HISTORICAL BACKGROUND OF INDIAN CONSTITUTION

Introduction -

1600 – British enter India in the form of ‘East India Company’ (It was a private company) - This company
had an ‘exclusive right’ to trade in India under a charter granted by the Queen Elizabeth.

1765 – The East India company obtained ‘diwani rights’ of Bengal, Bihar and Orissa. These Diwani rights
company had won after the Battle of Buxar.

‘Diwani rights’' refer to the rights over revenue and civil justice. These diwani rights gave excessive
power to the East India company. Thus, British government felt the need to regulate the company by
laying down a legal framework. These acts we will study under the ‘Company rule’

COMPANY RULE (1773 - 1857)

‘REGULATING ACT OF 1773’

Objective -

 First step taken to regulate the East India company.

 Recognized for the 1st time the political and administrative functions of the company.
 Laid the foundation for central administration in India.

Features -

Foundations for central administration -

 It designated the ‘Governor of Bengal’ as ‘Governor General of Bengal’.

 First ‘Governor General of Bengal’ – Lord Warren Hastings
 Governor of Bombay and Madras presidencies were made subordinate to Governor General of
Bengal.

Regulation of the EIC -

 Prohibited the servants of the company to engage in private trade.

 Court of Directors (Governing body of the company) had to report about Indian affairs
(Revenue, civil, military) to the British government.

Pitt’s India act of 1784 -

 It clearly distinguished the commercial and political functions of the company.

 For the first time the company territories were called British possessions in India.
 Created a system of Double government.
 COURT OF DIRECTORS Commercial affairs

SYSTEM OF DOUBLE
GOVERNMENT

BOARD OF CONTROL Political affairs

Charter Act of 1813 -

 Abolished the Trade monopoly of East India company in India.

 Two items were still under EIC monopoly – 1) Trade in Tea 2) Trade with China
 Sovereignty of British crown over Indian company territories was asserted.
 Christian missionaries were allowed in India for enlightening the people.
 Provided for the spread of western education among inhabitants of British territories in India.
(Rs 1 Lakh were allocated for the same)
 Local Governments were empowered to impose taxes and punish those who did not pay them.

Charter Act of 1833 - (Also known as Saint Helena Act)

 The laws made under the previous acts were called Regulations, while laws made under this act
were called Acts.

Final step towards centralization in British India.

 ‘Governor General of Bengal’ was made the ‘Governor General of India.’

 Lord William Bentick was the ‘first Governor General of India'.
 Governor General was vested with all civil and military powers.
 ‘Exclusive legislative power’ was given to Governor General of India for the entire British India.
The act deprived the Governor of Bombay and Madras of their legislative powers.

East India Company

 Ended the activities of East India company as a commercial body, making it a purely
administrative body.

Provisions related to Law -

 Law member introduced in the Governor General council – Lord Macaulay.

 Indian laws were codified and consolidated.

Principle of non-discrimination introduced –

 No Indian to be denied employment under company based on religion, color.

 Abolished Slavery.

Other Provisions -

 Restrictions on immigration of Europeans and acquiring property were lifted.

 Provision for open competition negated (civil service).
Charter Act of 1853 -

 Separation of powers – Separated the legislative and executive function of Governor General
council. (Legislation was treated as a special function).
 Indian (central) Legislative council – functioned as a ‘mini parliament’. For this 6 new members
were provided in the council who were known as legislative councilors.
 Local representation was introduced for the first time (4 out of 6 members were appointed by
the local/provincial government – Madras, Bombay, Bengal, Agra).
 Introduced an open competition for selection and recruitment of civil service – Thus, the civil
service was made open to Indians too.

The Charter act of 1853 was the last act enacted by the British parliament to regulate the company
affairs. After this the company rule was abolished after the Revolt of 1857. Thus, we see the beginning
of the crown rule in India. (1858 – 1947)

CROWN RULE (1858 - 1947)

Government of India act 1858

 This act is known as ‘Act of Good Government’ (as it indicated the beginning of rule under the
benevolent Queen and abolished the company rule which was seen as the major reason for the
revolt of 1857).
 Designation of Governor General of India was changed – He came to be known as the ‘Viceroy
of India’.
 Lord Canning thus became the first viceroy and the last Governor General of India.
 Ended the system of Dual Government – It abolished the Board of control and Court of
Directors. (This system was introduced by the Pitts Act)
 Secretary of State for India – A new office was created which had complete control over Indian
administration.
 The Secretary of the state was a member of the British Cabinet – thus, his responsibility lied to
the British Parliament.
 A 15-member council was established to assist the Secretary of the state. This body was 1)
Advisory in nature 2) Body corporate – (Capable of suing and being sued in India.)

After the revolt of 1857, the British Government felt the need to seek the cooperation of Indians to run
the administration. To increase the association of Indians in administration 3 acts were enacted (1861,
1892, 1909).

Indian Council Act of 1861 -

 Representative Institutions – A beginning took place by associating Indians with the law-making
process. Viceroy should nominate some Indians as non-official members.
 Decentralization process was started by restoring legislative powers of Bombay and Madras
Presidencies.
 Statutory recognition was given to the ‘portfolio system’ (this system was introduced by Lord
Canning).
 Ordinance powers – It empowered the Viceroy to issue ordinances.
 New legislative council established for Bengal, northwestern province and Punjab.
Indian Council Act of 1892 -

 Increased the number of members (non-official) in central and provincial legislative assemblies.
 But the official majority was still maintained.
 Empowered Legislative councils - Power of discussing the Budget.
 Limited and indirect provision for use of elections was made.

Indian council Act 1909 - (Morley – Minto reforms) -

Lord Morley – Secretary of the state Lord Minto – Viceroy of India

Increased the participation of Indians in administration -

 First time it provided for association of Indians to the executive council of viceroy and Governor.
 Satyendra Prasad Sinha was the first Indian to join executive council (Law member).
 Indians were given the membership to the Imperial Legislative council for the 1st time.
 The provincial legislative assembly had to have non - official majority. (Mostly Indians).
 Two Indians were nominated to the Council of the Secretary of State for Indian affairs.

Increased the size of the legislative councils -

 Increased the size of legislative council (16 to 60 seats in central legislative assembly).
 Legislative Councils of Bengal, Madras, Bombay and United Provinces – 50 members each
 Legislative Councils of Punjab, Burma and Assam – 30 members each

Introduced communal representation in Indian Politics -

 System of communal representation was legalized with the concept of separate electorates.
 Separate electorates were given to the Muslims – Under this Muslim members were to be
elected only by Muslim voters.
 It also provided separate representation for presidency corporations, chamber of commerce and
zamindars.

Empowered the legislative councils -

 The members could discuss the budget and move resolutions. They could also discuss matters of
public interest.
 In Budget members were now allowed to ask supplementary questions.

Government of India Act 1919 - (Montagu – Chelmsford reforms)

Central Government -

Legislature -

 It introduced bicameralism – Upper house (council of state) and a Lower house (Legislative
assembly).
 Majority of the members of both houses were chosen by direct elections.

Executive -
  Viceroy executive council – 3 of the 6 members of the viceroy executive council were to be
Indian.

Provincial Government - (They were empowered under the act)

Legislature -

 Increased Size of provincial legislative assemblies. Now about 70% of the members were
elected.

Executive - (System of Dyarchy was introduced)

 There were two classes of administrators – Executive councillors and ministers.

 The subjects were divided into two lists – reserved and transferred.
 Governor was the executive head.
 Governor administered the reserved list along with his executive councillors.
 The executive councillors were not responsible to the legislature.
 Subjects included under the reserved list were law and order, irrigation, finance, land revenue,
etc.
 For the transferred list the Governor administers via the Ministers.
 The ministers were responsible to the people who elected them through the legislature.
 These ministers were nominated from among the elected members of the legislative council.
 Subjects included under transferred list were education, local government, health, excise,
industry, public works, religious endowments, etc.
 The Secretary of State and the Governor-General could interfere in matters under the reserved
list, but this interference was restricted for the transferred list.

DYARCHY Transferred Subjects Governor with aid of ministers

PROVINCIAL SUBJECTS

Reserved Subjects Governor and his executive council

Finance -

For the 1st time provincial budgets were separated from the central budget. Thus, the provincial
legislatures were authorized to enact budgets.

Other provisions -

 Extended the principle of communal electorates – Sikhs, Christians, Anglo Indians, Muslims
 New office of the High commissioner for India in London was established.
  Establishment of a public service commission. (Central public service commission – 1926).

Government of India act 1935 -

Creation of an All-India Federation

 This federation was to consist of British India and the princely states.
 The provinces in British India would have to join the federation but this was not compulsory for
the princely states.
 This federation never materialized because of the lack of support from the required number of
princely states.

Division of powers (Between center and provinces)

 There were three lists which gave the subjects under each government – 1) Federal List (Centre
2) Provincial List (Provinces) 3) Concurrent List (Both)
 The Viceroy was vested with residual powers. (Power over subjects which were not mentioned
in any of the lists).

Provincial Autonomy

 Responsible Government in provinces – Governor had to act on the advice of ministers

responsible for provincial legislature.
 Introduction of bicameralism in 6 out of 11 provinces.
 Adoption of dyarchy at the center.

Other Provisions -

 Extension of principle of communal representation – women, depressed classes.

 Establishment of the Reserve Bank of India – to control credit and currency of the country.
 Establishment of Federal, Provincial and Joint public service commission.
 Provided for the establishment of ‘federal court’ which was set up in 1937.

Government of India act 1947 -

 Ended the British rule in India

 Partition of India and created 2 independent dominion – India and Pakistan
 Empowered the constituent assemblies of 2 dominions to adopt their own constitution and
repeal any British rule.
 It granted freedom to Indian princely states to join either dominion (India or Pakistan) or remain
independent.
 Assigned dual functions (constituent and legislative) to the constituent assembly formed in
1946.
 MAKING OF THE INDIAN CONSTITUTION

Demand for a constituent assembly – a brief timeline – (Indepth we will study it in history)

1934 ‘MN Roy’ first put forward the idea of a Constituent Assembly for India.

1935 First time, INC (Indian national congress) officially demanded a Constituent
Assembly to frame the Constitution of India.
1938 Jawaharlal Nehru, declared that ‘the Constitution of free India must be
framed, without outside interference, by a Constituent Assembly which is
elected based on adult franchise’.
1940 ‘August Offer’ - Demand for constituent assembly was finally accepted

1942 Cripps Mission - gave a draft proposal on behalf of the British Government on
the framing of an independent constitution (rejected by Muslim league).
1946 Constituent Assembly was constituted based on the principle formulated by
the Cabinet Mission Plan.

Composition of the constituent assembly -

292 - Drawn from 11 Governor

Province
British India - 296
4 - Drawn from Chief Commisioner Province
Total Strength -
389 Princely States -93

 Proportional Representation - Each province and princely state were allotted seats in
proportion to their respective population. Roughly, one seat was to be allotted for every million
population.
 Allocation of seats - Seats allocated to each British province were to be divided among the three
principal communities– Muslims, Sikhs and General in proportion to their population.
 Method of election – Representatives of each community (Muslim, Sikh, General) were to be
elected by members of that community in the provincial legislative assembly and voting was to
be done by the method of proportional representation by means of single transferable vote.
 Provision for Princely states - The representatives of the princely states were to be nominated
by the heads of the princely states.

Thus, you need to remember ‘2 main features’ of composition of constituent assembly -

 The Constituent Assembly was to be a partly elected (British India) and partly nominated
(Princely states).
 Indirect elections - The members were indirectly elected by the members of the provincial
assemblies (British India).
Election for the Seats -

 Election was held for 296 seats to the British India Provinces. The 93 seats allotted to the
princely states were not filled as they decided to stay away from the Constituent Assembly.

Indian National Congress - 208

296 Seats Muslim League - 73

Small Groups and Independents - 15

 Mahatma Gandhi was not a member of the constituent assembly.

Working of the constituent assembly -

 1st meeting - The Constituent Assembly held its first meeting on December 9, 1946.
 The Muslim League boycotted the meeting and insisted on a separate state of Pakistan.
 Thus, the meeting was attended by only 211 members.
 Temporary President - Dr. Sachchidananda Sinha, the oldest member, was elected as the
temporary President of the Assembly, following the French practice.
 Permanent President - Dr. Rajendra Prasad was elected as the President of the Assembly.
 2 Vice President - Both H.C. Mukherjee and V.T. Krishnamachari were elected as the Vice-
Presidents of the Assembly.

Objectives Resolution -

On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the Assembly. It
laid down the fundamentals and philosophy of the constitutional structure. It was adopted by the
Assembly on January 22, 1947. Its modified version is the Preamble of the present constitution.

Main Points of the objective Resolution -

 India is an Independent Sovereign Republic.

 India shall be a union of erstwhile British India, Indian States and other parts outside British
India and Indian States which are willing to be part of India.
 Territories forming the union shall be autonomous units and will exercise all powers and
function of Government, except those assigned to or vested in the union.
 All powers and authority of sovereign and independent India and its constitution shall flow from
the people.
 All people of India shall be guaranteed and secured to all justice, social, economic and political;
equality of status of opportunity, and before the law; freedom of thought, expression, belief,
faith, worship, vocation, association and action, subject to law and public morality.
 Adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed
and other backward classes.
 The integrity of the territory of the Republic and its sovereign rights on land, sea and air shall be
maintained according to justice and the law of civilized nations.
  India will make its full and willing contribution to the promotion of world peace and the welfare
of mankind.

Mountbatten Plan -After acceptance of the Mountbatten Plan of June 3, 1947, for the partition of the
country, the representatives of most of the princely states joined constituent Assembly. The members of
the Muslim League from the Indian Dominion also entered the Assembly.

Changes in the constituent assembly after the Independence Act 1947 -

 The Assembly was made a fully sovereign body, which could frame Constitution as it pleased.
 The Assembly also became a legislative body. The Assembly became the first Parliament of free
India (Dominion Legislature).
 When the Assembly worked as a Constitutional body it was chaired by Dr. Rajendra Prasad and
when it met as the legislative body, it was chaired by G.V. Mavlankar.

Other Functions performed by the Constituent Assembly -

 Ratified India’s membership of the Commonwealth in May 1949.

 Adopted the national flag on July 22, 1947.
 Adopted the national anthem on January 24, 1950.
 Adopted the national song on January 24, 1950.
 It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950.

Committees of the constituent assembly – Here we will look only at the major committees -

Jawaharlal Nehru  Union Powers Committee

 Union Constitution Committee
Sardar Patel  Provincial Constitution Committee
 Advisory Committee on Fundamental Rights, Minorities and
Tribal and Excluded Areas
Dr. B.R. Ambedkar  Drafting Committee

Drafting Committee -

It was this committee that was entrusted with the task of preparing a draft of the new Constitution. It
consisted of seven members. They were -

 Dr. B.R. Ambedkar (Chairman)

 N. Gopalaswamy Ayyangar
 Alladi Krishnaswamy Ayyar
 Dr. K.M. Munshi
 Syed Mohammad Saadullah
 N. Madhava Rau (He replaced B.L. Mitter who resigned due to ill-health)
 T.T. Krishnamachari (He replaced D.P. Khaitan who died in 1948)

Some prominent facts/personalities associated with the constituent assembly/constitution -

 Symbol (seal) of the Constituent Assembly – Elephant

 First person to address the meeting of the constituent assembly – JB Kriplani
 President of the constituent assembly – Rajendra Prasad Vice Chairman – H.C Mukherjee
  Constitutional advisor (Legal advisor) to the Constituent Assembly - Sir B.N. Rau.
 Chief draftsman of the constitution in the Constituent Assembly – S N Mukherjee
 Calligrapher of the Indian Constitution - Prem Behari Narain Raizada
 The original version was beautified and decorated by artists from Shantiniketan - Nand Lal Bose
and Beohar Rammanohar Sinha.
 26th November 1949 – The constitution was passed and adopted in the assembly. 26th January
1950 – The constitution came into force. (Commencement of the constitution)
 The First Speaker of the Lok Sabha after India turned into a Republic – GV Mavlankar
 In the original Constitution - No provision with respect to an authoritative text of the
Constitution in the Hindi language. This was made possible by the 58th Constitutional
Amendment Act of 1987. This amendment inserted a new Article 394-A in the last part of the
Constitution.

SALIENT FEATURES OF THE CONSTITUTION

Here we will take an overview of the features of the constitution (We will study all these separately) -

Lengthiest Written Constitution

 About 465 Articles (divided into 25 Parts) and 12 Schedules

 Reasons: 1) Geographical Factors: India’s vastness and diversity 2) Historical Factors: Influence
of GoI Act, 1935 3) Single Constitution: Union + State 4) Domination of legal luminaries

Drawn From Various Sources

 Dr. B.R. Ambedkar proudly acclaimed that the Constitution of India has been framed after
‘ransacking all the known Constitutions of the World'.
 Structural part of the Constitution derived from the Government of India Act of 1935.
 Philosophical part of the Constitution (the Fundamental Rights and the Directive Principles of
State Policy) derive their inspiration from the American and Irish Constitutions respectively.
 Political Part: British Constitution.

Blend of Rigidity and Flexibility -

 Article 368 provides for two types of amendments – 1) Special majority of the Parliament, (2/3
of present and voting + supported by more than 50% of total strength) 2) Special majority of the
Parliament and with the ratification by half of the total states with simple majority.
 Some provisions can be amended by simple majority (these are not considered amendment
under Article 368).

Federal System with Unitary Bias -

 Features of a federation, viz., dual government, division of powers, written Constitution,

supremacy of Constitution, rigidity of Constitution, independent judiciary and bicameralism.
 Features of Unitary, viz, strong centre, single constitution, single citizenship, integrated judiciary,
appointment of Governor by the centre, AIS, emergency provisions etc.

Parliamentary Form of Government

 Fundamental Principle: Co-operation and Coordination b/w legislature and executive organs.
Features.

 Presence of nominal and real executives.

 Majority party rule.
 Collective responsibility of the executive to the legislature.
 Double membership.
 Leadership of the prime minister or the chief minister.
 Dissolution of the lower House (Lok Sabha or Assembly).

Synthesis of Parliamentary Sovereignty and Judicial Supremacy.

 Indian parliamentary system is a proper synthesis between the British principle of parliamentary
sovereignty and the American principle of judicial supremacy.
 The Supreme Court can declare the parliamentary laws as unconstitutional through its power of
judicial review.
 The Parliament can amend the major portion of the Constitution through its constituent power.

Integrated and Independent Judiciary

 Supreme Court is the guarantor of the fundamental rights of the citizens and the guardian of the
Constitution.
 Integrated: SC + HC + Lower Courts enforce both union and state laws.
 Independent: Security of tenure of judges of SC and HC, all expenses of HC and SC are charged
on consolidated Fund etc.

Fundamental Rights Part-III (Article 12-35)

 Right to Equality (Articles 14–18)

 Right to Freedom (Articles 19–22)
 Right against Exploitation (Articles 23–24)
 Right to Freedom of Religion (Articles25–28).
 Cultural and Educational Rights (Articles 29–30).
 Right to Constitutional Remedies (Article 32).
 FR’s aim to promote political democracy.
 FR’s are enforceable by courts through writs.

Directive Principles of State Policy Part – IV (Art 36 – 51)

 These principles are meant for promoting the ideal of social and economic democracy.
 Aim to establish welfare state
 Non-justiciable in nature
 Classified into 3 categories: 1) Socialist 2) Gandhian 3) Liberal-Intellectual (this classification is
only for simplifying it is not present in the constitution).

Fundamental Duties (Total: 11)

 Part IV-A & Article 51 A

 Fundamental Duties serve as a reminder to citizens that while enjoying the rights, they must be
conscious of their duties towards the country, society and fellow citizens
  42nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh
Committee.
 The 86th Constitutional Amendment Act of 2002 added one more fundamental duty.
 Non-justiciable in nature

A Secular State

 Western concept of Secularism connotes a complete separation between religion and the state
 Indian concept of Secularism connotes giving respect to all religions or protecting all religions
equally
 The word ‘Secular’ was added to the Preamble of the Indian Constitution by the 42nd
Constitutional Amendment Act of 1976.
 It is reflected in: Preamble, Art. 14,15, 16, 25-30, Art. 44.

Universal Adult Franchise

 The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional
Amendment Act of 1988.

Single Citizenship

 Indian constitution provides for only one or single citizenship – Indian Citizenship

Independent Bodies

 These bodies are envisaged by the constitution as the Bulwarks of the democratic system.
 These are Election commission, Union Public Service commission, Comptroller and Auditor -
General, etc.

Emergency Provisions

 During the emergency the Federal structure of the country got converted into a Unitary one.
 National emergency (Article 352)
 State emergency (President’s Rule): On the ground of 1) failure of the Constitutional machinery
in the state (Article 356). 2) failure comply with the directions of the Centre (Article 365).
 Financial emergency (Article 360).
 It converts federal structure into unitary one

Three-tier Government

 Democratic decentralization by establishing PRI’s (73rd CA 1992) and ULB’s (74th CA 1992)
which form third tier of government.

Co-operative Societies

 97th Constitutional Amendment Act of 2011 gave constitutional status to co-operative societies
 Fundamental right to form co-operative societies (Article 19 (1) (c).
 DPSP: Promotion of Co-operative societies (Art. 43-B).
 New Chapter Added – Part IX B Parliament has power to regulate multi-state co-operative
societies.
Sources for the Indian Constitution

Government of India Act 1) Federal Scheme 2) Office of governor 3) Judiciary 4) Public Service
of India Act 1935 Commissions 5) Emergency provisions 6) administrative details.

British Constitution 1) Parliamentary government 2) Rule of Law 3) Legislative procedure, 4)

Single citizenship, 5) cabinet system 6) prerogative writs,7) parliamentary
privileges 8) Bicameralism.

US Constitution 1) Fundamental rights 2) Independence of judiciary 3) judicial review 4)

Impeachment of the president, 5) Removal of Supreme Court 6) high
court judges 7) post of vice-president.

Irish Constitution 1) Directive Principles of State Policy 2) Nomination of members to Rajya

Sabha 3) Method of election of president.

Canadian Constitution 1) Federation with a strong Centre 2) Vesting of residuary powers in the
Centre 3) Appointment of state governors by the Centre 4) Advisory
jurisdiction of the Supreme Court.

Australian Constitution 1) Concurrent List 2) Freedom of trade, commerce and inter-course 3)

Joint sitting of the two Houses of Parliament.

Weimar Constitution of Suspension of Fundamental Rights during Emergency.

Germany

Soviet Union (USSR now Fundamental duties and the ideal of justice (social, economic and
Russia) political) in the Preamble.
French Constitution Republic and the ideals of liberty, equality and fraternity in the
Preamble.

South African Constitution 1) Procedure for amendment of the Constitution 2) Election of members
of Rajya Sabha.

Japanese constitution Procedure established by Law.

Schedule in Indian constitution -

Number Subject Matter

First Schedule Names of the States, Union Territories and their territorial jurisdiction
Second Schedule Salaries, Emoluments, Privileges of certain dignitaries. President, Governor,
Speaker, Deputy Speaker of Lok Sabha and Legislative Assembly, Chairman
and Deputy Chairman of Rajya Sabha and Legislative Council, Judges of
Supreme Courts and High Courts, CAG.
Not mentioned are MPs, MLAs, Union and State Ministers, Election
Commissioner, UPSC Members
Third Schedule Oath and Affirmations: Union and State Ministers, MLA and MP Contestants,
MLA & MPs, Judges of Supreme Court and High Court Judges, CAG.
Note: CAG, Judges of Supreme and High Court are included in second and
third schedules
Not included: President & Vice President, Speaker& Deputy Speaker of Lok
Sabha, Legislative Assembly, Chairman & Deputy Chairman of RS &Legislative
Council, Election Commission, UPSC, SPSC
Fourth Schedule Allocation of the Seats in Rajya Sabha to States and UT’s
Fifth Schedule Administration of Scheduled Areas and Scheduled Tribes
Sixth Schedule Administration of Tribal Areas in Assam, Meghalaya, Tripura and Mizoram
Seventh Schedule Division of Powers 1. Union list (100) 2. State list (61) 3. Concurrent list (52)
Eight Schedule Official Languages recognized by the Constitution originally 14 and now 22
languages
92nd CAA– Bodo, Dongri, Mythili, Santhali
71st CAA – Konkani, Manipuri, Nepali
96th CAA – Odia
Ninth Schedule (1st Land reforms and other matters to be placed by State and Centre.
CA 1951)
Tenth Schedule Anti- Defection Law provisions.
(52nd CA 1985)
Eleventh Schedule Panchayats (29 Matters) (243-G)
(73rd CA 1992)
Twelfth Schedule Powers that can be transferred to Municipalities (18 Subjects) (243-W).
(74th CA 1992)
 PRELIMS POLITY 2
CONTENT
 Parts of the Constitution
 Preamble of the Indian Constitution
 Some facts about the Indian Constitution
 Union and Its territories (Part 1 – Article 1 to 4)
 Citizenship (Article 5 to 11) – Part II
 Citizenship Act, 1955

PARTS OF THE CONSTITUTION

 THE PREAMBLE
Meaning of Preamble
 A preamble is an introductory statement in a document that explains the
document’s philosophy and objectives. It presents the intention of its framers, the
history behind its creation, and the core values and principles of the nation.

Preamble of United States of America

 The American Constitution (1789) was the first to begin with a Preamble. Many
countries, including India, followed this practice.
 The American Constitution begins with “We, The People”

PREAMBLE OF THE INDIAN CONSTITUTION

Ingredients of the Preamble
 The Preamble of Indian Constitution reveals four ingredients or components:
1. Source of authority of the Constitution: The Preamble states that the Constitution
derives its authority from the people of India.
2. Nature of Indian State: It declares India to be of a sovereign, socialist, secular
democratic and republican polity.
3. Objectives of the Constitution: It specifies justice, liberty, equality and fraternity as
the objectives.
4. Date of adoption of the Constitution: It stipulates November 26, 1949, as the date.

Note: Constitution of India commenced from 26th January 1950

Preamble of Constitution
 American Constitution was the first to begin with a Preamble
 Preamble to the Indian Constitution is based on the ‘Objectives Resolution (December
13, 1946)’, drafted and moved by Pandit Nehru, and adopted by the Constituent
Assembly
 Preamble reflects mind of constitution makers.
 It has been amended by the 42nd Constitutional Amendment Act (1976), which added
three new words–Socialist, Secular and Integrity.
 Preamble reflects mind of constitution makers.

Facts about Constituent Assembly

 On the basis of the framework provided by the Cabinet Mission, a Constituent
Assembly was constituted on 9th December, 1946. The Constitution making body
was elected by the Provincial Legislative Assembly constituting of 389 members who
included 93 from Princely States and 296 from British India.
 The first meeting of the Constituent Assembly took place on December 9, 1946 at
New Delhi with Dr Sachidanand being elected as the interim President of the
Assembly. However, on December 11, 1946, Dr. Rajendra Prasad was elected as the
President and H.C. Mukherjee as the Vice-President of the Constituent Assembly.
 The Objective Resolution was moved on December 13, 1946 by Pandit Jawaharlal
Nehru, which provided the philosophy and guiding principles for framing the
Constitution and later took the form of Preamble of the Constitution of India

Key Words in the Preamble

 Sovereign: ‘sovereign’ implies that India is neither a dependency nor a dominion of
any other nation, but an independent state- free to conduct its own affairs (both
internal and external)
 Socialist:
o Congress party itself adopted resolution to establish a ‘socialistic pattern of society’
in its Avadi session
o Indian brand of socialism is a ‘democratic socialism’ and not a ‘communistic
socialism’ (also known as ‘state socialism’)
o Democratic socialism- holds faith in a ‘mixed economy’ where both public and
private sectors co-exist side by side
 o Indian socialism is a blend of Marxism and Gandhism, leaning heavily towards the
Gandhian socialism
 Secular:
o Word Secular was added by the 42nd Constitutional Amendment Act of 1976
o India has positive concept of secularism i.e., all religions in our country (irrespective
of their strength) have the same status and support from the state
 Democratic: A democratic polity, as stipulated in the Preamble, is based on the
doctrine of popular sovereignty, that is, possession of supreme power by the people.
 Republic :
o The head of the state is always elected directly or indirectly for a fixed period, e.g.,
USA
o India has an elected head called the president. He is elected indirectly for a fixed
period of five years
o A republic also means two more things:
 Vesting of political sovereignty in the people and not in king
 The absence of any privileged class and hence all public offices being opened to
every citizen without any discrimination

 Justice: The ideal of justice–social, economic and political–has been taken from the
Russian Revolution
 Justice secured through various provisions of the Fundamental and Directive
Principles.
 Liberty: ‘liberty’ means the absence of restraints on the activities of individuals, and at
the same time, providing opportunities for the development of individual personalities
(UPSC 2019). The Preamble secures to all citizens of India liberty of thought,
expression, belief, faith and worship.
 Equality: Equality means absence of special privileges to any section of the society,
and the provision of adequate opportunities for all individuals without any
discrimination
 Fraternity: Fraternity means “Sense of brotherhood”- to assure two things– the
dignity of the individual and the unity and integrity of the nation. Word ‘integrity’ has
been added to the preamble by the 42nd Constitutional Amendment.
Preamble as part of the constitution
 In the Berubari Union case (1960), the Supreme Court specifically opined that
Preamble is not a part of the Constitution.
 In the Kesavananda Bharati case (1973), the Supreme Court rejected the earlier
opinion and held that Preamble is a part of the Constitution.
 In the LIC of India case (1995) also, the Supreme Court again held that the Preamble is
an integral part of the Constitution.

Status of Preamble
 The Preamble was enacted by the Constituent Assembly after the rest of the
Constitution was already enacted. The reason for inserting the Preamble at the end
was to ensure that it was in conformity with the Constitution as adopted by the
Constituent Assembly.
 The Preamble is neither a source of power to legislature nor a prohibition upon the
powers of legislature.
 It is non-justiciable, that is, its provisions are not enforceable in courts of law.

Amenability of the Preamble

 The question as to whether the Preamble can be amended under Article 368 of the
Constitution arose for the first time in the historic Kesavananda Bharati case (1973).
 The Supreme Court, held that the Preamble is a part of the Constitution and Preamble
can be amended, subject to the condition that no amendment is done to the ‘basic
features’.
 Preamble has been amended only once so far, in 1976, by the 42nd Constitutional
Amendment Act, which has added three new words–Socialist, Secular and Integrity–to
the Preamble
 SOME FACTS ABOUT THE INDIAN CONSTITUTION
 The Constitution of India is the supreme law of India. The document lays fundamental
rights, directive principles, and the duties of citizens.
 It imparts constitutional supremacy and was adopted by its people with a declaration
in its preamble.
 Parliament cannot override the constitution.
 It was adopted by the Constituent Assembly of India on 26 November 1949 and
became effective on 26 January 1950.
 The constitution replaced the Government of India Act 1935 as the country's
fundamental governing document, and the Dominion of India became the Republic of
India.
 The Indian constitution is the world's longest for a sovereign nation. At its enactment,
it had 395 articles in 22 parts and 8 schedules. At about 145,000 words, it is the
second-longest active constitution—after the Constitution of Alabama—in the world.
 The constitution has a preamble and 470 articles, which are grouped into 25 parts.
With 12 schedules and five appendices, it has been amended 104 times; the latest
amendment became effective on 25 January 2020.

UNION AND ITS TERRITORIES (PART 1 – ARTICLE 1 TO 4)

Article 1
 Article 1 describes India, that is, Bharat as a ‘Union of States’ rather than a
‘Federation of States’. This provision deals with two things: one, name of the country;
and two, type of polity.
 According to Article 1, the territory of India can be classified into three categories:
1. Territories of the states
2. Union territories
3. Territories that may be acquired by the Government of India at any time

Difference between Indian Union and USA federation

 The Union Government in India can destroy the states whereas the state
governments cannot destroy the Union.
 The American Federal Government cannot form new states or alter the borders of
existing states without the consent of the states concerned. That is why the USA is
described as ‘an indestructible union of indestructible states.’

Article 2
 Article 2 empowers the Parliament to ‘admit into the Union of India, or establish, new
states on such terms and conditions as it thinks fit’.
 Thus, Article 2 grants two powers to the Parliament:
a) The power to admit into the Union of India new states; and
b) The power to establish new states. The first refers to the admission of states which
are already in existence, while the second refers to the establishment of states which
were not in existence before.
  Article 2 relates to the admission or establishment of new states that are not part of
the Union of India

Note: Article 2A : Sikkim to be associated with the union

Article 3
 Article 3 authorizes the Parliament to:
a) form a new state by separation of territory from any state or by uniting two or more
states or parts of states or by uniting any territory to a part of any state;
b) increase the area of any state;
c) diminish the area of any state;
d) alter the boundaries of any state; and
e) alter the name of any state.
 Notably, Article 2 relates to the admission or establishment of new states that are not
part of the Union of India, Article 3, on the other hand, relates to the formation of or
changes in the existing states of the Union of India.
 In other words, Article 3 deals with the internal re-adjustment inter se of the
territories of the constituent states of the Union of India.
 Parliament can redraw the political map of India according to its will. Hence, the
territorial integrity or continued existence of any state is not guaranteed by the
Constitution. Therefore, India is rightly described as ‘an indestructible union of
destructible states’.

Article 4
 The Constitution (Article 4) itself declares that laws made for admission or
establishment of new states (under Article 2) and formation of new states and
alteration of areas, boundaries or names of existing states (under Articles 3) are not to
be considered as amendments of the Constitution under Article 368. This means that
such laws can be passed by a simple majority and by the ordinary legislative process.

 Does the power of Parliament to diminish the areas of a state (under Article 3)
include also the power to cede Indian territory to a foreign country?
 This question came up for examination before the Supreme Court in a reference
made by the President in 1960.
 The decision of the Central Government to cede part of a territory known as
Berubari Union (West Bengal) to Pakistan led to political agitation and controversy
and thereby necessitated the Presidential reference.
 The Supreme Court held that the power of Parliament to diminish the area of a state
(under Article 3) does not cover cession of Indian territory to a foreign country.
Hence, Indian territory can be ceded to a foreign state only by amending the
Constitution under Article 368. Consequently, the 9th Constitutional Amendment Act
(1960) was enacted to transfer the said territory to Pakistan.
1956  Kerala= Travancore+ Cochin+ South Canara
 Andhra Pradesh= Andhra + Hyderabad
 Madhya Pradesh= Madhya Bharat + Vindhya + Bhopal
 New UT= Laccadive; Minicoy; Amindvi Islands from the territory detached
from the Madras state
1960 Maharashtra and Gujarat Bifurcated
1961 Dadra and Nagar Haveli (10th Constitutional Amendment)
1962 Goa, daman, Diu (12th Constitutional Amendment) French handover Pondicherry
1963 Nagaland
1966 Haryana
1971 Himachal Pradesh
1974 Sikkim (36th Constitutional Amendment Sikkim became full fledged State)
1987 Mizoram, Arunachal Pradesh, Goa
2000 Chhattisgarh, Uttarakhand, Jharkhand
2014 Telangana
2019 2 union territories J&K ; Ladakh

 The new states of Chhattisgarh, Uttarakhand, and Jharkhand were formed on the 1st,
9th, and 15th of November 2000, respectively. It changed the count of Indian states
from 25 to 28.
 Reorganization of Jammu and Kashmir: The Jammu and Kashmir reorganization act
2019 reorganizes the state of Jammu and Kashmir into:
i. the Union Territory of Jammu and Kashmir with a legislature, and
ii. the Union Territory of Ladakh without a legislature.
  The Union Territory of Ladakh will comprise Kargil and Leh districts, and the Union
Territory of Jammu and Kashmir will comprise the remaining territories of the existing
state of Jammu and Kashmir.

