Assembly is
somehow similar to the House of the People (Lok Sabha) while the Legislative Council is
similar to the Council of State (Rajya Sabha). Their sessions are also quite similar.

Article 174 of the Indian Constitution gives the power to the Governor to summon these
Houses of the State Legislature. He can summon these bodies to meet at places and at such
times which he/ she thinks fit or appropriate. But a necessary condition should be kept in
mind is that the time period between the two sessions of these Houses should not exceed
six months. Also as mentioned in Article 174 of the Indian Constitution, the Governor has
the power to prorogue either House and to dissolve the Legislative Assembly.

Speaker and Deputy Speaker

There is a need for head or in charge of every legislative part. The Speaker and Deputy
Speaker serve the same purposes in the Legislative Assembly. Article 178 of the Indian
Constitution talks about the same. According to this article, there should be a Speaker and

Deputy Speaker should be chosen from the Legislative Assembly. In this, it is also
mentioned that the condition where if the office of Speaker and Deputy Speaker becomes
vacant then it becomes the duty of the Legislative Assembly to choose the new Speaker
and Deputy Speaker respectively.

Powers and Functions of Speaker

Article 178 gives the power to Speaker to preside over the sessions of the Legislative
Assembly of the state. Similar powers are given to the Speaker of the Lok Sabha, as
mentioned in Article 93 of the Indian Constitution. The power and position of an Indian
Speaker are quite similar to the Speaker of the House of Commons in England.

The most important function of the Speaker is to preside over the sessions of the
Legislative Assembly and also to maintain discipline and order in the assembly. Within the
assembly, the Speaker is the master. He has the power to decide whether the Bill is a
Money Bill or not. Also, the decision of Speaker cannot be challenged in a court of law.
Money Bills are sent to the Legislative Council with the approval of the Speaker. The
salary of Speaker is given from the Consolidated Fund of State.

The other functions/ powers of the Speaker are as follows:

• He does not participate in the debate of the assembly.

• Only votes when there is a condition of a tiebreak.
• He sees whether there is a necessary quorum.
 • He has the power to adjourn or suspend the sitting of the Legislative Assembly
when there is not a necessary quorum and also to maintain the discipline of
House.
• He has the power to suspend or to expel the member for his/ her unruly
behaviour.

Chairman and Deputy Chairman of the Legislative Council: Article 182,183,184,185

The working of the Legislative Council is quite complex. The process of membership, the
appointment of its head and the power of the Legislative Council is also quite difficult to
understand. According to Article 182 of the Indian Constitution, the Legislative Council
must choose its two members as Chairman and Deputy Chairman. It also mentions that the
Legislative Council must choose the Chairman and Deputy Chairman of the Legislative
Council as soon as their office becomes vacant.

The offices of Chairman and Deputy Chairman becomes vacant very often. However, the
reason for their removal/ resignation is mentioned in Article 183 of the constitution. The
reasons are as follows:

1. Should not hold their post if they are not a member of the Legislative Council.
2. By sending the written resignation letter to each other.
3. They can be removed by passing a resolution in the Council. However, there
should be a majority of members in support of this resolution. An important
point to be remembered while passing a resolution that a notice of the intention
of resolution should be given before 14 days.

Now imagine a condition when there is a vacancy in seat of Chairman of the Legislative
Council. Then, the question which would strike us would be related to the replacement of
his/ her place in the Legislative Council or who will look after the working of the
Legislative Council. The answer to the second part of the question is given in Article
184 of the Indian Constitution. According to this Article, the Deputy Chairman has the
power to perform the duties and to act as Chairman of the Legislative Council. According
to Article 184, if there is a vacancy in the office of Chairman then all duties of Chairman
would be performed by the Deputy Chairman and in case if the office of Deputy Chairman
is also vacant then the duties of Chairman would be performed by the person appointed by
the Governor.

Talking about Article 185 of the Indian Constitution, it puts certain restrictions on
Chairman or Vice-Chairman when their impeachment resolution is under consideration. It
simply tells that a Chairman or Vice-Chairman can not preside the Council when the

resolution for their impeachment is under consideration. Here in this condition, Article 184
will be applied. Also, it is given in Article 185 that when such resolution is under
consideration then the Chairman has all the right to attend the proceedings of the
Legislative Council and he/she will have all the right to speak during such proceedings.
Here, the Chairman has the right to vote in the first instance of the proceedings but he/she
will not be able to vote in the condition of equality of votes.

************************************************

References:

1. https://blog.ipleaders.in/legislature-state/
2. Professionals ‘ The constitution of India , 2021’ Bare Act.
3. M.P.Jain “Indian Constitutional Law”
 UNIT- III

Speaker of Lok sabha

(Article 93 to 97)

Introduction

The Speaker of the Lok Sabha is the presiding officer of the lower house of the Parliament of India,
known as the Lok Sabha. ... The speaker is elected in the very first meeting of the Lok Sabha after the
general elections. He or she is chosen from the members of Lok Sabha. The speaker serves for a term of five
years. The Speaker is the most powerful man in the Lok Sabha. He enjoys supreme authority in the
House. He enjoys a status equal to that of the Chief Justice of India.

In this regard, Jawaharlal Nehru described: “As the House represents the nation (in a particular
way), the Speaker being its sole representative becomes a symbol of the nation’s freedom and
liberty. Therefore, this free and honoured position shall always be occupied by persons of
outstanding ability and impartiality.”

Election of the Speaker:

After a new Lok Sabha is constituted, the Speaker and Deputy Speaker are elected by the House in
its first meeting. Normally they are elected unanimously. The leader of the majority party proposes
their names, after consulting the leaders of the opposition parties.

Qualifications:
There are no formal qualifications for the office of the Speaker. Any sitting member of the Lok
Sabha can be elected as Speaker by the House. As such qualifications essential for the membership
of the Lok Sabha are also the essential qualifications for the office of the Speaker.

Tenure: The tenure of the Speaker is equal to the tenure of Lok Sabha, i.e., 5 years. However, the
Speaker continues to be in office even after the dissolution of the Lok Sabha. He holds office till the
new Lok Sabha elects a new Speaker. The Speaker can resign his office at any time before the
completion of his full tenure.
Method of Removal:
The Speaker ceases to hold office if he ceases to be a member of the House. He can also be
removed from office by the Lok Sabha by passing a resolution supported by majority of its
members. However to initiate such a no-confidence move against the Speaker, a prior notice of 14
days has to be given by the movers.

▪ The Speaker’s term is coterminous with the term of the Lok Sabha i.e. 5 years.

▪ However, the constitution has given the Lower House authority to remove the Speaker if
needed. The House can remove the Speaker through a resolution passed by an effective
majority (more than 50% of the total strength of the house present and voting) as per Articles
94 and 96 of the Indian Constitution.

▪ The Speaker can also be removed on getting disqualified from being a Lok Sabha member
under sections 7 and 8 of the Representation of the People Act, 1951.

Functions of the Speaker:

According to the Constitution of India, a Speaker is vested with immense administrative and
discretionary powers, some of which are enumerated below:
▪ The Speaker presides over the meetings in the Lower House. In other words, the
Speaker conducts business in Lok Sabha by ensuring discipline and decorum among
members.

▪ he guards the rights and privileges of the members of Lok Sabha, deciding who should
speak at what time, the questions to be asked, the order of proceedings to be followed, among
others.

