CONSTITUTION LAW II NOTES

I. PRESIDENT AND GOVERNOR

1. President
a. Part V of the constitution deals with the union and executive
b. Article 52
i. There shall be a president of India (not must)
ii. Not must – something could happen; die, resignation

ARTICLE 153
a. There shall be a governor

c. Article 53
i. Clause 1: executive power is vested in the president
1. This term – executive power is nowhere defined in the
constitution
a. that authority that carries out executive function (those
that are neither judicial or legislative

RAM JAWAYA KAPOOK V. STATE OF PUNJAB

- The Government invited textbooks from authors for approval.
- When textbooks were approved, the authors were made to enter an agreement.
According to this agreement, the copyright of these books vested solely in the
Government.
- The authors only got  5% royalty on the sale of the textbooks. The Government took
all the publishing, printing and selling rights of the books in their own hands.

- These provisions were ultra vires to the constitutional power – the government being
an executory body did not possess the power to enter into that activity or trade
without specific legislations
- Held that the executive power is whatever is left after the legislature and judicial
power (agar power legislative nahi, judicial nahi – then who executive hai)
- No restriction on the executive powers is defined in the Indian Constitution. The
Court held that the executive cannot be restricted to mere implementations of
legislations. There is a strict separation of powers but no strict separation of functions.

b. this executive power of the president is exercisable

through the officers subordinate to him – through an
express injunction this power is to be exercised in
accordance to the provisions given in the constitution
 ii. Clause 2:
1. The military power given to the president is subject to the
general executive power vested in him through clause 1
2. Thus, subordinated to civil power
3. Secondly, the exercise of this supreme command can be
exercised or limited by way of law or legislature
4. Therefore while clause 1 says accordance to provisions in
constitution, clause 2 subjects it to laws made by parliament
iii. Clause 3:
1. The executive power of the union is vested in the president
2. Any existing laws of state or other govts will be conferred on
president but sub clause b says that though executive power is
vested in the president, it will not prevent the parliament from
conferring functions on authorities other than the president
other than those that are conferred only in the president

ARTICLE 154
1. Executive power of state vests in governor

OTHER POWERS OF THE PRESIDENT

A. PARDONING POWER
a. ARTICLE 72
i. Provides for the power of pardon of the president
ii. He can grant pardons respites reprieves and remissions of punishments
or remit suspend or commute the sentence given to a person by the
court when:
1. Sentence is granted through a court martial (president the
authority to grant pardon, reprieve, respite, suspension,
remission, or commutation of punishment or sentence imposed
by a court-martial (military court))
2. When the sentence or punishment is given for offense of
violation of any law relating to matters that fall in the ambit of
Union’s executive powers
3. When death sentence is passed by court (President has the
authority to pardon, reprieve, respite, remit, suspend, or
commute a death sentence. He is the sole authority to pardon a
death sentence.)
iii. Nothing in sub clause a (Court martial) affects armed forces power to
suspend or remit any death sentence
iv. Nothing in c affects any government power to pass death sentence
under any prevailing law
b. This article grants power to pardon, reprieves
c. Herein, the word mercy petition (like in USA) hasn’t been used
 d. Scope of power is wider than the governor
e. Constitutional power and not whim of executive
f. May be absolute or conditional
g. Can be exercised at any time after commission of offence – conviction after,
before, during trial
h. Other than pardon, the president can:
i. Reprieves (temporary suspension of any punishment by law)
ii. Respite (postponement to the future the execution of a sentence)
iii. Commutation (changing of punishment from what it actually was)
iv. Remission (reduce without changing character)

i. These powers only to reduce and not to enhance any sentence

j. There is no obligation on them to hear these mercy petitions
k. While disposing off of a petition – is he bound to follow the principles of
natural justice or not – no

DISPOSING MERCY PETITIONS:

KEHAR SINGH v DELHI ADMINISTRATION 1989
- He was given the death sentence
- Approaches under A72
- Disposed of the petition
- Petition in SC shifted
o He was not heard by the president – violation of principles of natural justice
o No reason was given
- Held that
o President is not compelled to hear you and not bound to give you any reason
o It is a mere executive act of grace – the petitioner has no right to ask for an
oral hearing
o the supreme court cannot ask the advice given by COM (Maru Ram v UOI
1981 – WILL ACT ON ADVICE ONLY)
 it was also held in this case that while the powers of president in A72
and A161 and S432, 433A may be similar, they aren’t same
 differ in source substance and strength
 72 and 161 cannot suffer due to legislative process
 72 and 161 is absolute power and cannot be fettered by statutory
provisions
o You can challenge the decision but cannot question advice
 Article 137 says that the jurisdiction of supreme court to review death
sentence after having already rejected special leave petitions doesn’t
overlap with power of president
 If an application for clemency has been made by a prisoner and is
under presidential review – ntohign can be done by sc
  In Maru ram, the SC also expressly stated that this power of president
cannot run riot and must keep sensibly to a steady course and that
public power will not be exercise with malafide intention or otherwise
- Same was agreed in this case that this power of president falls within judicial domain
and the judiciary cannot look into it

EPURU SUDHAKAR v GOVERNMENT OF AP 2006

- where a Congress activist faced ten years in prison in connection with the killing of
two persons including a TDP activist.
- the wife had made a representation before the Governor for granting pardon to her
husband who was implicated in a false case.
- The Governor had granted remission of the unexpired sentence which made the sons
of the deceased convict file a writ petition before the Apex Court on the ground that
the remissions were based on irrelevant grounds without taking a note of relevant
materials present for consideration.
- The grounds that were decided by the Court to serve the basis of a challenge have
been presented hereunder:
o The order has been delivered without application of mind and
reasonable consciousness;
o The order is mala fide by nature;
o The order has been passed on irrelevant grounds;
o While passing the order, the relevant materials were kept out of
consideration;
o The order is arbitrary in nature.
o Also order based on mistake or fraud

SARAT CHANDRA RABHA v KHAGENDRA NATH 1961

- A person was convicted under IPC for 5 years
- Under the representative of peoples act 1951, which contains the rules
and regulations for elections , any person who is convicted for more
than 2 years cannot contest election for the duration of their
punishment + 6 years
- Person received pardon
- The question was whether the appellant was qualified to be a candidate
- Sc answered in negative:
o Effect of remission is to wipe out the remaining part of the
sentence which has not been served nad thus in practice, the
sentence is reduced to that already undergone
o Supreme court says that it is only a punishment and not an
offence
- In this case, the sentence of three years is not affected and the appellant
remains disqualified although he may not have to undergo the full
sentence
KM NANAVATI CASE 1961
- Governor pardoned a death sentence – constitutionally invalid

GOVERNOR PARDON
l. ARTICLE 161
i. Power of governor to pardon
1. Corresponding to article 72
2. Reconciled by limiting the power of governor to grant pardons
to cases not covered by article 72
3. Pardon reprieve and respite when the punishment is not death.
a. Even if a state law calls for the death penalty, the
President, not the governor, has the authority to grant a
pardon. However, the governor has the authority to
suspend, remit, or commute a death sentence, only for
those life sentences
ii. Power of governor is not free from judicial review
1. If it is found that he acted on his own without ebing advised by
the government or if he transgressed the jurisdiction

m. These powers are not judicial in function but executive

B. All conduct of business of the government will be done in the name of the
president
a. ARTICLE 77
i. By any order or instrument it will be done in name of president
ii. Same provision for governor in Article 186

C. FINAL ASSENT TO BILL

a. ARTICLE 111
i. After a bill has been passed by parliament, it is to be sent to the
president for his assent
ii. In case of ordinary bill
1. Withhold – pocket veto
2. Return for reconsideration
3. Assent – becomes act
iii. He either assents to the bill or that he withholds assent
iv. If not a money bill, he can resend the bill to the houses for
reconsideration
1. Can recommend changes in certain provisions in his message to
parliament
 v. When the bill is resent with amendments to president, he cannot
withhold assent

VETO

The bill is kept pending by the President for an indefinite period when he exercises his pocket
veto.