CITIZENSHIP (ARTICLE 5 TO 11) – Part II

 Like any other modern state, India has two kinds of people–citizens and aliens. Citizens
are full members of the Indian State and owe allegiance to it. They enjoy all civil and
political rights. Aliens, on the other hand, are the citizens of some other state and
hence, do not enjoy all the civil and political rights. They are of two categories–friendly
aliens or enemy aliens.
 All other rights except Article 15,16,19,29,30 are enjoyed by Aliens
 However Enemy aliens they do not enjoy protection against arrest and detention
(Article 22). (Enemy aliens are the subjects of that country that is at war with India
e.g. China and Pakistan)
 In India both a citizen by birth as well as a naturalized citizen are eligible for the office
of President while in USA, only a citizen by birth and not a naturalized citizen is eligible
for the office of President
 The Constitution confers the following rights and privileges on the citizens of India
(and denies the same to aliens):
1. Right against discrimination on grounds of religion, race, caste, sex or place of birth
(Article 15).
2. Right to equality of opportunity in the matter of public employment (Article 16).
3. Right to freedom of speech and expression, assembly, association, movement,
residence and profession (Article 19).
4. Cultural and educational rights (Articles 29 and 30).
5. Right to vote in elections to the Lok Sabha and state legislative assembly.
6. Right to contest for the membership of the Parliament and the state legislature.
7. Eligibility to hold certain public offices, that is, President of India, Vice-President of
India, judges of the Supreme Court and the high courts, Governor of states, Attorney
General of India and Advocate General of states.

Constitutional Provisions: (citizenship from Articles 5 to 11 under Part II)

 It contains neither any permanent nor any elaborate provisions in this regard.
 It only identifies the persons who became citizens of India at its commencement
(i.e., on January 26, 1950).
 It does not deal with the problem of acquisition or loss of citizenship subsequent to
its commencement. It empowers the Parliament to enact a law to provide for such
matters and any other matter relating to citizenship.

Article 5
 A person who had his domicile in India and also fulfilled any one of the three
conditions, viz.,
1) if he was born in India; or
2) if either of his parents was born in India; or
 3) If he has been ordinarily resident in India for five years immediately before the
commencement of the Constitution, became a citizen of India.

Article 6
 A person who migrated to India from Pakistan became citizen of India if he or either of
his parents or any of his grandparents was born in undivided India and also full fill any
of 2 conditions
1) he migrated to India before July 19, 1948 , he had been ordinarily resident in India
since the date of his migration
2) he migrated to India before July 19, 1948, he had been ordinarily resident in India
since the date of his migration (residence for 6 months before registration)

 The partition involved the division of two provinces, Bengal and Punjab, based on
district-wide non-Muslim or Muslim majorities.
 The partition also saw the division of the British Indian Army, the Royal Indian
Navy, the Indian Civil Service, the railways, and the central treasury. The partition
was outlined in the Indian Independence Act 1947 and resulted in the dissolution
of the British Raj, or Crown rule in India.

Article 7
 A person who migrated to Pakistan from India after March 1, 1947, but later returned
to India for resettlement could become an Indian citizen. For this, he had to be
resident in India for six months preceding the date of his application for registration
Article 8
 A person who, or any of whose parents or grandparents, was born in undivided India
but who is ordinarily residing outside India shall become an Indian citizen if he has
been registered as a citizen of India by the diplomatic or consular representative of
India in the country of his residence, whether before or after the commencement of
the Constitution.
 Thus, this provision covers the overseas Indians who may want to acquire Indian
citizenship

To sum up, these provisions deal with the citizenship of

a) persons domiciled in India;
b) persons migrated from Pakistan
c) persons migrated to Pakistan but later returned
d) persons of Indian origin residing outside India

The other constitutional provisions with respect to the citizenship are as follows:
 Article 9
No person shall be a citizen of India or be deemed to be a citizen of India, if he has
voluntarily acquired the citizenship of any foreign state.
 Article 10
Every person who is or is deemed to be a citizen of India shall continue to be such
citizen, subject to the provisions of any law made by Parliament.
 Article 11
Parliament shall have the power to make any provision with respect to the
acquisition and termination of citizenship and all other matters relating to
citizenship.

CITIZENSHIP ACT, 1955

 The Citizenship Act (1955) provides for acquisition and loss of citizenship after the
commencement of the Constitution.
 Originally, the Citizenship Act (1955) also provided for the Commonwealth Citizenship.
But, this provision was repealed by the Citizenship (Amendment) Act, 2003.

Acquisition of Citizenship
 The Citizenship Act of 1955 prescribes five ways of acquiring citizenship, viz, birth,
descent, registration, naturalisation and incorporation of territory:
 By Birth
o A person born in India on or after January 26, 1950 but before July 1, 1987 is a citizen
of India by birth irrespective of the nationality of his parents.
o A person born in India on or after July 1, 1987 is considered as a citizen of India only
if either of his parents is a citizen of India at the time of his birth.
o Further, those born in India on or after December 3, 2004 are considered citizens of
India only if both of their parents are citizens of India or one of whose parents is a
citizen of India and the other is not an illegal migrant at the time of their birth.
 o The children of foreign diplomats posted in India and enemy aliens cannot acquire
Indian citizenship by birth.
 By Descent
o A person born outside India on or after January 26, 1950 but before December 10,
1992 is a citizen of India by descent, if his father was a citizen of India at the time of
his birth.
o A person born outside India on or after December 10, 1992 is considered as a citizen
of India if either of his parents is a citizen of India at the time of his birth.
o December 3, 2004 onwards, a person born outside India shall not be a citizen of
India by descent, unless his birth is registered at an Indian consulate within one year
of the date of birth or with the permission of the Central Government, after the
expiry of the said period.
o It also contains provisions related to the acquisition of citizenship of a minor child.
 By Registration
o The Central Government may, on an application, register as a citizen of India any
person (not being an illegal migrant) if he belongs to any of the following categories,
namely:-
 ordinarily resident in India for seven years
 person who is married to a citizen of India and is ordinarily resident in India for
seven years
 registered as an overseas citizen of India cardholder for five years, and who is
ordinarily resident in India for twelve months before making an application for
registration
 Minor children of persons who are citizens of India;
 Citizenship by Naturalisation
o The Central Government may, on an application, grant a certificate of naturalisation
to any person(not being an illegal migrant) if:
 He is not a subject or citizen of any country where citizens of India are prevented
from becoming subjects or citizens of that country by naturalisation;
 If he is a citizen of any country, he undertakes to renounce the citizenship of that
country in the event of his application for Indian citizenship being accepted;
 He has either resided in India or been in the service of a Government in India;
 He bears a good moral character;
 He has an adequate knowledge of a language specified in the Eighth Schedule of
the Constitution of India;
 Citizenship by incorporation of Territory
o If any new territory becomes a part of Government of India shall specifies the person
who among the people of the territory shall be the citizen of India.
o Such persons become the citizen of India from the notified date.
o For example, when Pondicherry became a part of India, the Government of India
issued the Citizenship (Pondicherry) Order (1962), under the Citizenship Act (1955).

Loss of Citizenship
 By Renunciation
o Any citizen of India of full age and capacity can make a declaration renouncing his
Indian citizenship. Upon the registration of that declaration, that person ceases to be
 a citizen of India. However, if such a declaration is made during a war in which India
is engaged, its registration shall be withheld by the Central Government.
o Further, when a person renounces his Indian citizenship, every minor child of that
person also loses Indian citizenship. However, when such a child attains the age of
eighteen, he may resume Indian citizenship.
 By Termination
o When an Indian citizen voluntarily (consciously, knowingly and without duress,
undue influence or compulsion) acquires the citizenship of another country, his
Indian citizenship automatically terminates.
o This provision, however, does not apply during a war in which India is engaged.
 By Deprivation
o It is a compulsory termination of Indian citizenship by the Central government, if:
(a) the citizen has obtained the citizenship by fraud:
(b) the citizen has shown disloyalty to the Constitution of India:
(c) the citizen has unlawfully traded or communicated with the enemy during a war;
(d) the citizen has, within five years after registration or naturalisation, been
imprisoned in any country for two years; and
(e) the citizen has been ordinarily resident out of India for seven years continuously

Overseas Citizenship of India

 In September 2000, the Government of India (Ministry of External Affairs) had set-up a
High Level Committee on the Indian Diaspora under the Chairmanship of L.M. Singhvi
 It recommended the amendment of the Citizenship Act (1955) to provide for grant of
dual citizenship to the Persons of Indian Origin (PIOs) belonging to certain specified
countries
 Citizenship (Amendment) Act, 2005, expanded the scope of grant of OCI for PIOs of all
countries except Pakistan and Bangladesh as long as their home countries all dual
citizenship under their local laws
 OCI is not actually a dual citizenships as the Indian Constitution forbids dual citizenship
or dual nationality (Article 9)
 OCI card scheme was introduced in December 2, 2005.
 The Citizenship (Amendment) Act, 2015, replaced the nomenclature of “Overseas
Citizen of India” with that of “Overseas Citizen of India Cardholder”(OCIC)

Single Citizenship
 Though the Indian Constitution is federal and envisages a dual polity (Centre and
states), it provides for only a single citizenship, that is, the Indian citizenship.
 The citizens in India owe allegiance only to the Union. There is no separate state
citizenship. The other federal states like USA and Switzerland, on the other hand,
adopted the system of double citizenship.

Non Resident Indian (NRI) Person of Indian Origin(PIO)

Overseas citizens of India (OCI)
Cardholder
An Indian citizen who is A person who or whose any A Person registered as
ordinarily residing outside of ancestors was an Indian Overseas Citizen of India (OCI)
India and holds an Indian national and who
Passport presently holding another
country’s citizenship
nationality i.e. he/she is
holding foreign passport
All benefits as available to No specific benefits Activity
Indian citizens subject to as per the type of visa
notifications issued by the obtained As per the
Government from time to Citizenship Act, 1955, he/she
time has to be ordinarily resident
NO VISA REQUIRED ALL in India for a period of 7
ACTIVITIES He/she is an years before making an
Indian citizen application for registration
is Cardholder under the
Citizenship Act, 1955
/
1)Multiple lifelong visa for
visiting India for any purpose
(require a special permission to
undertake research work in
India)
2)Exemption from registration
with Foreigners Regional
Registration Officer (FRRO)
3) Parity with Non Resident
Indians (NRIs) in respect of all
facilities available to them in
economic, financial, and
educational fields except in
matters relating to the
acquisition of agricultural or
plantation properties
4) treated at par with Non
Resident Indians in the matter
of inter-country adoption of
Indian children
5) treated at par with resident
Indian nationals in the matter
of tariffs in air fares in
domestic sectors in India

Citizenship (Amendment) Bill 2019

 The Citizenship (Amendment) Bill, 2019 seeks to amend the citizenship Act, 1955. The
features of the amendment bill are:
 The bill aims to grant Indian citizenship to all persecuted religious minorities like
Hindus, Jains, Sikhs, Christians, Buddhists and Parsis from three neighbouring
countries of Bangladesh, Pakistan and Afghanistan.
 The bill is applicable to all states and union territories of the country and the
beneficiaries of the can reside in any part of the country.
 As per the reports, the government would set the cut off date at December 31, 2014,
to provide citizenship to persecuted religious minorities
 FUNDAMENTAL RIGHTS
CONTENT
 Evolution
 Nature of Fundamental Rights
 Fundamental rights: part iii (Articles 12-35)
 Amendability of fundamental rights
 Right to Equality
 Right to Freedom
 Right against Exploitation
 Right to Freedom of Religion
 Cultural and Educational Rights
 Right to Constitutional Remedies

EVOLUTION

 The Fundamental Rights are enshrined in Part III of the Constitution (Articles 12-35).
 Part III of the Constitution is described as the Magna Carta of India.

Magna Carta
 It was the Charter of Liberties which King John II was forced to sign in 1215.
 It meant to put a check upon the arbitrary Powers of the King.
 It was said to be the foundation-stone of the rights and liberties of the English
people.

Bill of rights
 The Bill of Rights is the first 10 Amendments to the American Constitution.
 It guarantees civil rights and liberties to the individual like freedom of speech, press,
and religion.

Motilal Nehru Report of 1928

 The Nehru Report demanded inalienable fundamental rights for the people of India.
 It was basically inspired by the American bill of rights, which had a great impact on
the thinking of Indian Leaders.
 NATURE OF FUNDAMENTAL RIGHTS

 Basic inherent human rights - Fundamental rights are basic inherent human rights.
 Guaranteed rights - Fundamental rights are guaranteed rights because they are
given by the constitution and guarantee is given by the constitution.
 Protected rights - Fundamental rights are protected rights, no person, Union or state
of government can violate it.
 Enforceable rights - fundamental rights are enforceable rights because the Supreme
Court is the protector, Guardian, and Sentinel of fundamental rights under article 32.

FUNDAMENTAL RIGHTS: PART III (ARTICLES 12-35)

Article 12: Definition of State

 Article 12 defines the “state” which includes:
 Government and Parliament of India
 Government and the Legislature of each of the States
 All local or other authorities within the territory of India or under the control
of the Government of India.

Article 13

 Article 13 declares that all laws that are inconsistent with or in derogation of any of
the fundamental rights shall be void.
 In other words, it expressly provides for the doctrine of judicial review.
 This power has been conferred on the Supreme Court (Article 32) and the high court
(Article 226).
 The term ‘law’ in Article 13 has been given a wide connotation so as to include the
following:
 Permanent laws enacted by the Parliament or the state legislatures;
 Temporary laws like ordinances issued by the president or the state
governors;
 Statutory instruments in the nature of delegated legislation (executive
legislation) like order, bye-law, rule, regulation or notification; and
 Non-legislative sources of law, that is, custom or usage having the force of
law.
 Article 13 declares that a constitutional amendment is not a law and hence cannot
be challenged.
  The Supreme Court held in the Keshavanand Bharti case (1973) that a Constitutional
amendment can be challenged on the ground that it violates a fundamental right.
 The 24th amendment to the Indian Constitution was enacted by the then Indira
Gandhi government in November 1971 to nullify the Supreme Court’s ruling.

Judicial review
 In general terms, judicial review refers to the power and ability of High Courts and
Supreme Court to review laws or judgments to ensure that they do not violate
constitutional or legal provisions.
 Origin – USA constitution
 In Indian Constitution Explicit in articles – 13,32,226 Implicit – Art 300A
 JR is part of “basic structure”, as held in Keshavanand Bharti case, Hence cannot be
taken away even by constitutional amendment.

AMENDABILITY OF FUNDAMENTAL RIGHTS

 Any changes to the fundamental rights require a constitutional amendment that

should be passed by both the Houses of Parliament.
 The amendment bill should be passed by a special majority of Parliament.
 As per the Constitution, Article 13(2) states that no laws can be made that take away
fundamental rights.
 The question is whether a constitutional amendment act can be termed law or not.
 In the Sajjan Singh case of 1965, the Supreme Court held that the Parliament can
amend any part of the Constitution including fundamental rights.
 But in 1967, the SC reversed its stance taken earlier when in the verdict of the
Golaknath case, it said that the fundamental rights cannot be amended.
 In 1973, a landmark judgment ensued in the Kesavananda Bharati case, where the
SC held that although no part of the Constitution, including Fundamental Rights, was
beyond the Parliament’s amending power, the “basic structure of the Constitution
could not be abrogated even by a constitutional amendment.”
 In 1981, the Supreme
Question: Whether the word “law” as used in art 13(2)
Court reiterated the include the constitutional amendment act or not?
Basic Structure 1. Shankari Prasad vs. Union of India, 1951
doctrine. 2. Sajjan Singh vs State of Rajasthan, 1965
 It also drew a line of 3. Golak Nath v. State of Punjab, 1967
demarcation as April 4. 24th Constitutional amendment Act, 1971
24th, 1973 i.e., the 5. Keshavananda Bharti case, 1973
6. Minerva Mills v. Union of India, 1980
date of the
Kesavananda Bharati
 judgment, and held that it should not be applied retrospectively to reopen the
validity of any amendment to the Constitution which took place prior to that date.

RIGHT TO EQUALITY

1. Equality before law (Article 14)

2. Prohibition of discrimination on grounds of religion, caste, race, sex or place of birth
(Article 15)
3. Equality of opportunity in matters of public employment (Article 16)
4. Abolition of untouchability (Article 17)
5. Abolition of titles (Article 18)

Article 14
 Article 14 tries to achieve ‘equality of status for all people.
 It aims at establishing the ‘rule of law’ in India.
 This guarantee is available to both citizens and non- citizens.
 It applies to all persons, natural as well as juristic.

Equality before law Equal protection of laws

British origin American concept
Absence of any special privilege Equality of treatment under equal
circumstances
Equal subjection of all persons to ordinary law Like should be treated alike

Negative concept Positive approach

Article 15
 Article 15 secures the citizens from every sort of discrimination by the State, on the
grounds of religion, race, caste, sex, place of birth, or any of them.
 However, this Article does not prevent the State from making any special provisions
for women or children.

Article 16
 Article 16 of the Indian Constitution guarantees equal opportunity to all citizens in
matters related to employment in the public sector.
 Article 16(1) state that there shall be equal opportunity for the citizens in the matter
of employment or appointment to any office under the State.

Article 17
 Untouchability is abolished and its practice in any form is forbidden.
 The enforcement of any disability arising out of Untouchability shall be an offense
punishable in accordance with the law.
Article 18
 Article 18 prevents the state from confirming any title except military and
academic distinction.
 Article 18 prohibits the Indian citizens from receiving titles from any foreign state.
 The foreign nationals holding the office of profit under the state may accept titles
from the foreign government with the consent of President.
 Titles such as Rai Bahadur, Sawai, Rai Sahab, Zamindar, taluqdar etc were
prevalent in medieval and British India. All these titles were abolished by article 18 of
the constitution.

RIGHT TO FREEDOM

Article Brief description

Article 19 Protection of 6 rights concerning the freedom of:

1. Speech and expression

2. Assembly
3. Association
4. Movement
5. Residence
6. Profession

Article 20 Protection with respect to conviction for offences

Article 21 Right to life and personal liberty
Article 21A Right to elementary education
Article 22 Protection against arrest and detention in certain cases
Article 19
a)To freedom of speech and expression;
b)To assemble peaceably and without arms;
c)To form associations or unions;
d)To move freely throughout the territory of India;
e)To reside and settle in any part of the territory of India;
f)Omitted by 44th Amendment Act. (it was right to acquire, hold and dispose of
property)
g) To practice any profession, or to carry on any occupation, trade or business.
 Freedom of speech and expression is not absolute.
 Article 19(2) imposes restrictions on the right to freedom of speech and expression.
 The reasons for such restrictions are in the interests of:
1. Security
2. Sovereignty and integrity of the country
3. Friendly relations with foreign countries
4. Public order
5. Decency or morality
6. Hate speech
7. Defamation
8. Contempt of court

Article 20

 Article provides protection in case of conviction in certain cases.

 The State shall not enact ex post facto criminal legislation, i.e. the criminal laws are
not to be given a retrospective but a prospective effect.
 The State shall not practice double jeopardy, i.e. punishing an individual twice for the
same offence
 The State shall not compel an individual to provide self-incriminating evidence

Article 21

 Article 21 holds that nobody should be deprived of their right to life and personal
liberty except according to the procedure established by the Law.
 This article on face can appear to be colourless, but it has received the widest
interpretations by the Judiciary, and has led to the emergence of a large number of
inferred rights.
 Inferred rights are those rights which are not mentioned explicitly in the
Constitution but considered to be a part of the guaranteed rights due to the liberal
interpretations by the Judiciary.
  Some of them are-
1. Right to a dignified life
2. Right to reputation
3. Right to shelter
4. Right against torture and cruel punishments
5. Right of couples to adopt children to make their lives more meaningful
6. Right to a speedy trial
7. Right of the accused to not be kept with the convicted in jails
8. Right to Privacy
9. Right to a bail
10. Right to travel abroad
 Article 21 A declares that the State shall provide free and compulsory education to
all children of the age of six to fourteen years in such a manner as the State may
determine.
 This provision was added by the 86th Constitutional Amendment Act of 2002.

Article 22

 It guarantees 3 procedural rights to the affected individuals They are:

1. A person must be told the reason for his/her arrest so that he can make
necessary arrangements for his defence.
2. A person must be presented before the nearest magistrate within 24 hours of
his/her arrest
3. A person must be put in custody only for the time specified by the magistrate-
in-charge.
 Detentions are of two types :
1. Punitive: This detention is used after a crime has been committed and an
investigation or a trial has taken place
2. Preventive: This detention is used on the ground of suspicion, if a person is
suspected to indulge in a future crime.

RIGHT AGAINST EXPLOITATION

Article 23

 Article 23(1): Traffic in human beings and the beggar and other similar forms of
forced labour are prohibited and any contravention of this provision shall be an
offence punishable in accordance with the law.
  Article 23(2): Nothing in this article shall prevent the State from imposing
compulsory service for public purposes, and in imposing such service the State shall
not make any discrimination on grounds only of religion, race, caste or class or any of
them.

Article 24

 Article 24 says that “No child below the age of fourteen years shall be employed to
work in any factory or mine or engaged in any other hazardous employment.”
 This Article forbids the employment of children below the age of 14 in any hazardous
industry or factories or mines, without exception.

RIGHT TO FREEDOM OF RELIGION

Article 25

 The provisions of this article are not absolute. State can take appropriate measures
when it comes to public order, health, and morality;
 The State has the authority to regulate any economic, political, financial, or any
secular affair related to any particular religion.
 This enables the state to take measures regarding welfare and social reforms
associated with religious practices.
 For example; the state can take measures to open Hindu religious places for all
sections of the Hindu society.

Article 26

 All religious communities have the following rights;

1. They have the right to form and maintain religious and charitable
institutions.
2. They have the right to manage their own religious affairs.
3. They have the right to acquire property of both immovable and movable
kind.
4. They have the right to administer these properties subjected to the
provisions of law.

Article 27

 As per the provisions of this article people are free to give taxes for the religious
promotion of any religion they want.
 However, the State cannot force the people to pay taxes for the promotion and
maintenance of any religion or religious institution.
Article 28

 According to this article the institutions which are runned by particular religious
groups have the right to give religious instructions.
 The educational institutions that are receiving the state funding are not allowed to
practice religious instructions.
 If an institution has been run by the state but established as an endowment or trust
which required religious instructions to be given there, are exempted from this
restriction, and allowed to give such instructions.
 The person belonging to the state-run institution or the one which is funded by the
state’s aid, cannot be compelled to join religious instructions or worship etc. without
his/her consent.

CULTURAL AND EDUCATIONAL RIGHTS

Article 29

 This article protects the rights of minority groups as follows:

1. Article 29(1): It states that the citizens of India, who reside in India having
a distinct culture, language, and script, shall have the right to conserve
their culture and language.
2. This right is absolute, having no exception. There cannot be any
‘reasonable restrictions’ on this right.
3. Article 29(2): Admission to educational institutions cannot be denied
based on race, religion, caste, language, etc. if it is a state institution or
an institution funded by the state’s aid. This individual’s rights, not a
community right.

Article 30

 This article is also known as the “Charter of Educational Rights”.

1. Article 30(1): It provides for all religious and linguistic minorities the right
to establish and administer educational institutions of their choice. It is
available to religious and linguistic minorities only.
2. As per the 42nd Constitutional Amendment. If such institutions have been
acquired by the government, then the government is duly bound to give
the appropriate compensation to the institution.
3. Article 30(2): It provides that, while granting the aid to educational
institutions, the state cannot discriminate on the ground that a particular
institution is administered by a religious or linguistic group.
 RIGHT TO CONSTITUTIONAL REMEDIES

 Article 32 of the Constitution (Right to Constitutional Remedies): It is a fundamental

right, which states that individuals have the right to approach the Supreme Court
(SC) seeking enforcement of other fundamental rights recognised by the
Constitution.
 The Supreme Court has ruled that Article 32 is a basic feature of the Constitution.
Hence, it cannot be abridged or taken away even by way of an amendment to the
Constitution
 Article 32 and Article 226 of the Indian Constitution provide two separate but
parallel provisions regarding the Writ jurisdiction with the Supreme Court and High
Court respectively.

Writ of Habeas Corpus

 It is considered the most crucial Writ for personal liberty.

 Habeas Corpus literally means, “Let us have the body.”
 A person can move to the court for the issue of this writ when arrested.
 This is a written order that invites someone who was imprisoned to present the
latter to the Tribunal, so as to inform the Court on what basis he was imposed and to
free the person if there is no legal justification for the detention.

Writ of Mandamus

 Mandamus is a Latin origin word and it means “we command”.

 It is an order from a superior court to a lower law authority or public authority to
perform an act, which falls within its duty.
 It is issued to secure the performance of public duties as well as to enforce private
rights held by the public authorities.

The Writ of Certiorari

 Certiorari means to be certified.

 The Supreme Court holds the authority to issue the writ of Certiorari to a lower
court or tribunal to transfer the matter of concern to it or some other superior
authority of critical consideration.
 The Supreme Court issues a writ of certiorari to overturn an order that has already
been made by a lower court.

The Writ of Prohibition

 This writ means to forbid or to deny and it is popularly known as ‘Stay Order’.
 This writ is issued in cases when a lower court or a body makes efforts to transgress
the limits or powers vested in it.
  The Supreme Court issues such a writ to forbid a lower court or tribunal to perform
an act that is outside its jurisdiction.

The Writ of Quo-Warranto

 The Quo Warranto letter (by what authorisation) is issued in order to investigate the
legality of a claim by a person or an authority that is not entitled to act in a public
office.
 The Quo Warranto letter is a form of judicial control that examines the actions of the
administrative agency that has hired the person.
 PRELIMS POLITY 4
CONTENT
 Directive Principles of State Policy
 Fundamental Duties

DIRECTIVE PRINCIPLES OF STATE POLICY

 Directive Principles of State Policy are enumerated in Part IV of the Constitution from
Articles 36 to 51

 The framers of the Constitution borrowed this idea from the Irish Constitution of
1937, which had copied it from the Spanish Constitution.
 Dr B R Ambedkar described these principles as ‘novel features’ of the Indian
Constitution.
  The Directive Principles along with the Fundamental Rights contain the philosophy of
the Constitution and is the soul of the Constitution.
 Granville Austin has described the Directive Principles and the Fundamental Rights as
the ‘Conscience of the Constitution’.
 The Directive Principles resemble the ‘Instrument of Instructions’ enumerated in the
Government of India Act of 1935.
 In the words of Dr B R Ambedkar, ‘the Directive Principles are like the instrument of
instructions, which were issued to the Governor-General and to the Governors of the
colonies of India by the British Government under the Government of India Act of
1935’.
 The Constitution does not contain any classification of Directive Principles.
 However, on the basis of their content and direction, they can be classified into three
broad categories, viz, socialistic, Gandhian and liberal–intellectual.
 Sir B N Rau, the Constitutional Advisor to the Constituent Assembly, recommended
that the rights of an individual should be divided into two categories—justiciable and
non-justiciable, which was accepted by the Drafting Committee

Socialist Principles
 These principles reflect the ideology of socialism. They lay down the framework of a
democratic socialist state, aim at providing social and economic justice, and set the
path towards welfare state.
 They direct the state:
1. To promote the welfare of the people by securing a social order permeated by
justice—social, economic and political—and to minimize inequalities in income,
status, facilities and opportunities (Article 38).
2. To secure
a) the right to adequate means of livelihood for all citizens; (b) the equitable
distribution of material resources of the community for the common good;
b) prevention of concentration of wealth and means of production;
c) equal pay for equal work for men and women;
d) preservation of the health and strength of workers and children against forcible
abuse; and
e) opportunities for healthy development of children (Article 39).
 3. To promote equal justice and to provide free legal aid to the poor (Article 39 A).
4. To secure the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement (Article 41).
5. To make provision for just and humane conditions of work and maternity relief
(Article 42).
6. To secure a living wage, a decent standard of life and social and cultural
opportunities for all workers (Article43).
7. To take steps to secure the participation of workers in the management of
industries (Article 43 A).
8. To raise the level of nutrition and the standard of living of people and to improve
public health (Article 47).

Gandhian Principles
 These principles are based on Gandhian ideology. They represent the programme of
reconstruction enunciated by Gandhi during the national movement.
 In order to fulfill the dreams of Gandhi, some of his ideas were included as Directive
Principles.
 They require the State:
1. To organise village panchayats and endow them with necessary powers and
authority to enable them to function as units of self-government (Article 40).
2. To promote cottage industries on an individual or co-operation basis in rural areas
(Article 43).
3. To promote voluntary formation, autonomous functioning, democratic control and
professional management of co-operative societies (Article 43B).
4. To promote the educational and economic interests of SCs, STs, and other weaker
sections of the society and to protect them from social injustice and exploitation
(Article46).
5. To prohibit the consumption of intoxicating drinks and drugs which are injurious to
health (Article 47).
6. To prohibit the slaughter of cows, calves and other milch and draught cattle and to
improve their breeds (Article 48)

Liberal-Intellectual Principles
 The principles included in this category represent the ideology of liberalism. They
direct the state:
1. To secure for all citizens a uniform civil code throughout the country (Article 44).
2. To provide early childhood care and education for all children until they complete
the age of six years. (Article 45).
3. To organise agriculture and animal husbandry on modern and scientific lines (Article
48).
4. To protect and improve the environment and to safeguard forests and wild life 10
(Article 48 A).
5. To protect monuments, places and objects of artistic or historic interest which are
declared to be of national importance (Article 49).
6. To separate the judiciary from the executive in the public services of the State
(Article 50).
 7. To promote international peace and security and maintain just and honorable
relations between nations; to foster respect for international law and treaty
obligations, and to encourage settlement of international disputes by arbitration
(Article 51).

New Directive Principles

 The 42nd Amendment Act of 1976 added four new Directive Principles to the original
list. They require the State:
1. To secure opportunities for healthy development of children (Article 39).
2. To promote equal justice and to provide free legal aid to the poor (Article 39 A).
3. To take steps to secure the participation of workers in the management of
industries (Article 43 A).
4. To protect and improve the environment and to safeguard forests and wild life
(Article 48 A).
 The 44th Amendment Act of 1978 added one more Directive Principle, which requires
the State to minimise inequalities in income, status, facilities and opportunities
(Article 38).
 The 86th Amendment Act of 2002 changed the subject-matter of Article 45 and made
elementary education a fundamental right under Article 21 A. The amended directive
requires the State to provide early childhood care and education for all children until
they complete the age of six years.
 The 97th Amendment Act of 2011 added a new Directive Principle relating to co-
operative societies

Sanction behind Directive Principles

 Sir B N Rau, the Constitutional Advisor to the Constituent Assembly, recommended
that the rights of an individual should be divided into two categories—justiciable and
non-justiciable, which was accepted by the Drafting Committee.
 They impose a moral obligation on the state authorities for their application, but the
real force behind them is political, that is, public opinion
 B.R. Ambedkar said in the Constituent Assembly that ‘a government which rests on
popular vote can hardly ignore the Directive Principles while shaping its policy’.
 The framers of the Constitution made the Directive Principles nonjusticiable and
legally non-enforceable because:
1. The country did not possess sufficient financial resources to implement them.
2. The presence of vast diversity and backwardness in the country would stand in the
way of their implementation.
3. The newly born independent Indian State with its many preoccupations might be
crushed under the burden unless it was free to decide the order, the time, the place
and the mode of fulfilling them.
 The Constitution makers, therefore, taking a pragmatic view, refrained from giving
teeth to these principles. They believed more in an awakened public opinion rather
than in court procedures as the ultimate sanction for the fulfilment of these principles.
Criticism of the Directive Principles
 No Legal Force: The Directives have been criticized mainly because of their non-
justiciable character.
 Illogically Arranged: Critics opine that the Directives are not arranged in a logical
manner based on a consistent philosophy
 Conservative: According to Sir Ivor Jennings, the Directives are based on the political
philosophy of the 19th century England.
 Constitutional Conflict: K Santhanam has pointed out that the Directives lead to a
constitutional conflict
a) between the Centre and the states,
b) between the President and the Prime Minister
c) between the governor and the chief minister.

Utility of Directive Principles

 The Directive Principles are not an unnecessary appendage to the Constitution.
 The Constitution itself declares that they are fundamental to the governance of the
country.
 The Directives have great value because they lay down that the goal of Indian polity is
‘economic democracy’ as distinguished from ‘political democracy’
 Directive Principles, although confer no legal rights and create no legal remedies, are
significant and useful in the following ways:
a) They are like an ‘Instrument of Instructions’ or general recommendations addressed
to all authorities in the Indian Union.
b) They have served as useful beacon-lights to the courts
c) They amplify the Preamble, which solemnly resolves to secure to all citizens of India
justice, liberty, equality and fraternity

Conflict Between Fundamental Rights and Directive Principles

 The justiciability of Fundamental Rights and non-justiciability of Directive Principles on
the one hand and the moral obligation of State to implement Directive Principles
(Article 37) on the other hand have led to a conflict between the two since the
commencement of the Constitution
 The present position is that the Fundamental Rights enjoy supremacy over the
Directive Principles.
 Yet, this does not mean that the Directive Principles cannot be implemented. The
Parliament can amend the Fundamental Rights for implementing the Directive
Principles, so long as the amendment does not damage or destroy the basic structure
of the Constitution
 Some important constitutional cases:
 In the Champakam Dorairajan case (1951), the Supreme Court ruled that in
case of any conflict between the Fundamental Rights and the Directive
Principles, the former would prevail.
 In the Kesavananda Bharati case (1973), the Supreme Court declared the
above second provision of Article 31C as unconstitutional and invalid on the
ground that judicial review is a basic feature of the Constitution and hence,
cannot be taken away
 Distinction Between Fundamental Rights and Directive Principles
Fundamental Rights
These are negative as they prohibit the State
from doing certain things.
These are justiciable, that is, they are legally
enforceable by the courts in case of their
violation.
They aim at establishing political democracy
in the country.
These have legal sanctions.
They promote the welfare of the individual.
Hence, they are personal and individualistic.
They do not require any legislation for their
implementation. They are automatically
enforced.
The courts are bound to declare a law
violative of any of the Fundamental Rights as
unconstitutional and invalid.
Directive Principles
These are positive as they require the State
to do certain things
These are non-justiciable, that is, they are
not legally enforceable by the courts for
their violation.
They aim at establishing social and economic
democracy in the country
These have moral and political sanctions
They promote the welfare of the
community. Hence, they are societarian and
socialistic.
They require legislation for their
implementation. They are not automatically
enforced.
The courts cannot declare a law violative of
any of the Directive Principles as
unconstitutional and invalid. However, they
can uphold the validity of a law on the
ground that it was enacted to give effect to a
directive.

Directives contained in other Parts of the Constitution

 Claims of SCs and STs to Services: -(Article 335 in Part XVI).
 Instruction in mother tongue: (Article 350-A in Part XVII).
 Development of the Hindi Language: (Article 351 in Part XVII).
 The above Directives are also non-justiciable in nature.
 However, they are also given equal importance and attention by the judiciary on the
ground that all parts of the constitution must be read together

Amendment of Directive Principles

 For amending the Directive Principles of State Policies, the Constitutional amendment
is required.
 It has to be passed by the special majority of both the houses of the Parliament.
 Amendments done till now:
 Beginning with the 42nd Constitutional Amendment 1976, it made four changes in
DPSPs
 44th Constitutional Amendment, 1978 added Article 38 clause (2)
 86th Constitutional Amendment, 2002 inserted Article 21-A and changed Article 45
in the Constitution of India.
 97th Constitutional Amendment 2011 added Article 43-B
 FUNDAMENTAL DUTIES
 The framers of the Constitution did not feel it necessary to incorporate the
fundamental duties of the citizens in the Constitution. However, they incorporated the
duties of the State in the Constitution in the form of Directive Principles of State
Polity.
 Later in 1976, the fundamental duties of citizens were added in the Constitution.
 In 2002, one more Fundamental Duty was added.
 The Fundamental Duties in the Indian Constitution are inspired by the Constitution of
erstwhile USSR.
 Notably, none of the Constitutions of major democratic countries like USA, Canada,
France, Germany, Australia and so on specifically contain a list of duties of citizens.
 Japanese Constitution is, perhaps, the only democratic Constitution in world which
contains a list of duties of citizens.
 The socialist countries, on the contrary, gave equal importance to the fundamental
rights and duties of their citizens. Hence, the Constitution of erstwhile USSR declared
that the citizen’s exercise of their rights and freedoms was inseparable from the
performance of their duties and obligations.