▪ A Speaker uses his/her power to vote, in order to resolve a deadlock. That is, when the
House initiates a voting procedure, the speaker does not cast a vote in the first instance. It is
only when the two sides receive equal number of votes that the Speaker's vote breaks the
deadlock, making his/her position impartial.
▪ In the absence of a quorum in the House, it is the duty of the Speaker to adjourn the House or
to suspend any meeting, until a quorum is met.

▪ The Speaker decides the agenda that must be discussed in a meeting of the Members of the
Parliament.

▪ The Speaker is invested with the immense powers of interpreting the Rules of Procedure.
Since s/he is a member of the House as well as the Presiding Officer, s/he ensures the
discipline of the House.

o The Speaker ensures that MPs are punished for unruly behaviour.

o A Speaker can also disqualify a Member of Parliament from the House on grounds
of defection (under the Tenth Schedule of the Constitution).

o A member who flouts the Speaker’s orders or directions may be named by the Speaker
and in such cases, the member may have to withdraw from the House.

o S/he also issues warrants to execute the orders of the House, wherever necessary and
delivers reprimands on behalf of the House.

▪ The Speaker also permits various parliamentary procedures like the motion of adjournment,
the motion of no confidence, the motion of censure, among others.

▪ The Speaker presides over the joint sitting of the two Houses of Parliament.

▪ Once a money bill is transmitted from the Lower House to the Upper House, the Speaker is
solely responsible for endorsing his or her certificate on the Bill. In other words, s/he is given
the pivotal power to decide whether any Bill is a Money Bill. His/her decision is considered
final.

▪ Except for the no-confidence motion, all other motions which come before the House
come only after the Speaker permits them.

▪ The Speaker also decides on granting recognition to the Leader of the Opposition in the
Lok Sabha.

▪ The Speaker has under his or her jurisdiction, a number of Parliamentary

Committees such as the Rules Committee, the Business Advisory Committee and the General
▪ Purposes Committee. The Speaker nominates the various Chairmen to these Committees while
monitoring the committees’ workings as well.

▪ He is the ultimate arbiter and interpreter of those provisions which relate to the functioning
of the House. His/her decisions are final and binding and ordinarily cannot be questioned,
challenged or criticized.

Speaker’s Administrative Role

▪ The Speaker is also the head of the Lok Sabha Secretariat.

▪ The Speaker's authority over the Secretariat staff of the House and its security arrangements is
supreme.

▪ No alteration or addition can be made in the Parliament House and no new structure can
be erected in the Parliament Estate without the Speaker’s permission.

▪ It is through the Speaker that the decisions of the House are communicated to individuals and
authorities outside the Parliament.

▪ Speaker decides the form and manner in which the proceedings of the House are published.

Other Roles and Responsibilities

▪ Speaker’s approval is sought for the date on which the House will start before it is convened
by the President.

▪ The Speaker decides the form in which amendments may be moved to the Motion of Thanks
to the President’s address.

▪ With regard to moving amendments to a Bill, the permission of the Speaker is required.

▪ It depends solely on the Speaker to refer any question of privilege to the Committee of
Privileges for examination, investigation and report.

▪ When a decision of the House is to be ascertained on a motion made by a member, the

question is put by the Speaker before the House to obtain the decision.

▪ The Speaker makes obituary references in the House, formal references to important national
and international events and the valedictory address at the conclusion of every Session of the
Lok Sabha and also when the term of the House expires.
Speaker and Inter-Parliamentary Relations

▪ S/he is the ex-officio President of the Indian Parliamentary Group. It was set up in 1949
and functions as the National Group of the Inter-Parliamentary Union and the main branch of
the Commonwealth Parliamentary Association.

o Inter-Parliamentary Union is an organization made up of national parliaments from

around the world.

o The Commonwealth Parliamentary Association (CPA) has been the voice of

parliamentary democracy across the Commonwealth for more than nine decade

▪ The Supreme Court in Jagjit Singh v. State of Haryana (2006) highlighted the similar
allegations about the confidence on the role of Speaker in the matters of impartiality.

▪ In Kihoto Hollohan case (1992), one of the judges observed that the suspicion of bias on the
Speaker’s role could not be ruled out as his/her election and tenure depends on the majority
will of the House (or specifically of the ruling party).

▪ Also in the recent case of Manipur Legislative Assembly (2020), the Supreme
Court questioned, “why a Speaker- who is a member of a particular political party and an
insider in the House, should be the sole and final arbiter in the cases of disqualification of a
political defector.”
 Parliament of India

Introduction

Parliament is the very centre of any form of democracy. In it, the interests of the greatest
possible number of citizens should be represented. They all can vote for individuals who represent
them in Parliament. Democracy is precious but means a lot of work – work not only on the part of
Members of Parliament and their assistants but also by the Presidents of the National and Federal
Councils, the Parliamentary Groups and the staff of the Parliamentary Administration.

Parliament is the group of people who make the laws in some countries. And in some it’s a group of
politicians who have been elected to make laws for the countries.

Article 105: Parliamentary Privileges under Indian Constitution

• Freedom of speech and publication under parliamentary authority. ...
• Power to make rules.
• Internal independence/autonomy.
• Freedom from being arrested.
• Right to exclude strangers from its proceedings and hold secret sessions.

Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee And Others, AIR 1961 SC 613

The appellant is an elected member of the West Bengal Legislative Assembly. The appellant had an
intention to ask certain questions in the assembly and therefore he gave the notice for the same. The
questions to be asked in the assembly were refused in compliance with the rules of procedure for the
conduct of the business in the assembly. But the appellant published those questions he was not allowed
to ask in the assembly in a local newspaper called JANAMAT.

The first respondent, who was then functioning as a Sub-Divisional Magistrate and because of
whose conduct the matter of questions arose, filed a complaint against the appellant and two others,
the editor and the printer and publisher of those questions.

The petition contained the fact that the appellant had made slanderous accusations against him with
an intention to be read by the members of the public. These accusations were false and the appellant
published them, having an intention of harming the reputation of the complainant. He also alleged
that publishing such false questions in the journal first requires prior permission by the government
in instituting the legal proceeding against the public servant.

In this case, it was held that the provisions of article 194 even though disallowed by the speaker
were a part of the proceedings of the house and publication for the same will not attract any sections
of the Indian Penal Code.

He will not be prosecuted, as Article 194(1) not only gives them freedom of speech but also give
the right to ask questions and publish them in the press.

P.V. NARSIMHA RAO v. STATE (1998)

The facts of the case are – some of the MP’s received bribes to vote against the motion of no-
confidence against the Prime Minister P.V. Narsimha Rao. He was charged under IPC and
Prevention of Corruption Act on the grounds that he bribed some MPs to vote against the no-
confidence motion when he was serving as the Prime Minister. In this case, the question arose that
under Article 105(2) does any member of parliament have any immunity to protect himself in
criminal proceedings against him?

It was held by the majority of the Court that under Article 105(2) the members of the parliament
will get immunity and thus, the activity of taking bribe by the MP’s will get immunity despite
anything said by them or any vote given by them in the Parliament. The Court further explained that
the word “anything” here will be interpreted as a wider term. The Court interpreted the term
“anything” in a wider sense and did not prosecute P.V. Narsimha Rao.