- He neither rejects the bill nor returns the bill for reconsideration.
- Constitution does not give any time-limit to President within which he has to
act upon the bill. Therefore, the President uses his pocket veto where he
doesn’t have to act upon the bill.
- Unlike the American President who has to resend the bill within 10 days, the
Indian President has no such time-rule.

GYANI ZAIL SINGH – POST OFFICE CASE

- Hardly any instances of president having sent back any bill for reconsideration
- 2006 president abdul kalam sent the amended parliament prevention of
disqualification act 1959 for reconsideration
- He assented when it was presented to him again without reccomendations
- Similarly, in 1986 president zail singh took a course not clearly covered under
this article when instead of giving or withholding assent or returning to
parliament, he sent to the cabinet for its reconsideration

D. ORDINANCE MAKING POWER

a. ARTICLE 123
i. Aim is to provide legislation in a period when the parliament isnot in
session
ii. Can be done when:
1. When both houses aren’t in session
a. Either promulgated or dissolution
2. If one is in sitting but other isn’t , still can issue
iii. Must be satisfied that necessary circumstances for him to issue
ordinance exist
iv. Every ordinance must be laid before both houses
v. Ceases to operate six weeks from reassembly of parliament
1. Or if before those six weeks, a resolution disappporving the
ordinance is passed by both houses
vi. Where the houses have to assembly on different dates, the six weeks
are taken from the later of those dates
vii. If it is allowed to lapse without being placed in front of the parliament,
it cannot be treated as void ab initio, the acts under it will remain fully
valid and effective
 1. But an office abolished by ordinance does not revive after
ordinance ceases to exist without being placed before the
parliaemtn
viii. Subject to the same limitations as a law made by parliament
ix. Maximum life of an ordinance is six months and six weeks
In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the
constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969
which sought to nationalise 14 of India’s largest commercial banks, held that the President’s
decision could be challenged on the grounds that ‘immediate action’ was not required; and
the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.
38th Amendment Act inserted a new clause (4) in Article 123 stating that the President’s
satisfaction while promulgating an Ordinance was final and could not be questioned in any
court on any ground. however, the 44th Amendment to Indian Constitution reversed it and
made the President’s satisfaction to bring ordinance justiciable.
1. Ordinances can be introduced only on those subjects on which the Indian Parliament
can make laws.
2. Ordinances can not take away any rights of citizens that are guaranteed by
the Fundamental Rights of the Indian Constitution.
3. Ordinance ceases to exist if parliament takes no action within six weeks from its
reassembly
4. Ordinance also stands void if both the houses pass a resolution disapproving the
ordinance

DIFF BETWEEN GOVERNOR AND PRESIDENT ORDINANCE

- PRES
o If one or both not in session
o Only on those matters that parliament can make law
o Same effect as policies would have
o Can be withdrawn at any time
o His power to promulgate ordinance is not a discretionary power.
Council of Ministers’ (headed by PM) advice is a pre-requisite
o No instructions are needed by President’s when he promulgates an
ordinance
- GOVERNOR (ARTICLE 213)
o He can promulgate ordinance when the Legislative Assembly is not in
session in case of the unicameral legislature or when both Legislative
assembly and council are not in session in case of a bicameral
legislature
o Only those where state legislature can make laws
o Same effects as states policies
  If his ordinance legislates on matters which state government
has no power on, the ordinance stands null and void
o The ordinance introduced by him can be withdrawn anytime
o His power to promulgate ordinance is not a discretionary power.
Council of Ministers’ (headed by CM) advice is a pre-requisite
o President’s instructions on the following three cases are must:
 If a bill containing the same provisions would have required the
previous sanction of the President for its introduction into the
state legislature
 If he would have deemed it necessary to reserve a bill
containing the same provisions for the consideration of the
President
 If an act of the state legislature containing the same provisions
would have been invalid without receiving the President’s
assent

E. SESSIONS OF PARLIAMENT – ARTICLE 85

a. Summoning
i. Convocation when meeting is necessary
ii. Session commences when president summons it to meet
iii. Subject to the condition that six months shall not intervene between its
last sitting in one session and the date appointed for its sitting in the
next session

b. Prorogation
i. Ends a session
ii. Act of terminating a parliamentary session
iii. Differs from adjournment as adjournment does not mean end but
suspends instead
iv. Adjournment power lies with house (speaker) but prorogation is with
president alone

c. Dissolution
i. Terminates a house
ii. House is brought to an end, general election must be held to elect a
new house
iii. Council of states is not subject to dissolution
iv. On the advice of PM AND COM

GOVERNOR – ARTICLE 174

- Can summon from time to time but 6 months shall not intervene
- Can also prorogue or dissolve
 F. RIGHT OF PRESIDENT TO ADDRESS BOTH HOUSES – ARTICLE 86
a. Articles cannot be construed to mean that such right is conferred on any
individual – no member of parliament is bound to attend when president
addresses it
GOVERNOR – ARTICLE 175
- Must be given on aid and advice of council of ministers

G. SPECIAL ADDRESS BY PRESIDENT – ARTICLE 87

a. In England, before commencement of every session, the commons are
summoned to the house of lords to hear a speech from the king
b. Makes it thus binding on the president at time of commencement of the first
session of each year to address both houses of parliament assembled together
and inform the parliament the causes of its summons
c. For house of people, speech must also be made after general election
i. Not required to address subsequent session in a year
ii. Nor is he required to address the house if a session started in a previous
year is continued in the new year after an adjournment in between – as
the session is not terminated
GOVERNOR – 176
- Same as 87

The subject matter of 86 and 87 is the same

- 86
o Is provisionary (may)
o Acts on advice of COM but can send any general message to
parliament
- 87
o Compulsory (shall)
o Bound to follow advice
 Since this session is only once in 5 years
 Generally the budget session

H. ALSO:
a. Right to be informed about all national affairs
b. Appointment of judges
c. Appointment of state governors, attorney general, the comptroller and auditor
general, the chief commissioner
d. Administration of union territories and appt of the chief commissioners
e. Introduction of money bills
GOVERNOR
- Article 175: Right of the Governor to address and send messages to the house or
houses of the state legislature
- Article 176: Special address by the Governor
- Article 201: Bills reserved by the Governor for consideration of the President
-

2. CONSTITUTIONAL PERSPECTIVE
a. Article 53, 74,75 deal with cons perspective of president
b. 53 we read
c. 74 says com aid and advice
d. 75 (3) lays down that COM collectively responsible to people
e. No provision saying that pres is responsible to legislature
f. Clearly a parliamentary government
i. President is the constitutional or formal head
ii. Same w governor in states

RAM JAWAYA KAPOOK V. STATE OF PUNJAB

- Though the president is the executive head of the union , he is only the formal or
constitutional head
- Real power in the hands of COM on whoe advice he acts
- Executive has primary responsibility to formulate governmental policy and its
transmission into law, but it is responsible for all its acts to the legislature and
therefore it must retain its confidence (same as article 75 (3))

 UNR Rao v Indira Gandhi, a cumulative reading of 74(1), 75(2), and 75(3) leads us
to the conclusion that aid and advice of cabinet is mandatory for President. So, it is in
fact the cabinet led by PM that enjoys actual control.

 In Samsher Singh v Punjab, it was clarified that satisfaction of President or

Governor is not personal satisfaction, instead it is executive satisfaction, conveyed by
collective satisfaction of cabinet rendered through aid and advice.
 There are circumstances where the Presidnet or Governor may act on their own, such
as while inviting the leader of the largest party to form government. But this is again
based on some constitutional convention.