Swaran Singh Committee

 In 1976, the Congress Party set up the Sardar Swaran Singh Committee to make
recommendations about fundamental duties, the need and necessity of which was felt
during the operation of the internal emergency (1975–1977).
 The committee recommended the inclusion of a separate chapter on fundamental
duties in the Constitution.
 It stressed that the citizens should become conscious that in addition to the enjoyment
of rights, they also have certain duties to perform as well.
 The Congress Government at Centre accepted these recommendations and enacted
the 42nd Constitutional Amendment Act in 1976. This amendment added a new part,
namely, Part IVA to the Constitution.
 This new part consists of only one Article, that is, Article 51A which for the first time
specified a code of ten fundamental duties of the citizens

Fundamental Duties
 According to Article 51A, it shall be the duty of every citizen of India:
1. to abide by the Constitution and respect its ideals and institutions, the National Flag
and the National Anthem (The Prevention of Insults to National Honour Act (1971)
prevents disrespect to the Constitution of India, the National Flag and the National
Anthem)
2. to cherish and follow the noble ideals that inspired the national struggle for
freedom;
3. to uphold and protect the sovereignty, unity and integrity of India (The Indian Penal
Code (IPC) declares the imputations and assertions prejudicial to national
integration as punishable offences)
4. to defend the country and render national service when called upon to do so;
 5. to promote harmony and the spirit of common brotherhood amongst all the people
of India transcending religious, linguistic and regional or sectional diversities and to
renounce practices derogatory to the dignity of women (If the members of the
Parliament or the state legislature indulge in any corrupt practices like asking votes
in the name of religion then they will be held liable under the Representation of the
People Act, 1951)
6. to value and preserve the rich heritage of the country’s composite culture;
7. to protect and improve the natural environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures (The Wildlife (Protection) Act of
1972 prohibits trade in rare and endangered species. The Forest (Conservation) Act
of 1980 checks indiscriminate deforestation and diversion of forest land for non
forest purposes)
8. to develop scientific temper, humanism and the spirit of inquiry and reform;
9. to safeguard public property and to abjure violence;
10. to strive towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavour and achievement; and
11. to provide opportunities for education to his child or ward between the age of six
and fourteen years. This duty was added by the 86th Constitutional Amendment Act,
2002. (The Right of Children to Free and Compulsory Education Act or Right to
Education Act)

Note: the facts highlighted against Fundamental Duties 1,3,5,7 and 11 are not in Article 51A.
They have been enacted for the implementation of the aforesaid Fundamental Duties

Features of the Fundamental Duties

 Some of them are moral duties while others are civic duties. For instance, cherishing
noble ideals of freedom struggle is a moral precept and respecting the Constitution,
National Flag and National Anthem is a civic duty.
 They refer to such values which have been a part of the Indian tradition, mythology,
religions and practices. In other words, they essentially contain just a codification of
tasks integral to the Indian way of life.
 The Fundamental Duties are confined to citizens only and do not extend to
foreigners.
 Like the Directive Principles, the fundamental duties are also non-justiciable. The
Constitution does not provide for their direct enforcement by the courts. Moreover,
there is not legal sanction against their violation. However, the Parliament is free to
enforce them by suitable legislation.
 AMENDMENT PROCEDURE OF THE CONSTITUTION

CONTENT -

 Introduction
 Facts related to Amendment procedure
 Procedure for Amendment
 Different types of Majorities
 Types of Amendments
 List of Provisions which can be amended under different Majority (Simple majority, special
majority etc.)

Introduction -

 Constitution of India provided for an amendment procedure to adjust to the changing

conditions and needs.
 The amendment procedure provided in India is neither as ‘easy’ as in ‘Britain’ nor as ‘difficult’ as
in ‘USA’.
 Thus, Indian Constitution is neither flexible nor rigid but a synthesis of both.

Some Important facts related to Amendment Procedure -

 Source of Amendment Procedure – South Africa

 Authority to amend the constitution - Parliament has authority to amend constitution.
 Constitutional Article - Article 368 (Part 20) gives procedure and power to amend constitution.
 Exception - Parliament cannot amend those provisions which form the ‘basic structure’ of the
Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case.

Procedure for Amendment - (As laid down in Article 368) -

 Introduction of the Bill – The Bill for amendment can be introduced- in either house (Lok Sabha
or Rajya Sabha), but it cannot be introduced in the state legislature.
 Who can introduce it? - It can be Introduced by minister or private member.
 Prior permission of the President is not needed.
 The bill must be passed by a special majority. (We will understand special majority later in the
article).
 Each house must pass the bill separately. No provision exists for Joint sitting in case of
disagreement between the 2 houses.
 For amending the federal provisions ‘legislative assemblies must ratify with ‘simple majority’.
 President must give his assent to the bill.
 Note - Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976
respectively.

Types of Amendment –
Before we look at the types of amendment (we will classify them based on types of majority needed to
ratify them – look below to understand different majorities).

Types of Majority

 Simple Majority - This refers to a majority of more than 50% of the members present and voting
in the House. This is the most used type of majority. When the law does not specify the kind of
majority needed, a simple majority is used for passing bills.
 Example – For the purpose of understanding, Suppose Lok Sabha has a total membership of 100
members (This is only an example in reality Lok Sabha membership is 545). Suppose 20 are
absent and 30 abstained from voting. This means only 50 members are present and voting. In
this case simple majority needed is 26 (50% + 1).
 Special Majority (Article 368) - This refers to a majority of 2/3rd members present and voting
supported by over 50% of the total strength of the House.
 Let’s continue with our example, (of 100 members). Here for passing the bill at least 2/3rd of
total membership should be present I.e., 67 members should be in the house voting and the bill
should be supported by more than 50% of the total strength I.e., 51 members should vote in
Favour of the bill.
 Special Majority according to Article 368 + 50% state ratification by a simple majority
 This type of majority is needed when a constitutional amendment tries to change the federal
structure.
 Example - The bill that introduced GST (Goods and Services Tax). It needed the support of at
least 15 state legislatures out of the 29 states.

Types of Amendment -

 Amendments by simple majority of parliament - Majority of members present and voting shall
accept. These are considered as amendments outside Art 368.
 Amendments by special majority of parliament members – Majority of 2/3rd members present
and voting, more than 50% of the total strength of the house.
 By special majority of parliament and consent of half the state legislative assemblies with simple
majority.

List of some provisions which can be amended by Simple Majority -

 Article 3 - Creation of new states and alteration of area, boundaries or names of existing states.
 Article 2 – Admission or establishment of new states

Schedules

 Second Schedule - Emoluments, allowances, privileges and so on of the president, the

governors, the Speakers, judges, etc.
 Fifth Schedule - Administration of scheduled areas and scheduled tribes.
 Sixth Schedule– administration of tribal areas.

Legislature

 Quorum in the Parliament

  Use of English language in the Parliament
 Privileges of Parliament its members and committees
 Rules of procedure in Parliament
 Salaries and emoluments of MPs
 Elections to Parliament and State Legislatures
 Delimitation of Constituencies
 Abolition or creation of legislative councils
 Use of official language.

Others -

 Union territories
 Citizenship– acquisition and termination.

Amendments by Special Majority -

 Majority of the total membership of each House (50% + 1) and a majority of two-thirds of the
members of each House present and voting.
 The requirement of Special majority has been provided for all effective stages of the bill. (This
provision is found in the rules of the house).
 The provisions which can be amended by this way includes -
 Fundamental Rights
 Directive Principles of State Policy
 All other provisions which are not covered by the first and third categories.

Amendments by special Majority of Parliament and consent of States -

 It is related to those provisions of the Constitution which are related to the federal structure of
the polity.

Executive -

 Election of President.
 Extent of executive and of union and states.
 Goods and Services Tax Council.

Legislature -

 Any list in the Seventh schedule

 Representation of states in parliament
 Amendment of Art 368 itself

From the amendment topic, we will move to a closely related topic – ‘BASIC STRUCTURE OF THE
CONSTITUTION.

BASIC STRUCTURE OF THE CONSTITUTION

CONTENT

 Introduction
 Cases – The evolution of ‘Basic Structure doctrine’
 Present Situation
 About Basic Structure and its elements

Introduction -

 Parliament under article 368 can amend any part of constitution without affecting the ‘Basic
structure of constitution’.

Cases with respect of ‘Basic Structure’ of the constitution -

 Shankari Prasad case 1951 - Parliament can take away any Fundamental Rights
 Case - Constitutional validity of the First Amendment Act (1951) was challenged.
 Issue - The 1st Amendment curtailed the right to property.
 Verdict – 1) Supreme Court ruled that the power of the Parliament to amend the constitution
under Article 368 also includes the power to amend Fundamental Rights. 2) The word ‘law’ in
Article 13 includes ‘only’ ordinary laws and not the constitutional amendment acts (constituent
laws).
 Implications - Thus, the Parliament could take away any of the Fundamental Rights by enacting
a constitutional amendment act and such a law will not be void under Article 13.
 Article 13 - All laws that are violative of fundamental rights shall be void. The article includes an
express provision for judicial review. The SC and the High Courts can declare any law
unconstitutional on the grounds that it is violative of the fundamental rights.

 Golaknath Case 1967 - Parliament cannot take away Fundamental Rights. It cannot amend
them. Art 368 has ‘only procedure’ and not power to amend the constitution.
 Case - 1) Validity of the Punjab Security of Land Tenures Act and Mysore Land Reforms Act as
amended in 1965 was challenged by the petitioners 2) These acts were included in the 9th
Schedule to the Constitution by 17th amendment to the constitution - The validity of the said
amendment Act was also challenged.
 Verdict - Supreme Court reversed its earlier stand (as taken in the Shankari Prasad case). The
Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’
position. Thus, the Parliament cannot abridge or take away any of these rights.
 Constitutional amendment act is also a law within the meaning of Article 13 and it will become
void if it violates any of the Fundamental Rights.
 Implications - Verdict invoked the concept of ‘Implied limitations’ on Parliament's power to
amend the Constitution. This view held that the Constitution gives a place of permanence to the
fundamental freedoms of the citizen.
  This verdict also led to a beginning of battle between the Parliament and the Judiciary.
 Response - Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967)
by enacting the 24th Amendment Act and 25th Amendment.
 This Act amended Articles 13 and 368.
 24th Amendment - Parliament gave itself the power to amend any part of the Constitution.
 25th Amendment - The right to property had been removed as a fundamental right

 Kesavananda Bharti case –1971 (This act is important as it gave the Basic Structure Doctrine)
 Case - Kesavananda Bharati - challenged the Kerala land reforms legislation in 1970, which
imposed restrictions on the management of religious property. (Violation of Article 26).
 13-judge Bench was set up by the Supreme Court to hear the case – One major case before it
was whether the power of Parliament to amend the Constitution was unlimited.
 Verdict - Any provision of the Indian Constitution can be amended by the Parliament to fulfil its
socio-economic obligations which were guaranteed to the citizens.
 But such amendment should not change the Constitution’s basic structure.
 Thus, the constituent power of Parliament under Article 368 does not enable it to alter the
‘basic structure’ of the Constitution.
 Implications – The verdict meant that the Parliament cannot take away a Fundamental Right
that form part of the ‘basic structure’ of the Constitution. 2) Also, any legislation that violates
the basic structure of the constitution will be declared ultra vires.
 Response - The Parliament reacted by enacting the 42nd Amendment Act (1976).
 The act amended Article 368 – It declared that there is no limitation on the constituent power of
Parliament
 Also, no amendment done can be questioned in any court on any ground. (Including that it
contravenes any of the Fundamental Rights.)

 Minerva Mills Case

 Case - 42nd amendment was challenged by the owners of Minerva Mills (Bangalore) a sick
industrial firm which was nationalized by the government in 1974.
 Verdict – Supreme court invalidated the provision which excluded judicial review (It declared
Judicial review as a ‘basic feature’ of the Constitution.)
 The Court added 2 features to the list of ‘basic structure’- Judicial review 2) Balance between
Fundamental Rights and DPSP.
 The judges ruled that a limited amending power itself is a basic feature of the Constitution.
 This case along with the Waman Rao case strengthened the basic Structure doctrine.
 In the ‘Waman Rao case’ Supreme court clarified that ‘basic structure doctrine’ would apply to
constitutional amendments enacted after April 24, 1973.

Present Position -

 Presently, the Parliament under Article 368 can amend any part of the Constitution including the
Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.
About Basic Structure -

 The Supreme Court hasn’t clearly defined or clarified – As to what constitutes the ‘basic
structure’ of the Constitution. (It is an evolving doctrine)
 From various judgements - ‘basic features’ of the Constitution or elements of the ‘basic
structure’ have emerged -
 Supremacy of the Constitution
 Sovereign, democratic and republican nature of the Indian polity
 Secular character of the Constitution
 Separation of powers between the legislature, the executive and the judiciary
 Federal character of the Constitution
 Unity and integrity of the nation
 Welfare state (socio-economic justice)
 Judicial review
 Freedom and dignity of the individual
 Parliamentary system
 Rule of law
 Harmony and balance between Fundamental Rights and Directive Principles
 Principle of equality
 Free and fair elections
 Independence of Judiciary
 Limited power of Parliament to amend the Constitution
 Effective access to justice
 Principles (or essence) underlying fundamental rights
 Powers of the Supreme Court under Articles 32, 136, 141 and 142
 Powers of the High Courts under Articles 226 and 227.

.
 PRELIMS POLITY 6
CONTENT
 Union Executive
 The President
 Powers and functions of the President
 Vice President

UNION EXECUTIVE
 Articles 52 to 78 in Part V of the Constitution deal with the Union executive. The
Union executive consists of the President, the Vice President, the Prime Minister, the
council of ministers and the attorney general of India.
 Articles related to Union executive is as under:
 PRESIDENT
 The President is the head of the Indian State. He is the first citizen of India and acts as
the symbol of unity, integrity and solidarity of the nation

Election of the President

 The President is elected not directly by the people but by members of electoral
college consisting of:
1. the elected members of both the Houses of Parliament;
2. the elected members of the legislative assemblies of the states; and
3. the elected members of the legislative assemblies of the Union Territories of Delhi
and Pondicherry
 Thus, the nominated members of both of Houses of Parliament, the nominated
members of the state legislative assemblies, the members (both elected and
nominated) of the state legislative councils (in case of the bicameral legislature) and
the nominated members of the Legislative Assemblies of Delhi and Pondicherry do not
participate in the election of the President.
 The President’s election is held in accordance with the system of proportional
representation by means of the single transferable vote and the voting is by secret
ballot.
 This system ensures that the successful candidate is returned by the absolute majority
of votes.
 The Constitution provides that there shall be uniformity in the scale of representation
of different states as well as parity between the states as a whole and the Union at the
election of the President.
 To achieve this following formula is used:

System of proportional representation of voting

 This system ensures that the successful candidate is returned by the absolute
majority of votes. A candidate, in order to be declared elected to the office of
President, must secure a fixed quota of votes.
 The quota of votes is determined by dividing the total number of valid votes
polled by the number of candidates to be elected (here only one candidate is to
be elected as President) plus one and adding one to the quotient.
 The formula can be expressed as:
Qualifications for Election as President
 A person to be eligible for election as President should fulfill the following
qualifications:
1. He should be a citizen of India.
2. He should have completed 35 years of age.
3. He should be qualified for election as a member of the Lok Sabha.
4. He should not hold any office of profit under the Union government or any state
government or any local authority or any other public authority.
 A sitting President or Vice President of the Union, the Governor of any state and a
minister of the Union or any state is not deemed to hold any office of profit and hence
qualified as a presidential candidate.

Oath or Affirmation by the President

 Before entering upon his office, the President has to make and subscribe to an oath or
affirmation. In his oath, the President swears:
1. to faithfully execute the office;
2. to preserve, protect and defend the Constitution and the law; and
3. to devote himself to the service and well-being of the people of India
 The oath of office to the President is administered by the Chief Justice of India and in
his absence, the senior most judge of the Supreme Court available.
 Any other person acting as President or discharging the functions of the President also
undertakes the similar oath or affirmation

Conditions of President’s Office

 The Constitution lays down the following conditions of the President’s office:
1. He should not be a member of either House of Parliament or a House of the state
legislature. If any such person is elected as President, he is deemed to have vacated
his seat in that House on the date on which he enters upon his office as President.
2. He should not hold any other office of profit.
3. He is entitled, without payment of rent, to the use of his official residence (the
Rastrapathi Bhavan).
4. He is entitled to such emoluments, allowances and privileges as may be determined
by Parliament.
5. His emoluments and allowances cannot be diminished during his term of office
 The President is entitled to a number of privileges and immunities. He enjoys personal
immunity from legal liability for his official acts.
 During his term of office, he is immune from any criminal proceedings, even in
respect of his personal acts.
 He cannot be arrested or imprisoned.
 However, after giving two months’ notice, civil proceedings can be instituted against
him during his term of office in respect of his personal acts.

Term of President’s Office

 The President holds office for a term of five years from the date on which he enters
upon his office.
  However, he can resign from his office at any time by addressing the resignation letter
to the Vice President.
 Further, he can also be removed from the office before completion of his term by the
process of impeachment.
 The President can hold office beyond his term of five years until his successor assumes
charge.
 He is also eligible for re-election to that office. He may be elected for any number of
terms.
 However, in USA, a person cannot be elected to the office of the President more than
twice.

Impeachment of President
 The President can be removed from office by a process of impeachment for ‘violation
of the Constitution’. However, the Constitution does not define the meaning of the
phrase ‘violation of the Constitution’
 The impeachment charges can be initiated by either House of Parliament.
 These charges should be signed by one-fourth members of the House (that framed the
charges), and a 14 days’ notice should be given to the President.
 After the impeachment resolution is passed by a majority of two-thirds of the total
membership of that House, it is sent to the other House, which should investigate the
charges.
 If the other House also sustains the charges and passes the impeachment resolution by
a majority of two-thirds of the total membership, then the President stands removed
from his office from the date on which the resolution is so passed.
 Thus, an impeachment is a quasi-judicial procedure in the Parliament.
 In this context, two things should be noted:
(a) the nominated members of either House of Parliament can participate in the
impeachment of the President though they do not participate in his election;
(b) the elected members of the legislative assemblies of states and the Union Territories
of Delhi and Pondicherry do not participate in the impeachment of the President
though they participate in his election

Vacancy in the President’s Office

 A vacancy in the President’s office can occur in any of the following ways:
1. On the expiry of his tenure of five years.
2. By his resignation.
3. On his removal by the process of impeachment.
4. By his death.
5. Otherwise, for example, when he becomes disqualified to hold office or when his
election is declared void
 When a vacancy occurs in the office of the President due to his resignation, removal,
death or otherwise, the Vice-President acts as the President until a new President is
elected.
 Further, when the sitting President is unable to discharge his functions due to absence,
illness or any other cause, the Vice-President discharges his functions until the
President resumes his office.
  In case the office of Vice-President is vacant, the Chief Justice of India (or if his office is
also vacant, the senior most judge of the Supreme Court available) acts as the
President or discharges the functions of the President.

POWERS AND FUNCTIONS OF THE PRESIDENT

Executive Powers
 All executive actions of the Government of India are formally taken in his name.
 He can make rules specifying the manner in which the orders and other instruments
made and executed in his name shall be authenticated.
 He can make rules for more convenient transaction of business of the Union
government, and for allocation of the said business among the ministers.
 He appoints the prime minister and the other ministers. They hold office during his
pleasure.
 He appoints the attorney general of India and determines his remuneration.
 The attorney general holds office during the pleasure of the President.
 He appoints the comptroller and auditor general of India, the chief election
commissioner and other election commissioners, the chairman and members of the
Union Public Service Commission, the governors of states, the chairman and
members of finance commission, and so on.
 He can seek any information relating to the administration of affairs of the Union, and
proposals for legislation from the prime minister.
 He can require the Prime Minister to submit, for consideration of the council of
ministers, any matter on which a decision has been taken by a minister but, which has
not been considered by the council.

Legislative Powers
 He can summon or prorogue the Parliament and dissolve the Lok Sabha.
 He can also summon a joint sitting of both the Houses of Parliament, which is
presided over by the Speaker of the Lok Sabha.
 He can address the Parliament at the commencement of the first session after each
general election and the first session of each year.
 He can send messages to the Houses of Parliament, whether with respect to a bill
pending in the Parliament or otherwise.
 He can appoint any member of the Lok Sabha to preside over its proceedings when the
offices of both the Speaker and the Deputy Speaker fall vacant.
 Similarly, he can also appoint any member of the Rajya Sabha to preside over its
proceedings when the offices of both the Chairman and the Deputy Chairman fall
vacant.
 He nominates 12 members of the Rajya Sabha from amongst persons having special
knowledge or practical experience in literature, science, art and social service.
 He can nominate two members to the Lok Sabha from the Anglo- Indian Community.
 He decides on questions as to disqualifications of members of the Parliament, in
consultation with the Election Commission.
  His prior recommendation or permission is needed to introduce certain types of bills in
the Parliament. For example, a bill involving expenditure from the Consolidated Fund
of India, or a bill for the alteration of boundaries of states or creation of a new state.
 When a bill is sent to the President after it has been passed by the Parliament, he can:
(i) give his assent to the bill, or
(ii) withhold his assent to the bill, or
(iii) return the bill (if it is not a money bill) for reconsideration of Parliament.
 However, if the bill is passed again by the Parliament, with or without amendments,
the President has to give his assent to the bill.
 When a bill passed by a state legislature is reserved by the governor for consideration
of the President, the President can:
(i) give his assent to the bill, or
(ii) withhold his assent to the bill, or
(iii) direct the governor to return the bill (if it is not a money bill) reconsideration of
the state legislature. It should be noted that it is not obligatory for the
President to give his assent even the bill is again passed by the state legislature
and sent again to him for his consideration.
 He can promulgate ordinances when the Parliament is not in session. These
ordinances must be approved by the Parliament within six weeks from its reassembly.
He can also withdraw an ordinance at any time.
 He lays the reports of the Comptroller and Auditor General, Union Public Service
Commission, Finance Commission, and others, before the Parliament.
 He can make regulations for the peace, progress and good government of the
Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu
and Ladakh.
 In the case of Pondicherry also, the President can legislate by making regulations but
only when the assembly is suspended or dissolved.

Financial Powers
 Money bills can be introduced in the Parliament only with his prior recommendation.
 He causes to be laid before the Parliament the annual financial statement (i.e., the
Union Budget).
 No demand for a grant can be made except on his recommendation.
 He can make advances out of the contingency fund of India to meet any unforeseen
expenditure.
 He constitutes a finance commission after every five years to recommend the
distribution of revenues between the Centre and the states.

Judicial Powers
 He appoints the Chief Justice and the judges of Supreme Court and high courts.
 He can seek advice from the Supreme Court on any question of law or fact. However,
the advice tendered by the Supreme Court is not binding on the President.
 He can grant pardon, reprieve, respite and remission of punishment, or suspend, remit
or commute the sentence of any person convicted of any offence:
(i) In all cases where the punishment or sentence is by a c martial;
 (ii) In all cases where the punishment or sentence is for an offence against a Union
law; and
(iii) In all cases where the sentence is a sentence of death.

Diplomatic Powers
 The international treaties and agreements are negotiated and concluded on behalf of
the President.
 However, they are subject to the approval of the Parliament. He represents India in
international forums and affairs and sends and receives diplomats like ambassadors,
high commissioners, and so on.

Military Powers
 He is the supreme commander of the defence forces of India. In that capacity, he
appoints the chiefs of the Army, the Navy and the Air Force.
 He can declare war or conclude peace, subject to the approval of the Parliament

Emergency Powers
 In addition to the normal powers mentioned above, the Constitution confers
extraordinary powers on the President to deal with the following three types of
emergencies9 :
(a) National Emergency (Article 352)
(b) President’s Rule (Article 356 & 365)
(c) Financial Emergency (Article 360)

Veto Power of the President

 A bill passed by the Parliament can become an act only if it receives the assent of the
President.
 When such a bill is presented to the President for his assent, he has three alternatives
(under Article 111 of the Constitution):
1. He may give his assent to the bill, or
2. He may withhold his assent to the bill, or
3. He may return the bill (if it is not a Money bill) for reconsideration of the Parliament.
However, if the bill is passed again by the Parliament with or without amendments
and again presented to the President, the President must give his assent to the bill.
 Thus, the President has the veto power over the bills passed by the Parliament, that is,
he can withhold his assent to the bills.
 The object of conferring this power on the President is two-fold–
(a) to prevent hasty and ill-considered legislation by the Parliament
(b) to prevent a legislation which may be unconstitutional
 The veto power enjoyed by the executive in modern states can be classified into the
following four types:
1. Absolute veto that is, withholding of assent to the bill passed by the legislature.
2. Qualified veto, which can be overridden by the legislature with a higher majority.
3. Suspensive veto, which can be overridden by the legislature with an ordinary
majority.
 4. Pocket veto that is, taking no action on the bill passed by the legislature.
 Of the above four, the President of India is vested with three– absolute veto,
suspensive veto and pocket veto. There is no qualified veto in the case of Indian
President; it is possessed by the American President.

Constitutional position of the President

 The Constitution of India has provided for a parliamentary form of government.
 Consequently, the President has been made only a nominal executive; the real
executive being the council of ministers headed by the prime minister.
 In other words, the President has to exercise his powers and functions with the aid and
advise of the council of ministers headed by the prime minister.
 In estimating the constitutional position of the President, particular reference has to
be made to the provisions of Articles 53, 74 and 75. These are:
1. The executive power of the Union shall be vested in President and shall be exercised
by him either directly or through officers subordinates to him in accordance with this
Constitution (Article 53).
2. There shall be a council of ministers with the Prime Minister at the head to aid and
advise the President who ‘shall’, in the exercise of his functions, act in accordance
with such advice (Article 74).
3. The council of ministers shall be collectively responsible to the Lok Sabha (Article 75).
This provision is the foundation of the parliamentary system of government.
 The 42nd Constitutional Amendment Act of 1976 (enacted by the Indira Gandhi
Government) made the President bound by the advice of the council of ministers
headed by the prime minister.
 The 44th Constitutional Amendment Act of 1978 (enacted by the Janata Party
Government headed by Morarji Desai) authorized the President to require the council
of ministers to reconsider such advice either generally or otherwise.
 However, he ‘shall’ act in accordance with the advice tendered after such
reconsideration. In other words, the President may return a matter once for
reconsideration of his ministers, but the reconsidered advice shall be binding.
 Though the President has no constitutional discretion, he has some situational
discretion. In other words, the President can act on his discretion (that is, without the
advice of the ministers) under the following situations:
(i) Appointment of Prime Minister when no party has a clear majority in the Lok Sabha
or when the Prime Minister in office dies suddenly and there is no obvious successor.
(ii) Dismissal of the council of ministers when it cannot prove the confidence of the Lok
Sabha.
(iii) Dissolution of the Lok Sabha if the council of ministers has lost its majority.
 VICE-PRESIDENT
 The Vice-President occupies the second highest office in the country.
 He is accorded a rank next to the President in the official warrant of precedence.
 This office is modeled on the lines of the American Vice-President.

Election
 The Vice-President, like the president, is elected not directly by the people but by the
method of indirect election.
 He is elected by the members of an electoral college consisting of the members of
both Houses of Parliament.
 Thus, this electoral college is different from the electoral college for the election of the
President in the following two respects:
1. It consists of both elected and nominated members of the Parliament (in the case
of president, only elected members).
2. It does not include the members of the state legislative assemblies (in the case of
President, the elected members of the state legislative assemblies are included).
 The manner of election is same in both the cases.
 Thus, the Vice-President’s election, like that of the President’s election, is held in
accordance with the system of proportional representation by means of the single
transferable vote and the voting is by secret ballot.
 All doubts and disputes in connection with election of the Vice President are
inquired into and decided by the Supreme Court whose decision is final.
 The election of a person as Vice-President cannot be challenged on the ground that
the electoral college was incomplete (i.e., existence of any vacancy among the
members of electoral college)

Qualifications
 To be eligible for election as Vice-President, a person should fulfill the following
qualifications:
o He should be a citizen of India.
o He should have completed 35 years of age.
o He should be qualified for election as a member of the Rajya Sabha.
o He should not hold any office of profit under the Union government or any state
government or any local authority or any other public authority.
 Further, the nomination of a candidate for election to the office of Vice-President must
be subscribed by at least 20 electors as proposers and 20 electors as seconders.
 Every candidate has to make a security deposit of Rs5,000 in the Reserve Bank of India.

Oath or Affirmation
 Before entering upon his office, the Vice President has to make and subscribe to an
oath or affirmation. In his oath, the Vice President swears:
o to bear true faith and allegiance to the Constitution of India; and
o to faithfully discharge the duties of his office. The oath of office to the Vice-President
is administered by the President or some person appointed in that behalf by him.
  The oath of office to the Vice-President is administered by the President or some
person appointed in that behalf by him.

Conditions of Office
 The Constitution lays down the following two conditions of the Vice-President’s office:
1. He should not be a member of either House of Parliament or a House of the state
legislature. If any such person is elected Vice-President, he is deemed to have
vacated his seat in that House on the date on which he enters upon his office as
Vice-President.
2. He should not hold any other office of profit.

Term of Office
 The Vice-President holds office for a term of five years from the date on which he
enters upon his office.
 However, he can resign from his office at any time by addressing the resignation letter
to the President.
 He can also be removed from the office before completion of his term.
 A formal impeachment is not required for his removal. He can be removed by a
resolution passed by a majority of all the then members of the Rajya Sabha and agreed
to by the Lok Sabha.
 This means that this resolution should be passed in the Rajya Sabha by an effective
majority and in the Lok Sabha by a simple majority.
 It must be noted here that the effective majority in India is only a type of special
majority and not a separate one.
 Further, this resolution can be introduced only in the Rajya Sabha and not in the Lok
Sabha. But, no such resolution can be moved unless at least 14 days’ advance notice
has been given.
 Notably, no ground has been mentioned in the Constitution for his removal.

Vacancy in Office
 A vacancy in the Vice-President’s office can occur in any of the following ways:
o On the expiry of his tenure of five years.
o By his resignation.
o On his removal.
o By his death.
o Otherwise, for example, when he becomes disqualified to hold office or when his
election is declared void.
 When the vacancy is going to be caused by the expiration of the term of the sitting
vice president, an election to fill the vacancy must be held before the expiration of
the term.
Powers and functions
 The functions of Vice-President are two-fold:
1. He acts as the ex-officio Chairman of Rajya Sabha. In this capacity, his powers and
functions are similar to those of the Speaker of Lok Sabha. In this respect, he
resembles the American vice president who also acts as the Chairman of the Senate–
the Upper House of the American legislature.
2. He acts as President when a vacancy occurs in the office of the President due to his
resignation, impeachment, death or otherwise.

Note:
 Vice President can act as President only for a maximum period of six months within
which a new President has to be elected.
 Further, when the sitting President is unable to discharge his functions due to
absence, illness or any other cause, the Vice-President discharges his functions until
the President resumes his office

Indian and American Vice Presidents compared

 Though the office of the Indian Vice President is modeled on the lines of the
American Vice-President, there is a difference.
 The American Vice-President succeeds to the presidency when it falls vacant, and
remains President for the unexpired term of his predecessor.
 The Indian Vice-President, on the other hand, does not assume the office of the
President when it falls vacant for the unexpired term. He merely serves as an acting
President until the new President assumes charge.
 UNION EXECUTIVE - PRIME MINISTER

Content –

 Introduction
 Appointment of the Prime Minister
 Oath, Term and Salary of the Prime Minister
 Power and Functions of the Prime Minister
 List of Bodies headed by Prime Minister
 Some facts related to the post of Prime Minister

Introduction -

 Our constitution provides for parliamentary system of government. Under it -

 President – de jure executive - Nominal Executive Authority – Head of State
 Prime Minister – de facto - Real Executive Authority – Head of Government

Appointment of the Prime Minister -

 Constitution - No specific procedure for the selection and appointment of the Prime Minister.
 Article 75 - Prime Minister shall be appointed by the president. (Only thing mentioned in the
constitution with regards to appointment).
 Thus, to fully understand the appointment of Prime Minister we rely on Parliamentary
convention and Court judgements.

 Convention of Parliamentary system with regards to the appointment of Prime Minister -

 Leader of Majority Party - President has to appoint the leader of the ‘majority party’ in the ‘Lok
Sabha’ as the Prime Minister. (But certain situations demand President discretion).

 Situation which requires President Discretion -

 1) When no party has clear majority (Lok Sabha) - President may exercise his personal
discretion in the selection and appointment of the Prime Minister.
 Course of Action – In the above situation, the President usually appoints the ‘leader of the
largest party’ or ‘coalition’ in the Lok Sabha as the Prime Minister.
 The selected leader needs to seek a vote of confidence in the House within a month.
 Example – President Neelam Sanjiva Reddy appointed Charan Singh exercising his discretion.
 2) When the Prime Minister in office dies suddenly and there is no obvious successor.
 Example – Death of Indira Gandhi, President Zail Singh – Appointed Rajiv Gandhi.
 Exception – If on the death of an incumbent Prime Minister, the ruling party elects a new
leader, the President must appoint him as Prime Minister.

 Judiciary Rulings with regards to appointment of Prime Minister -

  Delhi High court 1980 - Constitution does not require that a person must prove his majority in
the Lok Sabha before he is appointed as the Prime Minister.
 Implication - President ‘may’ first appoint the Prime Minister and then ask him to prove his
majority in the Lok Sabha within a reasonable period.
 Examples (Only few have been mentioned) - Charan Singh (1979), V.P. Singh (1989),
Chandrasekhar (1990), P.V. Narasimha Rao (1991).
 Supreme Court Ruling 1997 - Person who is not a member of either House of Parliament can be
appointed as Prime Minister. (6 months)
 Special Requirement – He can be appointed Prime Minister only for six months, within which,
he should become a member of either House of Parliament.
 According to the Constitution, Prime Minister may be a member of any of the two Houses of
parliament. (Lok Sabha or Rajya Sabha).
 Example - 3 Prime Ministers - Indira Gandhi (1966), Deve Gowda (1996) and Manmohan Singh
(2004), were members of the Rajya Sabha.

Oath -

 Administered by the President.

 Oath of office and secrecy of the Prime Minister - (Try and remember it in comparison to the
President).
 To bear true faith and allegiance to the Constitution of India
 To uphold the sovereignty and integrity of India
 To faithfully and conscientiously discharge the duties of his office
 To do right to all manner of people in accordance with the Constitution and the law, without
fear or favour, affection or ill will.
 Oath of Secrecy – Not to communicate or reveal to any person(s) any matter that is brought
under his consideration or becomes known to him as a union minister. (Exception – Required for
due to discharge of his duties).

Term -

 Term of the Prime Minister is ‘not’ fixed - he holds office during the ‘pleasure’ of the president.
 The term ‘pleasure of the President’ does not mean he can dismiss the Prime Minister at any
time.
 Till the Prime Minister holds the 'majority support’ in the Lok Sabha, he cannot be dismissed by
the President.
 In case the PM loses the confidence of the Lok Sabha - He must resign or the President can
dismiss him.

Salary and Allowances of the Prime Minister - are determined by the Parliament.

Power and Functions of the Prime Minister -

 In relation to the Council of Ministers -

 Appointment of the Ministers - The President can appoint ‘only’ those persons as ministers
who are recommended by the Prime Minister.
 Allocation of Portfolios – PM allocates and reshuffles various portfolios among the ministers.
 Removal of Minister – PM can ask a minister to resign or advise the President to dismiss him in
case of difference of opinion.
 Council of Ministers - He presides over the meeting of council of ministers and influences its
decisions.
 Administrative role - He guides, directs, controls, and coordinates the activities of all the
ministers.
 Resignation (or death) of the Prime Minister - automatically dissolves the council of ministers.

