4.

The Legislatue (Union & State)

THE PARLIAMENT (UNION LEGISLATURE)

Chapter 2 of Part 5- Article 79-122

Article 79 Constitution of Parliament

Article 80 Composition of the Council of States
Article 81 Composition of the House of the People
Article 82 Readjustment after each census
Article 83 Duration of Houses of Parliament
Article 84 Qualification for membership of Parliament
Article 85 Sessions of Parliament, Prorogation and Dissolution
Article 86 Right of President to address and send messages to Houses
Article 87 Special address by the President

c o m
Article 99 Oath or affirmation by members

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Article 88 Right of Ministers and Attorney-General as respect to Houses

Article
100 vacancies and quorum

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Voting in Houses, power of Houses to act notwithstanding

Article
101
Article

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Vacation of Seats

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Disqualification for membership
102
Article

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8Q5Q1S

Decision on questions as to disqualifications of members

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103
Article Penalty for sitting and voting before making oath under Article 99
104 or when not qualified or when disqualified
Article
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Power, privileges etc. of the Houses of Parliament and of the
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105 members and committees
Article Salaries and allowances of members
106 8Q5Q1S
tr-5Q3M9O3U

PARLIAMENT- Article 79

There shall be a Parliament for the Union which shall consist of the President and two
Houses to be known respectively as the Council of States and the House of the
People. India has adopted a Parliamentary form of government in which a harmonious
relationship between the executive and legislature is brought about through the
executive being formed out of the legislature which enjoys the confidence of the
Parliament. Parliament is the supreme legislature and the most important wing of the
Government, which apart from making law performs many other essential functions.

RAJYA SABHA / COUNCIL OF STATES- Article 80

 It is the Upper House (second chamber or House of Elders) of the Parliament. It
represents the States and Union Territories of the Indian union.

Composition of Rajya Sabha

The Rajya Sabha consists of two classes of members viz., nominated members and
representatives of the States and Union Territories (elected directly). There is no
difference of status between the elected and the nominated members except that only
the elected members can participate in the election of the President.The nominated
members are 12 in number and are nominated by the President amongst persons
having special knowledge or practical experience in the fields ot literature, science, art
and social service. Parliament by law has provided for 233 seats for the States and the
Union Territories. The total membership of the Rajya Sabha is thus 245 (maximum
could be 250).

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Qualifications for membership of Rajya Sabha

(1) be a citizen of India;

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(2) make and subscribe before the person authorized by the Election Commission an

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oath or affirmation according to the form prescribed in the Third Schedule;
(3) not be less than 30 years of age; and

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(4) be registered as a voter in a Parliamentary constituency in any State.

Special powers of the Rajya Sabha

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(1) A resolution seeking the removal of the Vice -President can originate only in the

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Rajya Sabha, where the resolution must be passed by a majority of all the then
members of the Rajya Sabha, and tr-5Qagreed
1S the Lok Sabha (Article 67(b)).
to5Qby
3M9O3U8Q

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(2) If the Rajya Sabha passes a resolution by a majority of not less than two-thirds of
the members present and voting, that it is necessary or expedient in the national

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interest that Parliament should make laws with respect to any matter enumerated in
the State List, it shall be lawful for Parliament to make law for the whole or any
pan— of the territory of India on that matter for a period of not more than one year.
However the Rajya Sabha by passing similar resolutions can extend the power of
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tr-5E3B9A3F8C Parliament to legislate on a Stale subject, but each time for a period of not more than

one year only (Article 249)

(3) If the Rajya Sabha passes a resolution by a majority of not less than two- thirds of
the members present and voting, that it is necessary or9O
tr-5Q3M 3U8Q5Q1S in the national
expedient
interest to create one or more all-India services,. Parliament by law may provide for
such service or services.
LOK SABHA- Article 81

The Lok Sabha is the Lower House or popular House of Parliament as its members
are directly elected by the People.

Composition of Lok Sabha

The Constitution prescribes a membership of not more than 530 representatives of the
States, not more than 20 representatives of the Union Territories and not more than 2
members of the/Anglo - Indian Community nominated by the President, if in the
 opinion of the President the Anglo - Indian Community is not adequately represented
in the Lok Sabha (Article 331). Accordingly, Parliament has fixed the membership as
530 for the States and 13 for the Union Territories. The seats in the House are allotted
to each State in such a way that, as far as practicable, the ratio between the number of
seats allotted to a State and its population is the same for all States. This provision
however does, not apply to a State having a population of less than 6 million. Of
these, certain seats are reserved for Scheduled Castes and Scheduled Tribes.