Privileges and fundamental rights

Part III of the Constitution contains fundamental rights wherein Article 19(1)(a) grants freedom of
speech to the citizens. It is subjected to reasonable restrictions. These restrictions are:-

• Sovereignty and integrity of India should be maintained,

• Security of the states should be maintained,
• Public order should not be disturbed,
• Decency and morality should be maintained,
 • Defamation should be avoided,
• Incitement to an offence should be avoided,
• Contempt of court should be avoided,
• Friendly relations with foreign states should be maintained.

Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1952
• The facts of the case:- The U.P. Legislative Assembly issued a warrant against the Home
Minister who was arrested from his residence in Bombay on the ground of contempt of the
house. The Home Minister under Article 32 applied a writ of Habeas Corpus on the ground
that his detention under Article 22(2) violates his fundamental right.
• The Supreme Court accepted the arguments and ordered his release according to Article
22(2). He was not presented before the magistrate within 24hrs of his arrest or detention.
Not presenting him before the magistrate resulted in the violation of his fundamental right
under Article 22(2). In this case, it was opined that Article 105 and Article 194 cannot
supersede the fundamental rights.

MSM Sharma v. Sri Krishna Sinha AIR 1959 SC395

The facts of the case:-the petitioner is the editor of the English Daily newspaper of Patna. He
published a report on the proceedings of the Bihar Legislative Assembly and the reports were said
to be removed by the speaker.

The editor was presented before the Legislative Assembly to give reasons for the breach of
privilege committed by him. At first, he was held guilty for his conduct. Then, in an appeal, the
editor under Article 19 (1)(a) argued that he has a right to freedom of speech. But the Court denied
all the arguments based on Article 19(1)(a) as it is a general provision and Article 194 is a special
provision. If at any time both of these articles come under any conflict the latter will prevail over
the former. As the general provision cannot overrule the effect of the special provision.

It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are in conflict, the rule of
Harmonious Construction (every statute should be read as a whole and interpretations consistent of
all the provisions of the statute should be adopted when in conflict of any statute or any part of the
statute) should be applied.
Privileges and the law courts

Article 143 confers the power on the President to consult the Supreme Court if at any time it
appears to the President that a question of fact or a law arises or may arise in future. Also, such
questions must be of public importance or it must be advantageous to seek the opinion of the
Supreme Court. And after such hearing, if the court thinks it relevant, it may give its opinion to the
President.

The house of parliament though have a lot of powers, privileges and immunities but despite all
these advantages it cannot act or perform similar to a Court. The Courts are the one who interprets
the laws or acts passed by the parliament. For instance, if any offence is committed even in the
house of parliament the jurisdiction vests with the ordinary Courts.

Case Law

In Keshava Singh v. Speaker, Legislative Assembly

The facts of the case – Keshava Singh, who was a non-legislative member of the assembly, printed
and published a pamphlet. Because of the printing and publishing of the pamphlet, the Speaker of
the U.P. Legislative assembly criticized him for contempt and breach of the privilege of one of the
members. On the same day, Mr Keshava being present in the house committed another breach by
his conduct.

As a result of his conduct in the house, the speaker directed him to be imprisoned, issued a warrant
for the same and ordered his detention in jail for 7 days.

Under Article 226, a writ of Habeas Corpus was applied in his petition. The petition claimed that
the detention in jail is illegal and is done with malafide intentions. The petition also stated that he
was not given any chance to explain or defend himself. The petition was heard by the 2 judges who
gave them interim bail.

As a result of the decision in Keshava’s case, the assembly passed a new resolution.

In this resolution, it was laid that the 2 judges entertained the writ filed by the petitioner and his
lawyer. In its resolution, the assembly issued a contempt notice to present the two judges and the
lawyer before the house and explain the reasons for their conduct. It also ordered that Keshava
should be taken into custody. Under this, they moved petitions under 226 and filed a writ of
mandamus before the Allahabad High Court to set aside the resolution passed by the assembly.

It was held by the majority of the Supreme Court that the conduct of the 2 judges does not amount
to contempt.

The Court further explained that if in the matters of privileges stated under Article 194(3) then the
house will be considered as the sole and exclusive judge provided that it should be stated in that.
But if any such privilege is not mentioned in the article then it’s the Court who has to decide upon
it.

Powers and Functions

As in other parliamentary democracies, the Parliament in India has the cardinal functions of
legislation, overseeing of administration, passing of the Budget, ventilation of public grievances and
discussing various subjects like development plans, national policies and international relations.

1) Legislative Powers- All the subjects in our constitution are divided among state, union and
concurrent lists. In concurrent list Parliamentary law is over riding than state legislative law.
Constitution also have powers to make law with respect to state legislature in following
circumstances:
(i). When Rajya Sabha passes a resolution to that effect
(ii). When national emergency is under operation
(iii).When two or more states request parliament to do so
(iv). When necessary to give effect to international agreements, treaties and conventions
(v). When President’s rule is in operation.
2) Executive Powers- According to parliamentary form of government executive is responsible to
the parliament for its acts and policies. Hence parliament exercises control by various measures like
committees, question hour, zero hour etc. ministers are collectively responsible to the Parliament.
3) Financial Powers- It includes enactment of budget, scrutinizing the performance of government
with respect of financial spending through financial committees (post budgetary control)
4) Constituent Powers- Example - To amend the constitution, to pass any laws required
5) Judicial Powers- Includes;
(i). Impeachment of President for violation of constitution
(ii). Removal of judges of Supreme Court and High court
(iii). Removal of Vice- President
(iv). Punish members for breach of privileges like sitting in the house when the member knows he is
not an eligible member, serving as member before taking oath etc.
6). Electoral Powers- It has its participation in the election of President and Vice-President. The
members of Lok Sabha elects speaker and deputy speaker from among its members. Similarly
members of Rajya Sabha elects deputy chairman.
7). Other Powers-
(i). To discuss various issues of national and international importance
(ii). Imposing emergency
(iii). Increase or decrease area, change names, alter the boundary of the states
(iv). Create or abolish state legislature etc any powers can be added from time to time
Article 245 of the constitution declares that parliament may make laws for the whole or any part of
the territory of India and a state legislature can make laws for the whole or any part of the state.
Seventh Schedule of the constitution distributes the legislative powers between the centre and the
state by putting subjects into Union List, State List and Concurrent List. The centre can make law
on any of the subjects in the union list or in the concurrent list. The parliament can override the law
of a state on a subject listed in concurrent list. In addition to these powers, the residuary powers are
also vested with the parliament.

The constitution also empowers the Parliament to make law on a state subject in the following
circumstances:
(i) When Rajya Sabha passes a resolution supported by two-thirds of the members present and
voting
(ii) When a Proclamation of Emergency is in operation
(iii) When two or more states make a joint request to the parliament
(iv) When it is necessary for parliament to implement any international treaty, agreement or
convention
(v) When President’s rule is in operation in the state
Executive Powers and Functions
In India, political executive is a part of the parliament. Parliament exerts control over the executive
through procedural devices such as question hour, zero hour, calling attention motion, adjournment
motion, half-an-hour discussion, etc. Members of different political parties are elected/nominated to
the parliamentary committees. Through these committees, the parliament controls the government.
Committee on ministerial assurances constituted by parliament seeks to ensure that the assurances
made by the ministries to parliament are fulfilled.