 In Relation to the President - (Duties of the Prime Minister)

 Prime Minister – Main channel of communication between the ‘President’ and the ‘council of
ministers.
 To communicate to the President all decisions of council of ministers with regards to 1)
Administration of the affairs of the Union 2) Proposals for legislation.
 To furnish information about 1) Administration of the affairs of the Union 2) Proposals for
legislation (Whatever information the President asks for).
 In case the President wants - To submit any matter for the ‘consideration’ of the council of
ministers on which a decision has been taken by a minister but has not been considered by the
council.
 Advisory role – Prime Minister advises the President regarding the appointment of important
officials like Attorney general of India, CAG, Chairman and members of the UPSC.

 In relation to the Parliament -

 Advises the President regarding summoning and proroguing the sessions of the Parliament.
 Dissolution of the Lok Sabha – PM can recommend dissolution of the Lok Sabha to President at
any time.
 Announcement of Government policies on the floor of the House.

 Relationship between Prime Minister and President -

 Article 74 - There ‘shall’ be a council of ministers with the Prime Minister at the head to aid and
advise the President.
 President in the exercise of his functions, ‘shall’ act in accordance with such advice.
 However, the President ‘may’ require the council of ministers to reconsider such advice and the
President shall act in accordance with the advice tendered after such reconsideration
 Article 75 - Mentions three things: 1) President appoints PM and other ministers are appointed
by the President on the advice of the PM. 2) Ministers hold their office during the pleasure of
the President. 3) Council of Ministers is collectively responsible to the Lok Sabha.
 Article 78 - PM communicates all decisions made by the council of members to the President.
President can also refer issues for the consideration of the council of members.

 List of Bodies where Prime Minister is the Chairman (Factual Table for Quick Revision)

NITI Aayog, (Executive Body)

Indian Board of wildlife (statutory – wildlife protection act 1972)
National Ganga River Basin authority – statutory body under Environmental Protection act 1986.
 National commission on Population: Executive body
Nuclear command authority
National disaster management authority
Interstate council
National integration council
CSIR
Department of space, atomic energy, DoPT
Cabinet committee on appointments, economic affairs and political affairs
National development council.
National water resource council.

Some facts about Prime Minister (UPSC has in recent year been focusing on factual information too) -
First Prime Minister of India who was a member Indira Gandhi
of the Rajya Sabha
Longest-Serving Indian Prime Minister Jawaharlal Nehru
The first woman Prime Minister to receive the Indira Gandhi
Bharat Ratna
Indian Prime Minister received Pakistan’s highest Moraraji Desai
civilian award
First Prime Minister from South India P.V. Narsimha Rao

UNION EXECUTIVE – COUNCIL OF MINISTERS

Content

 Introduction
 Constitutional Provisions related to council of Ministers
 Responsibility of the Ministers
 Types of Ministers
 Difference – Council of Ministers vs Cabinet

Introduction -

 The parliamentary system in India is modelled on the British pattern.

 The council of ministers headed by the Prime minister is the real executive authority

Constitutional Provisions related to Council of Ministers - (Be very careful while reading the article
‘shall’ means must ‘may’ means it is based on discretion)

Article 74 -

 Council of Ministers headed by Prime Minister ‘aid and advise’ the President
 President ‘shall’ act in accordance with such advice. (Shall means the advice is binding).
  Reconsideration of the advice - The President ‘may’ require the Council of Ministers to
reconsider such advice.
 After reconsideration the President ‘shall’ act in accordance with the advice tendered.
(It is upto the council of minister to change their advice or keep it the same).

 Nature of advice tendered by the Council of Ministers -

 42nd(binding) and 44th (Reconsideration) Constitutional Amendment Acts have made the advice
binding on the President.
 The nature of advice tendered by ministers to the President cannot be enquired by any court.
 Supreme Court Ruling (1971) - After dissolution of the Lok Sabha, the Council of Ministers do
not cease to hold office.
 Article 74 is mandatory - The president cannot exercise the executive power without the aid
and advise of the council of ministers.
 Supreme Court Ruling (1974) - The satisfaction of the President in the constitution infact means
the satisfaction of the council of Ministers (This is the reason why the office of the President is
considered as a “Rubber Stamp”)

Article 75 – Other provisions as to Ministers

 Appointment - Prime Minister ‘shall’ be appointed by the President.

 Other Ministers shall be appointed by the President on the advice of the Prime Minister.
 This means only those persons recommended by the Prime Minister can be appointed by the
President.
 Members of both houses (Lok Sabha or Rajya Sabha) can be appointed as Ministers.
 Strength of the Council of Ministers - The total number of ministers (including PM), ’shall’ not
exceed 15% of the total strength of the Lok Sabha. (91st Amendment Act)
 Anti-defection law and CoM - A member of either house of Parliament (any political party) who
is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
(91st Amendment act).
 The ministers shall hold office during the ‘pleasure of the President’.
 Collective Responsibility of the council of ministers to the Lok Sabha.
 Administration of Oath and secrecy (same as PM) - The President shall administer the oaths of
office and secrecy to a minister.
 Condition to remain a Minister - A minister who is not a member of the Parliament (either
house) for period of six consecutive months ceases to be a minister.
 Salaries and allowances of ministers - determined by the ‘Parliament.’
 Right to Speak - Minister who is a member of one House of Parliament (suppose Lok Sabha) has
the right to speak and to take part in the proceedings of the other House (Rajya Sabha).
 Right to Vote – Minister he can vote only in the House of which he is a member.

Responsibility of Ministers -

 Collective Responsibility to Lok Sabha - (Mentioned under Article 75(3) of the Indian
constitution)
 Implications – 1) Council of ministers own joint responsibility to the Lok Sabha for all their acts.
  2) No confidence motion – When this motion is passed in Lok Sabha all the ministers ‘must’
resign including those ministers who are from the Rajya Sabha.
 Dissolution of the Lok Sabha - Council of ministers can advise the president to ‘dissolve’ the Lok
Sabha.
 Grounds - House does not represent the views of the electorate faithfully.
 Exception – If the CoM have lost the confidence of Lok Sabha President ‘may’ not oblige them.
 3) Binding Decision - Cabinet Decisions bind all cabinet ministers (and other ministers) even if
they differed in the cabinet meeting.
 Minister who disagrees with a cabinet decision and is not prepared to defend it, must resign.
 Examples - Dr. B.R. Ambedkar (Hindu Code Bill in 1953), C.D. Deshmukh (reorganization of
states), Arif Mohammed (Women (Protection of Rights on Divorce) Act, 1986).

 Individual Responsibility -
 Article 75 – also contains the provision for Individual Responsibility.
 Implication - President can ‘remove’ a minister even when the council of ministers enjoy the
confidence of the Lok Sabha.
 However, the President removes a minister only on the advice of the Prime Minister.

 No Legal Responsibility - In India Minister do not countersign an order of President. (In UK,
minister must countersign the order of queen). This means that there is no provision in Indian
Constitution for the system of legal responsibility of a minister.

Types of Ministers – In practice, India has following types of Ministers -

 Cabinet Minister—He is present and participates in every meeting of the Cabinet.

 Responsibility - Cabinet ministers head the important ministries of the Central government like
home, defense, finance, external affairs and so forth.
 Minister of State with independent charge - He is a Minister of State who does not work under
a cabinet minister. When any matter concerning his Department is on the agenda of the
Cabinet, he is invited to attend the meeting.
 Minister of State—He is a Minister who does not have independent charge of any Department
and works under a cabinet minister. The work to such Minister is allotted by his cabinet
minister.
 Deputy Minister—He is a Minister who works under a cabinet minister or a Minister of State
with independent charge. His work is allotted by the Minister under whom he is working.
 One associated topic is Parliamentary Secretaries -
 Parliamentary Secretaries - They have no department under their control. They are attached to
the senior ministers and assist them in the discharge of their parliamentary duties.

Point of Difference Council of Minister Cabinet

Size A wider body consisting of 60 to 70
ministers
Composition Includes all the three categories of
ministers, that is, cabinet ministers,
Ministers of State and Deputy Minister.
Smaller Body consisting of 15 to 20
members.
Includes Cabinet Ministers only, thus
it is a part of the council of Ministers.
 Meeting No collective functions - It does not Collective Functions - It meets, as a
meet, as a body, to transact body, frequently and usually once in
government business. a week to deliberate and take
decisions.

Powers Theoretically, it is vested with all the The powers vested in the CoM
powers. theoretically are actually exercised
by the Cabinet

Functions Determined by the cabinet. Directs the council of ministers by

taking policy decisions which are
binding on all ministers.
Role It implements the decisions taken by Supervises the implementation of its
the cabinet. decisions by the council of ministers.

Constitutional It is a constitutional body It was conferred the status of a

Status (Article 74 and Article 75) constitutional body after the passing
of 44th Constitutional Amendment
Act 1978. (Article 352)
Collective Collectively responsible to the Lower Enforces the collective responsibility
Responsibility House of the Parliament. of the council of ministers to the
Lower House of Parliament.

CABINET COMMITTEES

Content

 Features of Cabinet Committees

 List of Functioning Cabinet Committees
 Function of Cabinet Committees
 Group of Ministers

Features of Cabinet Committees

 Extra – constitutional bodies - They are extra-constitutional (Neither constitutional nor

statutory). It means they are not mentioned in the Constitution.
 Source – ‘Rules of Business’ provide for their establishment.
 Types – 2 types 1) Standing and 2) Ad hoc.
 Standing committees are of a permanent nature.
 Ad Hoc committees are of a temporary nature. These are constituted from time to time to deal
with special problems. They are disbanded after their task is completed.
 Who forms them? - They are set up by the Prime Minister from time to time.
 Nature - Their number, nomenclature, and composition keep varying.
 Membership - Varies from 3 to 8. They usually include only Cabinet Ministers.
  However, remember that the non-cabinet Ministers can also become members.
 Senior Minister also form part of these committees.
 Head – Mostly by Prime Minister. (Sometimes other cabinet minister like finance or Home
Minister). In case Prime Minister (PM) is a member of a committee, he ALWAYS presides it.
 Decision Making – Cabinet committees can take decisions. (But their decisions can be reviewed
by the cabinet.
 Purpose - 1) Organizational device to reduce the workload of the Cabinet. 2) Facilitate in-depth
examination of policy issues 3) Effective coordination.

List of functioning Cabinet Committees -

 Appointments Committee of the Cabinet.

 Cabinet Committee on Economic Affairs.
 Cabinet Committee on Political Affairs.
 Cabinet Committee on Investment and Growth.
 Cabinet Committee on Security.
 Cabinet Committee on Parliamentary Affairs.
 Cabinet Committee on Employment & Skill Development.
 Cabinet Committee on Accommodation.

Function of Cabinet Committees - (Just read them for your understanding)

 Political Affairs Committee (Head – PM) deals with all policy matters pertaining to domestic and
foreign affairs. This is the most powerful committee often described as a ‘Super Cabinet.’
 Economic Affairs Committee (Head – PM) directs and coordinates the governmental activities in
the economic sphere.
 Appointments Committee (Head – PM) decides all higher-level appointments in the Central
Secretariat, Public Enterprises, Banks and Financial Institutions.
 Parliamentary Affairs Committee (Head – HM) looks after the progress of government business
in the Parliament.
 Cabinet committee on Security - (Head – PM) - To deal with all Defense related issues. (Law and
Order, Atomic Energy).

Group of Ministers – (GoM) -

 In addition to cabinet committees, Groups of Ministers (GoMs) are constituted to investigate

different issues / subjects.
 Few GoMs are empowered to take decisions on behalf of the Cabinet. While others make
recommendations to the Cabinet.
 Purpose - Instrument for coordination among the ministries.
 Nature - Ad hoc bodies formed to give recommendations to the cabinet on certain emergent
issues and critical problem areas. (Once objective is attained, they are disbanded).
 PARLIAMENT

 Parliament - ‘Legislative organ’ of the Union government.

 Source – British Government (‘Westminster’ model of Government)
 Articles dealing with Parliament – Article 79 to 122 (Part 5)

Organization of Parliament -

PRESIDENT

PARLIAMENT LOK SABHA (HOUSE OF PEOPLE)

RAJYA SABHA (COUNCIL OF STATES)

President - (Integral part of the Parliament)

 Remember - President is ‘not’ a member of either House of Parliament (doesn’t attend its
meetings).
 Assent to the Bills – He is considered ‘Integral part of the Parliament’ because a bill passed by
both houses of Parliament ‘cannot’ become a law without President’s assent.
 Other Functions - Summon, prorogue session of Parliament, pass ordinances, Address both
houses of Parliament etc.
 Unlike Indian President the American president is ‘not’ regarded as a constituent part of the
Congress (US Parliament).

COMPOSITION OF BOTH HOUSES

Composition of the Rajya Sabha -

238 - Representative of States/Union Territories

(Indirectly elected)

Maximum Strength - 250

12 - Nominated Members (President)

 Present Situation – Total - 245 members Division - 1) 229 members –States 2) 4 member - UTs
3) 12 – Nominated Members.

Election of members of the Rajya Sabha -

  Representation of States -
 Mode of Election - Representatives of State are ‘Indirectly’ elected
 Representation of states - Elected by MLA’s of the states.
 Election System - ‘Proportional representation’ by ‘single transferable vote’
 Allocation of Seats in Rajya Sabha – On the basis of ‘Population’
 Variability exists in the representation of states in Rajya Sabha (Different for different states)
 Example - Uttar Pradesh has 31 members while Tripura has 1 member only.
 Comparison with US Constitution - In USA all states are given equal representation in the
senate (US Rajya Sabha) irrespective of their population.

 Representation of UT -
 Mode of Election – ‘Indirectly elected’ – An Electoral College is specifically constituted for the
purpose.
 Election System – ‘Proportional representation’ by a ‘single transferable vote’.
 Union Territories having representation in Rajya Sabha – 3 Union Territories (Delhi, Puducherry
and Jammu and Kashmir).
 What about other Union Territories? -Their populations are too small to have any
representation in the Rajya Sabha.

 Nominated members -
 Mode of selection - President ‘nominates’ 12 members to the Rajya Sabha.
 Requirements for nominated member - People who have ‘special knowledge’ or ‘practical
experience’ in 1) Art 2) literature 3) science and 4) social service.
 Comparison with US constitution – The US Senate has ‘no’ nominated members.
 Fourth Schedule – Schedule dealing with the allocation of seats in the RS to the states and UTs.

Composition of the Lok Sabha -

Representative of State - 530

Maximum Strength - 552 (Now 550) Union Territories - 20

2 - Anglo Indian Provision removed

community (nomination) by the '104th
amendment act'

Present situation - 543 members – 530 (States) + 13 (Union Territories)

Election of members of Lok Sabha -

 Representation of States -
 Mode of election – ‘Directly’ elected by people from the territorial constituencies of the state.
 Election system – First past the post
  Principle – Universal Adult Franchise - Every ‘Indian citizen’ who is ‘above’ 18 years of age.
 Disqualification – Can be disqualified under provisions of the constitution or any law.
 Fact – 61st constitutional amendment act reduced the voting age from 21 years to 18.

 Representation of Union Territories

 Constitutional Provision - Constitution has ‘empowered’ the Parliament to prescribe the
manner of choosing the representatives of the union territories in the Lok Sabha.
 Union Territories (Direct Election to the House of the People) Act,1965 – was enacted by
Parliament to fulfill the constitutional provision.
 Mode of election – ‘Directly’ elected by the people of Union Territories.
 Election system – First past the post.

 Territorial Constituency -
 Objective - For the purpose of holding ‘direct elections’ to the Lok Sabha, each state is divided
into territorial constituencies.

Provision related to territorial constituencies -

 Allocation of Seats to states in Lok Sabha – Allocation is done in a manner which ensures that
the ‘ratio’ between the number and population is the same for all states.
 Example (Only for the purpose of understanding) - Suppose UP (Total population) – 100,
Madhya Pradesh (Total population) – 50 Total seats allocated for UP in Lok Sabha – 4 For MP – 2
Ratio maintained - 1:25
 Allocation of Seats to different territorial constituencies within the state – Allocation is done in
such a manner that the ‘ratio’ between the population of each constituency and the number of
seats allotted to it is the same throughout the state.
Method of election – (Here only a brief explanation for your understanding) -

 First-past-the-post (FPTP) system is also known as the ‘simple majority’ system.

 Procedure - In this voting method, a person is elected because they get more votes than anyone
else in the area that they want to represent. They need not get the majority votes.
 Example - In 2014 election, NDA got only 31% of the total votes cast and still won (as it was
more than everyone else). Total of 69% of those who voted did not vote in favor of BJP.
 Proportional Representation - A political system in which parties are represented in parliament
according to the number of people who voted for them.
 Single transferable vote - In this system, the voters rank candidates in ‘order of preference’.
Their vote is allotted to their ‘first’ preference. If no one emerges with a majority - then the
‘least voted’ candidate is removed from consideration and the ‘second’ choices of those who
voted for him are taken into consideration. This process continues till a winner with a majority
emerges.
 In India, Proportional Representation is ‘found’ in election of 1) President 2) Vice President 3)
Members of Rajya Sabha 4) Members of state legislative council.

DURATION OF BOTH HOUSES

 Rajya Sabha -
 Permanent house or continuing chamber (I.e., cannot be dissolved). Though the member do
retire.
 Retirement of members - One-third of its members retire every second year.
 Are they eligible for re-election and renomination? - Yes, any number of times.
 Term of member of the Rajya Sabha – Not in the constitution – it has left it to the ‘Parliament’.
 Parliament -----> Representation of people Act (1951) - Term of office of RS member – 6 years.

 Lok Sabha -
 Term of Lok Sabha - 5 years.
 Subject to dissolution – 1) Automatic dissolution – After completion of the term of 5 years. 2)
President is authorized to dissolve the Lok Sabha at any time.
 Extension of term – is possible during ‘national emergency’ (In detail in the emergency chapter).

PRESIDING OFFICER
 LOK SABHA RAJYA SABHA

Chairman Deputy Chairman

Speaker Deputy Speaker

Panel of Chairpersons Panel of Vice Chairpersons

Lok Sabha Speaker -

 Election of Speaker - Elected by ‘Lok Sabha’ from amongst its members (he shall be a member
of Lok Sabha at the time of election). Date of election is ‘fixed’ by the president.
 Vacation in office of the Speaker –
 Ceases to be a member of the Lok Sabha
 Resignation by the Speaker ---> He needs to write to the ‘Deputy Speaker’
 Removal of the Speaker by a ‘resolution’ - He can be removed by the house by ‘effective
majority’ (To arrive at ‘effective majority’- we simply remove the vacant seats and all the then
members become ‘Effective Majority’) at 14 days advance notice.
♦ Atleast ‘50 members’ support is needed to admit the motion of ‘removal’.
♦ During consideration of the resolution – Speaker ‘cannot’ preside over the Lok Sabha
♦ No casting vote - He can ‘vote 'during the first instance but not in case of equality of votes.
 Note – Lok Sabha dissolution does not lead to Speaker immediately vacating office. He
continues till the next Lok Sabha meets.

Speaker – Role, Powers and Functions -

Constitution

Source of Power Rules of Procedure and conduct of business

Parliamentary conventions
  Maintain Order and decorum in the house - Speaker maintains order and decorum in the House
for conduct of business and regulates its proceedings.
 This is his primary responsibility and he has ‘final power’ in this regard.
 Speaker as ‘final Interpreter’ - Speaker is the final interpreter of the provisions of (a) the
Constitution of India, (b) the Rules of Procedure and Conduct of Business of Lok Sabha, and (c)
the parliamentary precedents, within the House.
 Absence of Quorum - Speaker ‘adjourns’ the House or suspends the meeting in absence of a
quorum. (Atleast one-tenth of the total strength of the house should be present).
 Casting Vote - Speaker ‘does not’ vote in the first instance. But he can exercise a casting vote in
the case of a tie. (To resolve the deadlock).
 Joint Sitting - Speaker presides over a ‘joint setting’ of the two Houses of Parliament.
 Joint sitting is ‘summoned’ by the President (not speaker he only presides) to settle a ‘deadlock’
between the two Houses on a bill.
 Secret Sitting - Speaker can allow a ‘secret’ sitting of the House at the request of the Leader of
the House.
 Money bill - Speaker is the final authority to certify a ‘money bill.’ His decision on this question
is final. (Endorses it as money bill before it sent to RS and President for approval).
 Disqualification of Members (Anti Defection law) - Speaker can disqualify an MP under
defection law. (Lok Sabha).
 SC Judgment 1992 – This power is subject to ‘Judicial Review’.
 Ex-officio chairman of the Indian Parliamentary Group (link between Indian Parliament and
various parliaments of the world).
 Ex-officio chairman of the conference of presiding officers of legislative bodies in the country.
 Appointment authority - He appoints the chairman of all the parliamentary committees of the
Lok Sabha.
 Chairman of the Business Advisory Committee, the Rules Committee and the General-Purpose
Committee.

Provisions for Impartiality and Independence of the Speaker -

 Position in order of Precedence - Equivalent to ‘Chief Justice of India’ (7th Position in order of
Precedence (above cabinet ministers but below Prime Minister and Deputy Prime Minister).
 Speaker and Anti – Defection law - Speaker does not need to resign from his party but if he
resigns won’t be disqualified under the provisions of Anti – Defection law.
 Security of Tenure - A proper procedure is prescribed for his removal.
 Salaries and allowances are ‘charged’ on the consolidated Fund of India
 Substantive Motion is needed to discuss and criticize his work in the Lok Sabha
 Casting Vote ‘only’ – Cannot vote in the first instance while presiding the house. (Impartiality)

Deputy Speaker of the Lok Sabha -

 Election - Elected from amongst from the members of Lok Sabha. Election date is fixed by
‘Speaker’ (not president), in case of speaker it is President.
 Special Privilege - Whenever appointed as member of a Parliamentary Committee, he
automatically becomes its chairman
 Removal - He is removed as like the Speaker of Lok Sabha.
  Provisions for Voting - He votes like an MP of Lok Sabha when he is not presiding, when he
presides exercises a casting vote (like the Speaker).
 Note - Deputy Speaker is not subordinate to speaker, he is directly responsible to house.
 Salary and allowances are charged to consolidated fund of India (Speaker and Deputy Speaker)
 Resignation - He submits his resignation to the Speaker.

Some facts related to both Offices -

 Origin – Both offices came into existence as per the provisions of the ‘Govt. Of India Act. 1919’.
 Central Legislative Assembly - First Speaker - Fredrick white - Deputy Speaker - Sachidananda
Sinha
 Vithalbhai Patel - First ‘elected’ Indian speaker of central legislative assembly.
 Post-Independence - First Speaker - G.B. Mavlankar Deputy Speaker - Anantha Sayanam
Iyyengar.

Speaker Pro tem - Presides over ‘first’ sitting of newly elected Lok Sabha

 Appointment - Appointed by ‘President’ of India.

 Who is he? Usually, the ‘senior most member’ is selected.
 Oath - By President
 Comparison with Speaker - Has all the powers of the Speaker.
 Mentioned in the constitution.
 Ceases is to exist after speaker is elected (temporary office).
 Purpose - His ‘main’ duty is to administer ‘oath’ to the new members.

Presiding Officers of Rajya Sabha -

 Chairman – Vice President

 Deputy Chairman – Elected from its members
 Panel of Vice Chairpersons – Nominated by Chairman, there is ‘no’ pro tem Chairman.
 All other points are similar to Speaker and Deputy Speaker.

Leader of the House (In USA Majority Leader) –

 PM (if he is a member of the Lok Sabha, if not any minister nominated by PM)
 Constitutional Status - Not mentioned in constitution.
 Provisions related to it are found in the ‘Rules of the house’.
 Fact - Prime Minister is ‘leader of the house’ from the house he comes from. He ‘nominates’ the
leader of the house for other house.

Leader of the Opposition -

 Lok Sabha + Rajya Sabha

 Qualification - The leader of the ‘largest Opposition party’ having ‘not’ less than ‘one-tenth’
seats of the total strength of the House is recognized as the leader of the Opposition in that
House. (Mavlankar Rule)
 Constitutional Status - Not mentioned in constitution.
  Recognition - Statutory status through the - Salary and allowance of the opposition and
parliament act, 1977.
 Who gives the Recognition? Lok Sabha - Speaker in Lok Sabha, Rajya Sabha - Chairman in Rajya
Sabha.
 Fact – Post is equivalent to rank of Cabinet Minister.
 Similar provisions in UK and USA - Britain – Shadow cabinet (Leader of Opposition is called as
alternative Prime Minister in UK). USA – Minority leader.

WHIP -

 Assistant floor leader

 Appointed by political party
 ‘Not’ mentioned in Constitution nor in the Rules of the House nor in a Parliamentary Statute.
 It is based on the ‘conventions of the parliamentary government’.
 SESSIONS OF THE PARLIAMENT

 Session -
 The ‘session’ of Parliament is the period spanning between the 1st sitting of a House and its
prorogation (or dissolution in the case of the Lok Sabha).
 Normally ‘3 sessions’ of the Parliament are held – Budget, Monsoon, Winter session.
 Budget Session - February to May, Monsoon Session - July to September, Winter Session -
November to December.
 Sitting -
 Session of Parliament consists of many meetings (Everyday meeting).
 Each meeting of a day consists of two sittings. (Morning Sitting, Post Lunch sitting).
 Constitutional requirement - The ‘maximum gap’ between two sessions ‘shall’ not be more
than 6 months. Thus, provision has been given for minimum number I.e., the Parliament should
meet at least 2 times a year.
 Recess - The house between sessions is set to be in recess.

Summoning - (Issuing a call to be present)

 President summons RS and LS to meet (should meet at least twice a year).

Adjournment -

 Objective – It suspends the work in a ‘sitting’ for a ‘specified’ time, which may be hours, days or
weeks.
 Who does it? - Done by ‘presiding’ officer.

Adjournment sine die -

 Objective – It means terminating a ‘sitting’ of Parliament for an indefinite period done by

presiding officer.
 Declared when the business of the house is finished.
 Who does it? Done by ‘presiding’ officer.

Prorogation (Usually follows Adjournment Sine die) -

 Objective - It not only terminates a ‘sitting’ but also a ‘session’ of the House
 Who does it? Done by President
 Impact - It lapses all pending notices but not bills. (In UK - bills also lapse after prorogation).

Dissolution -

 Who does it? - Done by the ‘President’.

 Applicability – Only Lok Sabha, Rajya Sabha is never dissolved (since it is a permanent house).
 Types – 2 Types (Fact – Lok Sabha dissolution before completion of tenure is irrevocable).
 1) Automatic Dissolution - After 5 years Lok Sabha gets automatically dissolved.
  2) Whenever the President decides to dissolve the House (which he is authorized to do)
 Impact - All business including bills, motions, resolutions, notices, petitions and so on pending
before it or its committee's lapse. (Certain exception we will study in detail below).

Dissolution of LS and lapse of the bills

Bills which Lapse -

 All pending bills which originated in Lok Sabha, are present in Lok Sabha, lapse (certain bills that
are to be examined committee on government assurances do not lapse).

Bills which do not Lapse -

 A bill originated and pending in Rajya Sabha does not lapse.

 A bill passed by both houses and pending with ‘President’ does not lapse.
 A bill sent for ‘reconsideration’ by president does not lapse.

Adjournment vs Prorogation -

Comparison Adjournment Prorogation

Terminates Sitting Session (also sitting)
Who does it? Presiding officer President
Impact No impact on bills Lapses all pending notices but not bills
(exception – ‘notice’ for introducing
bills do not lapse).

Quorum -

 Meaning - ‘Minimum number of members’ required to be present in the House before it can
transact any business.
 Fact - It is ‘one-tenth’ of the total number of members in each House including the presiding
officer.
 Course of Action when no Quorum - It is the duty of the ‘presiding’ officer either to ‘adjourn’
the House or to ‘suspend’ the meeting until there is a quorum.

Lame-duck Session – Last session of the existing Lok Sabha, after a new Lok Sabha has been elected.

Voting in the house -

 All matters at any sitting are decided by a majority of votes of the members present and voting,
‘excluding’ the presiding officer (Only casting vote in case of equality of votes).
 Voting –> Ordinary Majority –> (Usually used) Special Majority –> Certain Special
Circumstances.
 Examples of cases for special majority (only few) - Impeachment of President, Amendment of
Constitution etc.

Procedure for Voting -

 After ‘conclusion of a debate’ - Speaker puts the question for ‘voting.’

  Voice Voting – ‘Ayes’ – is said by those who favor the motion and ‘No’ – by those who do not
favor the motion.
 Opinion – Speaker then gives his opinion in favour of Ayes or Noes. (Based on who feels is more
as it is voice vote)
 If the speaker opinion is not challenged, then he gives his decision.
 Decision – Speaker - The Ayes (or the Noes, as the case may be) have it’
 Thus, the question before the House is determined (after the decision of the Speaker).

The procedure ‘continues’ if the Speaker decision is challenged -

 Speaker orders the lobby to be cleared. (3 and half minute lapses)

 Voice voting procedure is repeated, and Speaker again gives his opinion.

Decision – Challenged (again) - the procedure continues.

 Following ‘options’ lie before the Speaker -

♦ Automatic vote recorder
♦ ‘Aye’ and ‘No’ Slips in the House
♦ Members going into the Lobbies.
 Speaker can ask members to rise in their places (those in favour and against) and, after a count
has been taken gives his decision (this he usually does when he feels the division is
unnecessarily being claimed).
 In the above case (last one) the names of the voters shall ‘not’ be recorded.

Language in the Parliament -

 Constitutional Provision - Constitution has declared ‘Hindi’ and ‘English’ to be the languages for
transacting business in the Parliament.
 English was to be ‘discontinued’ as a ‘floor language’ after the expiry of 15 years from the
commencement of the Constitution
 Official Languages Act (1963) allowed English to be continued along with Hindi.
 What about other languages? - A member can address the House in his ‘mother-tongue’ with
‘prior permission’ from the Presiding officer.

DEVICES OF PARLIAMENTARY PROCEEDING

Devices of Parliamentary proceeding -

Question Hour -

 What is Question hour - ‘First hour’ of every parliamentary sitting

 Purpose – Members (of Parliament) ask questions and the ministers (Executive) give answers.
 ‘3 kinds’ of questions are asked in the Question hour -
 Starred - Oral answer, Supplementary questions - Yes
 Unstarred - Written answer, Supplementary questions - No
 Short Notice- Notice of less than ten days - answered orally.
 Questions to private members also exist on the ‘bills’ they introduced.
 ‘Rules of procedure’ - It is ‘mentioned’ in the Rules of procedure.

Zero Hour -

 Nature - ‘Informal’ device

 Rules of procedure - ‘Not’ mentioned in the ‘Rules of Procedure’
 Time – It starts ‘immediately’ after the question hour and lasts until the agenda for the day is
taken up.
 Prior notice - ‘No’ prior notice is required to raise issues.
 Other Facts – It is an ‘Indian innovation’.

Motion -

 Definition – It is a procedural device to start ‘discussion’ in the House on a matter of general

public interest. (The below diagram is to give you a ‘broad understanding’ on a motion)
 Purpose - It can be understood as a proposal submitted to the House for eliciting its decision.

Decision of the house

Based on the Motion the Matter(brought by
Motion - Brought by a member Chair puts a question before
to start discussion on any issue. motion) is resolved by
the house voting in favour or
against by the house
Nature of Motions -

 Substantive Motion - Self-contained motion. Deal with very important matter.

 Example – Impeachment of President, Removal of chief election commission.
 Substitute Motion-It’s substitute to change the existing motion.
 Impact - Adoption by the House, supersedes the original motion.
 Subsidiary Motion: To add on to the existing motion.

Types of Motion

 Closure Motion-
 Purpose - To cut short the debate in the house and put the matter to vote
♦ Simple closure – Matter has been discussed enough now all should vote.
♦ Closure by compartmental – A lengthy bill is grouped in ‘parts’. These parts are discussed as a
whole and then they are put to vote.
♦ Kangaroo closure – ‘Only’ important clauses are taken for discussion and voted on.
♦ Guillotine closures - ‘Undiscussed clauses’ of a bill are put to vote due to less time.

 Privilege Motion -
 Concern of the motion - Moved by a member when he feels that a minister has committed a
‘breach of Parliamentary privileges’ of the House / members.
 What is breach of privileges? - If a minister 1) withholds facts 2) Any distorted facts presented
to the house.
 Purpose - ‘Censure’ the concerned minister.

 Calling Attention Motion -

 Objective – To bring a matter of urgent ‘public importance’ to the attention of the ‘minister’ and
to seek authoritative statement from him.
 Fact – It is an Indian innovation
 Rules of the house – It is mentioned in ‘rules of procedures.

 Adjournment Motion -
 Objective – It seeks to bring a matter of urgent ‘public importance’ to attention of the ‘house’.
 Extraordinary device – As it interrupts the ‘normal business of the House’.
 Unique Fact – It is allowed ‘only’ in Lok Sabha.
 Provision related to the motion
♦ Support - It needs the support of ‘50 members’ to be admitted.
♦ Should raise a matter which is ‘definite’, ‘factual’, ‘urgent’, ‘specific’ and of ‘recent’ occurrence.
♦ Should not deal with ‘privileges’, ‘matters in court’ or ‘review of completed discussion’ of the
same session.
  No-Confidence Motion -
 Purpose – Enforces the provision of ‘collective responsibility’ which is found in Article 75(3).
 Target - It is moved against the ‘entire council of ministers’.
 Reason – No reason is necessary, can be introduced by any member
 Impact - If it is passed government shall resign.
 Provision related to the motion.
♦ It is allowed ‘only’ in the ‘Lok Sabha’.
♦ It needs the support of 50 members to be admitted.

Facts related to no – confidence motion -

‘First’ ever ‘no confidence motion’ Year – 1963 (Acharya Kriplani)

‘Maximum number’ of ‘No confidence motion’ faced Indira Gandhi
‘Total number’ of ‘No confidence motion’ since 27
Independence.
Recent ‘no confidence motion’ Narendra Modi Government (Defeated the
motion)
PM who resigned due to ‘no confidence motion’ Morarji Desai

 Censure Motion -
 Target - Against ‘individual’ or ‘group of ministers’.
 Reason - Reasons need to be stated.
 Different from no confidence motion - If passed the Ministers need not resign.
 Impact – The passing of this motion can invite ‘no confidence motion’.

Motion of Thanks -

 Objective - To ‘thank’ President of India for his address to the parliament.

 The first session after each general election and the first session of every fiscal year is addressed
by the President.
 The programs and performance of the government are presented to the house by the President.
 Impact - If this motion is not passed it leads to defeat of the government.

Point of Order

 Objective - It relates to the ‘interpretation’ or ‘enforcement’ of the rules of the house

 Purpose - It is a device to discipline and bring order to the house.
 It is raised when proceedings of the house don’t follow the normal rules and procedure.
 Extraordinary provisions – It suspends the proceeding of the house.
 Provisions related to Point of Order – 1) No debate is allowed 2) It is usually raised by an
opposition member in order to control he government.

Short duration discussion -

 No voting takes place, no formal motion exists in the house.

Resolution -
  A resolution can be moved by a member or Minister on a matter of general public interest.
 Resolution is similar to a ‘substantive motion’ – Used for very important issues.
 Different from Motion – All motions are not substantive, nor all motions need to be put to vote.
 In contrast all ‘resolution’ are ‘substantive’ and needed to be put to ‘vote’.
 Types of Resolution -
♦ Private Member Resolution – Moved by private member. Private member – Member of the
house other than minister. Discussion on it is fixed – Alternate Fridays and Afternoon sittings.
♦ Government Resolution - Moved by a minister. Can be taken any day – Monday to Thursday.
♦ Statutory resolution –It can be moved either by a private member or a minister.
♦ It is known as ‘statutory’ resolution because it is always tabled in pursuance of a provision in the
Constitution or an Act of Parliament.

LEGISLATIVE PROCEDURE IN THE PARLIAMENT

Introduction -

 Procedure for legislation - The procedure to make law is ‘identical’ in both houses.
 Bill – It is a ‘proposal’ for legislation.
 Act/Law - Only when the bill (proposal for legislation) is passed does it become an act or a law.
 2 Kinds of bills - Bill introduced in the Parliament are of 2 types – 1) Public Bills 2) Private bills.