CONSTITUTIONAL POSITION OF GOVERNOR

- Article 154
- Article 163
- Article 164
ONCE MORE HELD IN RAM JAWAYYA KAPUR
- same as president – nominal head real work done by state cabinet
d. ELECTION OF PRESIDENT
i. ARTICLE 54
1. Shall be elected by members of an electoral collage containing
a. Elected members of both houses of parliament
b. Elected members of legislative assemblies
ii. This type of election is in harmony with the type of cabinet form of
government laid down in the constitution
iii. Does not include UT except for delhi and Pondicherry
iv. While there may be vacancies in the electoral collage due to
dissolution of legislative assembly, but that is not a reason to delay the
election or to suggest that the presidential election could be held only
after the election to a legislation of state assembly had happened

v. ARTICLE 55
1. Manner of voting
2. The vote value of an MLA would be the total population of the
state/total number of elected members in the legislative
assembly * 1/1000
3. Vote value of an MP would be total value of votes of all MLAs
of all states/total number of elected members in parliament

vi. This is done through proportional representation system

vii. 50 + 1 of total votes are casted on ballot paper, where they have to give
their 1, 2, 3 preference (the latter two aren’t compulsory) – if there is
no consensus herein
viii. They have to see the second preference again with 50 +1 with total of
50 MPs backing your name at the time you file your nomination paper

ix. The total electoral quota is total number of votes polled/2 + 1

x. Any dispute related to his election is taken up by SC. SC’s decision is

final.

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

The following group of people is not involved in electing the President of India:
1. Nominated Members of Rajya Sabha (12)
2. Nominated Members of State Legislative Assemblies
3. Members of Legislative Councils (Both elected and nominated) in bicameral
legislatures
 4. Nominated Members of union territories of Delhi and Puducherr

ARTICLE 155 – ELECTION OF GOVERNOR

- The Indian President appoints Governor for each state by warrant under his hand and
seal. Central Government is responsible to nominate the governor for each state
- No direct or indirect election

f. TERM OF PRESIDENT
i. ARTICLE 56
1. The Presidents holds office for 5 years unless resigns earlier by
writing to the VP and communicating that to Speaker of LS.
Upon expiry, the term of office extendable till the new
President takes charge
ii. ARTICLE 57
1. The President is eligible to be re-elected multiple times

ARTICLE 156 – term of governor

- Since the Governor holds the office under the pleasure of the President, his office has
no fixed term. President can remove the Governor and the grounds upon which he
may be removed are not laid down in the constitution
- Governor may also get transferred from one state to another by the President. He also
can be reappointed
- An interregnum is not allowed; following which a Governor may sit in the office
beyond 5 years (expiry of the term) till the new governor assumes the charge of the
office
- At President’s discretion, the Chief Justice of the High Court of the concerned state
can also be appointed as the Governor on a temporary basis when and how the
President thinks fit. (Example – On the governor’s death, Chief Justice of HC can be
appointed as the governor.)

g. QUALIFICATION FOR PRESIDENT

i. ARTICLE 58
1. They should be
a. Indian citizen
b. Minimum of 35 years
c. Qualify the conditions to be elected as a member of the
lok sabha
2. Disqualification:
a. Not hold any office of profit under the central state govt
or public authority
 b. Except for
i. President
ii. VP
iii. Ministers of state or union

ARTICLE 157 – QUALIFICATION FOR GOVERNOR

- Indian citizen
- 35+
- That person is not appointed as the governor who belongs to the state. He shall be an
outsider having no relation with the state he is being appointed to
- Consultation of the Chief Minister is taken by the President before appointing a
governor
- It should also be noted that both the above conventions are not absolute and have been
ignored by the union government in many instances

h. CONDITIONS OF PRESIDENTS OFFICE

i. ARTICLE 59
1. He cannot be a member of Lok Sabha and Rajya Sabha. If he
has been a member of either of the house, he should vacate the
seat on his first day as President in the office
2. He should not hold any office of profit
3. For his residence, Rashtrapati Bhavan is provided to him
without the payment of rent
4. Parliament decides his emoluments, allowances and privileges
5. Parliament cannot diminish his emoluments and allowances
during his term of office
6. He is given immunity from any criminal proceedings, even in
respect of his personal acts
7. Arrest or imprisonment of the President cannot take place. Only
civil proceedings can be initiated for his personal acts that too
after giving two months’ of prior notice.
ii. Oath – article 60

ARTICLE 158 – CONDITIONS OF GOVERNORS OFFICE + ARTICLE 159 OATH

- He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of

either of the house, he should vacate the seat on his first day as Governor in the office.
- He should not hold any office of profit.
- For his residence, Raj Bhavan is provided to him without the payment of rent.
- Parliament decides his emoluments, allowances, and privileges.
- When a governor is responsible for two or more states, the emoluments and
allowances payable to him are shared by the states in such proportion as the President
may determine.
- Parliament cannot diminish his emoluments and allowances during his term of office.
- He is given immunity from any criminal proceedings, even in respect of his personal
acts
- Arrest or imprisonment of the Governor cannot take place. Only civil proceedings can
be initiated for his personal acts that too after giving two months’ of prior notice.

i. IMPEACHMENT OF PRESIDENT
i. ARTICLE 61
1. Impeachment of president for violation of constitution on basis
of charges preferred by either house of parliament
2. Either house can start the court proceeding on any ground
a. ¼ of the total members of the house must sign the
proposal and 2/3rd majority must pass the proposal
3. It must be presented to the full house and a 14 day advance
notice must be submitted to the speaker
a. The other house shall investigate the charges
b. When the House investigating the charges passes the
resolution by a two-thirds majority and declares the
charges as sustaining, it results in removing the
President from his office from the date of passing of the
resolution.
c. This investigation can be done with the help of any
agency RAW CBI types
4. The President has been granted the right to be present or to be
represented in such investigations
a. No one should be condemned unheard
ii. This process is made to be such to ensure safeguards of the highest
authority and avoid misuse of provision
1. It is more difficult to impeach the president than it is to amend
the constitution
iii. As a result, all post retirement benefits are taken away from the person
1. Incase of impeachment (or other vacancy) – the vice president
becomes the president
iv. Does the president have to resign if impeachment proceedings started
1. The president can resign at any point of time
2. It is nowhere mentioned that otherwise
3. If he does:
a. Impeachment process stops
b. Enjoys benefit of retirement
4. Same procedure with HC AND SC judges
v. In this process the parliament is performing judicial function
 g. VACANCY
i. ARTICLE 62
1. When the President of India completes his term of five years in
the office
2. If the President resigns by putting forward his resignation to
the Vice-President of India
3. If Lok Sabha/Rajya Sabha initiates an impeachment charge and
they stand valid, he is removed
4. If he dies in the office
5. If supreme court declares his election invalid

Vice-President discharges the duties as President; if the latter’s office falls vacant in the
circumstances mentioned above, except by the expiry of the term. As per the President’s Act
1969; if the Vice-President office is vacant too, Chief Justice of India (CJI – hidayatullah
bana tha firdt time) (or in his absence); Supreme Court’s senior-most judge, discharge the
functions of the President (till new President is elected.)