Article 75 of the constitution mentions that the council of ministers remains in office as long as it
enjoys the confidence of the Lok Sabha. The ministers are responsible to the Lok Sabha
individually and collectively. Lok Sabha can remove the council of ministers by passing a no
confidence motion in the Lok Sabha.

Apart from that, the Lok Sabha can also express lack of confidence in the government in the
following ways:
(i) By not passing a motion of thanks on the President’s inaugural address.
(ii) By rejecting a money bill
(iii) By passing a censure motion or an adjournment motion
(iv) By passing a cut motion
(v) By defeating the government on a vital issue
These powers of parliament help in making government responsive and responsible.

Financial Powers and Functions

Parliament enjoys the supreme authority in financial matters. Executive cannot spend any money
without parliament’s approval. No tax can be imposed without the authority of law. The
government places the budget before the parliament for approval. The passage of the budget means
that the parliament has legalised the receipts and expenditure of the government. The public
accounts committee and the Estimates committee keep a watch on the spending of the government.
These committees scrutinize the account and bring out the cases of irregular, unauthorised or
improper usage in public expenditure.

In this way, parliament exerts budgetary as well as post-budgetary control on the government. If the
government fails to spend the granted money in a financial year, the remaining balance is sent back
to the Consolidated Fund of India. This is known as ‘rule of lapse’. This also leads to increase in
expenditure by the end of the financial year.

Judicial Powers and Functions

judicial powers and functions of the Parliament are mentioned below;
(i) It has the power to impeach the President, the Vice-President, the judges of the Supreme Court
and the High Court.
(ii) It can also punish its members or outsiders for the breach of privilege or its contempt.
Electoral Powers and Functions
The electoral powers and functions of the parliament are mentioned below;
(i) The elected members of the parliament (along with state assemblies) participate in the election of
the President
(ii) All the members of the parliament participate in the election of the Vice-President.
(iii) The Lok Sabha elects its Speaker and Deputy Speaker.
(iv) The Rajya Sabha elects its Deputy Chairman.
(v) Members of various parliamentary committees are also elected.
Constituent Powers and Functions
Only parliament is empowered to initiate any proposal for amendment of the constitution. A bill for
amendment can be initiated in either House of Parliament. However, the state legislature can pass a
resolution requesting the parliament for the creation or abolition of the legislative council in the
state. Based on the resolution, the parliament can make an act for amending the constitution for that
purpose.

There are three types of bills for constitution amendment which requires:
(i) Simple Majority: These bills need to be passed by simple majority, that is, a majority of
members present and voting in each of the House.
(ii) Special Majority: These bills need to be passed by the majority of the House and two-third of
the members present and voting in each of the House.
(iii) Special majority and consent of half of all the state legislatures: These bills are to be passed by
the special majority in each house. Along with this, atleast half of the state legislatures should give
consent to the bill.
Judicial Functions
In case of breach of privilege by members of the House, the Parliament has punitive powers to
punish them. A breach of privilege is when there is an infringement of any of the privileges enjoyed
by the MPs.

• A privilege motion is moved by a member when he feels that a minister or any member 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. Read more on privilege motion.
• In the parliamentary system, legislative privileges are immune to judicial control.
• The power of the Parliament to punish its members is also generally not subject to judicial
review.
• Other judicial functions of the Parliament include the power to impeach the President, the
Vice President, the judges of the Supreme Court, High Courts, Auditor-General, etc.
 Anti Defection Law

The anti-defection law in India, technically the Tenth Schedule to the Indian Constitution, was
enacted to address the perceived problem of instability caused by democratically elected legislators
in India's Parliamentary System of Government shifting allegiance from the parties they supported
at the time of election,

The anti-defection law sought to prevent such political defections which may be due to reward of
office or other similar considerations.

The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which
legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature
based on a petition by any other member of the House. A legislator is deemed to have defected if he
either voluntarily gives up the membership of his party or disobeys the directives of the party
leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party
whip on any issue can lose his membership of the House. The law applies to both Parliament and
state assemblies.

The anti-defection law was passed in 1985 through the 52nd Amendment to the Constitution. The
law that was contained in the 10th Schedule of the Constitution came into effect on March 1, 1985.
It was formulated to bring in stability in the Indian political system. Even though the law has been
able to curb the evil of defections to a great extent, the recent incidents in the Indian political scene
underline the need for a review in order to tighten all the loopholes.

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.

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 demits that post.

• Earlier, the law allowed parties to be split, but at present, this has been outlawed.

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 Kihoto Hollohan case (1993), 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 malafides, 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
gives 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.

Kihota Hollohon

Fact of the Case

In this case, multiple petitions were heard together. So, tenth schedule was inserted by the
Constitution (fifty-second amendment) Act, 1985. The combined petition aimed to challenge the
Constitutional validity of the Tenth Schedule introduced by the Constitution (Fifty Second
Amendment) Act, 1985.These cases were brought amongst a batch of Writ Petitions, Transfer
Petitions, Civil Appeals, Special Leave Petitions and other similar and connected matters raising
common questions which were heard together. Four articles of the Constitution were altered by the
Constitution(Fifty-secondAmendment) Act. These articles are 101(3)(a), 102(2), 190(3)(a) and
191(2). Also, tenth schedule was added. This Amendment is often referred to as Anti-Defection
Law.
Issue

Whether the changes made by 52nd amendment are constitutionally valid or not?

Contentions Raised

The basic underlying contention of the petitioners was that every parliamentarian must have the
right to follow his own spirit and sense of judgment and not necessarily with the policy of his
political party. This according to the petitioners is deemed to be a fundamental principle of
parliamentary democracy, freedom of speech and the right to dissent and the freedom of conscience.

Hon’ble Justice Venkata Chaliah said that“in such areas of experimental legislation what is
constitutionally valid and what is constitutionally invalid is marked by a ‘hazy grey line’ and thus
there is no litmus test of constitutionality” The majority then went on to decide in favour of the
Constitutional validity saying that the Constitution is flexible to provide for the compulsions of the
changing times, that the freedom of speech of a member is not an absolute freedom and also that the
political party functions on the strength of shared beliefs, it being the cost of the label of the party
under which their representative has been elected that he must not vote against it.

The right of a parliamentarian is indeed not an absolute right and is thus subject to reasonable
restrictions. The right of a parliamentarian to the freedom of speech is provided for under the
Article 105(2). This, as contended by Shri Sharma, arguing on the side of the petitioners, is places
even above the fundamental right as guaranteed under the Article 19(1)(a) of the Constitution.
Political defections in lure of power and money inducements is also clearly a corrupt practice,
therefore not falling within the immunity granted to a member of the house.

Another contention raised by counsel for petitioners, is that the distinction between ‘defection’ and
‘split’ in the Tenth Schedule is very minimal. The differences on which the distinction rests are
indeed an outrageous defiance of logic. Appreciating the argument of the counsel the Court has
opined that the rule for exemption of split is justified in terms that as much as 1/3rd members at the
same time cannot be driven dishonest intentions.
However, the arguments of the counsel sound more convincing than the ruling given by the court.
These provisions give blanket exemption to splits and mergers and frustrate the very purpose of
Anti-Defection law. They are dangerous as their abuse can be easily done. They are totally ill-
conceived in view of what has happened in the recent past, and illogical because under the Act, the
greater the sin, the greater is the immunity. In many a case, defections are effected by groups-big
and small. It would not be difficult to stage splits and mergers for ulterior motives.