Difference between a public and private bill -

Comparison Public bill Private bill

Introduction By Minister Other than a Minister
Notice Period 7 days 30 days
Approval chance Greater chance Lesser chance
Implications Rejection – Want of Parliamentary Rejection – No implication
confidence
Assistance Concerned Department assistance No Assistance

Ordinary bill -

 Introduction – 1) ‘Either’ house of Parliament (Lok Sabha or Rajya Sabha) 2) By a ‘Minister’ or

‘any other member’.
 It goes through three readings -
 First Reading – 1) Bill Published in the ‘official gazette’ 2) No discussion takes place at this stage.
 Second Reading – 1) General Discussions takes place 2) Committee stage - It is given for select
committee (lies on the discretion of the government), 3) Consideration stage - Amendment are
passed.
 Third Reading - Final Acceptance or Rejectence of the bill through voting.
 After being passed with ‘Simple majority’ in the 1st house (Lok Sabha or Rajya Sabha), bill is
authenticated by the ‘Presiding officer’ and transmitted to the 2nd house (Lok Sabha or Rajya
Sabha).
 Simple Majority – The majority of members present and voting.
  In the 2nd house the bill goes through all the above stages again.
 After consideration the 2nd house has the ‘following’ alternatives.
 Pass the bill (without amendment)
 Reject the bill.
 Keep the bill pending without taking any action.
 Pass the bill (with amendment) and send to the 1st house for reconsideration.
 Bill is passed if – 1) 2nd house passes with no amendment 2) 1st house accepts the bill passed
with amendment.
 Deadlock occurs when – 1) 2nd house rejects the bill 2) 2nd house doesn’t take any action for 6
months 3) 1st house rejects amendments proposed by the 2nd house.

‘Dead lock’ - Provision for ‘Joint Sitting’ is available in case of a deadlock

 ‘Constitutional article’ dealing with ‘Joint Sitting’ - Article 108

 Presidency in order - Presided by Speaker ----> Deputy Speaker ------> Deputy Chairman of Rajya
order. (Remember Chairman of Rajya Sabha does not preside a Joint Sitting).
 Majority needed - It is passed by ‘simple majority’ of joint sitting.
 ‘Lok Sabha’ can dominate due to its numbers.
 Joint Sitting is ‘governed’ by rules and proceedings of Lok Sabha.
 After president assent bill becomes an act with equal powers with regard to an ordinary bill.
 Provision for ‘Joint Sitting’ has been used only ‘3 times’ – 1) Dowry Prohibition Act,1960 2)
Banking Service commission bill,1977 3) Prevention of Terrorism bill, 2002.

Assent of the President -

Assent Implications
President gives assent Bill becomes an act/law
President doesn’t assent Bill does not become an act/law
President send the bill for reconsideration It will be reconsidered but if it is passed by both
houses again (with or without amendment)
President ‘must’ give his assent.

Money bills -

 ‘Constitutional article’ dealing with Money bill - Article 110

 Article 110 – Money bill should contain ‘only’ provisions related to -
 Taxes - The imposition, abolition, remission, alteration or regulation of any tax.
 Regulation of ‘Borrowing of money’ by the ‘union government.’
 Custody of the ‘consolidated of India’ or ‘contingency fund of India’ 2) Payment or withdrawal of
money from these funds.
 ‘Appropriation’ of money out of ‘consolidated fund of India.’
 ‘Declaration’ of an expenditure ‘charged’ on the consolidated fund of India 2) Increasing the
‘amount’ of such expenditure.
 ‘Receipt’ of money on account of ‘consolidated fund of India’ or the ‘public accounts of India’.
 Any matter incidental to any of the matters specified above.
Matters that are not money bill – 1) Fines &penalties 2) Taxes of local government 3) Service fees.

Facts related to the Money bill -

 Prior permission – ‘Prior permission’ of the President is required.

 Reconsideration - President ‘cannot’ send the bill for reconsideration.
 Introduction – Introduced ‘only’ in the Lok Sabha. By a minister ‘only’.
 Who decides a bill as a money bill? Speaker's decisions is final on money bill and cannot be
questioned at any court of law.
 Role of Rajya Sabha – Rajya Sabha has a ‘limited role’ - 1) Cannot reject or amend a money bill
2) Should return it in 14 days post consideration 2) It can only make recommendation which Lok
Sabha may or may not accept.
 Joint Sitting – There is ‘no’ provision for ‘Joint Sitting’ in case of a ‘money bill’.

Financial bills -

 Constitutional article - Article 117

 Financial bills 1 -
 Definition - 117(1) A bill that contains matters of Articles 110 + other matters of general
legislation
 Procedure – 1) It can be introduced in ‘Lok Sabha’ with ‘prior recommendation’ of President 2)
In remaining aspects it is just like ordinary bill.
 Financial bill 2 -
 Definition - Article 117(2) contains the provision involving expenditure from ‘consolidation fund
of India’, doesn’t include any matters mentioned under article 110.
 It is similar to an ‘ordinary bill’
 Exception - It can’t be passed unless President has recommended to the house to consider that
bill. (The recommendation is only required at consideration stage not at introduction stage)

Objective Ordinary bill Money bill Financial bill 1 Financial bill 2

Introduction LS/ RS Lok Sabha only Lok Sabha only LS + RS
Prior Prez. No Yes Yes No
permission
Joint Sitting Yes No Yes Yes
Status of LS vs RS LS = RS LS>>> RS LS = RS LS = RS
Recommendation Not needed Needed Needed Not needed
of President
Duration (RS can 6 months 14 days 6 months 6 months
keep the bill)

Related topic to Money bill –

BUDGET IN THE PARLIAMENT

Budget in the Parliament

 Constitution refers to the budget as ‘Annual financial statement.’

 Constitutional ‘Article’ dealing with ‘Annual financial statement’ - ‘Article 112.’

Constitutional Provisions related to Budget -

 President – Lays before both ‘houses of Parliament’ the ‘Annual financial statement’.
 Demand for Grants – Need to have ‘Prior recommendation’ of the President.
 To ‘withdraw’ money from the ‘consolidated fund of India’ – Pass ‘Appropriation bill.’
(Appropriation by law)
 Tax can be levied and collected ‘only’ via authority of law – (Finance bill is passed).
 Parliament can ‘reduce’ or ‘abolish’ a tax. But it ‘cannot’ increase it.
 Finance bill (Money bill dealing with taxation) - can be introduced ‘only’ in the Lok Sabha. 2)
Prior recommendation of the President is needed.
 Voting on demand for Grants – ‘Exclusive’ privilege of the Lok Sabha
 Expenditure is of ‘2 types’ – 1) Expenditure ‘charged’ upon the India (NON-VOTABLE) 2) The
expenditure ‘made’ from the Consolidated Fund of India. (VOTED).
 Budget ‘shall’ (this means compulsorily) distinguish expenditure on ‘revenue account’ from
other expenditure.

List of ‘Charged expenditure’ on the ‘Consolidated Fund of India.’ -

 ‘Expenditure’ related to – President, ‘Chairman’ and ‘Deputy Chairman’ of the Rajya Sabha,
‘Speaker’ and ‘Deputy Speaker’ of the Lok Sabha, ‘Judges’ of Supreme Court, Judges of high
courts (only pension), Comptroller and Auditor General of India, Union Public Service
Commission, Administrative expenses of the Supreme Court, office of the Comptroller and
Auditor General of India and the Union Public Service Commission. (including the salaries,
allowances and pensions of the persons serving in these offices).
 ‘Debt charges’ for which the Government of India is liable.
 Any sum required to ‘satisfy’ any judgement, decree or award of any court or arbitral tribunal.
 Any other expenditure ‘declared’ by the Parliament to be charged on Consolidated Fund of
India.
 Presentation of the Budget

General discussion

Scrutiny by departmental committees

Voting on demand for Grants

Passing of Appropriation bill

Passing of finance bill

Presentation of Budget - (Only briefly discussed – from Prelims perspective)

 Date - Budget is presented on 1st February.

 Who presents it? The ‘finance minister’ presents the ‘General Budget’ with a speech known as
the ‘budget speech’.
 After the budget speech in the Lok Sabha - Budget is laid before the ‘Rajya Sabha’
 Rajya Sabha can ‘only’ discuss it and has no power to vote on the demand for grants.

General Discussion -

 Only discussion takes place no motion is moved or submitted in the house.

Scrutiny by departmental committees -

 24 ‘departmental standing committees’ of Parliament examine and discuss in detail the

demands for grants of the concerned ministers.

Voting on demand for Grants -

 Exclusive privilege of Lok Sabha - The voting of demands for grants is the exclusive privilege of
the Lok Sabha and not of Rajya Sabha.
 ‘Charged expenditure’ on the Consolidated Fund of India can only be ‘discussed’.
 Each demand is voted separately by the Lok Sabha.
 Members can also move to reduce any demand for grants (through cut motions)
 But increase or upward revisions of estimates are not permissible.
 Cut motions are moved to bring ‘moral pressure’ on the executive (rarely passed as it would
amount to want of parliamentary confidence).
Articles 113 and 114 provide for the presentation of various kinds of demands for grants by the
Parliament.

Grant or Budget Reason

Supplementary grant When amount granted for a particular services is found to be
insufficient
Additional grant Additional expenditure upon new service
Excess grant When money has been spent more than the amount granted
Token Grant To make appropriation from one service to other
Vote on Credit To meet an unexpected demand
Vote on account Budget for less than an year

 ‘Appropriation bill’ is presented – To take money out of consolidated fund of India

 ‘Finance bill’ - It consists of revenues (taxes of the government). Last stage of the Budget. Needs
to be passed within 75 days (Provisional Collection of Taxes Act of 1931).

Name of the Fund Article Custody Objective

Consolidated Fund 266 Parliament Revenues (Tax & Non-Tax), Treasury Bills, Ways
and means advances
Public account of India 266 Executive All other public money received by govt (other
than that goes to consolidated fund) Ex: PF, Post
Office Savings etc,
Contingency Fund 267 President - To meet emergency expenditure fund size is
Finance determined by the parliament.
Secretary
handles it -
Post
expenditure
the
Parliament
approves it.

PARLIAMENTARY PRIVILEGES

 Constitutional article - Article 105

 Definition - They are special rights, immunities and exceptions enjoyed by both houses,
committees and members.
 Objective – To secure independence, autonomy and dignity of houses.
 Status - They are ‘not’ codified, enforced by presiding officer.
 Scope - These are available to Attorney General; Union Ministers extend to Parliament
Committees too.
 Article 105 It talks about ‘only’ certain privileges 1). Freedom of Speech in Parliament, 2. Non
liability in court regarding his work in Parliament.
 Other privileges are stated those are ‘British house of commons’.
 Fact - Does not extend to President.

Collective Privileges –

 Publish - To publish reports and debates and prohibit others from publishing them.
 Regulatory powers - It can regulate its proceedings, procedure, conduct of business
 Penal powers - It can punish people for breach of privileges
 Legal proceedings - No legal process can be served without the permission of the presiding
officer
 Right to be informed - Right to receive immediate information of arrest/ detention of its
member
 Prohibition on court - Courts are prohibited to inquire.

Individual Privileges:

 Cannot be arrested during the session and 40 days before and after the session (only in civil
cases)
 Exempted from jury service.
 Freedom of speech, no member is liable to any court.

PARLIAMENTARY COMMITTEES
Introduction - (Focus on only Prelims related facts)

Purpose of Parliamentary committee - The work done by the Parliament in ‘modern times’ is varied and
complex in nature and considerable in volume. The time at Parliament disposal is limited. It cannot,
therefore, Indepth consider all the legislative and other matters that come up before it. A good deal of
its business is, therefore, transacted in Committees of the House, known as Parliamentary Committees.

What is a Parliamentary committee?

 Parliamentary Committee - means a ‘committee’ which is ‘appointed’ or ‘elected’ by the House

or ‘nominated’ by the Speaker (Lok Sabha) or Chairman (Rajya Sabha).
 Works under the direction of the Speaker/Chairman.
 Present its report to 1) the house or 2) Speaker/Chairman
 Provided with a secretariat in Rajya Sabha or Lok Sabha

Classification of Parliamentary committee -

 2 kinds – 1) Standing Committees 2) Ad hoc Committees.

 Standing Committees -
 Definition - They are ‘permanent’ and ‘regular’ committees which are constituted from time to
time in pursuance of the provisions of an Act of Parliament/Rules of Procedure/Conduct of
Business in Lok Sabha.
 Nature of work - The work of these Committees is of continuous nature.
 Example - The Financial Committees, DRSCs and some other Committees come under the
category of Standing Committees.
 Ad hoc Committees
 Definition – They are appointed for a specific purpose and they cease to exist when they finish
the task assigned to them and submit a report.
 Main example - The ‘principal’ Ad hoc Committees are the Select and Joint Committees on Bills.
 Other examples - Railway Convention Committee, Joint Committee on Food Management in
Parliament House Complex etc.

Financial committees - (Standing committee)

Public Accounts committee -

Year of establishment 1921 (Montagu – Chelmsford reforms)

Members 22 (15 – Lok Sabha 7 – Rajya Sabha)
Election of Members Proportional Representation – Single transferable vote
Fact – A ‘minister’ cannot be appointed
Term of office 1 year
Chairman ‘Speaker’ appoints from among the members
Note – Since 1967 convention to appoint from the opposition
Function To examine the annual audit reports of the Comptroller and Auditor
General of India (CAG), which are laid before the Parliament by the
President.
Functions of Public Accounts Committee -

 Examines ‘appropriation’ accounts and ‘finance’ accounts of the central government which is
laid before the Lok Sabha,
 Scrutinizes the ‘audit’ reports of CAG to satisfy ‘itself’ that -
 The money that was disbursed was legally available for the service or purpose
 The expenditure conforms to the authority that governs it.
 Every re-appropriation has been made in accordance with the related rules
 It examines the accounts of
 State corporations
 Trading concerns
 Manufacturing projects
 The audit report of these bodies are made by the CAG
 It examines the accounts of
 Autonomous bodies
 Semi-autonomous bodies
 The audit report of these bodies are made by the CAG
 It keeps a check on the money spent on any service during a financial year. If the money is in
excess of the amount granted by the Lok Sabha for that purpose, it goes on to its report.

Limitation of the Public Account Committee -

 Cannot intervene in the questions of policy

 Post facto analysis - It can keep a tab on the expenses only after they are incurred.
 It has no power to limit expenses.
 Cannot intervene in matters of day-to-day administration.
 Advisory Nature - Any recommendation that the committee makes is only advisory.
 It is not vested with the power of disallowance of expenditures by the departments.
 Being only an executive body - it ‘cannot’ issue an order. Only the Parliament can take a final
decision on its findings.

Estimates Committee -

Year of Establishment 1921 (post-Independence: 1950, on the recommendations of Finance

Minister John Mathai)
Members 30 (All members belong to the Lok Sabha only)
Election of Members By Lok Sabha (PR – STV)
Fact - A minister cannot be elected
Term of Office 1 Year
Chairman Speaker appoints him/her from amongst the members (Ruling Party)

Function To examine 1) The estimates included in the budget presented in the

parliament 2) To suggest economies in public expenditure.
Functions of the Estimates committee -

 It reports on the budget estimates and its impact.

 Seeks to bring efficiency and economy in governmental administration
 Suggests alternative policies
 It examines whether the money is well laid out within the limits of the policy implied in the
estimates
 To suggest the way in which the estimates are to be presented to Parliament.

Limitations of the Estimates committee -

 The committee can only examine the budget after it is voted upon and not before that.
 Cannot question the policies of the Parliament.
 Advisory nature of recommendations – The recommendation made by the committee are
‘advisory’ in nature and stand ‘non-binding’ for the parliament.
 Remember - Examines every year ‘only’ certain selected ministries and departments. Thus, by
rotation, it would cover all the ministries over several years.

Committee on Public Undertakings -

Year of Establishment 1964 (On the recommendation of Krishna Menon Committee)

Members 22 (15 – Lok Sabha 7 – Rajya Sabha)
Election of Members By Parliament every year (PR – STV)
Term of Office 1 year
Chairman By Speaker (Chairman belongs only to Lok Sabha)
Function To examine the reports and accounts of the Public Sector Undertakings

Functions of the committee -

 Reports and Accounts of Public Sector Undertakings (PSUs) are examined by the committee,
 CAG’s reports on PSUs is also taken up by this committee
 Check the credibility of the business of public sector undertakings.
 Checks the efficiency and autonomy of PSUs
 Performs those functions related to PSUs that are given to it by the Lok Sabha speaker

Limitations – Cap on PSU it can examine, post facto analysis, lack of technical expertise, Advisory nature.

Department Standing Committees

 There are a total of 24 ‘Departmental Standing Committees’ - 8 under Rajya Sabha and 16 under
Lok Sabha.
 Facts – Advisory Nature, Does not look into day-to-day administration.
 Functions –
 Look into ‘demand for grants’ of the concerned ministries. They don’t propose any cut-motion
 Examine the bills of the concerned ministry
 Work upon the annual reports of the ministries
 Consider policy documents presented the ministries before both the houses
 Estimates Public Accounts Committee on Departmental
Criteria committee Committee Public Standing
Undertaking committee
Year 1950 1921 1964 1993
Committee/Acts John Mathay Montagu Krishna Menon Rules of
committee Chelmsford Act committee committee LS
Composition 30 (Lok Sabha) 22 (15 – LS 7 – 22 (15 – LS 7- RS) 31 (21 – LS 10 –
RS) RS)
Supportive officer No CAG No No
Policy Yes, can suggest No No No
involvement alternative policy to
bring economies in
expenditure
Function Examine the budget Examine CAG Examine reports Examine bills,
and suggests Audit report and accounts of demands of
economies of public and discover public sector grants and other
expenditure. the undertakings matters
irregularities. (Doesn’t involve recommended to
itself with day-to- them. Ensure
day financial
administration. accountability of
executives of the
parliament
 PART VI – STATES GOVERNOR
CONTENT

 Introduction
 Appointment of governor
 Conditions of governor’s office
 Term of the Governor’s office
 Powers and functions of governor
 Ordinance making powers of governor vs president
 Constitutional Position of the Governor

INTRODUCTION

 PART VI of the Constitution deals with the other half of Indian federalism, ie the
States.
 Article from 152-237 deals with various provisions related to States.
 It covers the executive, legislature, and judiciary wings of the states.
 Articles 153 to 167 in Part VI of the Constitution deal with the state executive.
 The governor is the chief executive head of the state. But, like the president, he is a
nominal executive head (titular or constitutional head).
 The governor also acts as an agent of the central government.
 Usually, there is a governor for each state, but the 7th Constitutional Amendment
Act of 1956 facilitated the appointment of the same person as a governor for two or
more states

APPOINTMENT OF GOVERNOR

 The governor is neither directly elected by the people nor indirectly elected by a
specially constituted electoral college as is the case with the president.
 He is appointed by the president by warrant under his hand and seal.
 In a way, he is a nominee of the Central government.
 But, as held by the Supreme Court in 1979, the office of governor of a state is not an
employment under the Central government.
 It is an independent constitutional office and is not under the control of or
subordinate to the Central government
 A governor must:
 Be a citizen of India.
  Be at least 35 years of age.
 Not be a member of either house of the parliament or the house
of the state legislature.
 Not hold any office of profit.
 Additionally, two conventions have also developed in this regard over the years.
1. First, he should be an outsider, that is, he should not belong to the state
where he is appointed, so that he is free from the local politics.
2. Second, while appointing the governor, the president is required to
consult the chief minister of the state concerned.

CONDITIONS OF GOVERNOR’S OFFICE

 He should not be a member of either House of Parliament or a House of the state

legislature.
 He should not hold any other office of profit.
 He is entitled without payment of rent to the use of his official residence (the Raj
Bhavan).
 He is entitled to such emoluments, allowances and privileges as may be determined
by Parliament.
 When the same person is appointed as the governor of two or more states, the
emoluments and allowances payable to him are shared by the states in such
proportion as determined by the president.
 His emoluments and allowances cannot be diminished during his term of office.

TERM OF THE GOVERNOR’S OFFICE

 A governor holds office for a term of five years from the date on which he enters
upon his office.
 This term of five years is subject to the pleasure of the President
 He can resign at any time by addressing a resignation letter to the President.
 The Supreme Court held that the pleasure of the President is not justifiable.
 The governor has no security of tenure and no fixed term of office.
 He may be removed by the President at any time.
 Governor may also get transferred from one state to another by the President. He
also can be reappointed.
 POWERS AND FUNCTIONS OF GOVERNOR

 A governor possesses executive, legislative, financial and judicial powers more

or less analogous to the President of India.
 However, he has no diplomatic, military or emergency powers like the president.
 The powers and functions of the governor can be studied under the following
heads:
1. Executive powers
2. Legislative powers
3. Financial powers
4. Judicial powers

Executive powers

 Every executive action that the state government takes is to be taken in his
name.
 How an order that has been taken up his name is to be authenticated, the rules
for the same can be specified by the Governor.
 He may/may not make rules to simplify the transaction of the business of the
state government.
 Chief Ministers and other ministers of the states are appointed by him.
 It is his responsibility to appoint Tribal Welfare Minister in the states of:

1. Chhattisgarh
2. Jharkhand
3. Madhya Pradesh
4. Odisha

 He appoints the advocate general of states and determines their remuneration

 He appoints the following people:

1. State Election Commissioner

2. Chairman and Members of the State Public Service Commission
3. Vice-Chancellors of the universities in the state

 He seeks information from the state government.

 A constitutional emergency in the state is recommended to the President by
him.
 The governor enjoys extensive executive powers as an agent of the President
during the President’s rule in the state.
Legislative powers
 It’s in his power to prorogue the state legislature and dissolve the state legislative
assemblies
 He addresses the state legislature at the first session of every year
 If any bill is pending in the state legislature, Governor may/may not send a bill to
the state legislature concerning the same
 If the speaker of the legislative assembly is absent and the same is Deputy Speaker,
then Governor appoints a person to preside over the session
 As President nominates 12 members in Rajya Sabha, Governor appoints ⅙ of the
total members of the legislative council from the fields of:

1. Literature
2. Science
3. Art
4. Cooperative Movement
5. Social Service

 As President nominates 2 members in the Lok Sabha, Governor nominates 1

member in state legislative assembly from Anglo-Indian Community.
 He can consult Election Commission for the disqualification of members
 With respect to the bill introduced in the state legislature, he can:

1. Give his assent

2. Withhold his assent
3. Return the bill
4. Reserve the bill for the President’s consideration (In instances where the bill
introduced in the state legislature endangers the position of state High
Court.)

Financial Powers

 He looks over the state budget being laid in the state legislature.
 His recommendation is a prerequisite for the introduction of a money bill in the
state legislature.
 He recommends for the demand for grants which otherwise cannot be given.
 Contingency Fund of State is under him and he makes advances out to meet
unforeseen expenditure.
 State Finance Commission is constituted every five years by him.

Judicial powers

 He has the following pardoning powers against punishment:

1. Pardon
2. Reprieve
3. Respite
 4. Remit
5. Commute

 He is consulted by the president while appointing the judges of the concerned state
high court.
 He makes appointments, postings, and promotions of the district judges in
consultation with the state high court.
 He also appoints persons to the judicial service of the state (other than district
judges) in consultation with the state high court and the State Public Service
Commission.

Veto powers of a Governor

 When a bill is sent to the governor after it is passed by state legislature, s/he can -
 Give his assent to the bill, or
 Withhold his assent to the bill, or
 Return the bill - if it is not a money bill - for reconsideration of the state legislature.

 However, if the bill is passed again by the state legislature with or without
amendments, the governor has to give his assent to the bill, or

 Reserve the bill for the consideration of the president. In one case such reservation
is obligatory, where the bill passed by the state legislature endangers the position of
the state high court.

 In addition, the governor can also reserve the bill if it is of the following
nature -
 1. Ultra-vires - Against the provisions of the Constitution.
2. Opposed to the Directive Principles of State Policy.
3. Against the larger interest of the country.
4. Of grave national importance.
5. Dealing with compulsory acquisition of property.

Comparing the Veto Power of President and Governor in India

President Governor
With regard to Ordinary Bill
Every ordinary bill, after being passed by Every ordinary bill, after it is passed by the
Lok Sabha and Rajya Sabha is presented to legislative assembly in case of a unicameral
the President for his assent and s/he can legislature or by both the Legislative
take three steps - Assembly and Legislative Council in case of
a bicameral legislature, is presented to the
1. Give assent to the bill, the bill then governor for his assent.
becomes an act. In this case Governor has four alternatives -
2. Withhold assent to the bill, the bill
then ends and does not become an
act (Absolute Veto). 1. Give assent to the bill, the bill then
3. Return the bill for reconsideration becomes an act.
of the Houses. 2. Withhold assent to the bill, the bill
a. If the bill is passed by both the then ends and does not become an
Houses again with or without amendments act (Absolute Veto).
and presented to the President assent, the 3. Return the bill for reconsideration of
president must give assent to the bill. the House or Houses.
b. Thus the president enjoys only a a. If the bill is passed by the House or
‘suspensive veto’. Houses again with or without amendments
and presented to the governor for assent,
the governor must give assent to the bill.
When a state bill is reserved by the b. Thus, the governor enjoys only a
governor for the consideration of the ‘suspensive veto’.
President, the President has three options - Reserve the bill for the
consideration of the President.

1. Give assent to the bill, the bill then
becomes an act.
2. Withhold assent to the bill, the bill
then ends and does not become an
Act.
3. Return the bill for reconsideration
of the House or Houses of the state
legislature.
 When a bill is so returned, the
 When the governor reserves a bill
for the consideration of the
President, s/he will not have any
further role in the enactment of the
bill.
 Even if the President sends it for the
reconsideration of the Assembly,
after being reconsidered the Bill will
directly be placed in front of the
 House or Houses have to reconsider President and not the Governor.
it within six months.
 If the bill is passed again with or
without amendments and
presented to the president for his
assent, the president is not
bound to give his assent to the bill.

With regard to Money Bill

Every money bill after it is passed by the Every money bill, after it is passed by the
Parliament is presented to the President state legislature, is presented to the
for his assent. governor for his assent.
In this case he has 2 options - In this case Governor has three options -

1. Give assent to the bill, the bill then
becomes an act.
2. Withhold assent to the bill, the bill
then ends and does not become an
act.
The President cannot return a money bill
for the reconsideration of the Parliament.
In regular terms, the president gives his
When a Money Bill is reserved by the
Governor for the consideration of the
President, the President has two options -
1. Give assent to the bill, the bill then
becomes an Act.
2. Withhold assent to the bill, the bill
then ends and does not become an
act.
1. Give assent to the bill, the bill then
becomes an act.
2. Withhold assent to the bill, the bill
then ends and does not become an
act.
3. Reserve the bill for the
consideration of the president.
The governor cannot send the Bill back to
the Assembly for reconsideration.
If the Governor reserves the Money Bill for
the consideration of the President his/her
role ends.

Thus, the President cannot return a

money bill for the reconsideration
of the state legislature.
 ORDINANCE MAKING POWERS OF GOVERNOR VS PRESIDENT

 Ordinances are like a law but not enacted by the Parliament but rather promulgated
by the President of India when Lok Sabha and Rajya Sabha or either of those is not in
session.
 Union Cabinet’s recommendation is a must for an ordinance to be promulgated.
 Using ordinances, immediate legislative actions can be taken.
 For an ordinance to exist, it should be approved by the Parliament within six weeks of it
being introduced.
 Parliament is required to sit within 6 weeks from when Ordinance was introduced.
 Article 123 deals with the ordinance making power of the President.
 Article 213 deals with the power of the Governor to legislate through ordinances. His
power of ordinance making is quite similar to the President’s power.

President
Can make Ordinance only when either of
the two Houses of Parliament is not in
session.
The President must be satisfied that
circumstances exist which render it
necessary for him to take immediate
action.
Ordinance has the same force and is Ordinance has the same force and is subject to the
subject to the same limitations as an Act same limitations as an Act of the State Legislature. But
of Parliament.
Governor
Can make Ordinance only when the State Legislature
or either of the two Houses (where the State
Legislature is bi-cameral) is not in session.
The Governor must be satisfied that circumstances
exist which render it necessary for him to take
immediate action. But Governor cannot make an
Ordinance relating to three specified matters, without
instructions from President (a) A Bill containing the
same provisions would under the Constitution have
required the previous sanction of the President for the
introduction thereof into the Legislature; or (b) the
Governor would have deemed it necessary to reserve
a Bill containing the same provisions for the
consideration of the President; or (c) an Act of the
Legislature of the State containing the same provisions
would under this Constitution have been Invalid
unless, having been reserved for the consideration of
the President, it had received the assent of the
President’s
as regards repugnancy with a Union law relating to a
Concur- rent subject, if the Governor's Ordinance has
been made to pursuance of 'instructions of the
President', the Governor's Ordinance shall prevail as if
it were an Act of the State Legislature which bad been
 reserved for the consideration of the President and
assented to by him.

Must be laid before both Houses of Must be laid before the Legislative Assembly or before
Parliament when it reassembles. both Houses of the State Legislature (where it is bi-
cameral], when the Legislature re-assembles.
Shall cease to operate on the expiry of six Shall cease to operate on the expiry of six weeks from
weeks from the re- assembly of the re- assembly of the State Legislature or, if before
Parliament or, if, before that period, the expiry of that period, resolutions disapproving the
resolutions disapproving the Ordinance Ordinance are passed by the Assembly or, where there
are passed by both Houses, from the date are two Houses the resolution passed by the Assembly
of the second of such resolutions. is agreed to by the Council, from the date of the
passing of the resolution by the Assembly in the first
case, and of the agreement of the Council in the
second case.

CONSTITUTIONAL POSITION OF GOVERNOR

 Article 154 -He is the executive head of the state. All the executive functions will
be performed by him or by the officers subordinate to him in accordance with
the Constitution
 Article 163 -He will be aided and advised by the Chief Minister and Council of
Ministers unless he is performing a function at his discretion
1. The power to act at his own discretion is a power that is not given to
the President.
2. 42nd Amendment Act made the advice of the Council of Ministers’
binding on the President but not on the Governor in state
 Article 164 -The Council of Ministers are collectively responsible to the state
legislative assembly
 PARLIAMENTARY SYSTEM

Content –

 Comparison between Presidential and Parliamentary government

 Features of Parliamentary government
 Features of Presidential government (US constitution)
 Merits and Demerits of Parliamentary government.
 Comparison of Indian and British Parliamentary model

Modern democratic government can be classified into 2 – Presidential government and Parliamentary
government.

Comparison Presidential Parliamentary

Relationship between the
Executive and Legislature
Head of State/ Government
Term of office
Executive Questioned Period
Government coalition
Examples
Separation of Powers
Same person (President)
Fixed (Predictable)
Irregular (Primarily responsible
to the people)
Less Likely
USA, Brazil, Russia, Sri Lanka
Fusion of Powers
Different Person
Head of State – President
Head of Government – PM
Less Predictable
Regular (Primarily responsible
to the Parliament)
More likely
Britain, Japan, Canada, India

Features of Parliamentary Government -

 Nominal and Real Executive – Nominal – de jure executive – President, Real – de facto
executive – Prime Minister, President – Head of State, Prime Minister – Head of Government.
 Article 74 of the constitution - It states that there ‘shall’ be ‘council of ministers’ headed by the
‘Prime Minister’ to aid and advise the President in the exercise of his functions. The advice given
is ‘binding’ on the President.
 Majority Party rule – The political party which secures ‘majority seats’ in the Lok Sabha forms
the government. (Coalition – when no single party gets majority)
 Collective Responsibility – Article 75 – Ministers are ‘collectively responsible’ to the Parliament
in general and to the Lok Sabha in particular.
 Political Homogeneity - The members of the ‘council of ministers’ belong to the same political
party (they share the same political ideology). In case of coalition – bound by consensus.
 Double Membership - Ministers (I.e., council of Ministers) are members of both the legislature
and the executive.
 Person needs to a member of the Parliament to become a ‘Minister’
 ‘Remember’ - A ‘minister’ who is ‘not’ a member of the Parliament for a period of six
consecutive months ‘ceases’ to be a minister (constitutional provision).
  This means an individual can be appointed as a minister for a maximum time of 6 months
without becoming a member of the Parliament.
 Leadership of the Prime Minister – PM – leader of council of Ministers, Leader of the
Parliament, Leader of the party in power.
 Dissolution of the Lower house - The lower house of the Parliament (Lok Sabha) can be
dissolved by the ‘President’ on ‘recommendation’ of the Prime Minister.
 Secrecy – Ministers cannot divulge information which come to them during the course of duty in
the house. (Oath of Secrecy is administered to them).

Features of Presidential system - (USA Presidential system)

 President – Head of State (Ceremonial position) and Head of Government (Leads the executive
organ of the State).
 Election system – Elected by an ‘electoral college’ with a ‘fixed tenure’ of 4 years.
 Removal – Can be removed by congress (US Parliament) by impeachment. Reason – Grave
unconstitutional act.
 USA President

Cabinet

Nature - Advisory body

Composition - Non elected Departmental secretary

Elected, Appointed and Removed by the - US President

 Non-Responsibility – USA President and his secretaries are not responsible to the Congress(US
Parliament) for their acts.
 US President cannot dissolve the ‘House of Representatives’ (US Lok Sabha). In contrast Indian
Prime Minister can dissolve the ‘lower house.’

Merits and Demerits of the Parliamentary system -

Harmony between legislature and executive

Responsible Government

Merits of the Parliamentary

system Prevents Despotism

Ready alternate Government

Wide Representation
 Unstable Government

No continuity of Policies

Demerits of Parliamentary
Government Dictatorship of the cabinet

Against separation of powers

Government by amateurs

In India, we adopted ‘Parliamentary system’ because – Familiarity with the system, Preference to more
responsibility, Avoid legislative-executive conflicts, Nature of Indian society (heterogeneous).

Comparison of India and British model of Parliamentary Government -

Comparison Indian Parliamentary Government British Parliamentary Government

Type Republican system – Head of state is Monarchial system – Head of state
elected (President) is hereditary (King or Queen)
Parliament Does not exist – Parliament powers are Parliament is ‘sovereign.’
sovereignty restricted (constitution, judiciary etc.)
Prime Minister Can be a member of any house (Lok Sabha PM has to belong to the lower
or Rajya Sabha) house.
Ministers(CoM) Individual who is not a member of either Members of Parliament are alone
house can be appointed. appointed as Ministers.
Legal Does not exist. No need to countersign Legal Responsibility of the Minister
Responsibility of the official acts of head of state. exists.
Minister
Shadow Cabinet No Yes
Name Lower House (Lok Sabha) Lower House (House of commons)
Upper House (Rajya Sabha) Upper House (House of Lords)

FEDERAL SYSTEM

Content –

 Comparison between Unitary and Federal Government

 Formation of a federation
 Federalism in India
 Federal features of Indian constitution
  Unitary features of Indian constitutition

Governments can be classified into 2 –’Unitary Government’ and ‘Federal Government’. This
classification is done based on the relations between national government and Regional Government.

Comparison between Unitary and Federal Government -

Comparison Federal Government Unitary Government

Government Dual Government – National and Single Government – National
Regional Government Government – It will create
Regional Government
Type of Constitution Written constitution May be written or Unwritten
Written – France
Unwritten - Britain
Division of Powers Exists (b/w national and Regional Govt.) No division of Powers (All power
in hands of national govt
Supremacy of the Yes – Constitution is Supreme May be supreme (Japan)
constitution May not be Supreme (Britain)
Rigidity of Constitution Yes – Constitution of Rigid May be rigid (France)
May be flexible (Britain)
Position of Judiciary Independent Judiciary May be Independent
May not be Independent
Type of Legislature Bicameral legislature Both Bicameral (Britain) or
Unicameral (China)

Formation of a Federation -

 By Integration – Number of States come together to form a Union

 Example – USA (United States of America) - First and the oldest Federation
 Formation – 1787 Cause – American Revolution Number of States - 50
 By disintegration - Unitary state is converted into a ‘federation’ by granting ‘autonomy’ to the
provinces. Objective - It seeks to promote regional interest.
 Example – Canada (10 provinces) Formation – 1867

Federalism in India - (Quasi federalism)

 Reasons for adoption -

 Large Size of the Country – Federal system will help ensure efficient governance in the country.
 Socio – cultural diversity – Federal system will help reconcile national unity with regional
diversity.