N B KHARE v ELECTION COMMISSION 1957

- Election of president under Article 62 was under question
o Election to fill vacancy caused by expiration of term of office of president
must be completed before expiration of the term
o The article mandates that the election of the President must be held before the
term of the former President expires
- In this case the then President of India, Dr. Rajendra Prasad was about to expire, and
new election dates were fixed
o Soon after, a petition was brought under Article 71 (1) by Dr. Narayan
Bhasker Khare contended that general elections that were to take place in parts
of Punjab and Himachal Pradesh have stayed and therefore the prospective
candidates who might have been elected were to be deprived of their right to
vote in the Presidential election, was moved to the Apex Court.
o Rejecting the said petition on technical grounds, the top court held that any
application under Article 71(1) of the Indian Constitution could be entertained
by the Court only after the election had taken place. 
After this, the constitution 11th amendment act 1961 was passed amending article 71 to add
another clause (4)
- All doubts and disputes arising out of or in connection with the election of the pres
and vp will be decided by supreme court
- if the election of a person as President or Vice President is declared void by the
Supreme court, acts done by him in the exercise and performance of the powers and
duties of the office of President or Vice President, as the case may be, on or before the
 date of the decision of the Supreme Court shall not be invalidated by reason of that
declaration.
- The election of a person as President or Vice President shall not be called in question
on the ground of the existence of any vacancy for whatever reason among the
members of the electoral college electing him. 

RE : PRESEDENTIAL ELECTION (1974)

 to fill the vacancy that had resulted due to expiry of the term of President’s office, the
election must be completed before the expiration of such term or not, taking into
account that the Legislative Assembly of the state of Gujarat was dissolved in the
present case.
 While delivering the judgment in the present case, Chief Justice Das had taken
reference from the previous case of N.B. Khare v. Election Commission held that
after the amendment of Article 71 of the Constitution, the election was not to be
questioned because of vacancies that were created as a result of the dissolution of the
Assembly or Assemblies. 

II. ARTICLE 74/163 – idk where else to put this

- Express provision that article 53 toh theeke, but com and PM have to give him aid and
advice in exercise of his function

1. Originally, article 74 (1950), before 1976 42nd amendment

a. There shall be a council of ministers w the PM at the head to AID and
ADVICE the president in the exercise of his function
2. After the amendment
a. Article 74 is the same
b. PROVIDED that the president can ask to reconsider the advice but it is
interpreted to be mandatory
3. Article 74 (2)
a. Advice by the council of ministers to president cannot be inquired even by the
court
4. Supported by:
a. ARTICLE 75 (3)
i. Com collectively responsible to government – nowhere says president
b. ARTICLE 78 (a)
i. PM has to communicate all legislative decisions to president – lays
down decisions and not just advice

In a similar way, the council of ministers with the Chief Minister at the head to aid and
advice the governor in the exercise of his functions
1. Article 163
 a. Except in so far as he is by or under the Constitution is required to exercise his
discretion.
b. The Governor is expressly given a discretionary power, the extent of which
will be discussed subsequently.
c. However, to what extent can the President and the Governor act independently
of the Council of Ministers is another important issue to be dealt with
subsequently

III. VICE PRESIDENT

1. Article 63
a. There shall be a president of india

2. Article 64
a. Ex officio chairman of rajya sabha – article 89

3. Article 65
a. The Vice-President to act as President or to discharge his functions during
casual vacancies in the office, or during the absence, of President

4. Article 66
a. Election of vice president
i. in electoral college for Vice President, both elected and nominated
members of both the Houses of Parliament take part. In presidential
elections, nominated members are not a part of the electoral college.
ii. for Vice President’s elections, states have no role to play unlike in
President’s elections where state legislative assemblies’ elected
members are a part of the electoral college.

5. Article 67
a. Term of vice president
i. Completes term of five years
ii. Resignation
iii. Removal
iv. Death
v. Election declared void

6. Article 68
a. An election to fill a vacancy created because of the completion of the term of
office of Vice-President shall be completed before the expiry of the term.
b. The election to fill a vacancy created because of the death, resignation or
removal of Vice-President shall be held as soon as possible.

7. Article 69
a. OATH

IMPEACHMENT
So, unlike President of India who can be impeached formally; there is no formal
impeachment for Vice President. Rajya Sabha simply can pass a resolution with a majority
and Lok Sabha can pass it. Also, unlike President of India who can be impeached on the
ground of ‘Violation of Constitution,’ there is no ground mentioned in the constitution for the
removal of Vice President of India

IV. PRIME MINISTER

1. Article 75
a. Appointed PM and other COM on advice of PM – president
b. Shall not exceed 15% of total number of members of house of people
c. Anyone disqualified to be member of that house under paragraph 2 of that
schedule will also be disqualified herein
d. Minister will hold office as per pleasure of president
e. COM collectively responsible to the house of people
f. Oaths as per 3rd schedule
g. Whenever 6 months of not being a part of either house – can not be
minister at expiration of that period
h. Salaries as per parliament in second schedule

- The only time the president can use his own discretion in appointing when
there is not a clear majority and he needs to form coalition
o President reddy and Charan singh after fall of Morarji desai
o Vp singh, Chandra Shekhar
Removal
- No person appt without PM
- No person can be dismissed till PM says
- Applies only to dismissal of ministers, not council of ministers
- If a ministry has lost confidence, they resign, or ask for and are granted a
dissolution

FOR GOVERNOR – Article 164

- Corresponding to important appointments
- The chief minister is directly selected and appointed by the governor

STATE OF KARNATAKA V UOI

V. ATTORNEY GENERAL OF INDIA

- ARTICLE 76
o President appoints
 o he/she is the highest law officer of India. As a chief legal advisor to the
government of India, he advises the union government on all legal
matters.
o He also is the primary lawyer representing Union Government in the
Supreme Court of India. The Attorney General, like an Advocate
General of a State, is not supposed to be a political appointee, in spirit,
but this is not the case in practice.
o Renumeration as per president
- Functions:
o Legal advice to govt of india
o Other duties of legal character as assigned by president
o Discharge functions conferred on him by law
- Qualifications
o Indian citizen
o 5 years in high court of any Indian state as a judge or 10 years as ana
dvocate
o Eminent jurist
- Term:
o Can be removed at any time
o Can resign
o Removed when council is dissolved or replaced

GOVERNOR – ADVOCATE GENERAL UNDER A165

VI. UNION LEGISLATURE

1. Article 79
a. Constitution of parliament
b. Two houses

2. ARTICLE 80 – composition of RAJYA SABHA

a. 12 members nominated by president - the members to be nominated by the
President shall consist of persons having special knowledge or practical
experience in respect of such matters as the following, namely:- Literature,
science, art and social service.
b. Not more than 238 representatives of states and UTs
i. Done in accordance with the provisions in 4th schedule
ii. shall be elected by the elected members of the Legislative Assembly of
the State in accordance with the system of proportional representation
by means of the single transferable vote.
iii. shall be chosen in such manner as Parliament may by law prescribe

KULDIP NAYAR V UOI

 - NOT compulsory that rep of state must belong to that state only

3. ARTICLE 81 – COMPOSITION OF LOK SABHA

a. Controlled by Article 331
b. Not more than 530 members chosen from direct elections from state
i. Members are directly elected by the people from the territorial
constituencies in the states
ii. Election Principle used – Universal Adult Franchise
iii. Eligibility to Vote: Any Indian Citizen of/above 18 years of age
c. not more than 20 members chosen from UT in a manner provided by
parliament
d. 2 anglo Indian nominated by president
Constitution 31st amendment act 1973
- Added proviso to the effect that sub clause a of clause 2 will not be applicable
to any state with population of 6 million

A. ARTICLE 82
a. Upon the census the allocation of seats in the house of the people and division
of each states into constituencies will be readjusted
b. In manner laid down by parliament
c. While this only shadows that readjustment may be necessary upon
completion, article 372 gives power to parliament to make elaborate
provisions for such readjustment including delimitation of constituencies

B. DURATION OF EACH HOUSE – ARTICLE 83

a. The council of states is a permanent body, 1/3rd of its members retiring every
second year
b. The house of people is endured for 5 years, unless earlier dissolved by
president
i. Cannot be extended unless in emergency
ii. Can be prolonged a year at a time
iii. Whose life has been extended cannot operate for 6 months after
emergency has ended