Parliament has frozen the representation of the States and the Union Territories at 543
till the year 2026 A.D. by 84th Constitutional (Amendment) Act, 2001. No revision is
to be made until the first census is taken after the year 2026. Later the 87 th amendment
act of 2003 provided for making 2001 census for 1991 census) as the basis for
delimitation of constituency of Lok Sabha and state legislative assemblies within the
state for SC/ST population.

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Duration of Lok Sabha

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The normal tenure of the Lok Sabha is five years, but it may be dissolved earlier by
the President. The 42nd Constitutional Amendment Act, 1976, extended the normal

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life of the Lok Sabha to six years, but the 44th Constitutional Amendment Act,
1978, has again set it at five years as the original Constitution envisaged (Article 83).

Qualifications for membership of Lok Sabha

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(a) be a citizen of India;

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(b) make and subscribe before the person authorized by the Election Commission an

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oath or affirmation according to the form prescribed in the Third Schedule;

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(c) not be less than 25 years of tr-age; 9O3U8Q5Q1S
5Q3Mand
(d) be registered as a voter in any Parliamentary constituency.

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


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Special powers of the Lok Sabha

A confidence or no confidence motion can be initiated and passed only in the

Lok Sabha.
Money and Financial Bills can be introduced only in the Lok Sabha. The
Rajya Sabha cannot reject or amend a Money Bill by virtue of its legislative
power. It possesses only a recommendatory role in the passage of a Money
Bill and can delay it for a maximum period 1S
8Q5Qonly.
tr-5Qof
3M14 days
9O3U The Lok Sabha
enjoys full legislative power in this regard.
 Article 352, the Lok Sabha in a special sitting can disapprove the continuance
in force of a national emergency proclaimed by the President. In such a case,
the President shall revoke the national emergency.

Disqualifications for membership

Article 102, a person shall be disqualified for being chosen as, and for continuing as,
a member of either House of Parliament if he
(a) holds any office of profit;
(b) is of unsound mind;
(c) voluntarily acquires the citizenship of a foreign country;
 (d) is an undischarged insolvent; or
(e) is disqualified under any law made by Parliament.
The Parliament has prescribed the additional disqualifications for parliamentary
membership in the Representation of the People Act, 1951.

5. Judiciary

1. Supreme Court – Article 124 to 147 (Part 4- Union, Chapter 4)

2. High Court – Article 214 to 232 (Part 5- State, Chapter 5)
3. Subordinate Courts- Article 233 to 237 (Part 5- State, Chapter 6)
4. Tribunals- Article 323A & 323B (Part 14A)

THE SUPREME COURT– Article 124 to 147 (Part 4- Union, Chapter 4)

Article 124 Establishment and constitution of Supreme Court

Article 125
Article 126
Salaries, etc. of judges
Appointment of acting Chief Justice

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Article 127
Article 128
Appointment of ad hoc Judges

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Attendance of retired judges at sittings of the Supreme Court
Article 130 Seat of Supreme Court
APPOINTMENT OF JUDGES (Article 124)

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The Judges of the Supreme Court are appointed by the President. The Chief Justice of

a
the Supreme Court is appointed by the President with the consultation of such of the
Judges of the Supreme Court and the High Courts as he may deem necessary for the

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purpose. But in appointing other 3M9O3U8Q
Judges,
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the President shall always consult the Chief
Justice of India. He may consult such other Judges of the Supreme Court and High

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Courts as he may deem necessary.

ROLE OF CHIEF JUSTICE OF INDIA IN THE APPOINTMENT OF

JUDGES- Article 124
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2015 case- Supreme Court Advocates-on- Record Association vs. Union of India

Declaring that the judiciary cannot risk being caught in a “web1Sof indebtedness”
tr-5Q3M9O 3U8Q5Q
towards the government, the Supreme Court on Friday rejected the National Judicial
Appointments Commission (NJAC) Act and the 99th Constitutional Amendment
which sought to give politicians and civil society a final say in the appointment of
judges to the highest courts.
“It is difficult to hold that the wisdom of appointment of judges can be shared with the
political-executive. In India, the organic development of civil society, has not as yet
sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the
citizens of this country, can only be ensured, by keeping it absolutely insulated and
independent, from the other organs of governance,” Justice J.S. Khehar, the presiding
judge on the five-judge Constitution Bench, explained in his individual judgment.
The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional
Amendment as “unconstitutional and void.” It held that the collegium system, as it
existed before the NJAC, would again become “operative.”
 99th Constitutional (Amendment) Act, 2014
It provided for establishment of National judicial appointment commission. It will
replace the collegium. With the NJAC amendment, Articles 124 A, B and C were
added to the Constitution to make the NJAC valid. Articles 124 A and B define the
NJAC, its members and their duties, while Article 124 C empowers Parliament to
make laws in the future to regulate the procedure for the appointment of judges.