The second major contention raised by the petitioners is that paragraph 7 in terms and in effect
brings about a change in the operation and effect of Articles 136, 226 and 227 thus attracting the
clause (2) of the Article 368 requiring ratification. The court subscribing toit has opined that the
words of the paragraph 7 are of wide import and leave no constructional options. The same idea is
reinforced by looking into the history of the defection law and the debates in the house which
suggests that paragraph 7 was introduced with the very purpose of barring jurisdiction. The court
has differentiated the present case from the cases of Shankari Prasad Singh Deo v. Union of India
and State of Biha and Sajjan Singh v. State of Rajasthan that were relied upon to urge that there
is no attraction to the clause (2) of the Article 368.

The petitioners also contended that the ‘finality clause’ which was under the para 6 of the Tenth
Schedule, excludes the court’s jurisdiction which was, in turn, rendering the speaker immune from
Judicial Review.In India the position is such that whatever authority decides disputes must be
vested with judicial authority. In the present case too, the power to decide disputed disqualification
under para 6(1) is pre-eminently a judicial complexion. In the present case, the majority has held
that the Speaker or the chairman under the para 6(1) of the Tenth Schedule is tribunal and that the
finality clause does not oust the jurisdiction of the courts under Articles. 136,226 and 227. Instead,
the finality clause just limits them.
Another contention raised before the court was that there is a violation of the basic feature as
independent adjudicatory machinery for resolution of electoral disputes is an essential incident of
democracy. The majority and minority have differed at this point with the majority asserting that
there is no violation of basic feature of Constitution keeping in mind the pivotal position of the
Speaker in a Parliamentary Democracy. The majority has extolled the position of a Speaker and
thus rather unconvincingly tried to justify its view saying that there is no violation of the basic
structure of the Constitution.
Judgement

It was held by the minority judges held that the basic feature of the Constitution has been violated
as the Constitutional scheme for decisions on questions on disqualification of members after being
duly elected, contemplates adjudication of such disputes by an independent authority outside the
House, namely President or Governor in accordance with the opinion of the Election Commission,
all of which who high Constitutional functionaries are.The Election Commission had a similar
opinion as that of the minority judges in the present case. In the year 1977, it made
recommendations and suggested that the disqualification on grounds of defection could also be
referred to the Election Commission for tendering opinion to the President or the Governor, as the
case may be ,and the President or the Governor shall act on such opinion tendered by the Election
Commission, as it was in the case of other disqualifications referred to in articles 102 and 191 of the
constitution.

It was thus held that the para 6 of the Tenth Schedule does not introduce a non-justiciable area. The
power to resolve the disputes of the Speaker/Chairman is a judicial power. The important
construction is that of the ‘finality clause’ which paved a way for the majority to reach the
judgment.

Case Comment

The law which has succeeded in preventing individual defections must also prevent mass
defections. The role of the speaker also has to be called in question. The speaker depends on the
majority in the legislature for his tenure. Therefore, he does not satisfy the requirement of an
‘individual adjudicatory body’. Various events in the legislature after this case have proved that the
minority judges were right in asserting this. The majority judges had set a high ethical standard
which is seldom reached by the speakers in India. This situation can be rectified and the Anti-
Defection law made more effective if adjudicatory function is rested in the Election Commission.
On the lines of Articles 102 and 192, the president in case of the parliament and the governor in the
case of state. legislature, may refer the matter to the Election Commission. This seems to be the
only way to avoid the politically motivated decisions of the speakers.If the government wants to

continue the present system, then the Supreme Court has to assume much broader power in terms of
judicial review over the Speaker’s decision under the Anti-defection law than what the Supreme
Court is prepared to do at present under the formulation in Kihota Hollohon.One aspect of the Anti-
defection law needs to be pointed out. Before the commencement of the Tenth schedule a ‘political
party’ was never recognized under the Constitution but now their existence is acknowledged under
the Anti-defection law. ( Ref, 1] MANU/SC/0101/1993)

***************
 Judiciary; Union and State

Supreme Court

Introduction

Supreme Court – The Guardian of the Constitution There can be discords arising in between the
different units of the federation that is when the Supreme Court comes into play. It’s the highest
authority and the final interpreter of the law which means that it has the power to give final
decisions on all the matters of the law. Its judgments are binding on all the lower courts. It has the
power of judicial review through which it can review the action of the executive and the legislature.
Article 124. deals with Establishment and constitution of Supreme Court,

(1)There shall be a Supreme Court of India constituting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not more than seven other Judges
(2) Every Judge of the Supreme Court shall be appointed by the President
this Article provides for the setting up of the Supreme Court which will be composed of one Chief
Justice of India and only seven judges until the Parliament by law prescribes any more judges.

Judges Transfer Case I

SP Gupta v. Union of India.

This case ruled out that, whenever there is an issue between the different constitutional agencies,
then the decision of the central government will prevail and the government will choose as to which
view of the constitutional agency will be taken into consideration. Whereas, when the appointment
of the Supreme Court judges is concerned then the opinion of the Chief Justice of India will not be
in concurrence and it will be on the government to take the final decision.

As far as the word ‘may’ in Article 124(2) is concerned, the court stated that it only implies taking
decision regarding which judge of the Supreme court and the High court has to be consulted while
appointing the judges of the Supreme Court and High court, whereas it does not give an option to
the government to take into consideration the opinion of the judges.

In this case, the supremacy of the Executive was maintained.

Judicial Supremacy

Judges Transfer Case II is known as Supreme court Advocates on Record Association v. Union of
India.

The system which was laid down in the first judge case created many problems. Let’s take one as an
example – when the Chief Justice of India was asked to give his opinion, he let a junior judge take
the position of the CJI without giving a chance to the senior judges.

So, it was decided that there should be a collegium system which in the case of the Supreme Court
will consist of the Chief Justice of India and two senior-most judges. And, while taking the decision
as to who would take the post of CJI both of the judges of the collegium will give their opinion and
CJI will have to take that into consideration. After that, the decision of the collegium will go to the
President for his assent. Whereas, in the case of High Court it will be the Chief Justice of the High
Court and the two senior-most judges, and the procedure thereon, is the same as for the SC.

Now what really happened was that the Chief Justice of India, at times did not consider the opinion
given by the other judges and would take the decision of his own and pass it on to the President for
his assent.

This case basically maintained judicial supremacy. Moreover, It ruled out the judgment of the first
judge case and laid down the formation of the collegium system.

Expansion of the Collegium

[Judges Transfer Case III]

Judges Transfer Case III is known as In Re Special Reference Case.

Well, the Judicial Supremacy continued to be in existence. Whenever the opinion of the collegium
was not taken into consideration, it was not acceptable to the CJI.
This continued until the Executive approached the court for an advisory opinion of the Supreme
Court.

Further, the court ordered to increase the number of judges in the collegium from two to four.

It also ruled out that the most senior-most judge will take the designation of CJI and as far as the
judges of the Supreme court are concerned, the Supreme Court collegium will recommend the
president to which he will give his assent.