 Constitutional Provision - The term ‘federation’ has ‘nowhere’ been used in the Constitution.
 Constitutional article – ‘Article 1’ of the constitution describes India as a ‘Union of States.’
 Implications - The term ‘Union of States’ instead of ‘Federation of State’ implies 2 things -
 No agreement - Indian federation is ‘not’ the result of an agreement among the states like the
American federation.
  No right to secede - Indian states have ‘no’ right to secede from the federation. The federation is
union because it is indestructible.

 Influence on Indian federation - Indian federal system is based on the ‘Canadian model’ and not
on the ‘American model’. Following are the similarity with the Canadian model
 Formation – Both countries federation were formed by way of disintegration (we have covered
this before).
 Union – Both countries prefer the term union ((the Canadian federation is also called a ‘Union’);
 Centralizing tendencies – Both countries vest more powers in the Centre vis-a-vis the states.

Federal Features of the Indian constitution -

 Dual Polity - The Constitution establishes a ‘dual polity’ consisting the Union at the Centre and
the states. Each is given sovereign power in their respective spheres (7th Schedule)
 Written Constitution – Indian constitution is very lengthy (about 470 Articles, 25 Parts and 12
Schedules).
 Division of Powers - Via the 7th schedule (Union list, State list and Concurrent list).
- Union List (100 subjects), State List (61 subjects), Concurrent List (52 subjects).
- Concurrent list – Both Centre and States can make laws on concurrent list. (Conflict – Centre law
prevails).
- Residuary subjects - Subjects which are ‘not’ mentioned in ‘any’ of the three lists are given to
the Centre.
 Supremacy of the constitution – Laws enacted by the Centre and the states must conform to
the provisions of the constitution (otherwise they will declared illegal by the Judiciary).
 Rigidity of the constitution – can be seen when it comes to Federal provisions.
- Provisions which are concerned with the federal structure (i.e., Centre-state relations, and
judicial organization) can be amended only by Special majority of the Parliament + Approval of
half the state legislatures (Joint action).
 Independent Judiciary – Constitution contains provisions for having an independent Judiciary
which serves 2 purposes: -
 Protect the supremacy of the Constitution by exercising the power of judicial review.
 Settle the disputes between the Centre and the states or between the states.
 Bicameralism – Lok Sabha - House of the People Rajya Sabha – Helps to maintain federal
equilibrium by protecting interests of the States.

Unitary features of the Indian constitution -

 Strong center – Division of Power is tilted in favor of the Centre -

 Union List contains ‘more’ subjects than the State List.
 More ‘important subjects’ have been included in the Union List.
 Centre has ‘overriding authority’ over Concurrent List.
 ‘Residuary powers’ lie with the Centre (US – States)
 Indian states are destructible - Indian Federation is “an indestructible Union of destructible
states” (US – States are indestructible)
 No territorial Integrity - The states in India have ‘no’ right to territorial integrity.
 Unilateral power of Parliament - The Parliament can by unilateral action change the area,
boundaries or name of any state.
 Simple Majority is needed – The above provisions can be amended only a simple majority and
not a special majority.
 Single constitution – In India we have a single constitution or both Centre and the states
(Usually, in a federation, the states have the right to frame their own Constitution separate from
that of the Centre).
 Flexibility of the constitution – Less rigidity compared to other constitutions -
 Many portions of the Constitution can be amended by the ‘unilateral action’ of the Parliament,
 Power to initiate amendment to the constitution – ‘Only’ lies with the ‘Center’. USA – States
can also propose an amendment to the constitution.
 Emergency Provisions - The Constitution stipulates 3 types of emergencies– national, state and
financial.
 Implications – Federal structure turns into a unitary one. (Central Government becomes all
powerful.)
 Single citizenship - Only Indian citizenship no separate state citizenship. Other federal states like
US, Switzerland and Australia have dual citizenship (Centre + State).
 All-India Services - are ‘common’ to both the Centre and the states (but Centre has ultimate
control on them). The members of these services are recruited and trained by the Centre.
 Integrated Audit Machinery – CAG of India audits the accounts of Central + states. But CAG’s
appointment and removal is done by ‘President’ without consulting the states. US CAG – No role
with respect to accounts of the States.
 Parliament’s Authority Over State List - Parliament is empowered to legislate on any subject of
the State List if Rajya Sabha passes a resolution to that effect in the national interest.
 Constitutional Article – Article 249 Resolution – Support of 2/3rd of the members present and
voting
 Appointment of Governor - Governor – Head of the State is appointed by the President. Holds
office during the ‘pleasure of the Government.’
 Governor acts as an ‘agent of the Centre’ - Centre exercises control over the state via Governor.
 US Constitution – Provides for elected head in the State.
 Integrated Election Machinery - Election Commission conducts elections for Central + State
legislature. Appointment + Removal – States have no say in it. US - Separate machineries for the
conduct of elections at the federal and state levels.
 Veto over State bills - by the President.
 Reservation of bill – Governor is empowered to reserve certain bill passed by State Legislature
for consideration of the President.
 Absolute Veto over State bills – President can reject them even after reconsideration (Unlike in
the Parliament where he possesses only a ‘suspensive veto.’
 US - States are autonomous within their fields and there is no provision for any such reservation.
 CENTRAL STATE RELATIONSHIP

 Constitution - Federal in structure

 Division of legislative, executive and financial between the Centre and the states exists.
 Exception – Judicial power (no division) - Integrated Judiciary in India.

Legislative Relations

Centre State Relation Administrative Relations

Financial Relations

LEGISLATIVE RELATIONS BETWEEN CENTRE AND STATES

Constitutional Provision dealing with Legislative relations – Part 11 – Article 245 - 255
Territorial extent of the Legislation

Central State Legislative Relations Distribution of Legislative subjects

Parliament Legislation in state sphere

Centre control over State Legislation

Territorial extent of Center and State Legislation -

 Territory of India – States + Union territories + any other area included in the territory of India.
 Parliament – Power to make laws for part or whole of India.
 State – Power to make laws for whole or part of the state.
 Extra – Territorial legislation – Power lies with Parliament.
 Remember - Laws of the Parliament are applicable to Indian citizens + their property in ‘any part
of the world’.
Laws of Parliament – Restrictions (where they are not applicable)

 Union Territories - President can make regulation for 5 Union Territories

 Which Union Territories? - 1) Andaman and Nicobar Islands 2) Lakshadweep 3) Dadra and Nagar
Haveli 4) Daman and Diu 5) Ladakh. (For Prelims remember only 5 not all)
 President Regulation - It has the ‘same’ force and effect as an act of Parliament.
 Also, the Regulation can ‘repeal’ or ‘amend’ any act of Parliament in relation to these 5 Union
Territories.
 Scheduled Areas - ‘Governor’ has the power to direct that an act of Parliament ‘does not’ apply
to a scheduled area or applies with certain changes.
 Tribal Areas in Assam (Autonomous districts) - ‘Governor’ of Assam can direct that an act of
Parliament ‘does not’ apply to a tribal area in the state or applies with changes.
 Tribal areas in Mizoram, Meghalaya and Tripura (Autonomous districts) - ‘President’ of India
(remember for Prelims) can direct that an act of Parliament ‘does not’ apply to a tribal area in
the state or applies with changes.

Distribution of Legislative subjects - (Division in the 7th schedule)

 Union List – Parliament has exclusive power to make laws. Total - 100 Subjects (subjects of
national importance).
 State List – In ’normal’ circumstance State legislature holds the power to make laws. Total - 61
subjects. (Subjects of local importance)
 Concurrent List – Both Centre and State can make laws. Total - 52 subjects.
 42nd amendment impact on the ‘concurrent list’ – It transferred 5 subjects to Concurrent List
from State List – 1) Education, 2) forests, 3) weights and measures, 4) protection of wild animals
and birds, 5) administration of justice.
 Residuary powers – Article 248 – Parliament has exclusive power to make any law.
 
st
101 amendment act – Special Provision with regards to GST -

 Power to make laws with respect to GST imposed by the Union or State – ‘Both’ Union and
State.
 Power to make laws with respect to GST imposed by the Union or State where ‘supply’ takes
place in course of Interstate commerce (both services and Goods) - Exclusively ‘Parliament’.

Comparison of dominance of the 3 lists - (Who dominated in case of overlapping)

 Union List > State list, Union list > Concurrent list, Concurrent list > State list (Important)
 Concurrent list – Central vs State law (The former prevails over the latter).
 Exception - State law ----> Reserved for the consideration of the president and has received his
assent ----> state law prevails (in that state). Parliament can override this by making a new law.

Parliamentary Legislation in the State Field - (Special circumstances)

 Rajya Sabha passes a Resolution

National Emergency

Parliament legislation in state field

State make a Request

Implement International Agreements

President Rule

Rajya Sabha Passes a Resolution (Article 249) -

 Resolution – Resolution passed by the ‘Rajya Sabha’ should say - it is necessary in the ‘national
interest’ that Parliament should make law about matter in state list (or GST).
 Majority required - Resolution must be supported by 2/3rd of the members present and voting.
 Duration of remaining in force – 1 year
 Renewal – Can be renewed ‘any’ number of times. Renewal should not exceed 1 year.
 Status of laws made during this time – 6 months after resolution ceases to be inforce the laws
‘expire’ (Laws here refer to those made by Parliament during the time resolution was in force).
 Can State legislature make laws during this time? - Yes, they can make laws.
 State law vs Parliamentary law – The Parliamentary law prevails (in case of inconsistency b/w
two).

National Emergency (Article 250) -

 Parliament gets power to legislate in matter of State list (or GST) during National Emergency.
 Status of laws made during this time – Laws made by Parliament remain inforce ‘6 months’
after expiry of emergency.
 Can State Legislature make laws during this time? - Yes, they can make laws.
 State law vs Parliamentary law – The Parliament law prevails.

When states make a request (Art-252) -

 Resolution – State legislatures (two or more states) need to pass resolutions requesting the
Parliament to enact laws on a matter in the State List.
 Application of Laws – Laws apply to ‘only’ those states which passed the resolution.
 Status of law – Remember, law made under such request can be amended or repealed ‘only’ by
the Parliament
 Can any other state adopt it? Yes, they need to pass the resolution in their respective state
legislature.
 Example (few important ones) - Wild Life (Protection) Act, 1972; Water Act, 1974.
To implement an international treaty (Art-253)

President’s Rule (Art 356) -

 Parliament gets power to make laws about any matter in the State List (only in state where
President Rule is imposed)
 Status of laws made during this time - Law made so by the Parliament ‘continues’ to remain in
operation even after the president’s rule.
 Law can be repealed/altered/reenacted by the State Legislature.

Centre control over state Legislature -

 Reservation of bill by the Governor - Governor can reserve certain bills passed by the state
legislature for President’s consideration. President has ‘absolute veto’ over such bills.
 Prior sanction of the President (mandatory) – To introduce certain Bills in state legislature on
matters in the ‘State List.’
 Example - Bill imposing restrictions on the freedom of trade and commerce.
 Financial emergency – During ‘financial emergency’ Centre can direct the states to reserve
money bills and other financial bills for the consideration of President.

ADMINISTRATIVE RELATIONS BETWEEN CENTRE AND STATES

 Constitutional provisions dealing with administrative relation – Article -256 to 263 (Part 11)
 ‘Executive power’ is divided b/w the Centre and states on the lines of distribution of legislative
powers.
 Centre Executive power – Union list, International Treaty/agreement
 State Executive power – State list
 Concurrent list – Executive power given to ‘states’. (Even if the law is made by Parliament)
 Exception – When a constitutional provision/ parliamentary law especially gives it to the Centre.
 Obligation of states and Centre – (How to exercise their executive power)
 State executive power shall comply with ‘parliamentary laws.’
 State executive power shall not override/ prejudice ‘executive power of Centre’.
 Centre’s Directions to the States – How states need to exercise their executive power. It
extends to the following matters -
 Maintain Communication System (declared of national or International importance)
 Protection of Railways in the State
 Providing facility for instruction in mother tongue to ‘linguistic minorities’ till primary stage.
 Scheme for the welfare of the Scheduled Tribes in the state.
 + above 2 provisions under obligation of states and Centre

Article 365 – If State does ‘not’ follow the direction given by Centre, President can declare that the State
cannot be carried according to ‘provisions of the constitution’. President Rule can be declared under
‘Article 356’.
Mutual delegation of functions (Executive functions) -

 Centre delegates to State (Article 258)

 Procedure - President can request Governor for use of state machinery.
 Requirement - State consent is mandatory.
 State delegates to the Centre – Article 258 A
 Procedure - Governor can request President for use of central executive machinery.
 Requirement - Union consent is mandatory.
 Parliament can entrust executive power of the Centre to the States (without consent)
 Procedure - If parliament does it by law, no consent of states is necessary.

Cooperation Between the Centre and States -

 Inter State River Dispute – Parliament can make a law for adjudication of Interstate River
Dispute (Article 262).
 Inter State council - President can establish an Inter-State Council to investigate and discuss
subject of common interest (b/w Centre and States) -(Article 263)
 Full faith and Credit clause – States and Centre shall respect each other's public acts, records
and Judicial proceedings.
 Appointment Powers - Parliament can appoint an authority to carry out the constitutional
provisions relating to freedom of Interstate trade, commerce and intercourse. No such authority
has been appointed till now.

For certain topic below, Indepth discussion will be done under respective chapters.

All India services -

 Help in maintaining high standard of administration in the Centre as well as in the states.
 Help to ensure uniformity of the administrative system throughout the country.
 Help facilitate cooperation on the issues of common interest between the Centre and states.
 Art 312- Parliament can create new All India service.
 Requirement - Rajya Sabha has to pass a resolution (majority of 2/3 members present and
voting).

Public Service commission -

 Appointment and Removal – State public service commission (Appointment – Governor,

Removal – President).
 ‘Parliament’ can create a Joint Public service commission (on request of 2 or more states).
 UPSC can ‘serve’ states - On request of Governor, President approval.
 UPSC can ‘assist’ states – with regards to Joint recruitment (on request of 2 or more states).

Integrated Judicial system – Single system of courts enforces both central and state laws.

Emergency -

 Article 352 (National emergency) – Centre becomes entitled to give executive directions to a
state on ‘any’ matter.
  Article 356 (President Rule) - President can vest in himself the executive powers of the state.
 Article 360 (Financial Emergency) - Centre can direct the states to observe canons of financial
propriety

Other Provisions -

 Article 355 – Duties of the Center

 Protect every state against ‘external aggression’ and ‘internal disturbance’.
 Ensure that Government of every state is carried according to provisions of the Constitution.
 Governor - ‘Agent of the Centre’ in state
 Appointment – President, Tenure – pleasure of the President
 State Election commission – Appointment – Governor, Removal – President

Extra constitutional devices – Cooperation via non constitutional advisory bodies like NITI aayog and
various conferences.

FINANCIAL RELATIONS BETWEEN CENTRE AND STATES

Constitutional articles dealing with financial relations – Article 268 – 293

Allocation of Taxation powers -

 Parliament – Union list – Total 13 State Legislature – State list – Total 18

 State taxes – More in number, Union taxes – Less in number but more remunerative.
 Concurrent list – No tax legislation (Exception made by the 101st amendment act).
 101st amendment act – Special provision for Goods and Service tax (GST).
 Amendment conferred concurrent power on Parliament and State Legislatures to make laws
governing GST.
 ‘Residuary power’ of Taxation – Union

Distribution of Tax Revenues - (2 Amendment had a major impact)

 80th Amendment act 2000 – Alternative scheme of devolution – gave effect to

recommendations of the 10th finance commission.
 Impact - Corporate Tax and Customs duty had to be shared with the states.
 101st amendment act – Good and Services Tax (GST)
 Impact –
♦ Gave ‘concurrent’ taxing powers upon the Parliament and the State Legislatures to make laws
for levying GST.
♦ ‘Replaced’ number of ‘Indirect taxes’ levied by both Union and States.
♦ Deleted Article 268 – A – Dealing with ‘Service tax’ (Union list provision dealing with the same
has been removed).
Present Situation with regards to distribution of Tax revenues -

Article Levy Collect Assigned Example

268 Centre States States Stamp duties on bills of exchange, Promissory notes
etc. (Not part of CFI)
269 Centre Centre States Taxes on interstate trade and commerce. (Not part of
the CFI)
269 A Centre Centre Divided GST in course of Inter- State trade and commerce.
b/w centre Parliament – Determines Tax division b/w center and
and State State (GST council recommends), Principles of supply
during Inter state trade.
270 Centre Centre Divided All taxes in the Union List – Exception - (Taxes under
b/w Centre Article 268,269, 269 A, Surcharge on taxes under 271
and States Cess for specific purpose) . Distribution as prescribed
by President (Finance commission recommends)

271 Centre Centre Centre Surcharges on taxes under 269 and 270. Exemption –
Remember, GST is exempted from surcharge.
State State State Taxes belonging to state only - (Total 18) Example –
Land Revenue, agricultural income, Professional Tax,
Professional Tax

Distribution of Non-Tax Revenue -

 Non-Tax Revenue – It refers to the money government earns through non taxation sources.
 Some major sources for Centre - posts and telegraphs, railways, banking, broadcasting, coinage
and currency, central public sector enterprises, escheat and lapse etc.
 Some major sources for State – Irrigation, forests, fisheries, state public sector enterprises,
escheat and lapse etc.

Grant – in – Aids to States -

 Grant- in- Aid – simply means ‘money’ given by Centre to States in form of assistance.
 Types of Grants – 1) Statutory 2) Discretionary 3) Other Grants

Statutory Grants -

 Constitutional article – Article 275

 Article 275 - ‘Parliament’ to make grants to the state which need financial assistance (not every
state).
 Source for Grants – ‘Charged’ on the ‘consolidated fund of India.’
 Given on the recommendation of ‘Finance commission of India’.
 2 types – 1) General 2) Specific (Given for a specific purpose ex. To improve Tribals).

Discretionary Grants - (Discretion – according to one's own will)

 Constitutional Article – Article 282

 Article 282 - Empowers both Centre and the states to make any grants for any public purpose.
  Under this Union allocates grants to the state according to its discretion.

Other Grants -

 Grants for a temporary period.

 Charged on ‘consolidated fund of India’ on the recommendation of ‘finance commission’.
 Example - Temporary grants in lieu of export of Jute and Jute based products to Assam, Bihar,
West Bengal and Orissa.

GST Council

 Amendment – 101st amendment act, 2016

 Article 279 A - President to constitute a GST Council by an order.
 Recommendation to be made by GST council
♦ Taxes/cesses/surcharge which needs to be merged with GST.
♦ Subjecting or exempting goods and services from GST.
♦ Threshold limit of turnover below which GST would not apply.
♦ Rates of GST which are applicable.
♦ Special rate/s which can be imposed during an emergency to raise resources.
♦ Determine Model GST Laws, principles of levy, GST on inter-state trade or commerce and the
principles that govern the place of supply.

FINANCE COMMISSION

 Constitutional article - Article 280

 Objective – Finance commission is the balancing wheel of fiscal federalism in India
 Nature - Quasi-Judicial body, Purely recommendatory in nature
 Appointment - Appointed by president of India once in 5 years
 Qualification to become ‘Member of Finance commission’ - Determined by ‘Parliament’.
 It makes recommendations -
♦ Distribution of net proceeds of taxes b/w Centre and states (Vertical) and among states
(horizontal distribution)
♦ Grants in aid under Art 275
♦ Recommendations to augment resources of consolidated fund of state to help Municipalities
and Panchayats (based on recommendations of State Finance Commission)
♦ Any other matter referred by the President.

Protect of State Interest (financial matters) -

 Prior recommendation of the President is needed to introduce certain bills in Parliament

 Bill dealing with tax or duty in which state are interested.
 Bill which changes the meaning of expression ‘agricultural income’
 Bill which effect principles of allocation of money to the States.
 Bill which imposes surcharge/tax/duty for the purpose of the Centre.
Borrowing by Centre and the States -

 Centre – It can borrow within India or outside India.

 States – It can borrow within territory of India. (Limits – Set by State legislature).
 Centre can give loans/guarantee for loans raised by the State. (Sum needed is charged on CFI).
 State needs to take ‘prior permission’ of the Centre to borrow if they have outstanding liabilities
to the Centre. (Article 293(3))

Inter Governmental Tax immunity -

 Centre cannot tax state property and vice versa.

 Exceptions - (where immunity does not apply) -
 Corporations or companies of state and central Government,
 Property and Income of local authority.
 Custom duties can be imposed on good/services of the state.
 Excise duty can be imposed on good of the state.

Impact of Emergencies we will discuss under Emergency chapter.

Timeline of committee on Centre – State Relations -

Administrative Reforms commission (1966) ---> Rajamannar committee (1969) ----> Anandpur Sahib
Resolution (1973) -----> West Bengal memorandum (1977) ----> Sarkaria commission (1983) ------>
Punchhi commission (2007). (The last 2 committees are important central committees)
 EMERGENCY PROVISIONS

 Constitutional Articles dealing with emergency – Article 352 to 360 (Part 18) -
 Objective – Enable Central Government to meet abnormal situation effectively.
 Impact – It turns the federal structure into a unitary one.
 Types of Emergencies -
 Article 352 – National Emergency
 Article 356 – President Rule
 Article 360 – Financial Emergency

ARTICLE 352 - NATIONAL EMERGENCY

Grounds of Declaration -

 Grounds – When security of India (or part of it) is threatened by –1) war or 2) external
aggression or 3) armed rebellion.
 Declaration by President can be made even incase of ‘imminent danger’ I.e., President can
declare emergency even before war, external aggression or armed rebellion has occurred
(he can declare it if he feels that there is a threat).
 National Emergency – 1) External emergency 2) Internal Emergency.
 External Emergency -When national emergency is declared on the ground of ‘war’ or
‘external aggression’ it is known as External emergency.
 Internal Emergency - when it is declared on the ground of ‘armed rebellion’, it is known as
Internal Emergency.

Different amendments and their impact -

 38th amendment act – Empowered the ‘President’ to declare different proclamations of

national emergency on different grounds simultaneously.
 42nd amendment act - Enabled President to ‘limit’ the operation of National Emergency to a
specified part of India.
 44th amendment act – Major changes brought by this amendment -
♦ It substituted the words ‘armed rebellion’ instead of ‘internal disturbance’. (Original
constitution had the term internal disturbance as the 3rd ground for declaration of
Emergency).
♦ Declaration of emergency can ‘only’ be made by the President after receiving a ‘written
recommendation from the cabinet’.
♦ National Emergency is subject to Judicial review. (44th amendment + Minerva Mills case).
♦ Rest of the provisions added by the 44th amendment we will look at them under different
headings.

Parliamentary Approval and Duration -

 Approval – Must be approved by ‘both’ houses of Parliament within 1 month.

 Duration – After approval by both houses emergency continues for 6 months.
  Extension period – It can be extended for an ‘Indefinite period.’(but it would be needed to
be approved by the Parliament every 6 month).
 Majority needed for approval or continuance of Emergency – Special Majority
 Special Majority – Majority of total membership + 2/3rd members present and voting.
 What happens if Lok Sabha is dissolved during the 1 month it needed to approve
emergency? - Proclamation is alive for 30 days after 1st sitting of Lok Sabha(new) + Rajya
Sabha should approve in the meantime.

Clauses which were added by the 44th amendment -

 Approval within 1 month (before it was 2 month)

 Periodical Parliamentary approval every 6 month (Before once approved emergency could
remain in operation for an ‘indefinite period’ till cabinet desired).
 Special majority for proclamation and continuance (before it could be passed by simple
majority).

Revocation of Proclamation of Emergency -

 Procedure – 2 Procedures are there – By ‘President’ or By Lok Sabha by ‘simple majority.’

 ‘President’ can revoke emergency at any time by a proclamation. Proclamation does ‘not’
need the approval of the Parliament.
 Lok Sabha – 1/10th (10%) of the total members of Lok Sabha give a ‘written notice’ of
Speaker/President ----> Special session needs to be convened within 14 days to discontinue
emergency. This resolution needs to be passed by ‘Simple Majority.’

Difference between Resolution to approve/continue emergency vs end emergency -

Comparison Resolution for Approval Resolution for Disapproval

Passed in house/s Needs to be passed in both houses (Lok Needs to be passed only in the
Sabha + Rajya Sabha) Lok Sabha
Majority needed Special Majority Simple Majority

Effects of National Emergency -

Centre - State Relations

Consequences of National Emergency Life of Lok Sabha/ State Assembly

Fundamental Rights

Centre – State Relations -

Executive -

 Centre can give direction to states on ‘any’ matter (in normal situation, it can give directions
for ‘only’ specified matters).
  Remember – State Governments are ‘not’ suspended though they are brought under
complete control of the centre.

Legislative -

 State list - Parliament becomes ‘empowered’ to make laws on subjects mentioned in the
State List.
 Duration of laws - Laws made by Parliament on state subject during National Emergency
become inoperative 6 months after the emergency has ended.
 Ordinance - President can issue ‘ordinances’ on the state subjects. (While parliament is not
in session).
 Imposition of Power and duties on the Centre – This can be done by Parliament for matters
outside the Union list (to carry out laws made by it under its extended power).
 Position of State Legislature – Not suspended (but constitution becomes unitary).

Financial -

 President can change ‘constitutional distribution of revenues’ between Centre and state.
 Meaning - President can reduce/cancel the transfer of finances from Centre to states.
 Duration – This modification will continue till the end of the ‘financial year’ in which the
Emergency ends (Suppose emergency end in January 2022 this modification will continue till
March 2022).
 Requirement – Every order made by President should be laid before ‘both houses of
Parliament’.

Duration of Lok Sabha/ State Legislative assembly -

 During Emergency is in operation - Life of Lok Sabha and Legislative Assembly can be
extended by one year at a time indefinitely.
 After emergency ends – It can extend for only 6 months.

Effect on the Fundamental Rights -

 Constitutional article dealing with National Emergency impact on FRs – Article 358, 359.
 Article 358 - Suspension of the Fundamental Rights under Article 19
 Article 359 - Suspension of other Fundamental Rights (except Article 20 and 21).

Suspension under Article 19 (Article 358)

  Automatic Suspension - ‘Proclamation of national emergency’ automatically suspends the 6
Fundamental Rights under Article 19.
 Remember - The 6 FR’s under Article 19 can be suspended ‘only’ when the National
Emergency is declared on the ground of war or external aggression (not armed rebellion).
 Automatic Revival – Article 19 comes into force ‘automatically’ when National emergency
ends.
 Status of Laws made (those inconsistent with Article 19) - When National Emergency ends,
they cease to have effect.
 The ‘executive and Legislative action’ taken during operation of National emergency which
are inconsistent with Article 19 cannot be challenged in courts – During Emergency and even
after emergency ends. (44th amendment – ‘Only’ those acts/action which are related to
emergency cannot be challenged).

Suspension of other Fundamental Rights – Article 359 -

 Art 359 – empowers the President to suspend “enforcement” of any specified fundamental
rights (44th amendment – Enforcement of Article 20 and 21 cannot be suspended).
 Article 20 – Right of protection in respect of conviction of offenses.
 Article 21 – Right to life and personal liberty
 ‘Fundamental Rights’ are not suspended ‘only’ their enforcement I.e., right to move to
courts for seeking remedy is suspended.
 Procedure – President come with an order ----> Order specifically ‘mentions’ the
Fundamental Right whose enforcement should be suspended (Article 20/21 cannot be
mentioned) ----> Needs to be laid before ‘both’ houses of Parliament for approval.
  Nature of the Presidential order – Period – Operation of emergency/shorter period, whole
or part of India.
 Status of Laws made (those inconsistent with FR mentioned in Presidential order) - When
National Emergency ends, they cease to have effect.
 The ‘executive and Legislative action’ taken during operation of National emergency which
are inconsistent with FR mentioned in Presidential order cannot be challenged in courts –
During Emergency and even after emergency ends. (44th amendment – ‘Only’ those
acts/action which are related to emergency cannot be challenged).

Comparison table – Article 358 vs Article 359

Comparison Article 358 Article 359

Fundamental Deals with FR’s under Article 19 Deals with FR’s whose enforcement
Rights has been suspended by Presidential
order
Nature Automatic suspension after No automatic suspension only
National emergency is declared. empowers the President to suspend
enforcement of specified FR’s
Extent Entire country Entire country or part of it
Suspension Article 19 completely suspended Article 20 and 21 enforcement cannot
be suspended by the President.

Declaration till now – 1962, 1971 and 1975. Shah commission – to investigate on emergency in
1975.

ARTICLE 356 - PRESIDENT RULE

Grounds of Imposition -

 Constitutional articles dealing with President Rule – Article 355, Article 356, Article 365
 Article 355 - Duty of the Centre to ensure that the government of every state is carried on in
accordance with the ‘provisions of the Constitution’.
 Article 356 - Centre takes over the government of a state under Article 356 in case of failure
of ‘constitutional machinery’ in state.
 Under Article 356, President can issue a proclamation that government of state cannot be
carried in accordance with the ‘provisions of the constitution’.
 President can act on the report of the Governor or can take the decision without the
Governor report.
 Article 365 – Failure of state government to comply with the directions of the Centre ---->
President can hold that State government cannot be carried in accordance with the
‘provisions of the constitution’ ---> President’s Rule.

Parliamentary approval and duration -

 Approval – Must be approved by both houses of Parliament within 2 months.

 Duration – After approval by both houses' emergency continues for 6 months.
 Extension Period - It can be extended for a maximum period of 3 years (but it would need to
be approved by the Parliament every 6 months).
  Special provision with regards to President’s rule (added by the 44th constitutional
amendment). These are requirement which need to be fulfilled to extend President Rule
beyond 1 year.
♦ Proclamation of National Emergency should be in operation in the whole/part of India, or in
whole/part of the state.
♦ Election Commission must certify that the general elections to the legislative assembly of the
concerned state cannot be held on account of difficulties.
 Majority needed for approval or continuance of Emergency – Simple Majority.
 Simple majority – Majority of the members of the house present and voting.
 What happens if Lok Sabha is dissolved during the 1 month it needed to approve
emergency? - Proclamation is alive for 30 days after 1st sitting of Lok Sabha(new) + Rajya
Sabha should approve in the meantime.

Revocation of President’s rule – President proclamation (No Parliamentary approval is needed).

Consequence of President’s Rule - (Executive and Legislative powers of the state are assumed by
Centre)

 State Executive – Dismissed

 State Legislature – Either suspended or dissolved
 Administration of the State – By President through Governor (Governor can take help of the
chief secretary of the state or the advisors appointed by the President).
 Laws – Made by Parliament
 Delegation of Law-making powers – ‘Parliament’ can delegate the law-making powers to
the President (or any authority specified by the President). Such laws are known as
President’s Act (President makes these laws in consultation with MPs of that state).
 Ordinances - ‘President’ issues ordinances on subjects in state list.
 Fundamental Rights – No impact on Fundamental Rights.
 Power/duties on the centre – President (or any authority specified by him) can make laws to
confer power/duties on the centre.
 Status of laws made by Parliament during President Rule – Continue to operate even after
the end of President’s rule. (State legislature can later repeal/amend/re-enact it.)
 Constitutional provisions relating to State high court remain untouched during President
Rule.

Comparison of National emergency with President’s Rule -

Comparison National Emergency President Rule

Ground of Declaration War, External aggression, Armed
rebellion or imminent danger
thereof.
Impact Centre gets ‘concurrent power’ of
administration/legislation.
State executive/Legislature -
continue to exist.
Law on State subject Parliament can make laws on state
list – cannot delegate it to other
authority.
Parliamentary approval 1 Month and indefinite period
State cannot be carried in
accordance with the provisions of
the constitution.
State executive –Dismissed
State legislature – suspended or
dissolved.
Administration – President
through the Governor.
Parliament – Makes laws.
Parliament can delegate law
making power to President or any
other authority specified by him.
2 Months. Max duration is for 3
time and duration. (need to be approved every 6 years. Periodical approval every
months) 6months
Beyond an year – National
Emergency or EC certification are
required
Majority needed for Special majority Simple majority
approval and revision
Fundamental right FRs are impacted No impact on FRs
Revocation President or by Lok Sabha with President of India
simple majority
Center – State Relation Undergoes modification with all Undergoes modification only with
states. states under President’s rule.

Judgements -

SR Bommai case -

 President Rule is subject to Judicial review.

 President satisfaction should be based on relevant material (It shall not be based on
malafide, perverse, irrelevant or extraneous conditions.)
 Court cannot investigate correctness of material.
 Burden lies on centre to prove relevant material exists.
 Till Parliament approval, Legislative Assembly is suspended not dissolved.
 Courts can restore and revive the government and Assembly, if proclamation is
unconstitutional.
 Floor of the house – confidence in state legislative assembly should be tested on ‘floor of the
house’.
 State following Anti - secular politics are liable for action under Art 356.

Case of proper and Improper use of President’ Rule (listed under SR Bommai case based on Sarkaria
commission report) -

 Acceptable Grounds for President Rule -

 Hung Assembly - No party secures majority after general elections.
 States failure to follow Constitutional direction given by the centre.
 Internal subversion – Deliberate action by state government which are
unconstitutional/unlawful and aimed at fomenting a violent revolt
 Physical breakdown – State Government refuses to discharge its constitutional obligation
endangering the security of the state.
 Failure to form ministry (Majority party refuses – no alternate coalition exists; Ministry
resigns after it defeat in assembly and no alternate is present).
 Unacceptable grounds -
 President Rule is imposed without Looking for an alternative ministry (after Ministry resigns
or loses majority support).
 Governor does not give chance to the ministry to prove its majority on the floor of the house
and recommends President’s rule (based on his assessment of Ministry’s support in the
assembly).
 Internal disturbances not amounting to internal subversion or physical breakdown.
 Mal-administration or allegations of corruption.
 No prior warning for rectification was given.
  If used to settle intra-party disputes.

ARTICLE 360 - FINANCIAL EMERGENCY

 Constitutional article dealing with financial emergency – Article 360.

Parliamentary approval and duration -

 Approval – Must be approved by both houses of Parliament within 2 months.

 Duration – After approval by both houses of Parliament emergency continues ‘indefinitely’.
 Financial Emergency – 1) No ‘maximum period’ prescribed for its operation 2) Repeated
Parliamentary approval is not needed.
 Majority needed for approval of Emergency – Simple majority.

Revocation of financial emergency – By President proclamation anytime.

Effects of Financial Emergency -

 Executive authority of the Centre – 1) Give directions to state(any) to observe canons of

financial propriety 2) Give other directions to state as the President deems necessary and
adequate for the purpose.
 What direction can be given? - Reducing salaries and allowances of persons serving in the
state 2) Reserve money bills or other financial bills for the consideration of the President.
 President ‘may’ also issue directions – for reducing salary and allowances of 1) All persons
serving the union 2) Judges of Supreme court and High court.
 JUDICIARY

Introduction -

Indian constitution has established an ‘integrated Judiciary’ (You can see the hierarchy below). This
system ‘enforces’ both central and state laws.

Supreme Court

High courts

District Courts

SUPREME COURT

 Constitutional Articles dealing with supreme court - Article 124 to 147 (Part V).
 Background - It ‘succeeded’ the Federal Court of India, (established under the GoI Act of 1935).
 Seat of Supreme Court - New Delhi.
 Regional Benches of Supreme court - It can be ‘established’ by CJI with the approval of
President (Article 130). Currently, Supreme court has ‘no’ regional benches.
 Practice and procedure of Supreme court – SC can decide it’s ‘own’ procedure with approval of
President.