Who would be on the NJAC?

 The CJI will be chairperson
 The next two senior most Supreme Court judges
 The law and justice minister; and
 Two eminent persons, to be selected by a committee comprising the CJI,
Prime Minister and leader of the opposition

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Supreme Court Advocates-on- Record Association vs. Union of India (1993) case

o
held that the Chief Justice of India’s opinion in the appointment of the Judges of the

c
Supreme Court, and in the appointment and transfer of the Judges of the High Courts
shall enjoy primacy.

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By this judgment, the Supreme Court overruled its earlier judgment in S.P. Gupta vs.

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Union of India case (1982) in which it held that the opinion of the Chief Justice of
India is not binding on the President. The Apex Court ruled that the process of

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appointment of Judges is - an "integrated, participatory, consultative" exercise for

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selecting the best and most suitable persons available. The Chief Justice of India is the

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sole authority to initiate the proposal for the appointment of the Judges of the

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Supreme Court. 8Q5Q1S
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In regard to the appointment of the Supreme Court .judges, the Chief Justice of India

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should consult a collegium of four senior most Judges of the Apex Court. Even if two
judges give an adverse opinion, the Chief Justice of India should not recommend to
the Government.. The collegium should make the decision in consensus and unless
the opinion of the collegium is in conformity with that of the Chief Justice of India,
tr-5E3B9A3F8C no recommendation is to be made. Regarding the transfer of High Court Judges, in
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addition to the collegium of four senior most judges, the Chief Justice of India was
obliged to consult the Chief Justice of the two High Court (one from which the Judge
was transferred and the other receiving him). 3U8Q5Q1S
tr-5Q3M9O

In regard to the appointment of High Court Judges, the Chief Justice of India was
required to consult only two senior-most Judges of the Apex Court. The consultation
process requires consultation of plurality of judges. The sole opinion of the Chief
Justice of India does not constitute the consultation process. The transfer of judges of
High Court was judicially reviewable, only if the Chief Justice of India had
recommended the transfers without consulting four senior most Judges of the Apex
Court and two Chief Justices of the High Court concerned.

Qualifications for appointment as a judge of the Supreme Court- Article 124 (3)

A person to be qualified for appointment as a Judge of the Supreme Court must

(a) be a citizen of India; and
 (b) has been a Judge of a High Court or two or more such courts in succession for at
least five years; or
(c) has been an Advocate of a High Court or one or more such courts in succession
for at least ten years; or
(d) a distinguished jurist in the opinion of the President.

Tenure- Article124 (2)

A Judge of the Supreme Court vacates his office on attaining the age of sixty-five
years or by resignation addressed to the President or by removal by the President upon
a resolution passed by both Houses of Parliament
REMOVAL OF A JUDGE OF THE SUPREME COURT

The Constitution under Article 124(4) provides that a Judge of the Supreme Court
can be removed by the President after an address, by each House of Parliament

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supported by a majority of the total membership of that House and by a majority of

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not less than two - thirds of the members of that House present and voting, has been
presented to the President in the same session for such removal on the ground of
proved misbehavior or incapacity.

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Further, Parliament under Article 124(5) may by law regulate the procedure for the

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presentation of an address and for the investigation and proof of the misbehavior or

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incapacity of a Judge.

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Accordingly, Parliament in 1968 passed Judges (Inquiry) Act. Under this Act, a

a
motion seeking the removal of a Judge can be preferred before either House of

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Parliament if it is to be introduced in the Lok Sabha, it should be signed by not less

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than 100 members of the Loktr-Sabha
5Q3M9Oand
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3U8Qin Rajya Sabha by not less than 50
Members of the Rajya Sabha. The motion can be moved only after the expiry of 14-
day notice served on the Judge. After being properly introduced, the presiding officer

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of that House shall appoint a three-member Judicial Committee to inquire into and
provide proof of the misbehavior or incapacity. The head of the Judicial Committee
shall be a serving Judge of the Supreme Court and the other member shall be a
serving member of Supreme Court or a High Court and the third member may be an
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tr-5E3B9A3F8C eminent jurist.

The Judge in question has the right to defend himself or through his counsel before
the Judicial Committee. The Committee submitstr-its report
9O3U8Q 1S presiding officer of
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the House in which the motion has been introduced. Parliament may or may not act
upon the report of the Judicial Committee. However, if the judicial committee failed
to establish proof of misbehavior or incapacity, Parliament cannot take up the motion
if the motion is passed by the originating House with the required majority, it moves
to other House which should also pass the motion with the same majority. Upon being
presented to the President in the same session of Parliament in which the address has
been passed, the President, shall pass an order for the removal of the Judge in
question.
Oath
 A person appointed as a Supreme Court Judge, before entering upon his office takes
in the form prescribed an Oath or Affirmation before the President or some person
appointed by him (Article 124(6)).