C. QUALIFICATION – ARTICLE 84
a. Citizen of india
b. Make and subscribe Oath or affirmation
c. not less than 30 years of age in council of states and not less than 20 years in
house of people
d. other qualifications as laid down by parliament
 D. ARTICLE 88
a. This article is an exception to the general rule that no person can take part in
parliamentary proceeding unless they are a member of that house
b. Every member and attorney general has the right to participate in such
proceeding, any joint sitting and in any committee in which he is a member
c. Right given herein is participation and not voting
i. A minister can only vote where he is a member
d. Entitled to privileges enlisted in 105

E. VACATION OF SEATS – Article 101

a. When a person is member of two houses of legislature his seat in one of the
houses is vacated
b. If a member is subject to anything in 102
c. Resignation – termination not automatic, dependent upon the acceptance of
speaker
d. If without permission absent for 60 days – seat may be declared vacant
i. Depends on decision of house

F. DISQUALIFICATION – ARTICLE 102

a. Office of profit
i. Independence of members who do not receive benefits from the
executive
ii. Not amenable to executive influence
iii. Reduce risk of conflict
iv. To prove the same
1. He held the office – fixed position for performance of duties;
tenure, duration, duties, not necessary emoluments
2. That it was an office of profit
3. That it was an office under state or union government
a. Under government;
i. Does government make the appointment
ii. Does he have the rights to remove or dismiss the
holder of office
iii. Pays renumeration
iv. Whether functions are performed for
government
v. Does government exercise control over the
performance of these functions
b. Not necessary for these factors to coexist

Shibu Soren v Dayanand Sahay (2001)

- Reduces risk of self interest and conflict amongst MPs
- 102(1)(a) and 191(a) were introduced to reduce this conflict
JAYA BACHAN v UNION OF INDIA
- the court held that the Chairperson of the Film Development Council of a state
holds an office of profit as some pecuniary gain is receivable by virtue of the
post even though the said pecuniary gain may not actually be received. Here,
the petitioner has sanctioned the rank of Cabinet Minister and received a
monthly honorarium, daily allowances, free accommodation, staff car, medical
treatment etc.
- The petitioner, however, neither received any payment nor did she use any
facilities that she was entitled to as the Chairperson. However, since the post
was capable of yielding profit to the petitioner, she held an office of profit.
Two factors which emerged, in this case, were: a) the form of payment is not
relevant as monetary gain may be merely disguised as an honorarium; b) it is
not relevant whether any remuneration was actually received, it is only enough
if such remuneration was receivable.

b. Unsound mind
c. Undischarged insolvent
d. Not a citizen of india or has voluntarily accepted citizenship of another state
e. Disqualified by any other law made by parliament

SONIA GANDHI CASE

VII. ANTI DEFECTION LAW

1. Added through 152nd amendment in 1985
2. Added article 102 (2), changed 101, 191, 192
3. History:
a. AAYARAM GAYARAM, changed party thrice in one day
4. The new law doesn’t prevent you from changing your party, only prevents from
changing your party during tenure
a. This is a common practice during election for tickets
5. Applicable on
a. MPs and MLAs
b. Including independent candidates
6. Resignation
a. Needs to be sent to chairperson
b. Old law: merely needed to inform
c. New law: seat not vacant till resignation accepted as given in 101
d. Speaker will call and ask for reason to ensure that objective of resignation is
done khudse, locating free consent (this was the first change in the new
amendment)
e. This is done to provide stability to the government
 f. For example, 20 people could leave the party and the government could no
longer hold majority (atal Bihari Vajpayee)
i. Also breaches trust of people
7. If you win as an independent candidate, you cannot join any party – for example the
candidate in Amravati Maharashtra
8. PARTY WHIP
a. It is binding in nature, but the party can condone your conduct (p 2 clause b)
b. Paragraph 2 of schedule 10 provides grounds of disqualification
c. For example, varun Gandhi, sultanpur BJP MP wrote consistent criticism of
the government
d. Article 2 a says that voluntarily giving up position or such conduct like vg is
open for party to interpret
i. Or when you vote or abstain from voting in that house contrary to the
direction issued by the political party – does not get approval within 15
dyas or is without permission
e. Single line, two line, three line (most dangerous whip) – differing
consequences
9. ADL comes into effect only when party takes an action
10. NOMINATED MEMBERS
a. P(2)(3) says that ADL will assume that the party that nominated the member,
she will be a part of it unless she changed within 6 months
b. If not, adl says she is that party
c. Cannot changed after 6 months
11. Paragprah 5 says that the speaker deputy speaker chairman deputy are exempted from
being disqualified
12. Para 6 says that
a. The speaker and chairman have the final say
i. FIRST LIMITATION
ii. The speaker is generally a part of the ruling party
iii. May always be biased
iv. Government at advantageous position
13. Para 7
a. Whatever is taken under 6 cannot be subject to judicial review (basic structure
doctrine) however this cannot be taken away through amendment, some
mechanism needs to be taken as Indira Gandhi v raj narain said that u
cannot take away power of judicial review – SECOND LIMITATION

KINOHOT HOLLOHAN v ZACHILLU 1992

- MLA was disqualified
- He said that schedule 10 para 7 is unconstitutional as it violates ag v rn
o Should be subject to judicial review
o speaker is the presiding officer and the best judge of house
- held by the sc that yes the speaker can do so although he is a part of the
legislature
o comes under his quasi judicial functions
 - it is not okay that it cannot be reviewed

- thus para 7 was struck down as being unconstitutional

o it is still there as only the legislature can make that change comes
within the domain of the parliament
o SC cannot remove any provision and it does not make any difference
due to article 14 – SC laws binding on every other court
o A14(2) supreme court can pass any order or guideline

14. THIRD LIMITATION

a. There is no prescribed time limit like a period of years for the speaker to
review his decision
b. He can prolong his decision or delay it
c. For example,
i. 5 people from the ruling party decide to move from opposition to
ruling aprty
ii. There is no provision stating that the decision has to be taken at the
earliest instance possible
d. It is suggested that some neutral party should be taking that decision instead

2016 MANIPUR ASSEMBLY

- SC asked the speaker to take decision within 2-3 months
- They said what is the purpose of ADL if it is being defeated by the inaction of
the speark or niordiante delay in disposing of the petition

15. FOURTH
a. Restricts or curtails the freedom of speech (19,1, a)
b. Also covered by 105 in parliamentary privilege
c. Due to the party whip, members cannot participate without fear
i. It is mostly issues that they need to present and voting in favour
ii. Supressing democracy under the garb ofprotecting it
d. Suggested that it should only be used in a no confidence motion or money bill

CPT AMRINDER SINGHS WIFE CASE

- He was bjp, she was congress
- Congress expelled her
- Here, does she remain a mop?

VIII. STATE LEGISLATURE

1. Article 168
a. Constitution of state legislature
b. Legislative council and legislative assembly

2. Article 169
a. Abolition or creation of legislative council in states
b. States can have a second chamber and also abolish the same
c. States can have no second chamber at all
d. Shall be done by
i. Majority of total membership and
ii. Majority of not less than 2/3rd members present and voting

3. ARTICLE 170 & 171

a. Composition of legislative assembly and council
i. Subject to a333
ii. Not more than 500 not less than 60
iii. Members chosen from direct election from territorial constituencies
b. Council
i. a state shall not have more than one-third of the total strength of the
State Assembly, and not less than 40 members.