Sole Opinion of Chief Justice of India without following consultation process: Not binding on
Government

Judges Transfer Case III made it clear through its judgment that whenever the Chief Justice of India
conveys to the President, his opinion without taking into account the opinion of the collegium then
the opinion of the CJI alone, will be rejected until he follows the constitutional mandate.

To give an example, in 2018, Senior Advocate Indu Malhotra was recommended by the collegium
consisting of Justice Deepak Misra, then Chief Justice of India.

Supreme Court Advocates-on-Record Association v. Union of India, 2015

In 2015, petitions were filed by the “Supreme Court Advocates on Record Association” and some
of the senior advocates which challenged the constitutional validity of the National Judicial
Appointment Commission and the 99th Amendment Act.

The contentions were regarding the independence of the Judiciary that it violated the provision of
the constitution according to which the judiciary was kept independent to ensure bonafide acts. This
case was heard by the bench of five judges that involved Justice Jagdish Singh Khehar, Justice J
Chelameswar, Justice Madan B Lokur, Justice Joseph and Justice Adarsh Kumar Goel. it was
decided by the ratio of 4:1 with Justice J Chelameswar giving a dissenting opinion.

Justice Jagdish Singh Kehar gave the opinion that the clause (c) of Article 124A(1) is ultra vires
with the basic elements of the constitution that is “Separation of Powers” and the “independence of
the Judiciary”. He also stated that clause (d) of the same Act which talks about the appointment of
two eminent persons is violative of the elements of the constitution and the basic structure for many
reasons.
Qualification of Judges :

Article 124 in its clause (4), provides a checklist for the qualification of the judges of Supreme court
which is as follows-

The person,

• Should be a citizen of India,

• Should have been a judge of the High Court or of at least two courts in succession, for a
span of five years,
• Should have been an advocate of the High Court or at least two courts in succession, for
a span of 10 years,
• And should be a distinguished jurist in the eyes of the President.

Tenure and Removal of Judges

• According to Article 124(2), the judges of the Supreme court will hold their office until they
reach the age of 65 years. That is they will get retired at the age of 65 years.

• As far as the removal is concerned, Article 124(4) mentions that the judge can be removed
on the ground of proved misdemeanor, the process for which is that the President will pass
an order which will then be presented before both of the houses and it should pass with two-
third majority of the members of the house present and voting.

• We must not forget that the President should be proved incapable or guilty of his act. It can
be proved through the procedure for the investigation regarding the same matter and the
following procedure has to be laid down by the law of the Parliament. This right is given to
the Parliament under Article 124(5).
 Judges (Inquiry) Act, 1968

In this Act, the procedure for the investigation into the charges against the judges was laid down.

The Judge can only be removed after proven misbehavior or incapacity.

This Act further specified that it will consist of the following people-

• Any judge of the Supreme court, or the Chief justice of the Supreme court,
• Any Chief Justice of the High Court, and
• Any person who is a distinguished jurist in the opinion of the Speaker.

These members will unanimously frame charges against the judge and will investigate it.

Jurisdiction of the Supreme Court

(1) A Court of Record

1. The jurisdiction of the Supreme Court under Article 129 is independent of the Courts Act

Contempt of court takes place when any person disobeys the orders of the court or through his
demeanor disrespects the court.

Court of Record is that the proceedings of the court will be recorded so that they can act as a
testimony in the future.

Well, Article 129 makes the Supreme Court the court of record and gives it the power to punish for
its contempt.
PN Duda V. V.P. Shiv Shankar & others

In this case, it was ruled out that a person who has been punished for contempt should have caused
hindrance to the procedure of the court and administration of justice whereas, no one should be
punished for criticizing the judicial system.

Supreme Court’s power to punish for contempt of itself as well as subordinate courts

Article 215 of the Constitution does not empower the High Court to punish for contempt of the
Supreme Court but the Supreme Court has the power to punish for contempt of High court and
other subordinate courts.

In case, the Supreme court does not punish for its own contempt then the High Court has no say in
it.Supreme court has not only maintained the contempt of court in order to punish people to harm
the judge’s reputation but also to protect the name of the Judiciary.

To give you an illustration, an advocate was barred from practising law for one month because he
accused the registry of the court wherein he wrote the word ‘bench hunt’.

The Court ruled out that the bench is not constituted by the registry but by the Chief Justice of India
and the contempt of registry shall be punished.

A Minister or official may also be guilty of contempt when the Contempt of Court is committed by
the State

When there is an issue before the court which is between the states on both sides of the state is one
of the parties and the court give an order or decree which the state disobeys then the Supreme Court
can make the State guilty of contempt.

The officials and ministers involved in the case will be thereto made liable for the same.

The Court’s unlimited power to compel obedience and compliance of its orders
Under Article 142, the Supreme Court has been given the power to make an order in regard to the
contempt of Court.

That is, the Supreme Court can compel any person under this Article to obey the order which it has
given.

Original Jurisdiction-Article 131

The Supreme Court has original jurisdiction when it comes to matters related to the following-

• Between the Government of India and one or more than one states; or
• Between government of India and one or more states at the different sides; or
• Between two or more than two states.

It is further provided that its jurisdiction shall not cover the matter arising out of any agreement,
engagement or any sort of treaty, which was present before the pre-constitutional time and is still in
force. It also extends to the matters which provide that this jurisdiction shall not apply to the
respected dispute.

Enforcement of Fundamental Rights

Article 32 of the Indian Constitution states that if any fundamental right is infringed, then the
person can approach the Supreme Court.

This Article provides for the issue of writs which include Habeas corpus, mandamus, Certiorari,
Quo warranto, Prohibition.

After issuing these writs one can directly approach the Supreme Court for the enforcement of the
Fundamental Rights.

Appellate Jurisdiction–Article 132

Article 132 provides that the appeals for the High Court of any state can be brought up in the
Supreme Court for civil as well as criminal matters.
It is provided that the case should involve some substantial question of law under Article 134A.

When all of the parameters are met then the certificate is granted under which any person can
approach the SC on the basis that his or her case has been wrongly decided.

An appeal in Civil matters

Article 133 talks about the appeal in the case of constitutional matters.

Let’s have a look at it-

• It says that the appeal shall lie to the Supreme court only if the High Court certifies that it
fulfils the condition given in the Article 134A which says that the matter should contain
a substantial question of law and in the opinion of the High Court the matter should be
passed on to the Supreme Court.
• This Article again emphasizes in its clause (2) that a question of law should be wrongly
decided by the High court.
• In its clause (3), it states that notwithstanding anything stated in this Article, any appeal
will not lie before the Supreme Court until the Parliament specifies.

An appeal in Criminal Cases-Article 134

Article 134 says about the appeal to the Supreme Court when the matter is of criminal nature. Let’s
have a quick look at it-

The appeal would lie before the Supreme Court when the High Court-

• On appeal, has reversed the acquittal of the person and he has been sentenced to death; or
• Withdraws any case from a subordinate court and has announced the conviction of the
person or death sentence; or
• Has considered the case to be fit to be presented before the Supreme Court on the basis
of Article 134A.
Certificate for appeal to the Supreme Court

As mentioned earlier in this article, Article 134A provides for a checklist to certify that the case is
fit to be presented before the Court. This article basically provides the certificate for the appeal to
the Supreme Court.