COMPOSITION AND APPOINTMENT

Constitutional Provisions - (As mentioned under Article 124)

 Composition of Supreme court – Chief Justice of India (CJI) + other Judges (Originally, 7 but it
can be increased by Parliament through making a ‘law’).
 Present composition – 34 Judges (1 CJI + 33 other Judges)

Chief Justice of India (CJI) -

 Appointment – By ‘President’ of India

 Provision for appointment – ‘No’ constitutional provision hence we rely on ‘convention’.
  Convention – The ‘outgoing’ CJI recommends his successor, which is strictly based on ‘seniority’.
After CJI ‘retires’ the senior most Judge becomes the CJI. (Seniority is ‘not’ defined by age, but
number of years the Judge has been serving the Supreme court).
 Exception – 2 times this convention has ‘not’ been followed (1973 – Appointment of Justice AN
Ray, 1977 – Justice M.H Beg).
 Present CJI – N.V Ramanna (48th CJI)

Other Judges of the Supreme court -

 Appointment of Judges – By ‘President’ (by ‘warrant under his hand and seal’).
 Process – Constitution says that ‘President’ shall ‘consult’ CJI and other judges of ‘Supreme
court’ and ‘High court’ as he deems necessary.
 The implication of the term ‘consultation’ was decided in the 3 Judges case (we will study them
later).
 Remember - In the case of appointment of other judges, the consultation of CJI (chief justice of
India) is ‘mandatory.’ Constitution specifically mentions it.

Supreme court ruling on appointment of Judges -

3 Judges case -

 Issue – The implication of the word ‘consultation’ in Article 124.

 Outcomes – Led to the of the ‘collegium system’ and its institutionalization.
♦ 1st Judge case (1981) – ‘Consultation’ does not amount to ‘concurrence.’
 Implication – The ruling gave the Executive ‘primacy’ over the ‘Judiciary’ in judicial appointment.
2nd Judges case (1993) - ‘Consultation’ means ‘concurrence’.
 Implication – Advice tendered by the CJI is ‘binding’ on the President. 2) Introduced the
‘collegium system’- 2 seniormost Judges will consult the CJI.
♦ 3rd Judges case (1998) - ‘Institutionalized’ the ‘consultation’ process
 Implication – CJI needs to consult plurality of Judges (4 seniormost Judges of the Supreme
court). If CJI make recommendation ‘without’ consultation it is ‘not’ binding on the government.

4th Judges case – Court verdict on ‘National Judicial appointments commission’ (NJAC) -

 Background – NJAC (National Judicial appointment commission) act 2014 aimed to replace the
‘collegium system’ by establishing ‘National Judicial Appointment commission’. They brought
the 99th constitutional amendment to the constitution.
 Verdict – Supreme court declared both 99th constitutional amendment and NJAC act as
unconstitutional – Reason – NJAC had certain provisions which would have led to executive
interference in Judiciary which would have violated the principle of ‘separation of Powers’

QUALIFICATION, OATH AND SALARY

Qualifications of Judges – To become Judge the person ‘should’ be -

 ‘Citizen’ of India
  Judge of High court – 5 years (also eligible if he has served different high courts in succession)
 Advocate of High court – 10 years (also eligible if he has served different high courts in
succession)
 ‘Distinguished Jurist’ in the ‘opinion’ of the President.
 No ‘minimum age’ has been prescribed but the ‘maximum age’ is 65 years.

Oath -

 By President (or some person appointed by him)

 Oath – Faith and allegiance to the constitution of India, sovereignty and integrity of India,
discharge the duties of the office, uphold constitution and the laws.

Salaries and allowances – ‘Charged expenditure’ on the ‘Consolidated Fund of India’

Tenure of Judges –

 ‘No’ fixed tenure in the constitution.

 Maximum age – 65 years.
 Resignation – Need to write to the President.
 Removal – By ‘President’ on the ‘recommendation’ of the Parliament. (Removal we will discuss
in detail)

REMOVAL OF JUDGES

Removal of Judges -

 Constitutional provision – By an ‘order’ of the President after an address by each House of

Parliament.
 Requirement – Impeachment motion should be passed by ‘Special Majority’ (Majority of total
membership + 2/3rd members of the house present and voting).
 Ground for removal – Proved ‘misbehavior’ or ‘incapacity’.
 Judges Inquiry act, 1968 – ‘Regulates’ the procedure for ‘removal’ of a Supreme court Judge
(Procedure on how to investigate proof of misbehavior or incapacity of a Judge + Presentation of
an ‘address’ by ‘Parliament’ to President with regards to Removal).

Below image shows the Impeachment motion and its process (In the image below it has mentioned that
the procedure is given in 124(4) it is ‘wrong’ the procedure has been mentioned in ‘Judges Inquiry act’) -
Process for Removal -

 ‘Origin’ of Motion for ‘removal’ – It can originate in ‘Rajya Sabha’ or ‘Lok Sabha’. Notice needs
to be signed by the members (In case of Rajya Sabha – 50 members Lok Sabha – 100 members).
 Speaker/Chairman - Can ‘accept’ or ‘reject’ the motion.
 If accepted Speaker/Chairman creates a ‘3-member committee’. Purpose of the committee –
Investigate the charges.
 Composition of the committee – 1) CJI or Judge of the Supreme Court, 2) CJI of high court 3) A
‘distinguished’ jurist.
 If charges are ‘proved’ by the committee Parliament takes the motion for ‘removal.’
 Motion needs to be passed by ‘both’ houses of Parliament (Rajya Sabha + Lok Sabha) by ‘Special
Majority’.
 After being passed an address is given by ‘Parliament’ to the ‘President.’
  ‘President’ passes the order for ‘Impeachment’
 ‘No’ Judge of ‘Supreme court’ has been impeached so far.
 1st case of Impeachment – Justice V Ramaswami of Supreme court (Motion was defeated in the
Lok Sabha).

Ad - hoc Judge -

 Objective - To meet the ‘quorum’ of the judges

 Appointment - Appointed by CJI - Chief Justice of India (Needs to consult CJI of High court +
Previous consent of the President).
 Qualifications - Judge of High Court (qualified to be Supreme Court Judge) can be appointed as a
Adhoc Judge.
 Jurisdiction, power and privileges – Similar to a ‘Judge’ of Supreme court.

Retired Judges -

 Objective - To meet increased workload.

 Appointment - appointed by CJI (consent of President + Person who is to be appointed)
 Qualification – ‘Retired’ Judge of SC or HC (the high court one should be eligible to become a SC
Judge).
 Allowances – As determined by the ‘President’

INDEPENDENCE OF SUPREME COURT

Appointment Procedure (No interference of executive)

Security of Tenure

Fixed Service conditions

Independence of Supreme Court Expenses 'charged' on 'Consolidated Fund of India'

Conduct of Judges 'cannot' be discussed

Ban on practice after retirement

Freedom to appoint staff

Separation from 'Executive'

Jurisdiction cannot be curtailed

JURISDICTION AND SUPERINTENDENCE OF SUPREME COURT

Original Jurisdiction - (The word ‘original’ means the Supreme court can hear the case in the 1st instance
I.e., not by way of appeal.) Original Jurisdiction broadly extend to the following - (In these supreme court
has exclusive original jurisdiction - No other court can decide the disputes).

 Centre vs State (One or more than one state on one side)

 Centre + State (one or more state) vs State (one or more state)
 State vs state

Exceptions to original Jurisdiction -

 Pre constitution – Disputes arising from any pre constitution treaty/agreement/covenant/

engagement etc.
 Dispute arising due to treaty which clearly mention that Supreme court Jurisdiction does not
apply.
 Inter State Water disputes
 Matters with Finance commission
 Financial disputes like center vs state on expenses, pensions etc.
 Commercial disputes between center and states
 Recovery of damages by a State against the Centre.

Writ Jurisdiction - (Studied it in depth under Fundamental rights chapter)

 Objective – For ‘enforcement of the fundamental rights’ of an aggrieved citizen.

 Original Jurisdiction exists? Yes
 Is it exclusive? No – High court also possesses it. (High court writ jurisdiction is wider because it
can issue it for Enforcement of FRs + Other purpose vs Supreme court – Only for Enforcing FRs).

Comparison SC Original Jurisdiction in case of Fundamental Right vs Federal disputes -

Comparison Federal Dispute Fundamental Rights

Nature Original + Exclusive Jurisdiction Original (concurrent with High court)
Parties involved Centre + States Citizen + Government

Appellate Jurisdiction - (by way of appeal against judgments by lower courts) -

Constitutional Matters –

 Case in High court ----> Party in dispute can ‘appeal’ if it gets a certificate ----> High court should
‘certify’ that the case involves a ‘substantial question of law’ which requires ‘interpretation of
the constitution’.

Civil Matters – Appeal to the Supreme court from any judgment by High court

 HC should certify – Case involves substantial question of law + Question needs to be decided by
Supreme court. (Original constitution – Monetary limit – Yes Present Situation – No - removed
by 30th constitutional amendment).

Criminal Matters – SC hears appeal from the High court

  Death Sentence given by High court (By way of appeal + Has taken the case on itself).
 Life imprisonment given by High court by reversing the order of a lower court.
 High court certifies that the case is fit for Supreme court hearing.

Appeal by Special leave - (Article 136 of the constitution)

 Definition - It refers to the power of Supreme court to allow ‘appeal’ against any judgement of
any court or tribunal. This power has 4 aspects -
 Discretionary power – Cannot be claimed as a matter of right.
 Can be granted against any judgment – final or interlocutory (I.e. Intermediate decision not yet
given).
 Can relate to any matter – constitutional, civil, criminal, income-tax, labour etc.
 Can be granted against ‘any’ court.
 Exception – Not applicable in case of military tribunal and court martial)

Advisory Jurisdiction - (Article 143 of the constitution)

 President can take advise of the Supreme court in 2 cases -

 Question of law or fact of public importance. (Supreme court may or may not give his advice)
 Pre – constitutional disputes - Dispute arising out of any pre-constitution treaty, agreement,
covenant, engagement etc. (Supreme court ‘must’ tender his advice).

Court of Record -

 ‘Supreme Court’ Judgement proceedings or can be used as ‘evidence’ in lower courts.

 Contempt Powers includes -
 Civil Contempt - For willful disobedience of any judgement or order.
 Criminal Contempt – 1) For ‘scandalizing’ court 2) For prejudicing or interfering with due course
of judicial proceeding 3) Interferes or obstructs the administration of justice.

Power of ‘Judicial Review‘– Power of the Supreme court to examine the ‘constitutionality’ of ‘legislative
enactments’ and ‘executive orders’ of the government (Both central and state).

Other Powers -

 Decides disputes – With regards to ‘Election’ of ‘President’ and ‘Vice President’.

 Inquires into conduct and behavior of chairman/members of UPSC ----> President needs to make
a reference ---> If found guilty of misbehavior can recommend President to remove (This
recommendation is binding on the President).
 Power to ‘review’ its own judgments given in the past.
 Withdraw the cases pending before other High courts and dispose them.
 Transfer case from one high court to another high court
 Its Law is ‘binding’ on all courts in India – Its decree or order is ‘enforceable’ throughout the
country.
 Judicial superintendence over all courts and tribunals in India.
 Supreme court jurisdiction with regards to matters in Union list – Can be enlarged by
Parliament.
 JUDICIARY 2

Introduction

India has an ‘integrated Judicial system’. We have covered Supreme court now we will focus on High
courts in India.

HIGH COURT

 Constitutional articles dealing with High courts - Articles 214 to 231 (Part VI).
 Origin - 1862 - High courts were set up at Calcutta, Bombay and Madras.
 Components of Judiciary in a state - High Court and Subordinate Courts.
 Constitutional provision – There shall be a ‘High court’ for each state (Article 214)
 7th constitutional amendment – Authorized ‘Parliament’ to establish a single high court for 2 or
more states, 2 or more state + Union Territory.
 Territorial Jurisdiction – Co terminus with the state/for common high court (State + Union
territory).
 Present position – Total – 25 high courts, High courts with jurisdiction of more than 1 state – 3.
 High courts and Union territories - ‘Only’ union territory to have its own high court – Delhi, J&K
+ Ladakh – Common High court, Other UT’s - Come under jurisdiction of different states.
 Parliament – Possesses the power to ‘extend’ or ‘exclude’ jurisdiction of any High court from
UTs.

COMPOSITION AND APPOINTMENT

 Composition – Chief Justice of HC + other Judges.

 Strength of the High court - Determined by the ‘President’ (in case of ‘Supreme court’ it is
determined by the ‘Parliament’).

Appointment of High court Judge -

 Appointed – By President
 Process for appointment -
 CJI – Appointed by ‘President’ after consultation ----> Consultation with CJI + Governor of state
concerned.
 Other Judges – By ‘President’ after consultation -----> Consultation with CJI + Governor of state
concerned + CJ – HC (Chief Justice of High court – Particular state).
 3 ‘Judges case’ and High courts (The cases we have done in detail previously, now we will focus
only on those aspects which impacted High court appointment) -
♦ 2nd Judges case – No appointment of High court Judge unless it's in conformity with opinion of
CJI.
 ♦ 3rd Judges case – CJI should consult 2 ‘senior most Judges’ (In case of Supreme court it is 4
senior most Judges).

QUALIFICATION, OATH AND SALARY

Qualifications -

 Citizen of India.
 Held ‘Judicial office’ for 10 years.
 ‘Advocate of High court’ for 10 years.
 Remember – Few important points -
 No ‘minimum age’ has been prescribed.
 No provision exists for ‘appointment’ of a ‘distinguished Jurist’ in High court.
 Retirement age – 62 (Incase of Supreme court it is 65)
 Any question about age can be settled by ‘President’ (In case of Supreme court it is Parliament)

Oath -

 By - ‘Governor’ of a state (or some person appointed by him).

 Oath – Faith and allegiance to the constitution of India, sovereignty and integrity of India,
discharge the duties of the office, uphold constitution and the laws.

Salaries and Allowances -

 Determined by ‘Parliament’ from time to time.

 Salaries – Charged on ‘consolidated fund of the state’ Pension – Charged on ‘consolidated fund
of India’.

Tenure -

 Maximum age – 62 (Question regarding age are determined by – President).

 Resignation – Need to write to the President
 Removal – By President on ‘recommendation’ of the Parliament.
 Vacates his office – When he becomes the judge of Supreme court, or he is transferred to other
High court.

REMOVAL OF JUDGES

(Same as Supreme court Judges) -

 Constitutional provision – By an ‘order’ of the President after an address by each House of

Parliament.
 Requirement – Impeachment motion should be passed by ‘Special Majority’ (Majority of total
membership + 2/3rd members of the house present and voting).
 Ground for removal – Proved ‘misbehavior’ or ‘incapacity’.
  Judges Inquiry act, 1968 – ‘Regulates’ the procedure for ‘removal’ of a Supreme court Judge
(Procedure on how to investigate proof of misbehavior or incapacity of a Judge + Presentation of
an ‘address’ by ‘Parliament’ to President with regards to Removal).

Procedure -

 ‘Origin’ of Motion for ‘removal’ – It can originate in ‘Rajya Sabha’ or ‘Lok Sabha’. Notice needs
to be signed by the members (In case of Rajya Sabha – 50 members Lok Sabha – 100 members).
 Speaker/Chairman - Can ‘accept’ or ‘reject’ the motion.
 If accepted Speaker/Chairman creates a ‘3-member committee’. Purpose of the committee –
Investigate the charges.
 Composition of the committee – 1) CJI or Judge of the Supreme Court, 2) CJI of high court 3) A
‘distinguished’ jurist.
 If charges are ‘proved’ by the committee Parliament takes the motion for ‘removal.’
 Motion needs to be passed by ‘both’ houses of Parliament (Rajya Sabha + Lok Sabha) by ‘Special
Majority’.
 After being passed an address is given by ‘Parliament’ to the ‘President.’
 President passes the order for ‘Impeachment.’
 No Judge of High court has been impeached so far.

Transfer of High court Judges -

 By - President
 Process – President consults CJI (Chief Justice of India) ----> CJI should consult his collegium (4
senior most judges of the Supreme court) + CJI of the 2 High courts (One – From where the
‘Judge’ is transferred Second – To where the ‘Judge’ of High court is transferred).

Independence of High court Judges - (Similar to Supreme court Judges) - (Mode of Appointment,
Security of Tenure, Fixed Service Conditions, Expenses Charged on Consolidated Fund, Conduct of
Judges cannot be Discussed, Ban on Practice after Retirement, Power to Punish for its Contempt, Its
Jurisdiction cannot be Curtailed, Separation from Executive).

Acting, Additional and Retired Judges -

 Additional chief Justice – Appointed by ‘President’ to meet increased workload.

 Acting Judge – Appointed by ‘President’ due to absence of a Judge. He holds office till a
permanent Judge return.
 Retired Judge - Appointed by the ‘Chief Justice of High Court’ with previous consent of President
and person to be appointed.
 Salaries and allowances - Determined by ‘President’.
 He is ‘not’ deemed to be Judge of High Court.

JURISDICTION OF HIGH COURTS

Original Jurisdiction - (Hear disputes in the 1st instance not by way of appeal) -

 Matters related to admiralty and contempt of court.

  Disputes relating to the election of members of ‘Parliament’ and ‘State legislatures.
 Revenue matter
 ‘Enforcement’ of Fundamental Right
 Cases transferred from subordinate court – Those Involving interpretation of the constitution.
 4 High courts (Calcutta, Bombay, Madras and Delhi HC) have original civil jurisdiction in cases of
higher value.

Writ Jurisdiction - (‘Article 226’ of the constitution) -

 ‘Wider’ than the Supreme court (HC can issue writ for both FRs + Ordinary legal Rights).
 ‘Writ Jurisdictions’ forms part of the ‘basic structure’ of the constitution.

Appellate Jurisdiction - (By way of appeal) -

 Major job of High court is as a court of appeal. The appeal before high court lies in following
cases -
♦ Criminal matter – Punishment which is greater than 7 years.
♦ Death sentence – given by district court shall be confirmed by the High court.

Supervisory Jurisdiction -

 High Court ‘supervises’ and ‘controls’ subordinate courts.

 Any matter adjudged by tribunal can be appealed to High Court. (No direct appeal to Supreme
Court)

Control over Subordinate Courts -

 High court deals with matter of promotion, transfer, discipline of Judicial members of
subordinate courts.

Court of Record -

 Judgements are recorded for perpetual memory.

 Power to punish for ‘contempt of court.’

JUDICIAL REVIEW

 Origin of the concept – USA (Marbury vs Madison case)

 Power of ‘Judicial Review’ – Both ‘Supreme court’ and ‘High court.’
 Forms part of ‘basic structure’ of the constitution.
 Definition – It is the power of the Judiciary to examine the constitutionality of ‘legislation
enacted’ and ‘executive orders’ of governments (both central and state).
 Term - Judicial Review is not found in the constitution. Various articles in the constitution
explicitly confer these powers on the Supreme court.

Articles Provisions
Article 13 Laws inconsistent or in derogation of FRs to be declared null and void
Article 32 Right to move to supreme court for enforcement of FRs (SC can issue writs)
 Article 131 Original Jurisdiction to supreme court in case of federal disputes
Article 132 Appellate Jurisdiction of Supreme court in constitutional cases
Article 133 Appellate Jurisdiction of Supreme court in civil cases
Article 134 Appellate Jurisdiction of Supreme court in criminal cases.
Article 134 A Certificate of appeal to Supreme court from High court
Article 135 Exercise powers of Federal court under any pre constitution laws
Article 136 Special leave power of Supreme court
Article 143 President can seek the opinion of the President
Article 226 High court writ power
Article 227 High court - Power of Superintendence over all courts and tribunals within their
respective territorial jurisdiction.
Article 245 Territorial extent of laws made by Parliament and State legislature
Article 246 Subject matter of laws made by Parliament + State Legislature
Article Central vs state laws – The state laws prevail.
251/254
Article 372 Continuance in force of Pre constitution laws

Constitutional validity of legislative enactment or an executive order can be challenged in the Supreme
Court or in the High Courts on the following three grounds.

 It infringes the ‘Fundamental Rights’ (Part III).

 It is ’outside’ the ‘competence of the authority’ which has framed it.
 It is ‘repugnant’ to the ‘constitutional provisions’.

Judicial review – Nature of Powers

 Narrow compared to USA as Indian constitution only provides for ‘procedure established by law’
instead of ‘due process of law’.
 In effect – India is a blend of American principle of ‘Judicial supremacy’ and British principle of
‘Parliamentary supremacy’.

Judicial Review and 9th schedule -

 Article 31 B – Saves ‘acts’ and ‘regulations’ included in the 9th schedule from being challenged
and invalidated on the grounds of ‘contravention’ of Fundamental Rights. (Provision was
introduced by the 1st constitutional amendment act).
 Originally – 9th schedule had 13 acts and regulations. But it kept increasing (2016 – Number was
282).
 Composition of 9th schedule – Contains provisions regarding Land reforms + abolition of
Zamindari system + Other matters.
 I.R Coelho judgment – Supreme court stated that there could ‘not’ be any blanket immunity
from judicial reviews of laws included in the 9th schedule. 2) Laws placed under the Ninth
Schedule after Kesav Nanda Bharti case (April 24th, 1973) are open to challenge in court if they
violate Fundamental Rights guaranteed under the Articles 14, 15, 19 and 21 or the ‘basic
structure’ of the Constitution.
 JUDICIAL ACTIVISM

 Active role played by the Judiciary to - Uphold the right of citizens + Preserve the legal and
constitutional system is known as ‘Judicial Activism’. I(It is opposite of Judicial restraint which
encourages Judges to limit the exercise of their own power).
 Origin – USA, Introduction in India - Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O.
Chinnappa Reddy and Justice D.A. Desai laid the foundations of judicial activism in the country.

Public Interest Litigation (PIL) - Outcome of Judicial review.

 Definition – PIL refers to case filed in court to protect ‘public interest’ (example pollution, road
safety etc.)
 Scope – ‘Any’ matter where interest of ‘public at large’ is affected can be addressed by filing PIL.
 Fact – ‘Not defined in any statute or act. It was a power given by court to public
 Ways – Suo motu (courts on their own) or any public-spirited individual can file the case.
 Who can file a PIL? – Any citizen by filing a petition under Article 32, Article 226, Section 133
criminal procedure code.
 Against whom can it be filed? – State/Central Government, Municipal authority – ‘cannot’ be
filed against a private party.

Some important cases related to PIL (only those have been discussed which are Prelim relevant).

 1st reported case of PIL – Hussainara khatoon vs State of Bihar

 Case and its implications – Case focused on inhuman conditions of prisons. Led to release of
more than 40,000 undertrial Prisoners.
 PIL became a ‘potent’ weapon for public interest via case – SP Gupta vs Union of India
 Justice PN Bhagwati - Judge in ‘SP Gupta vs Uol’ - PIL was ‘clearly’ enunciated by him.
 PIL - Any member of the public/social action group can file PIL (by invoking writ Jurisdiction of
Courts - both High court or Supreme court) to seek remedy for violation of legal or constitutional
rights of persons who cannot approach court themselves (due to social or economic or any
other disability).
 ‘Private interest case’ can also be treated as ‘public interest case’ - If an individual has moved to
court to seek remedy for personal grievance, the court can take it necessary to enquire into the
situation to further ‘public interest’ (Case - Indian Banks’ Association, Bombay & Ors. vs. M/s
Devkala Consultancy Service and Ors).
 PANCHAYATI RAJ INSTITUTIONS

Important facts about local self-government (LSG) -

 Father of local self-government in India – Lord ‘Ripon’

 Government of India Act 1919 – LSG was placed in the ‘transferred’ list.
 Government of India Act 1935 – LSG was placed in the ‘Provincial’ list
 Constitution of India – LSG was placed in the ‘state’ list

About Panchayati Raj Institutions -

 Panchayati Raj – System of ‘Local self-government' in ‘rural’ areas.

 Established in ‘all’ states (by acts of state legislature) to build ‘democracy’ at ‘grassroot’ level.
 Constitutionalized – By the 73rd amendment
 Constitutional articles dealing with PRIs – Article 243 to 243(O)
 Article 40 (DPSP)– Organization of ‘Village Panchayats.’

Evolution of Local self-government - (We will discuss only the important ones in detail)

Evolution (only major committees)

Balwant Rai Mehta committee (1957)

Ashok Mehta committee (1977)

Hanumanth Rao committee (1983)

G.V.K Rao committee (1985)

LM Singhvi committee (1986)

P.K Thungan committee (1989)

 Balwant Rai Mehta committee - To examine the working of ‘Community Development

Programme’ and ‘National Extension Services’. 'First’ committee to suggest ‘3 levels of
Panchayats’.
 Ashok Mehta committee – ‘Only’ committee to recommend ‘2 levels of Panchayats’ in India. 2
levels – Zilla Panchayat and Mandal Panchayat. Did not talk about Gram Panchayat. 2) Also
recommended reservation for SC/ST women 3) Fixed tenure.
 LM Singhvi committee - Appointed by ‘Rajiv Gandhi’ government – It recommended
‘constitutionalization of PRIs’.

73rd constitutional amendment act - (Gave practical shape to Article 40 of Indian constitution)
  Passed – Year 1992
 Date of Enforcement – 24th April 1993 (24th April – Celebrated as Panchayati Raj diwas).

Provisions -

 Gave ‘constitutional status’ to the PRIs.

 Added 1) - ‘Part 9’ (Article 243 to 243P) to the Indian constitution 2) Schedule 11 – Listed ‘29
functions’ which will be given to the PRIs.

SALIENT FEATURES

Gram Sabha -

 Gram Sabha is the ‘foundation’ of the Panchayati raj system.

 Definition – All ‘registered voters’ of a ‘Gram Panchayat’ make up the ‘Gram Sabha’.
 Article dealing with Gram Sabha - Article 243 A
 It is ‘compulsory’ to have a Gram Sabha for every Gram Panchayat
 Powers/Function of Gram Sabha – Decided by ‘State’ (Thus, powers of Gram Sabha can vary
from ‘state to ‘state’.

Types of provisions in Part 9 – (Detailed list we will look at later)

Types of Provisions - Part 9

Voluntary Provisions (may) Compulsary Provisions (shall)

'May' be enforced (Left to state discretion) 'Must' be enforced

Composition - Functions, Powers and resources of PRI's Composition - Structure, composition, term, Tenure o

Varies from 'state' to 'state' 'Uniform' across India

Article 243 B – Structure of Panchayats (3 tier structure)

 Panchayat @ district level

Panchayat @Intermediary level

Panchayat @ village level

 Structure is ‘compulsory’ in all states with ‘more’ than 20 lakh population.

 For states having ‘less than 20 lakh population ‘intermediate level’ ‘may’ not be constituted.

Article 243 C – Composition of Panchayats

 Composition – Chairperson + Members

 Election – All ‘members’ of PRI are ‘directly’ elected
 Chairperson – at ‘village level’ shall be elected as the state legislature may determine.
 Chairperson at district + Intermediate level – ‘Indirectly’ elected
 Article 243 C also allows ‘state’ to decide participation of MPs + MLAs + MLCs in panchayats.
Remember – MP’s + MLA’s + MLC’s can participate (if state so decides) at intermediary and
district level but not at ‘village level.’
 MP’s of Lok Sabha + MLA’s can attend ‘Panchayat meeting’ in their ‘constituency’.
 MP’s of Rajya Sabha + MLC’s can attend Panchayat meeting - where they are ‘registered’ as
‘voters.’
 States ‘may’ also allow for ‘co-opted members’ – Co-opted members are those who are ‘not
‘voted’ but appointed because of some special qualification.

Article 243 D – Reservations of seat

RESERVATION OF SEATS

Schedule caste/Schedule Tribes (at all 3 level) Women 'May' be provided by

states for BC's

In 'proportion' of the population 'Minimum' - 33% Reservation

'Minimum' means reservation can be more than 33%

Chairperson and Reservation -

 1/3rd of chairperson office is reserved for women at all levels.

 State ‘shall’ provide for reservation of offices of chairperson at village or any other level.

Article 243 E – Duration of Panchayats -

 Duration – 5 years
 Elections – ‘Must' be held before completion of tenure.
 Provisions during ‘dissolution’ of Panchayats – If dissolved before 5 years, elections ‘must’ be
held within 6 months.
 Duration of the newly constituted Panchayat - It will continue ‘only’ for the remainder of the
period. Example, Panchayat dissolved in 2.5 years, New Panchayat - + 2.5 years only.

Article 243 I – State Finance commission

 Appointment – Governor
 Report submitted to – Governor
 Composition/conditions of service/ salaries and allowances – are determined by ‘State
legislature by law’
 State Finance commission ‘shall’ recommend on –
 ‘Distribution’ of net proceeds of tax, duties etc.
 ‘Grant in aid’ provided to ‘panchayat’ from ‘consolidated fund of state’.
 Taxes, duties tolls that ‘may’ be assigned to panchayat
 Devolution of power to prepare plans for economic development
 Organic link b/w Central Finance commission and State Finance commission exists
 Central finance commission can recommend measures to augment the of Consolidated fund of a
state and supplement the resources of panchayat in the state.

Article 243 K – State Election commission -

 Constitutional body
 ‘Single’ member body – unlike ‘Election commission’ which a ‘multi member body.’
 Appointed - By the Governor.
 Condition of service and tenure - Determined by the ‘Governor’.
 Removal Procedure – Same as like the Judge of High Court.
 Service conditions - Cannot be varied for disadvantage.
 Provisions proceedings related to ‘conduct of elections’ are determined by ‘State Legislature’.

Article 243 L – Application to Union Territories

 Not automatically applicable to Union territories

 Applicable only when ‘President’ issues an order

Audit & Accounts - State Legislature may make a provision of accounts and audit of Panchayat.

Article 243 M – Part 9 does not apply to the following areas -

 Non Applicability of Part 9 of the constitution

Tribal areas Areas - Nagaland, Mizoram,

Scheduled Areas
Meghalaya, Hills areas of Manipur,
Darjeeling

Autonomous and Regional council 'PESA' is applicable

Article 243 O – Election Disputes in Panchayat Elections -

 Election Petition against Disputes – Will be presented to such authority as determined by the
state Government.
 Age for contesting election – 21 years
 Questions of disqualifications ‘shall’ be referred to such authority as the state legislature
determines.

PANCHAYAT EXTENSION TO SCHEDULED AREAS

 Part IX - Not applicable to 5th schedule

 Parliament ‘may’ extend itS provisions to these Schedule areas with ‘modification’ to under
PESA Act of 1996

Objective -

 To provide ‘self-rule’ for tribal population

 To safeguard and preserve ‘traditions and customs’ of tribal
 To ensure ‘participatory democracy’ at village level
 Evolve suitable administrative framework consistent with traditional practices.

Features

 State legislation on ‘’Panchayats in Scheduled Areas’ shall be in consonance with ‘customary

Law’, ‘’social and religious practices’ etc.

Every village shall have a Gram Sabha.

Gram Sabha - (Role with respect to PESA).

 Approve plans, programmes and projects of ‘socio-economic development’.

 ‘Identification of beneficiaries’ under poverty alleviation programme.
 Reservation for STs shall not be less than ½ of total number of seats.
 All seats of chairpersons at all levels shall be reserved for STs.
 Recommendation of Gram Sabha or Panchayat ‘shall’ be ‘mandatory’ for grant of mining lease
for minor minerals in scheduled areas.
 State shall endeavour to follow pattern of 6th schedule while designing administrative
arrangements.
 President me direct with exceptions of modifications
 Election petition regarding any dispute related to elections will be presented to such authority
as determined by state.
 Certain areas are exempted - Meghalaya and others, hill areas of Manipur, Darjeeling scheduled
areas and tribal areas in the state.
 LECTURE 17- MUNICIPALITIES
CONTENT
 Background
 Post- independence municipalities
 74th amendment act of 1992
 Twelfth schedule

BACKGROUND
 “Urban Local government” implies the governance of an urban area by the people
through their elected representatives.
 It is a march from Paper democracy To Participatory democracy.
 First municipal corporation in India – At Madras
 Bombay and Calcutta Municipal corporations – In 1726
 Lord Mayo’s Resolution of 1870 – on financial decentralisation visualized the
development of local self-government institutions.
 Lord Ripon’s Resolution of 1882 – ‘Magna Carta’ of local self-government. Ripon
father of the local-self government in India.
 Royal Commission on decentralisation in 1907. Its chairman was Hob-house.
 Government of India Act of 1919 – Under the dyarchical scheme, local self-
government became a transferred subject under the charge of a responsible Indian
minister.
 Cantonments Act was passed – In 1924.
 Government of India Act of 1935 – Under the provincial autonomy scheme, local
self-government was declared a provincial subject.

POST- INDEPENDENCE MUNICIPALITIES

 Initially, 65th Constitutional Amendment Bill (Nagarpalika Bill) was introduced in the
Lok Sabha in August 1989 but couldn’t be passed by Rajya Sabha.
 65th Constitutional Amendment Bill emerged as the 74th Constitutional
Amendment Act, 1992, and came into force on 1 June, 1993.
 The subject of ‘urban local government’ is dealt with by the following three
ministries:
1. Ministry of Housing and Urban Affairs – For States
2. Ministry of Defence – For cantonment boards
3. Ministry of Home Affairs – For Union Territories
 There are eight types of urban local governments in India– municipal corporation,
municipality, notified area committee, town area committee, cantonment board,
township, port trust and special purpose agency.
 74TH AMENDMENT ACT OF 1992
Background

 In 1989, the Rajiv Gandhi government presented the 65th Constitutional

Amendment Bill (Nagarpalika bill) in the Lok Sabha.
 The bill pointed toward strengthening and revamping the municipal bodies by giving
Constitutional status to them.
 The bill was passed in the Lok Sabha, but not in the Rajya Sabha in October 1989
and, hence, lapsed.
 The National Front government headed by V P Singh reintroduced the revised
Nagarpalika Bill to Lok Sabha in September 1990.
 However, the law was not passed and eventually lapsed due to the dissolution of Lok
Sabha.
 PV Narasimha Rao's government also introduced the Amended Municipalities Bill
in Lok Sabha in September 1991.
 It eventually became the 74th Constitutional Amendment Law of 1992 and entered
into force on June 1, 1993.
Objectives

 The act granted municipalities’ constitutional status.

 It has brought them under the purview of the Constitution's justifiable provisions.
 In other words, state governments have a constitutional obligation to implement
the new municipal system in accordance with the provisions of the act.
 The act's goal is to revitalize and strengthen municipal governments so that they can
function effectively as units of local government.
Constitutional Provisions

 Adding Part IX A (Articles 243-P to 243-ZG) and 12th schedule in the Constitution.
 The 74th amendment provided a uniform law for all the municipalities in the nation.
 Article Provisions
Article Article 243-Q mentions about the Constitution of Municipalities i.e. Nagar Panchayat,
243 Q Municipal Council and Municipal Corporation.
Article Article 243R mentions the Composition of Municipalities; it states that all of its members
243 R are directly elected by the people of the Municipal area which is divided into territorial
constituencies known as wards.
Article Article 243 S mentions about constitution and composition of ward committees
243 S consisting of wards and member of wards who represent that ward in Municipality.
Article Article 243 T deals with the reservation of the seats in every Municipality.
243 T
Article Article 243 U mentions the duration of Municipalities.
243 U
Article Article 243 V mentions the grounds of disqualification of members of Municipality.
243 V
Article Article 243W deals with the powers, authorities and responsibilities of municipalities
243 W that includes urban planning, financial and social development, and so on.
Article Article 243X states that the constitution has left it open to the Legislature of a State to
243 X specify by law matters relating to imposition of taxes.
Article Article 243 Y provides for the constitution of the Finance Commission which will give its
243 Y opinion on the distribution of finances between the State and the municipality and will
determine the aid subsidies.
Article Article 243-ZA provides for the establishment of a State Election Commission,
243 ZA independent of which the Election Commission of India, conducts elections for every
Municipal Corporation for a term of 5 years.
Article Article 243 ZC says that provisions of part IXA are not applicable to Scheduled Areas
243 ZC referred in article 244. These include Assam, Meghalaya, Tripura and Mizoram. It is also
not applicable to the area under Darjeeling Gorkha Hill Council.
Article Article 243 ZE says that there will be a Metropolitan Planning Committee in every
243 ZE Metropolitan region to set up a draft improvement plan for the Metropolitan region
overall.