4. TENURE – A172
a. Council – 1/3rd members retiring every two years, tenure is 6
i. Permanent, not subject to dissolution
b. La – 5 years but can be dissolved sooner

5. QUALIFICATION 173:
a. CITIZEN
b. Not less than 25 in La and not less than 30 in LC
c. Other qualities as given by parliament

IX. POWERS, PRIVILIGES AND IMMUNITIES

a. ARTICLE 105
i. Relevant provision for state is article 194
ii. Comments are complementary of each other
iii. So they can discharge their dunctions in dutiful manner without
fear
iv. Constitution of briatin

A. FREEDOM OF SPEECH
a. Different from that guaranteed to an ordinary citizen
 b. Freedom of speech for individual does not protect him absolutely
i. Right is subject to reasonable restrictions
c. No mop is liable to any proceedings, civil or criminal in any court for any
statement made by them in parliament or any committee thereof
d. Cannot be restricted under 19(2)
e. Protects only what is said inside the house and not outside
PV NARSIMHA RAO v STATE
- Held that pribilege of immunity from court proceedings in a105(2) extends to
even bribes taken by members of parliament for voting in a particular manner
- However, those that took bribe but did not participate in the proceeding would
not fall within this ambit

B. RIGHT OF PUBLICATION OF PROCEEDINGS

a. 105(2) no person shall be liable in respect of the publication by order under
the authority of a house of any parliament of any report paper or proceeding or
votes
b. No person liable to any proceeding civil or criminal in any court in respect of
a publication that is substantially true unless it isproved that the publication
was made with malice

C. OTHER PRIVILEGES
a. Clause 3 says that each house its members and committes shall be such as
determined by the parliament from time to time
b. Same as that in house of commons
c. Freedom from arrest
i. Limited to civil arrests and not arrest on criminal charges or preventive
detention
d. Right to prohibit publication of debates
i. Whenever it thinks fit, can order the withdrawal of strangers from any
part of the house and the house can sit in a secret session
e. Right of house to regulate its own constitution
f. Right to regulate its own proceedings
i. ARTICLE 122
g. Right to punish members or outsiders for contempt
i. Breach of privilege
h. Right to expel members

RAJA RAMPAL v HONBL SPEAKER, LOK SABHA 2007

- 11 members of parliament, 9 ls, 2 rs
o Expelled on allegations of having accepted bribes, for asking certain
questions
 - Challenged the validity of their expulsion saying the house did not have such
privilege
- Petition denied saying that house did not have such privilege in regulating its
own constitution, but held such privilege in punishing for contempt
- Independent privilege

MSM SHARMA v SRI KRISHNA SINHA 1959

- Parliamentary privileges and fundamental rights
- Contended that the privileges under (194(3) are subject to part III of the
constitution
o Relied on decision in gunupati keshavram reddy v hassan and state
of up 1954
 Herein, a guy was arrested at residence in Mumbai on order of
speaker and flown to lucknow and kept in his custody
 On application of writ of habeas corpus, supreme court
demanded his release as he had not been produced before a
magistrate (22(2))
 194 was subject to fundamental rights
- However, herein this was not followed
o That case was 19(1)(a) and 21
- The court held that in a conflict between fundamental right under 19,1,a and a
privilege under 194(3), the latter will prevail
o However, not in all cases will privilege prevail
- Reiterated in raja ram pal honbl speaker case
o The court will look into contentions if they said right under 21, 22 has
been infringed

RE KESHAV SINGH 1967

- FIRST case in india where legislature v judiciary
- A person named A distributed a pamphlet in Gorakhpur where he passed
certain defamatory comments against 1 MLA
- This MLA brought notice for breach of privilege
- Speaker issued a warrant against A to be present in his house on a fixed day
- A went there, put his back to assembly, answered vaguely
- Thereafter, speaker punished him for 7 days in lockup
o On the second day, he received bail from the lucknow bench of 2 judge
allahabd high court
- The speaker issued a summon against
o MR A
o Two judges
o Lawyer of A
- Held:
 o The Supreme court referred to so many cases and precedents across the
world in detail and finally came to certain conclusions.
o It was declared that filing the petition was not an illegal act, so neither
the judges nor Keshav Singh was in contempt for filing the petition.
o The full bench had the authority to issue the interim orders.
o A judge who hears a person petition against a house order does not
commit contempt of the house, nor does the house have the authority
to take action.
o The petition for bail was filed in Allahabad High Court after the
supreme sent its suggestion to the President through the reference.

b. SALARIES – 106
i. Draws monthly salaries and other allowances determined by law
from time to time
ii. Facilities like free travel, medical facilities for him and family etc

X. BILLS

- 109 + 110 – money bill

- 111 – assent to bill
- 112 – annual financial assent to bill
- 117 - special provisions related to financial bills

1. Introduction of Bills
a. ARTICLE 107 – legislative procedure
i. An ordinary bill may originate in either house
ii. A bill is not passed till it is agreed to by both houses
- Indicates respective roles of both houses
- Does not confer them with the same powers

iii. Shall not lapse by reason of prorogation

iv. Bill pending in rajya sabha shall not lapse by reason of dissolution of
lok sabha – not passed by lok sabha yet
v. A bill pending in lok sabha or passed by ls pending in rs shall subject
to 108 provisions lapse on dissolution of house of people
- Not kept alive for the new house
- Only bills pedning in house of people are lapsed, not those awaiting
presidential assent

b. ARTICLE 109
i. Not introduced in rajya sabha
ii. While there is no time limit in an ordinary bill, here the rajya sabha has
to pass the bill or return it with reccommendations within 14 days
1. Can pass as proposed by lok sahba
 2. Can pass with amendments to certain provisions
iii. LS has full control over the financial bills
iv. If not passed within 14 days, deemed to have been passed by both
houses and sent to president for his assent under A111
1. Goes to rajya sabha only once
2. Redundant for rs

c. ARTICLE 110 – defined in 199, 200 for state

i. Speaker decides whether a bill is a money bill or not
ii. Money bill when related to
1. Taxation
2. Financial obligations
3. Matters related to contingency or consolidation fund
4. Audit of union or any state accounts
iii. Cannot be a money bill merely because
1. Imposition of pecuniary fines or penalties
2. Imposition remission or alteration of tax for any local objective
or any local officer
3. Levying og any license fees
iv. It is pertinent to note that Constitutional Amendment Bills, even if they
fulfil the criterion provided by Article 110, do not constitute money
bills. Such bills are dealt with under Article 368 and it has an
overriding effect on Article 110.
v. Yes, the decision of the Speaker can be subjected to judicial review.
However, such power is to be exercised restrictively and on limited
grounds. 
vi. Difference between a financial bill or a money bill
- MB
o LS
o No prior recommendation of pres
o Rs has negligible power

- OB
o RS + LS
o no prior recommendation of pres
o RS has equal power

- FB
o LS
o Prior recommendation of pres
 o RS has equal power but can only be introduced in LS

d. ARTICLE 112
i. Annual financial statement
ii. BUDGET

XI. JOINT SESSION OF PARLIAMENT

1. Article 108
a. If a bill has been passed by one house and transmitted to other house and
i. The bill is rejected by the other house
ii. The houses have finally disagreed as to the amendmendts to be made
iii. More than 6 months elapse from the date of recepetion of the bill by
the other house without it being passed
b. Not counted if any time during this period the house was adjourned or
prorogued for more than four consecutive days
c. Where the president has notified (individual message to speaker or through
public notification) of summoning joint sitting, neither house shall proceed
individually further with the bill
d. At this joint sitting
i. Passed by majority of total numbers of members of both house present
and voting – bill passed provided that
1. If the bill having been passed by one house has not been passed
by other with amendments and returned to house where it
originated , no new amendment shall be proposed other than
such which are made necessary by the delay in passage of the
bill – to avoid further delay
e. Joint sitting will happen unless lok sabha dissolved since pres notification
f. All this does not apply to money bills
g. Speaker of house of people determines rules of procedure – article 118 (4)
h. Held mostly at central hall, where the constituent assembly used to sit
i. Mostly whip is issued in this session
j. Joint sitting can be cancelled, he can take it back “MAY” be held

2. No parallel provision for A108. Article 197 will prevail

a. Rajya sabha is not equal to LC
b. 108 tries to solve deadlock whereas in state JS is not called
XII. UNION JUDICIARY