These checkpoints are as follows-

• If the High Court deems it fit to do so in the motion of its own.

• If the aggrieved party just after the judgment is passed makes an oral application.
• The decisions are to be made with respect to Articles 132(1), Article 133(1) and Article
134(1)

Power of the Supreme Court to withdraw and transfer cases Article 139-A

Article 139A gives power to the Supreme Court to withdraw the cases from the High Court if they
are pending and it is believed by the Supreme Court that it involves important question on law.

Another instance in which the Supreme Court can do so is when the Attorney General of India or
the aggrieved party writes to the SC mentioning that the case carries a question of law of general
importance.

Federal Court’s jurisdiction to be exercised by the Supreme Court- Article 135

The federal courts were established before the commencement of the constitution wherein some
laws were passed. Now if the provisions which are given under Article 133 and Article 134 do not
apply to those laws, then the Supreme Court will have the jurisdiction over it under Article 135.
Appeal by Special Leave- Article 136

Article 136 enables the Supreme Court to grant special leave of appeal for any order, judgment or
sentence which is passed by any court or tribunal in the country.

It is regardless of anything contained in the chapter concerning the Union Judiciary and do not
apply to any matter concerning Armed forces.

Power to grant special leave to appeal to be exercised in exceptional cases

Pritam Singh v. the State

In this case, it was ruled out that the special leave to appeal will only be granted under special
circumstances where grave injustice is done and the court checks it and bestows justice.

The court emphasized on setting up of a standard for granting special leave of appeal.

N Suriyakala V. A Mohan Doss

In this case, the court ruled out that the granting of Special Leave of Appeal is not a usual action
taken by the Supreme Court but only when the SC has to interfere in the case under its own
discretion.

Concurrent findings of the Trial Court and the High Court

M.Vadivel vs Arulmughu Iravatheeswarar Koil

It was contended in this case that the Supreme Court under Article 133 can undertake any matter as
it has been not stated anywhere in the chapter of Union Judiciary that the concurrent findings of the
Trial Court and the High Court can not be reviewed.
It was held that the concurrent findings of the trial court and the High Court have been brought up
by deep knowledge of the court by considering matters of both of the parties. Hence the Supreme
Court interferes only in exceptional cases when there is a grave injustice.

The Supreme Court does not allow the facts to be raised in the court when they were not raised in
the first place during the proceedings of the subordinate court. Therefore new facts are inadmissible

Jagannath Behera V. Raja Harirar Singh

In this case, the new fact was whether any special laws or traditions prevailed in a merged territory.
This fact was not presented before in any court and for the first time in the Supreme Court,
therefore it was inadmissible.

Gopinath Ghosh V. State of West Bengal

In this case, it was brought for the first time to the knowledge of the Supreme court that the accused
was below 18 years of age when the crime took place. Hence, it too was inadmissible.

Plea of Law

In cases where a question of law was not presented before in any court, the Supreme Court will
allow it to be raised for the first time.

Badari Prasad V. Nagarmal

In this case, a question was raised stating that section 4(2) of the Rewa State Act as
unconstitutional. This question was raised for the first time in the Supreme Court and it was allowed
by the court.

Masalti V. State of UP

In this case, it was ruled out that any question of law that is material to the facts will be admissible
even if it is presented for the first time in the Supreme Court.
A private party can file an appeal under Art.136 challenging acquittal

Supreme court under Article 136 considers special leave to appeal. But the question of whether the
private party has a locus standi to file the appeal has to be understood.

Let’s have a look at the cases to know the answer.

A petition was filed by Prisoners Right Forum which was related to a death sentence of the prisoner
which was dismissed by N. Anand Venkatesh, who stated that any third person can not file an
appeal regarding it.

And if it is allowed, any bystander will be able to file an appeal revoking the judgment of the
subordinate court.

When no challenge to the main judgment

No appeal can be filed against the judgment of the Court which is passed with the consent of the
parties. An appeal can only be placed regarding a question of law.

False and misleading statements – Justification to revoke the appeal

When any party presents before the court during the hearing of an appeal, any false statements or
the facts which are misleading, then the Supreme court can revoke the appeal.

In SN Aggarwal V. Union of India, false facts were presented which affected the decision and
discretion of the court. In this case, it was ruled out that the Supreme court has the power to set
aside the appeal and it will be justified.
Tribunals

As the tribunals were set up to reduce the workload on the Courts, any appeal from the tribunals can
be presented before the Supreme court until there is no provision of Appellate tribunals. If there is
then Appellate tribunals will hear the appeals for the Tribunals.

Power to review its judgments Art 137

Under Article 137, the Supreme Court has the power to review its judgment.

It is subjected to the provisions of law and provisions under Article 147.

It is basically a mechanism provided to the Supreme Court to amend its mistakes.

Curative Petition

The remedy of the curative petition was introduced by the Supreme Court in the case of Rupa Asok
Hurra V. Asok Hurra. A curative petition is the last remedy provided for any grievances. Its
counterpart is the mercy petition which is filed before the President. It was also filed in the
famous Delhi rape case.

Ancillary Powers of Supreme Court.

Article 140 enables the president to make law regarding any supplementary right which can be
given to the Supreme Court. This right should not be against the provisions of the law. It will enable
the Supreme court to work more effectively towards the goal of bringing justice to the people.
Advisory jurisdiction-Article 143

If at any point the President feels like a matter carries substantial question related to law and is of
public utility then he can approach the Supreme Court for Advisory jurisdiction. Supreme Court
after hearing it may give his opinion to the President. This is the procedure of Advisory jurisdiction
which is present in Article 143 of the Constitution.

Law declared by the Supreme Court to be binding on all Courts- Article 141

Supreme Court is the highest organ of law and the decision it takes is of utmost importance. The
rule to follow its decision will lay down a structure of procedures which will act as a guideline for
the lower courts to follow in cases where similar facts are contained.

Supreme Court not bound by its own decisions

Article 141 obligates other subordinate courts to follow the judgments of the Supreme Court and
stand by its decision which is the principle of Stare Decisis. But the Supreme Court is not bound by
its own judgment. It believes to follow its earlier judgments until there is a case of diminishing
circumstances.

Prospective overruling

The motive of following a judicial precedent is to maintain the old laws and follow them and not to
invent new laws every day. The overruling of a precedent is done when it is followed by injustice to
people at times, so in order to prevent it, the Doctrine of Prospective overruling is followed.

The Doctrine of Prospective overruling lays down the mechanism according to which, the law
which has arisen out of the case which has overruled a previous judgment, will be followed.
This Doctrine was first reinforced in the case of I.C. Golakhnath V. State of Punjab, where Justice
Subba Rao invoked it. He had taken it from the American law where various eminent jurists spoke
about it.

Obiter dicta

As in this article, we have already discussed the Ratio Decidendi which was an important part of the
judgment. Well, here Obiter Dicta is the other half of the judgment which is not the important part
and can be ignored while considering the facts of the judgment. In case one has to go through the
thought process and the opinions of the judge who wrote that judgment, he or she may give it a
read.

Looking at the case of Santosh Devi v. Union of India, we will understand the concept of the ex-
gratia grant.

In this case, it was ruled out that the procedure for the compassionate appointment of a member of a
family in place of a deceased member of the same family should only be done after taking into
consideration that the sudden demise of the member affects the conditions of the family
economically or the member was the only earning member of the family and after his demise,
someone needs to take his place.