Types of Municipalities

 The act provides for the constitution of the following three types of municipalities in
every state.
1. A Nagar Panchayat (by whatever name called) for a transitional area.
2. A municipal council for a smaller urban area.
3. A municipal corporation for a larger urban area.
 But, there is one exception. If there is an urban area where municipal services are
being provided by an industrial establishment, then the governor may specify that
area to be an industrial township. In such a case, a municipality may not be
constituted.
 As per the 2011 Census, the key urbanized areas were classified as follows
  Statutory Towns: All administrative units that have been defined by statute as
urban-like Municipal Corporation, Municipality, Cantonment Board, Notified Town
Area Committee, Town Panchayat, Nagar Palika, etc., are known as Statutory Towns.
 According to the 2011 Census of India, there were 4041 statutory urban local
bodies (ULBs) in the country.
 Statutory towns are of various kinds and the major categories include
 Municipal corporation (Nagar Nigam)
 Municipality (municipal council, municipal board, municipal committee)
(Nagar Parishad)
 Town area committee
 Notified area committee
 Census Towns: All Administrative units satisfying the following three criteria
simultaneously:
 A minimum population of 5,000 persons ;
 75 per cent and above of the male main working population being
engaged in non–agricultural pursuits; and
 A density of population of at least 400 persons per km2. As per 2011
Census, there were 3,784 Census Towns
Composition

 All the members of a municipality shall be elected directly by the people of the
municipal area.
 For this purpose, each municipal area shall be divided into territorial constituencies
to be known as wards.
 The state legislature may provide the manner of election of the chairperson of a
municipality.
Wards Committees

 A wards committee shall be constituted consisting of one or more wards, within the
territorial area of a municipality having a population of three lakh or more.
 Composition and the territorial area of a wards committee may determine by the
state legislature.
Reservation of Seats

 Reservation of seats for SC and ST is provided in every municipality in the proportion

of their population.
 Provisions for reservation of 1/3rd of the total number of seats are also provided
for women.
 The state legislature has been empowered to make any provision for reservation in
municipality at any level in favour of backward class.
Duration of Municipalities

 The act provides for a five-year term of office for every municipality.
 However, it can be dissolved before the completion of its term.
 Further, the fresh elections to constitute a municipality shall be completed
1. before the expiry of its duration of five years; or
2. (b) in case of dissolution, before the expiry of a period of six months from the
date of its dissolution.

 But, where the remainder of the period (for which the dissolved municipality would
have continued) is less than six months, it shall not be necessary to hold any election
for constituting the new municipality for such period.
State Election Commission

 The state election commission has been constituted and has been endowed with
various roles like superintendence, direction, and control of the preparation of
electoral rolls.
 The conduct of elections to the Municipalities shall also be handled by the state
election commission.
Powers and Functions

 The powers and functions of the Municipalities are endowed by the state
legislature.
 The Municipalities prepare a plan for economic development and social justice for
the people of the Municipality.
 It implements the scheme of the Central and State government for the betterment
of the people at the ground level.
 Municipalities have power to enhance employment facilities and undertake
development activities in the area.
Finances

 State legislature may-

 authorize a panchayat to levy and collect taxes, duties, duties, and fees;
 assign to the Panchayat taxes, duties, duties and fees levied and collected by the
state government;
 provide grants-in-aid to the Panchayats from the state's consolidated fund, and
 provide for the establishment of funds to credit all money of the Panchayats.
Finance commission

 Finance commission is constituted by the governor to review the financial position of

the Municipalities.
 This commission recommends the governor to decide the principles that should
govern the distribution of taxes between the state and the Municipalities.
  It also determines the taxes, duties, tolls, and fees that may be assigned to
Municipalities.
 The provisions with respect to the maintenance of accounts by the Municipalities
and the auditing of such accounts are done according to the provisions decided by
the state legislature.
Audit of Accounts

 State legislatures can make provisions regarding the maintenance and auditing of
municipalities’ accounts.

Application to Union Territories

 The provisions of this Part apply to the territories of the Union. However, the
president may specify and direct any exception of modification as required.

Exempted Areas

 The act does not apply to scheduled areas and tribal areas in the following states.
 At present, ten states of India have scheduled areas - Andhra Pradesh,
Telangana, Jharkhand, Chhattisgarh, Gujarat, Himachal Pradesh, Madhya
Pradesh, Maharashtra, Orissa and Rajasthan.
 Presently, there are a total of ten tribal areas (autonomous districts) in the four
states of Assam (3), Meghalaya (3), Tripura (1) and Mizoram (3).
 It shall also not affect the functions and powers of the Darjeeling Gorkha Hill Council
of the West Bengal.

District Planning Committee

 Every state shall constitute at the district level, a district planning committee to
consolidate the plans prepared by panchayats and municipalities in the district, and
to prepare a draft development plan for the district as a whole.
 The act lays down that four-fifths of the members of a district planning committee
should be elected by the elected members of the district panchayat and
municipalities in the district from amongst themselves.

Metropolitan Planning Committee

 Every metropolitan area shall have a metropolitan planning committee to prepare a

draft development plan.
  A Metropolitan area means an area having a population of 10 lakh or more,
in one or more districts and consisting of two or more municipalities or
panchayats or other contiguous areas.

 The act lays down that two-thirds of the members of a metropolitan planning
committee should be elected by the elected members of the municipalities and
chairpersons of the panchayats in the metropolitan area from amongst themselves.

Continuance of Existing Laws and Panchayats

 All state laws pertaining to municipalities shall remain in effect until one year after
the commencement of this act.
 In other words, states must implement the new municipality system based on this
act within a year of its enactment on April 24, 1993, the date of the act's enactment.
 However, all municipalities that existed prior to the enactment of the act will
continue until the end of their terms, unless dissolved earlier by the state legislature.

Bar to Interference by Courts in Electoral Matters

 The act prohibits courts from interfering in municipality elections.

 It declares that the constitutionality of any law relating to the delimitation of
constituencies or the allocation of seats to such constituencies cannot be challenged
in any court.
 It also states that no election to a municipality may be challenged unless
accompanied by an election petition filed with the appropriate authority and in the
manner prescribed by the state legislature.

TWELFTH SCHEDULE
 Following 18 functional items placed within the purview of municipalities:
1. Urban planning including town planning;
2. Regulation of land use and construction of buildings;
3. Planning for economic and social development;
4. Roads and bridges;
5. Water supply for domestic, industrial and commercial purposes;
6. Public health, sanitation, conservancy and solid waste management;
7. Fire services;
8. Urban forestry, protection of the environment and promotion of ecological
aspects;
9. Safeguarding the interests of weaker sections of society, including the
handicapped and mentally retarded;
10. Slum improvement and upgradation;
11. Urban poverty alleviation;
12. Provision of urban amenities and facilities such as parks, gardens,
playgrounds;
13. Promotion of cultural, educational and aesthetic aspects;
14. Burials and burial grounds, cremations and cremation grounds and electric
crematoriums;
15. Cattle ponds, prevention of cruelty to animals;
16. Vital statistics including registration of births and deaths;
17. Public amenities including street lighting, parking lots, bus stops and public
conveniences; and
18. Regulation of slaughter houses and tanneries.
 UNION TERRITORIES

Article 1 – Describes the ‘Territory of India’ -

Territories of State

TERRITORY OF INDIA Union Territories

Territories acquired by government at any time

 Presently – 29 States + 8 Union Territories

 Union Territories – Areas under ‘direct’ control and ‘administration’ of the Central Government.

Creation of Union Territories – (Evolution)

1874 - Scheduled Districts

Chief commissioners province

Part C and Part D states

7th constitutional amendment act - Union Territories

Remember – Union Territories were ‘not’ mentioned in the original constitution. In the original
constitution India was declared as a ‘Union of States’ and following types of States were provided -
 Types of States (After Independence)

Part A Part B Part C Part D

Provinces Princely States Chief Commisonarate province Islands

States Union Territories

7th constitutional amendment act – ‘Removed’ the classification of A, B, C and D states. States + Union
Territories were introduced (States – Part 6 Union territories – Part 8 of the constitution).

Reasons for creation – Can be created for ‘various’ reasons

 Delhi & Chandigarh - Political and Administrative reason

 Puducherry, Dadra & Nagar Haveli, Daman and Diu - Cultural distinctiveness
 Andaman Nicobar, Lakshadweep - Strategic importance.

Union Territories -

 Constitutional article dealing with Union Territories – Article 239 to 241 (Part 8).

Article 239 – Administration of Union Territories - (No uniformity exists in administration)

 Administered - By ‘President’ through a ‘person’ whose designation is also decided by the

President.
♦ Designation for NCT, J&K and Puducherry – Lt. Governor
♦ For ‘other’ Union Territories – Administrator
♦ President can signify any designation – Lt. Governor or chief commissioner or Administrator.
♦ Legislation - ‘Parliament’ can legislate on subjects in all 3 lists.
♦ Provisions for UT’s are applicable for ‘acquired territory.’

Article 239A – (Added by the 14th constitutional amendment act, 1962) -

 Provides for creation of ‘local’ legislature or ‘council of Minister’ or ‘both’ for certain Union
Territories.
 Local legislature for – J&K and Puducherry has been created under it.
 How is this local legislature created? Parliament ‘may’ by law create it. Legislature can be partly
elected + partly nominated or completely elected.
Article 239 AA – NCT of Delhi

 Inserted by – 69th constitutional amendment act, 1991.

 ‘Renamed’ Delhi - Delhi was ‘renamed’ as NCT (National capital territory), Delhi.
 Governance of Delhi – By State Legislative assembly + Lieutenant Governor (Head) + Council of
Ministers.

Legislature -

 Provides for ‘State Legislative assembly’ of Delhi – seats to be filled by ‘Direct elections.’
 Election - It will be conducted by ‘Election commission of India’.
 Total number of Seats + Reservation of Seats – Decided by ‘Parliament’ by law -
 Reservation - In ‘proportion’ of population of SC (schedule caste) and ST (Schedule Tribes).
 Subjects in the ‘state list’ not in control of Delhi – Land, Police and and public order (by GoI)
 Conflict b/w State legislative law vs Parliament law – Parliament law ‘prevails’
 Total seats in Delhi Assembly – 70.

Executive

 Total Strength of Council of Ministers - shouldn’t exceed 10% of total strength of the assembly
(For states it is 15 %).
 Appointment of CM – By President + Other Ministers – By President on advice of CM (In case of
other UTs it is done by the Lieutenant Governor).
 LG - Possess ordinance making power (prior approval of President is necessary)
 Difference of Opinion b/w LG and Ministers – Matter decided by ‘President’.
 69th constitutional
NCT of Delhi
amendment act

Legislature Executive

Legislative Election Can 'legislate' on

Assembly the State list Lt. Governor
CM &CoM

ECI Size - 10%

Direct elections Ordinance
Except - Public s
order, Police and
Land Appointment -
Seats - 70 Prez. Conflict b/w CoM &
LG - President

Article 239 AB -

 Provides for imposition of state of emergency in Delhi. By – President.

Article 239 B -

 The ‘administrator’ of Union Territory ‘shall’ have the power to ‘promulgate’ an ordinance.

Article 240 – (changed by J&K reorganization act + Dadar and Nagar Haveli and Daman and Diu merger
act)-

 Allows President to make regulations for 1) peace 2) progress 3) good government’ of UTs of –
 Andaman and Nicobar
 Lakshadweep
 Dadra Nagar Haveli and Daman & Diu
 Puducherry
 Ladakh (Added by J&K reorganization act).
 For Prelims ‘remember’ the President does not have this power with regards to all UT’s (only
5/8).

Article 241 – UT's can have their own High court.

 Present situation – 2 UT’s have their own High court (Delhi + Jammu & Kashmir).
 Other UT’s - HC of one state can serve as a High court for another UT’s (Bombay HC for Daman
and Diu + Dadar & Nagar Havelli).
Comparison b/w States and UT’s

Comparison States Union Territories

Relation with Centre Federal Unitary
Distribution of Powers Exists Does not exist
Uniformity in Politics & Exists Does not exist
Administration
Governor Head of State Agent of the Centre
Parliamentary law w.r.t Only in exceptional circumstances For all 3 lists
State list

SCHEDULED AND TRIBAL AREAS

Constitutional Provisions dealing with Scheduled and Tribal Areas – Articles 244 and 244 A.

 Part 10 – deals with Scheduled and Tribal areas.

Reason why a separate part has been assigned to them -

♦ Provisions of ‘Part 9’ are not applicable to ‘Tribal areas’ (as it is difficult to have local
administration in them as it is -
 Difficult to form ‘Gram Panchayat’ in Tribal areas.
 Distinct culture
 Unique system of administration.
♦ Protect them from exploitation.

Thus, ‘separate system of administration’ is provided for Tribes via – Schedule 5 + Schedule 6 + PESA.

PART 10 - 3 Articles

Article 244 (1) Article 244 (2) Article 244 (A)

6th Schedule 22nd Constitutional amendment

Provisions of
Schedule 5 are
applicable to entire Administration of Creation of 'Autonomous units'
country except Tribal areas in within Assam.
Assam, Meghalaya, Assam, Meghalaya,
Mizoram, Tripura Mizoram and
Tripura.

Article 244 A – Empowered ‘Parliament’ to constitute ‘autonomous states’ within Assam.

  Background – Initially Assam was a very big state comprising many northeastern states within it.
 Parliament by ‘law’ can provide for -
 Legislature or council of Ministers or both.
 Legislature ‘can’ be partly elected or partly nominated body or completely elected/nominated.
 Subjects in state list or concurrent list to the ‘autonomous states.’
 Any taxes imposed in that Autonomous state by the State Govt should be given to Autonomous
state.
 Present status – Holds ‘no relevance’ because Assam has been disintegrated to create separate
Northeastern states. (You can skip this from Prelims Perspective).

Article 244(1) - Scheduled Areas and Scheduled Tribes

Scheduled Area –

 ‘Not defined’ in the constitution ‘nor’ the ‘criteria’ for determining a scheduled areas has been
given.
 How do we come to know what a ‘scheduled area’ is? – Similar to ‘partially’ or ‘fully’ excluded
areas under ‘GoI Act 1935’. They are ‘basically’ Tribal areas.
 Declaration of Schedule area – By ‘President’ 1) Declare an area as Schedule area 2) Increase or
decrease its area 3) alter its boundary 4) Revoke such designation in ‘consultation’ with the
Governor.
 General Criteria for a Scheduled area (to give you a better understanding) - 1) Population 2)
Backwardness 3) Discrimination faced by the Tribes.
 Responsibility for scheduled areas.- Lies with the ‘Governor’. Will submit an annual report on
the administration to the President.
 Laws applicable to the scheduled areas – ‘Governor’ has the power to decide ‘whether’ a law
(Parliament or State legislature) will be applicable to a scheduled area.
 Tribal Advisory council – Assist the Governor on how to administer the schedule areas.
 Composition of Tribal Advisory council –
♦ Maximum – 20 members (which means it can less also)
♦ 3/4th members – ‘MLAs’ from scheduled areas
♦ 1/4th members – ‘Nominated’ members

Map shows states having Scheduled areas -

Article 244(2) - Schedule 6 – (Applicable to ‘Tribal areas’ of Assam, Mizoram, Meghalaya and Tripura).

 Administration will be through – ‘District council’ and ‘Regional council’

 Declaration – Based on ‘Governor’ order
 District council – Population of a district is ‘majorly’ a Tribal population – District council
established.
 Regional council – ‘Part’ of the district - A ‘region’ consists of Tribal areas – Regional council
established.

District or Regional council is named after district or Region -

  Strength – Total - 30 (4 – Nominated by Governor + 26 – Elected ‘directly.’)

Autonomous District council (ADC) and Autonomous Regional council (ARC).

 Possess - Legislative + Executive + Judicial powers

 Legislative – Frame laws on certain ‘specified matters’ after ‘consultation with the Governor’.
♦ Example of matters on which they can frame laws – Land, forests, canal water, shifting
cultivation, village administration, inheritance of property, marriage and divorce, social customs
etc.
 Executive – Various functions related to Primary schools, Dispensary, market, ferry, fisheries,
roads etc.
♦ Make regulations with ‘approval’ from Governor – For control over ‘money lending’ and
trading by ‘non-Tribals’
 Judicial – Resolution of conflict
 Creation of Resolution Mechanism - ADC or ARC can constitute ‘village councils’ or ‘courts’ to
resolve conflicts between tribes.
 Appeal – Lies with the ADC or ARC
 Jurisdiction of High court over the cases – Needs to be ‘specified’ by the Governor.

Difference b/w 5th and 6th schedule

Comparison 5th schedule 6th schedule

Coverage Scheduled Areas + Schedule Tribes
Applicability Entire country (4 exceptions)
Structure of Declaration – President
Administration Administration – Governor
Advice – Tribal Advisory council
Tribal areas
Assam + Meghalaya + Mizoram + Tripura
ADC + ARC (Autonomous district and
Regional councils) - By Governor
Nature of Bodies Tribal Advisory council – Only District & Regional councils – Very
created advisory body powerful (Possess legislative + executive
+ Judiciary powers)
 CONSTITUTIONAL BODIES

Definition – ‘Constitutional bodies’ refer to bodies whose 1) Composition 2) Conditions of service 3)

Powers and functions are ‘usually’ mentioned in the constitution.

Some Facts for elimination in Prelims -

 Constitutional bodies are appointed by the ‘head’ of the country or state.

 If appointed by President – Removed by President
 If appointed by Governor – Removed by President or Governor
 Report – Usually submitted to the ‘President’ (Since he is the appointing authority)

CAG (Comptroller and Governor General)

Constitutional provisions – Article 148 – Article 151

Article 148 - CAG office - Appointment, Oath, conditions of

service.

Article 149 - Duties and Powers of CAG

Article dealing with CAG

Articles 150 - Account of Union + States (kept as prescribed by President

on advice of CAG)

Article 151 - Report of CAG

PART 5 - Union Government

Legislature Executive Judiciary CAG

  Fact - CAG is part of ‘Union Government’. But is ‘not’ part of Executive + Legislature + Judiciary.
(As you can see from the above diagram, he is part of Union Government – But is mentioned
separately).
 Nature – ‘Independent’ body.
 Status – CAG is the ‘head’ of Indian audit and accounts department + ‘chief guardian’ of public
purse.
 Appointment – President (by warrant under his hand and seal – this means this function cannot
be delegated to any other authority).
 Removal – By President on the basis of a ‘Parliamentary resolution’. (Same as judge of Supreme
court).
 Tenure and conditions of service - 6 years or 65 years + Single Tenure (Not eligible for
‘reappointment’).
 Qualification – ‘Not’ mentioned in constitution.

Article 149 – CAG will be having have duties + powers in relation to accounts of Union + States

 Duty + Powers + conditions of service ---> which CAG will exercise in relation to these ‘accounts’
----> determined by ‘Parliament by Law’.
 CAG duties, powers and conditions of service act, 1971 – was brought by ‘Parliament’. Made
CAG responsible for ‘auditing’ the accounts of Government (Union or State) + PSU’s + Any ‘body’
financed by Government etc.
 CAG is only an ‘auditor’ but not a comptroller of accounts. (In UK CAG possesses ‘both’ powers
of ‘auditor’ + ‘Comptroller’ - In UK no money can be drawn from public exchequer without the
approval of the CAG.)

Article 150 – Form of accounts of Union + States

 President ‘may’ (which means it is not compulsory) prescribe the form of accounts after taking
advice of CAG.

Article 151 – Report of the CAG

 Gives the ‘report’ to President (audit report on appropriation accounts + finance accounts +
Public undertaking) ------> Sends to Parliament ----> Public Accounts committee studies it.
 CAG – Friend, philosopher and Guide to the Public Accounts committee.

CAG ‘cannot 'participate in the Parliamentary proceedings.

Attorney General and Advocate General

Comparison Attorney General Advocate General

Part of Union State
‘Both’ form part of Union Executive State Executive
Executive
Qualifications – Judge of Supreme court Judge of High court
Should be qualified to
be ‘appointed’ as
Determination of President Governor
Term/Tenure/Salary

Attorney General/Advocate General – No fixed tenure + No security of tenure.

Significance of the bodies (Attorney General + Advocate General) -

 Chief legal advisor - to the Government of India (GoI)/Government of State (GoS).

 GoI/GoS composition – PM/CM + CoM (council of Ministers) + Legislature + Public servants can
seek the advice of Attorney/Advocate General.
 Remember – President + Governor ‘don’t’ seek the advice of these bodies.
 Governor ----> seeks the advice of ‘President’
 President ----> seeks advice of ‘Supreme court’ (Article 143).
 Function - Pleads on ‘behalf’ of Government in any court of India.
 Attorney/Advocate General and Legislature - Can participate in legislature of Union/State
meetings (Only person who is not a member but can participate in Parliament (Attorney
General)/State legislature (Advocate General)
 Committees - Can be a member of Legislative committee (but ‘no’ right to vote)
 Enjoys all privileges + Immunities - (Available to MP – Attorney General, Available to MLA –
Advocate General.
 Cannot – Advice ‘against’ the Government + Shouldn’t defend a criminal case.

National commission for Schedule caste /Schedule Tribes /Backward classes

We will study NCSC – (National commission of Schedule Caste) + NCST – (National commission of
Schedule Tribes) + NCBC – (National commission of backward classes) together.

Timeline -

Original constitution Article 338 Special officer for SC/ST's

65th amendment Replaced the Special officer with National commission for SC/ ST's

National commission for SC (Article 338)

89th amendment Separated NCSC & ST

National commission for ST (Article 338 A)

102nd amendment Created National commission for backward castes (Article 338 B)
  Appointment (all 3) - By ‘President’ (by warrant under his hand and seal)
 Composition (1 + 1 + 3) - Chairman + Vice Chairman + 3 Persons
 Qualifications – Chairman – SC (NCSC)/ ST (NCST) / BC (NCBC)
 Term/Tenure/conditions of service – Determined by the President (usually 3 years).
 Report ----> President ----> Parliament
 Powers and functions – Quasi Judicial bodies + Advisory function + Hold powers of a ‘civil court’.

Public Service commissions - UPSC/SPSC/JPSC

UPSC (Union Public service commission)/SPSC (State Public service commission/JPSC - (Joint Public
service commission) -

Criteria UPSC SPSC JPSC

Articles 315 – 323 315 –323 315 – Mentions about
creation of JPSC.
Recruits for Union + can also recruit State 2 or more states – States
for states on request of pass a resolution requesting
Governor. for JPSC --->Parliament by
law creates them (Simple
majority required).
Appointment President Governor President
Removal President President President
Basis for removal By President - insolvent, President (Same as President (Same as UPSC).
infirmity of mind or UPSC)
body, engages in
employment outside
office + Misbehaviour -
(SC report is necessary)
Composition Chairman + Other Chairman + Other Chairman + Other members
members (Size members (Size (Size determined by the
determined by determined by President).
President) Governor)
Qualifications 50% members must be 50% members must be 50% members must be
/have been public /have been public /have been public servants
servants with 10 years servants with 10 years with 10 years experience
experience experience
Term and Tenure 6 years or 65 years 6 years or 62 years 6 years or 62 years
Reappointment No but No but No but
Member - UPSC can be ‘Chairman – SPSC’ can ‘Chairman – JPSC’ can be
appointed as Chairman be appointed as appointed as
- UPSC ‘member/chairman’ ‘member/chairman’ UPSC +
UPSC + ‘Member SPSC’ ‘Member JPSC’ can be
can become ‘Chairman appointed as ‘Chairman of
SPSC’ and
SPSC’ + ‘Chairman/Member
‘member/Chairman
of UPSC’
UPSC’.
 Election commission of India

Election commission (Article 324)

Removal

Composition Appointment Function of EC Tenure or CEC - Similar

service to Judge of SC
+ Other EC -
Chief election By President 1) Prepare voter's 6 years or 65 President -
commissioner + Appoints CEC + list 2) Conducting years. Conditions consult CEC.
other EC's as Other EC + elections for of service - Grounds -
decided by Regional Parliament + Determined by Proved
President (Having commissioners State leg + Prez the President. Misbehaviour
other EC is not (term is mentioned +vice President. or Incapacity
compulsary in constitution.

Special officer for Linguistic minorities

 Constitutional article – Article 350 B (Inserted into constitution by the 7th constitutional
amendment act.)
 ‘Recommended’ by – Fazl Ali commission
 Appointment – by President
 Function – To enquire into any kind of atrocity to the Linguistic Minority (Quasi-Judicial body)
 Headquarters – Delhi (Previously Allahabad) , 3 ‘Regional offices’ – Kolkata (West Bengal),
Chennai (Tamil Nadu) and Belgaum (Karnataka).
 NON CONSTITUTIONAL BODIES

LOKPAL AND LOKAYUKTAS -

 Definition of Lokpal – Loka (People) + Pala (Protector) - Protector of people from

atrocities/injustice by the government.
 Meaning of corruption – ‘Misuse’ or ‘abuse’ of power – Thus, Lokpal protects people from
misuse or abuse of power.
 Basis – Office of ‘Ombudsman’ (‘Origin’ in Scandinavian countries – to protect against
corruption).
 Ombudsman – An official (Independent body) appointed to investigate complaints (can be
found in bodies like RBI, IRDAI etc.)

Service Giver Service Taker Complaint against Service

giver

Approach'Ombudsman
Lokpal is similar to
'Ombudsman'

Complaint 'against'
Administration Citizens
Administration

 Lokpal is like an ‘ombudsman’ (Centre – Lokpal States – Known as Lokayukta).

 Term ‘coined’ by – L.M Singhvi.
 Provision in India – The ‘Lokpal and Lokayukta act, 2013’ – Came into effect on 16th January
2014.
 Objective – Act provides ‘Lokpal’ for ‘union’ and ‘Lokayukta’ for ’states’ to enquire into
allegation of corruption against public functionaries.

Composition of Lokpal -
 Chairperson + 8 members Minimum/Maximum age prescribed

Minimum - 45 Maximum - 70

Tenure - 5 Years
50% - Judicial members 50% - Non Judicial members

Reservation of Seats - 50% 'Ineligible' for

of Members shall be from further
SC/BC/ST/Women/Minorities Qualification - 25 years 'reappointment'
Qualification - Is or experience in matters
should have been' dealing with anti
'Judge of Supreme corruption, vigilance,
court' or 'CJI - HC' finance.

Appointment of Chairperson and Members -

By 'President' by warrant under his hand and seal

Composition of
recommendation is 'binding'
Selection Committee -
1) Speaker - Lok Sabha
Selection committee - Headed by the 'PM'
2) Leader of Opp - LS
3) CJI or SC Judge
recommendation is 'non- binding'
(nominated by CJI).
4) Eminent Jurist
Search committee - assist selection committee
(Identify candidates).

 Jurisdiction –
♦ PM + Ministers + MP’s + Officer (Group A/B/C/D) + Officials of central Government + NGO’s
(who receive donations from foreign source in excess of 10 lakh).
♦ All authorities - Constitutional/Statutory/ extra-legal/ all authorities funded by Government (but
not aided by the Government).
 Immunities for the Prime Minister – Jurisdiction of Lokpal ‘does not’ extend to Prime Minister
w.r.t 5 fields – 1) Atomic Energy 2) Security 3) International Relations 4) Space 5) Public order.
 Powers – Superintendence over CBI + Power to give directions to CBI + Powers of civil court +
Power of confiscation of material obtained via corruption + Recommend transfer/ suspension of
a public servant etc.
 Fact – Lokpal doesn’t have any suo motu powers (Important for prelims perspective).

National Human Rights commission (NHRC)

National Human Rights commission - (Protection of Human Rights 1993)

National Human Rights

commission

Basis Term and Tenure - 7O year/ 3

Composition
Status years. Eligible for Reappointment

Chairperson Member Ex officio Members

Paris Statutory + s
principles Quasi Judicial + Total 7 - National
Advisory body 1 - Judge SC + commission on -
CJI or Judge 1 - CJI - HC + 3 Minorities + SC + ST + BC +
of Supreme - persons Women + Protection of
court. having child Rights + Chief
knowledge of commissioner on PwD (
Human rights Person with disability)

Appointment of NHRC and members -

NHRC - Chairman and its members

By President - committee recommends

Composition of the committee

1) PM - Head
2)Speaker of LS
3)Deputy Chairman - RS
4&5) Leader of Opposition
-both LS + RS.
6)Union Home Minister

Some facts related to NHRC -

 Does NHRC have ‘Suo motu’ powers? – Yes

 Report – Central Government (Not President)
 Violations by armed force – Can only seek report from Government of India
  Matters cannot be taken by NHRC – Service matters + Sub Judice + Anonymous + Frivolous +
Over 1 year.
 Secretary General was provided by ‘2019’ amendment – responsible for administrative +
Financial powers.

State Human Rights commission (SHRC)

 Scope – Violation of human Right w.r.t subject in state + Concurrent list + UT’s (If central
Government confers it.
 Exception – Union Territory of Delhi (comes under National Human Rights commission).
 Composition – Chairperson + 2 person
 Chairperson – CJI – HC or Judge of HC
 Members – Judge of HC (Serving or retired) or District Judge (7 years' work experience +
knowledge or experience related to Human Rights).
 Appointment – Governor but Removal – by ‘President’.
 Governor appoints based on a committee recommendation.
 Composition of the committee – Chief Minister (Head) + ‘Speaker’ of Legislative Assembly +
State ‘Home Minister’ + ‘Leader of Opposition’ (Legislative Assembly).
 If a state has a legislative council – Above 4 members + Chairman of Legislative council + Leader
of Opposition in the council.
 Term and Tenure – 70 years/3 year/Reappointment - Yes

Right to Information act, 2005

Basis – Article 19 (1) (a) ---> Freedom of Speech and Expression (A.K. Koolwal vs UoI case)
Right to Information act,
2005

Basis Purpose

Article 19 (1) (a)Freedom of Speech and Expression Provide Information

About Objective
How
Right to Know (Part of Article 19)
Bring
Public Through
transparency
Functionaries CIC/SIC
and
accountability

 Purpose – RTI aims to give information about ‘public functionaries’ to the citizens.
  Objective – To 1) Increase ‘transparency’ and ‘accountability’ by giving information related to
Public Authority. (Certain exception – defense, weapon, RAW, Intelligence etc.)
 Public Authority ‘definition’ – Constitutional + Statutory + owned/financed/administered by the
Government. (CIC is the authority to clarify whether an authority comes under public authority
or not).
 Provisions under RTI Act, 2005 – provides 1) Allowing access to Information 2) Specifies what
information is exempted 3) Procedure of getting the information.
 Suo motto disclosure - ‘Voluntary disclosure’ of information is provided under RTI
 Section 8 of RTI – Information which cannot be disclosed – Sensitive Information – 1) Threaten
the life of a person 2) Security breach in the country 3) Economic secrets 4) IPR – which can
violate an individual privacy.
 RTI Application –
 Filed by a citizen ---> Components (Information wanted, Address for communication)
 Public Information officer (PIO) needs to give information.
 Don’t need to mention the Purpose for asking Information
 Can be filed in ‘any’ of the official languages

Below diagram gives you a brief idea about the process of RTI (Since we will discuss CIC/SIC next)
RTI Application - Filed by citizen Public Information Officer (PIO)

Components of RTI
Gives Info Doesn't give Info
Information needed Address for
communication Citizen unsatisfied with the reason given

Citizen does 'not' need

to mention the reason Appellate Authority (still unsatisfied)
for seeking
Information
CIC (chief information commissioner)/SIC
(State info commissioner)

Central Information commission

 Components – CIC (Chief Information commissioner) + 10 Information commissioner

 Appointed – By ‘President’ on ‘recommendation’ of a committee
 Composition of the committee – PM (Chairperson) + Union Cabinet Minister (Nominated by PM)
+ Leader of opposition in Lok Sabha
 Qualification – Person of eminence and knowledge + Cannot be appointed if - MP/MLA/Office
of Profit
 Terms and conditions of service – Term - As prescribed by central government/ 65 years/ ‘not’
eligible for reappointment
 Removal – ‘President’ (In case of removal due to misbehavior or incapacity) matter need
supreme court inquiry.
 Salary, allowances and service of conditions – Determined by ‘Central Government.’
 Function – Deals with any complaint by person who is unable to give information (or certain
issues related to it)
 Suo motu power – Yes
 Powers of a civil court – Yes
 Annual report – Central Government

State Information commission

 Components – SIC (State Information commissioner) + 10 Information commissioner

 Appointed – By ‘Governor’ on recommendation of a committee
 Composition of the committee – CM (Chairperson) + State Cabinet Minister (Nominated by PM)
+ Leader of opposition in Legislative assembly.
 Qualification – Person of eminence and knowledge + Cannot be appointed if - MP/MLA/Office
of Profit
 Terms and conditions of service – Term - As prescribed by central government/ 65 years/ not
eligible for reappointment
 Removal – Governor (In case of removal due to misbehavior or incapacity) matter need
supreme court inquiry.
 Salary, allowances and service of conditions – Determined by Central Government
 Function – Deals with any complaint by person who is unable to give information (or certain
issues related to it)
 Suo motu power – Yes
 Powers of a civil court - Yes
 Annual report – State Government

Central Vigilance commission

 Basis - ‘S.K Santhanam’ committee recommendations

 Evolution – Initially ‘Extra-legal’ body later became a ‘statutory body’ (2003).
 Objective - Investigate into allegation of corruption against ‘certain’ officers (not all – scope of
CVC is much narrow compared to Lokpal).
 Composition – 1(Central vigilance officer) + 2 (Vigilance commissioner)
 Appointment – ‘President’ by warrant under his hand seal (on basis of recommendations of a
selection committee)
 Composition - Selection committee – 1) Prime Minister + 2) Leader of Opposition + 3) Union
Home Minister
 Term and Tenure – ‘4 year’ or ‘65 years’
 Reappointment – No
  CVC position = chairman of UPSC
 VC position = member of UPSC
 Removal – By President (when removed on basis of misbehavior or incapacity Supreme court
report is needed)
 Function – Director of ED (Enforcement directorate) is appointed by a committee headed by
Central vigilance commissioner (CVC)
 Advisory body (recommends central Government – course of action – In case of non-approval
Government shall communicate CVC in writing.
 Annual Report – To the President ----> Parliament

National commission for Women

National commission for women

CEDAW - Convention on Composition

Status Appointment & Report
eliminations of all forms of
discrimination against women
1+5+1
Statutory. GoI
Chair -Women
Quasi Judicial
Not an all women
Advisory body.
body.
1 SC/ST - Member

 Suo motu Power – Yes

 Function – Fund litigation, visit jail, remand home etc.

National commission for Minorities

 National commission on Minorites

Which Minorities? Status Appointment Membership

1+1+5-
Religious Minorites Statutory, By GoI Chairman + Vice
Quasi chairman +
Judicial Members.Not an
and all minority body.
advisory

National commission on protection of Child Rights

National commission on Protection of Child Rights (NCPCR)

International provision Appointment Membership

Recently, status
was given to
NCPCR as an ex
officio member
It is under UNCRC - By GoI 1+1+6
in NHRC
United Nation
convention on Rights
of child.

National Green Tribunal

 Status – Statutory/ Quasi-Judicial body (NGT Act, 2010)

 Year of establishment – 2010
 Mandate – Environment protection, conservation of forests, Other Natural resources +
enforcement of legal rights (related to above points) + Relief and composition
 Composition - Equal number of Judicial + Non-Judicial members
 Chairperson – Either a Judge of Supreme court or Chief Justice of High court
 Appointed by Central Government (in consultation of CJI)
 Members – Appointed by Government of India (based on recommendation of selection
committee appointed by the Ministry of Environment and forests)
 Different retirement age - Chairperson – 70 Judicial – 67 Non Judicial - 65 or 5 years
 HQ – Delhi Branches – Bhopal, Pune, Kolkata and Chennai.
 Disposal of cases – Mandated to dispose cases within 6 months.
 Appeal against NGT Judgment – Supreme court
 Non compliance with order of NGT – Fine(upto 10 crore) or 3 years jail.
 Governed – by principle of ‘Natural Justice’ (not bound by code of civil procedure or Indian
evidence act).