A. Supreme court
- Guardian of FR
- Interpreter of consti
- Highest court of appeal

1. ARTICLE 124
a. CLAUSE 1 – composition
i. With a chief justice of india until law prescribes a number not more
than 7 judges (1950 – 1977)
ii. 1977 it was changed from 17 judges + 1 cji
iii. 1986 it was changed from 25 judges + 1 cji
iv. 2009 it was changed from 30 judges + 1 cji
v. 2019 it was changed from 33 judges + 1 cji
b. CLAUSE 2 – appointment
i. Originally stated that consultation with CJI was mandatory
ii. According to the courts interpretation,
1. The process of appointment of judge is initiated by the chief
justice through the collegium consisting of himself and four of
the senior most judges of the court
2. Recommendation of this collegium is binding on the president
3. if president finds someone not suitable, collegium is to
reconsider its reccommendation
4. drop name, or reiterate. If latter, after this, the president HAS to
accept the recommendation
5. the court has overruled its earlier interpretation which gave
primacy to president in the matter of appointment of judges
c. the constitution gives no procedure for appointment of chief justice
i. over the years a convention developed that senior most judge would be
appointed
d. retirement age of supreme court judge is 65
i. while the power to appoint a judge is an executive power, the power to
determine his age is judicial
e. CLAUSE 3 – Qualifications
i. At least 5 years judge of HC or advocate for 10 years
ii. Must be in opinion of president a distinguished jurist
f. CLAUSE 4
i. A judge may resign his office by writing under his hand addressed to
the president
ii. He can also be removed from his office through
1. Proved misbehaviour or incapacity
2. This power of removal is exercisable only after an address of
each house of the parliament supported by a majority of total
membership of that house and a majority of not less than two
 thirds of the members of that house present andvoting has veen
presented to the president in the same session for such removal
g. CLAUSE 5
i. Parliament by law may regulate the procedure for the presentation of
an address and for the investigation and proof of misbehaviour or
incapacity
h. CLAUSE 6
i. Oath
i. Clause 7
i. No one should act or plead in any other court in territory of india if
appointed as a judge in supreme court

REMOVAL OF JUDGES
- GROUNDS given in clause 4 of 124
- Procedure
a. Burden of proof on the party alleging it against the judge
b. Judges inquiry act of 1968 provides the process to remove judges
i. While it is a violation of natural justice that judges are judging
judges, no one else is better suited for the job
c. PROCESS BEFORE 1968
i. Judge Imam for example, suffered a brain haemorrhage
ii. Couldn’t discharge finction anymore after return
iii. Did not resign
iv. Couldn’t remove, even though his tenure expired first

d. A combined reading of 124(4+5) along with judges inquiry act gives you
procedure
i. To initiate the proceeding,
1. You need to be MP of either house
2. Can be brought in either house
3. If Lok Sabha, you need minimum 100
4. If rajya sabha, you need minimum 50
5. Submit document to speaker or chairperson with grounds
for removal
a. For example, former CJI Deepak Mishra was tried
to removed by Kapil Sibal but failed as he failed to
gather minimum support of 50 in rajya sabha
ii. The chairperson or speaker will constitute a committee to
investigate the allegations as per jia
1. This committee will consist of
a. Sitting judge in sc
b. Sitting cj of any hc
c. Jurist
2. Incase these charges are not proved – stopped then – report
sent back to speaker
 3. Incase proved – forwarded to speaker for further action
a. Report needs to be passed by 2/3rd majority
b. Upto the house whether they want to take action or
not
c. Need to be passed in both housese with 2/3rd
d. Then president
e. Then notification of removal

JUSTICE RAMASWAMY 1993

- JUDGE in SC
- Someone informed the CJI that before he was CJ in Punjab HC and there was
allegation of misuse of funds against him
o Amount is immaterial
o Technically he is corrupt
o Brought to notice of press then parliament
- Prima facie found to be true, even in parliament
- 9/12 allegations found to be true – unanimity that he should be removed
- On the day of vote, congress walked out that is they did not vote
- Since 2/3+1/2 required – minimum 272 ka 2/3rd, motion defeated
- Said that this was done due to political motives

JUSTICE another notable judge idk

- Misutilisation of funds
- All stages passed but he resigned as he was sure that the allegations would be passed
o No post retirement benefits
o First judge in history

 Therefore it is practically impossible to remove a judge

 Needs amendment that once the proceeding starts you cant retire

B. HIGH COURT

1. ARTICLE 214
a. There shall be a high court

2. ARTICLE 216 – COMPOSITION

a. The head of the High Court is the Chief Justice of the High Court. There is
one Chief Justice. The number of judges is not fixed by the Constitution of
India and leaves it up to the discretion of the president.
3. ARTICLE 217 – APPOINTMENT
a. The judges and the Chief Justice of the High Courts are appointed officially by
the President.
b. The Chief Justice is appointed by the President in consultation with Chief
Justice of India and Governor of the state which the High Courts jurisdiction
falls under. 
c. For the appointment of other judges of the High Court, they are appointed by
the President on the advice of the Chief Justice of India, the governor of that
state and the Chief Justice of the High Court.

4. CAN HOLD OFFICE TILL 62

a. Can resign in writing
b. Can be removed on recc of president

C. COLLEGIUM SYSTEM
1. 1950 – 1973
a. Until 1973, there existed consensus between government and CJI
b. Convention of appointing senior most as CJI
c. In 1973, A.N.Ray was appointed as the Chief Justice of India. This
violated the convention formed earlier since Justice A.N.Ray superseded
three other Supreme Court judges senior to him.
d. Again in 1977, another chief justice was appointed who superseded his
seniors.
e. This resulted in a clash between the Executive and the Judiciary.

2. S.P. GUPTA v UNION OF INDIA (first judges transfer case) 1982

a. In 1981, a lot of writ petitions were filed by various lawyers and
practitioners in different high courts.
b. The issue in all the petitions was the same. All the petitions challenged an
order of the government on the non-appointment of 2 judges and their
transfer.

c. ISSUES
i. Constitutional validity of order of central govt on non appt and
transfer of judges in hc

d. PETITIONER:
i. The petitioners in their petitions argued the constitutional validity
of the order of the Central Government, which indirectly forced the
judges to give their consent to the appointment as additional judges
or else their permanency in the profession would be affected. They
also argued and sought the disclosure of correspondence and
 communication that was related to the non-appointment of judges
and their transfer for a short term. 
ii. Another argument was that the President failed in his duty
under Article 216 of the Constitution to appoint judges in the court
to deal with the pendency of cases effectively, and so a writ of
mandamus must be issued against him. It also said that the
procedure laid out under Article 124 has not been followed
properly. 

e. HELD
i. When asked the Supreme Court of India whether the word
“consultation” in the constitutional article 124 mean
“concurrence”; the Supreme court overruled this and denied saying
that Consultation does not mean concurrence.
1. The President was not bound to make a decision based
on the consultation of the Supreme Court.
ii. Another important point in the discussion, in this case, was the part
where the Supreme Court decided that a High Court Judge can be
transferred to any other high court of a state even against his will.

- SURAZ INDIA TRUST V. UNION OF INDIA 2011

o a petition has been filed asking the court to reconsider its own judgements
regarding the manner of appointment and transfer of judges.  It has been
contended that through its judgements in 1994 and 1998 (Advocate on Record
Association v. Union of India and Special Reference No. 1 of 1998) the
Supreme Court has virtually amended Constitutional provisions, even though
amendments to the Constitution can only be done by Parliament.  This
question arises since the Constitution provides for the appointment and
transfer of judges by the government in consultation with the Chief Justice of
India. 