Dissolution of marriage by mutual consent waiving the statutory period of waiting

The Supreme Court in this matter ruled out that in the case when the divorce has taken place with

the mutual consent of both parties to the marriage, the rule of six month period of separation can be

skipped.
Enforcement of guidelines and directions to provide immediate help to the victims of

accidents and to protect good Samaritans

A good Samaritan is a person who, with bonafide intention and without wanting anything in return
for the act he will do, steps forward to help or provide assistance to a person who has got injured in
an accident or a crash and is in an emergency and needs medical help immediately.

Well for his amazing acts, the good samaritan is provided safety under many guidelines which are
as follows-

• No investigation on criminal and civil matter will be initiated against the good
Samaritans if any injury or death of the injured takes place
• The good samaritan will not be forced to reveal his personal details if he informs about
such an accident or the injured person involved.
• Any person who forces him in revealing his personal information will be punished.
• The good samaritan will not be liable to bear any initial cost of the treatment of the
injured person.

Savelife Foundation v. Union of India mainly was concerned with the provisions related to the
ambulance codes, emergency procedures, the process to be followed by the hospitals that are
situated in the highways and the procedures related to the management of the trauma
struck, injured person during the accident.

Power of the Supreme Court to make rules

The Supreme Court is the highest judicial functionary of the Constitution.

The Constitution of India under Article 145 gives the Supreme Court of India, the power to make its
own rules. It should be consistent with the law of the parliament and should be made with the
permission of the President. These rules are generally made for the procedure of the Court.
 These rules may include-

• Rules regarding the person who is practising before the court

• Rules related to the hearing of appeals by the Supreme Court and all the matter regarding
it.
• Rules regarding the proceedings of the court.
• Rules for the enforcement of fundamental rights.
• Rules in relation to the granting of bail
• Rules related to the stay on the procedures
• Rules considering the procedure of inquiries

Transfer of Judges

Article 222 of the Indian Constitution provides the transfer of Judges from one High Court to
another. The same procedure is also followed even for the transfer of Chief Justice. The President
has the power to transfer the Judges from one High Court to another. This transfer must be made
only after consulting the Chief Justice. There is also a provision for providing a compensatory
allowance to the Judges who are transferred in addition to their salary.

ARTICLE 222, TRANSFER OF A JUDGE FROM ONE HIGH COURT TO ANOTHER.

(1) The President may, on the recommendation of the National Judicial Appointments Commission

referred to in article 124A, transfer a Judge from one High Court to any other High Court.

(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the

commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High

Court, be entitled to receive in addition to his salary such compensatory allowance as may be

determined by Parliament by law and, until so determined, such compensatory allowance as the

President may by order fix.

Landmark Judgments

S.P Gupta v Union of India

Several writ petitions were filed in the various High Courts regarding the appointment of High
Court Judges as well as the Supreme Court judges in the form of public interest litigation. These
petitions were transferred to the Supreme Court using suo moto cognizance. The main issue was to
decide whose opinion in the collegium should be given primary importance while appointing the
judges. The majority opinion was that “the opinions of Chief Justice of India and opinions of the
Chief Justice of High Court were merely consultative and that power of appointment solely resides
in the Central Government ”.

The meaning of the word consultation was also discussed in the case. The word consultation
mentioned in Article 124 and Article 217 in relation to all consultees and final decision in the
matter was left to the Central executive. The majority took an extremely literal and positivistic view
of Article 217. The central government even after this judgment followed the old practice and no
judge was appointed without the name being cleared by the Chief Justice of India.

Supreme Court Advocates on record association v. Union of India, This case was a landmark
judgment which constituted a bench of nine judges. This case is popularly known as the Second
Judges case. The main question that was decided was whether the independence of the judiciary is
the basic feature of the constitution. The Supreme Court Advocates-on-Record Association and
Senior Advocates filed writ petitions before the Supreme Court which questioned the
constitutionality of the 99th Amendment and the NJAC Act. The petitions accused that the NJAC
violated the basic structure of the Constitution by compromising the judiciary’s independence. The
majority verdict the Chief Justice has the power to appoint and transfer Judges. The Chief Justice of
India needs to consult only two senior-most judges during the time of appointment.

(Ref. https://blog.ipleaders.in/judiciary/, M.P.Jain ‘Constitutional law,)

State Judiciary

The High Court in States ( Article 214 – 231)

Introduction

The High Courts of India are the principal civil courts of original jurisdiction. There are present
in most states. In the case of small states, a high court is present for 2 to 3 states. Their territory is
merged and is under the jurisdiction of one high court.

The head of the High Court is the Chief Justice of the High Court. There is one Chief Justice. The
number of judges is not fixed by the Constitution of India and leaves it up to the discretion of the
president.

Qualifications To Become A High Court Judge

A judge of the High Court should be a:

• Citizen of India,
• Holding a judicial office for not less than 10 years in a territory of India,
• An advocate of the High Court for at least 10 years in succession.

1. High courts to be court of record

2. Power of superintendence over all courts by the High court
3. Transfer of certain cases to high court

Jurisdiction of the High Court

• Original Jurisdiction

• Article 226 defines the powers of the high court. It gives the power to the High Court to
issue writs. They have the power to issue orders or writs to ‘any person, authority, or
Government which falls within the territories under their jurisdiction to enforce the
Fundamental Rights.
• These writs are-

• Habeas Corpus

• It is a writ requiring a person under arrest of illegal detention to be brought before a judge or
brought into court. This is especially to ensure that the person be released if lawful grounds
for detention can not be proved.

• In a recent case, the Bombay High Court stated that a writ of Habeas Corpus will not be
maintainable even if the remand order was illegal if other remedies like a bail application
are available to the aggrieved. The MP HC also stated that a writ of habeas corpus is not
maintainable if the aggrieved has been detained under the Witness Protection Scheme 2018.

• Mandamus

• A writ issued as a command to an inferior court or ordering a person to perform their job or
public or statutory duty.

• The Supreme Court held that a writ of mandamus can not be issued to legislate or amend a
law.

• Prohibition

• This writ is issued as a command to prevent an inferior court or tribunal from exceeding its
jurisdiction.

• Quo Warranto

• This writ is to inquire into the legality of the claim of a person or public office. It stops
people from holding an office which they are not entitled to. This writ is applicable to the
public offices only and not to private offices.

• The Supreme Court held that the HC cannot issue Quo warranto unless it is based on
indisputable facts.
 • Certiorari

• This writ is passed to squash an order passed by an inferior court.

• Appellate Jurisdiction

• In civil cases, an appeal can be made against a district court’s decision. They can also make
an appeal directly from a subordinate court, if there is a substantial question of law.

• For criminal cases, appeals can be made against the Session and Additional Session courts.
This is if the sessional judge has given imprisonment for 7 years or more, or has awarded
capital punishment.

• They also have jurisdiction over cases relating to State and Center law. With regards to
constitutional cases, the case must have a substantial question of law in order to be
considered by the high court.

(Ref.1.Professionals‘The constitution of India ,Bare Act,

2.https://www.livelaw.in/know-the-law/what-is-article-131-of-constitution-explainer-151792?infinitescroll=1)

***********************************************