3. SUPREME COURT ADVOCATES ON RECORD ASSOCIATION v UOI

1993
a. The matter came up for adjudication in Sankal Chand vs. Union of India,
where the court upheld the transfer of the Chief Justice of Himachal
Pradesh.
b. However, by 1982, the debate had reached epic proportions. These matters
took solid form in a batch of writ petitions questioning the move to
transfer the judges challenging the affected transfer of some judges and
demanding the justifiability of judge strength
c. The Supreme Court, while disposing of the matter, vested the ultimate
control with the Central Government.
 d. At this juncture, a bill was introduced in the parliament seeking to amend
the Constitution (67th Amendment) Bill 1990 seeking to amend articles
124(2), 217(1), 222(1) and 231 (2) (a).
i. This bill brought to empower the president to set up a judicial
commission known as National Judicial Commission. The avowed
objective was to implement the 121st Law Commission Report.
This report recommended that a judicial commission is set up to
oversee the appointment of the judiciary. However, nothing came
of this as the bill lapsed with the dissolution of the 9th Lok Sabha.

e. ISSUES
i. Whether the opinion of Chief Justice of India should be given
primacy with regard to the appointment and selection of Judges of
High Courts and the Supreme Court, as well as in the transfer of
Judges from one High Court to other?

f. HELD
i. In this case, the Supreme court overruled its earlier verdict and
changed the meaning of consultation to concurrence.
ii. Thus binding the President of India with the consultations of the
Chief justice of India. 
g. This resulted in the birth of the Collegium System.

4. RE PRESIDENTIAL REFERENCE 1999

a. On the President’s reference, the body of the collegium system was
expanded to a five-member body (for the Supreme Court judges’
appointment), which would consist of the Chief Justice of India and four
senior-most judges. In the appointment of the High Court judges, the body
of the collegium system would consist of the Chief Justice of India and
two senior-most judges.
b. a Presidential reference was issued in the year 1998 by the then President
K.R. Narayanan regarding the word “consultation” used in the
Constitution. The debate was whether the consultation of the CJI was
sufficient or was there a need for consulting other judges as well.
c. The nine-judge bench held that merely the singular opinion of the Chief
Justice of India was not sufficient. The court in this decision laid down the
guidelines for the collegium system. The court further developed the
collegium system to comprise four senior-most judges along with the
Chief Justice of India.

d. COLLEGIUM
i. Appointment of sc judge
1. 4 senior most judges of sc
ii. HC
 1. 2 senior most judges of hc
iii. Transfer
1. 4 senior most judges of sc and judges of 2 high courts in
concern
iv. In this system of appointment of Judges, the collegium will
recommend the names of the candidates to the Central
Government.
1. Also, the central government will send the names of the
proposed candidates for consultation
2. The appointment process takes a long time since there isn’t
a fixed time limit for it. If the Collegium resends the same
name again then the government has to give its assent to the
names.
v. While this was appreciated for ensuring political interference was
excluded
vi. However, it was also criticised for rewriting or amending the
constitution for establishing a monopoly of the judges in
appointment of SC and HC judges and transfer of them from one to
another
1. Over time, dissatisfaction was expressed

 NJAC
- The 1993 judgment was the basis on which a five-judge Constitution Bench declared
the National Judicial Appointments Commission Act (NJAC) and
the Constitutional (Ninety-Nine Amendment) Act, 2014 unconstitutional in October
2015.
- ON 31st December 2014, the constitution was amended
- NJAC too would recommend names for the  Appointment of Supreme Court Judge
and Appointment and Transfer of High Court Judge 
- Changed several provisions relating to appointment of SC and HC judges
o As well as transfer of HC jduges
- The president was now to act on advice of NJAC who constitution and functions were
laid down in the ACT – constitution 99th amendment act
- Composition of NJAC
o The Chief Justice of India
o 2 senior-most judges of the Supreme Court
o The Law Minister of India
o 2 eminent members that are chosen by the Selection Committee
- Challenged even before they came into force
o NJAC was established to achieve greater transparency and accountability for
the appointment of judges. But it was struck down by the Supreme Court on
the grounds that it was against the “Independence of Judiciary” i.e Principles
of Basic Structure since it involved the Political Executive in the appointment
of Judges
SUPREME COURT ADVOCATES ON RECORD ASSOCIATION AND ANOTHER V
UOI 2015
- Five judge bench – act repealed
- The five-judge bench decided that the collegium system would still be operative in the
appointment of judges, although they pointed out that the collegium system is not
accurate and the process of ‘judges appointing judges’ should be examined. 
-  The crux of each of their ratios was that the judiciary should be kept independent of
the legislature and executive and that they should not indulge in the process of
appointing judge
- REASONS FOR DISSENT
o The involvement of the legislature in the appointment of judges might lead to
the creation of a culture of ‘reciprocity.’ By reciprocity, Justice Khehar meant
that judges might have the feeling of having to pay back the political executive
as a consideration for their appointment to the post of judge and that it would
lead to an environment where the appointment of judges might be impacted
due to political considerations. 
o that the future judges appointed under NJAC cannot be expected to be
independent-minded if the Union Law Minister is the member of the
commission responsible for their appointment. Further reinstating his point,
Justice Khehar pointed out by giving examples that often there are cases that
come to the judiciary where there is the involvement of some political figures
such as the Chief Minister, Prime Minister, or any other minister from the
opposition as well; in such scenarios, the presence of the Minister of Law and
Justice as an ex-officio member of NJAC is highly questionable
o would compromise the principle of independence of the judiciary guaranteed
under the existing collegium system. The basic structure of the Constitution
enshrines that the judiciary is solely responsible for the appointment of judges
o provides arbitrary power to the Chief Justice of India, Prime Minister and the
leader of the Lok Sabha to appoint two eminent personalities into the NJAC
body. 
- REASONS FOR BENEFITS
o Transparency is an extremely vital factor in constitutional governance. He
reasoned that it becomes all the more important in the process of appointment.
Justice Chelameshwar praised the NJAC Act for involving a smooth and
transparent process for the appointment of judges.
o Collegium system’s opaqueness was blatantly expressed where he expressed
that the proceedings of the collegium are inaccessible to the public and,
therefore, it lacks transparency
o the exclusion of the role of the government in appointing the judges is unfair
because it disturbs the checks and balances principle. He further added that in
a democratic setup, the executive cannot be completely excluded.
o in the dissent order, an example of the United States of America was given,
where the head of the Executive is conferred with the power to appoint the
judges.
 o also supported the inclusion of the Law Minister in the commission, reasoning
that the executive with a vast amount of administrative machinery is capable
of making enormous and valuable contributions to the selection process.  

 CURRENT SYSTEM
o In judicial appointments, it is obligatory for the President to take into account
the opinion of the CJI.
o The opinion of the CJI is binding on the Government. The opinion of the CJI
must be formed after due consultation with a collegium of at least four senior-
most judges of the Supreme Court.
o Even if two judges give an adverse opinion, then he should not send the
recommendation to the Government.
o Issues:
 The collegium system does not provide any guidelines or criteria for
the appointment of the Supreme Court judges and it increases the
ambit of favouritism. 
 in the collegium system, there are no criteria for testing the candidate
or for doing a background check to establish the credibility of the
candidate. The absence of an administrative body is also a reason for
worry because it means that the members of the collegium system are
not answerable for the selection of any of the judges.
 The ‘Second Judges Case’ established the supremacy of the judiciary
over the executive. This system disturbs the principle of check and
balance. The check and balance principle is necessary because it
ensures that no organ of democracy is exercising its power in an
excessive manner. 
 NJAC was struck down for its unconstitutionality, but a closer look at
the collegium system tells us that even though the collegium system is
not mentioned anywhere in the Constitution, rather it has evolved over
a period of time from different landmark cases.
 LACKS transparency
 Nepotism has been often witnessed in the judiciary due to a lack of
criteria for the appointment of judges. Nepotism leads to mediocrity
due to biases in the judicial setup.