Seat of the Supreme Court

The SC shall sit in Delhi or, in such other place or places, as the Chief Justice of India
may, with the approval of the President, from time to time appoint.

Appointment of acting Chief Justice (Article 126)

When the Office of the Chief Justice of India is vacant or when the Chief Justice, by
reason of absence or otherwise, is unable to perform the duties of his office, the duties
of the office shall be performed by such one of the other Judges of the Court-as the
President may appoint for the purpose.

Appointment of Ad hoc Judges (Article 127)

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.
If at any time there is a lack of quorum of the Judges of the Supreme Court to hold or

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continue any session in the Court, the Chief Justice of India may with the previous
consent of the President and after consultation with the Chief Justice of the High

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Court concerned request in writing the attendance at the sittings of the Court, as an ad

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hoc Judge, for such period as may be necessary, of a Judge of a High Court duly
qualified for appointment as a Judge of the Supreme Court to be designated by the
Chief Justice of India .

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Attendance of retired Judges at sittings of the Supreme Court (Article 128)

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The Chief Justice of India with the previous consent of the President, may request a
retired Judge of the Supreme Court or Federal Court or a retired Judge of a High

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Court who is duly qualified to be appointed as a Judge of the Supreme Court to sit and
act as a Judge of the Supreme Court. Such a judge is entitled to such allowances as the
President may determine.
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JURISDICTION AND POWERS OF THE SUPREME COURT

The Supreme Court of India has more powers than any other Supreme Court in any
part of the world. The jurisdiction and powers oftr-the 9O3U8Q5Q1S
Supreme
5Q3M Court are mainly five-
fold viz. Original, Writ, Appellate, Advisory jurisdictions.

Article Supreme court as a court of record

129
Article Original jurisdiction of Supreme
131 Court
Article Appellate jurisdiction of Supreme
132 Court in certain cases
Article Appellate jurisdiction of Supreme
133 Court in regard to civil matters
 Article Appellate jurisdiction of Supreme
134 Court in regard to criminal matters
Article Special Leave to appeal by the
136 Supreme Court
Article Review of judgement’s or orders by
137 the Supreme Court
Article Enlargement of the jurisdiction of
138 the Supreme Court
Article Conferment on the Supreme
139 Court of power to issue writs
Article Power of President to consult
143 Supreme Court

I. Original Jurisdiction

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(a) the Government of India and one or more States; or

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(b) between the Government of India and any State or States on one side and one or ;
more States on the other; or
(c) between two or more States.

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However, according to the Constitution (7lh Amendment) Act, 1956, the original

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jurisdiction of the Supreme Court does not extend to a dispute if it arises out of any

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provision of a treaty, agreement, covenant, sanad or other similar instrument which
has entered into or executed before 26th3UJanuary,

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1950, and has been continued in
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operation after that, or which provides that the said jurisdiction shall not extend to

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such a dispute.

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As per Article 71 all disputes regarding the election of the President or Vice President
are decided exclusively by the Supreme Court
Exclusion of Original Jurisdiction
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tr-5E3B9A3F8C The Constitution excludes the exclusive original jurisdiction of the Supreme Court in
disputes between the Centre and the State in the following matters:
(1) As per the proviso of Article 131, the Court’str-5Q
jurisdiction
3M9O3U8Q5Qdoes not extend to a
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dispute arising out of any treaty, agreement, covenant, engagement, sanad or other
similar instrument entered into or executed before 26th January, 1950 and which has
continued in operation thereafter.
(2) Under Article 262(2), Parliament may by law exclude Supreme Court’s
jurisdiction in adjudication of any dispute or complaint with respect to use,
distribution or control of the waters in any inter-State river or river valley.

II. Writ Jurisdiction

Article 32 confers jurisdiction on the Supreme Court to enforce the Fundamental
Rights. Under this Article, every individual has a right to move the Supreme Court
directly by appropriate proceedings for the enforcement of his Fundamental Rights.
 The writ jurisdiction sometimes is referred to as Original Jurisdiction of the Supreme
Court in the sense that an individual has the right to directly approach the Supreme
Court for the enforcement of his Fundamental Rights, without coming through a High
Court by way of appeal, but in the strict sense, Original Jurisdiction relates to the
federal character of the Constitution only.
The Supreme Court is empowered to issue writs including Flabeas corpus,
Mandamus, Prohibition, Certiorari and Quo warranto for the enforcement of the
Fundamental Rights of an aggrieved citizen.(explained in detail in Article 32 of Unit
2)
III. Appellate Jurisdiction

(1) Constitutional - In constitutional matters, an appeal lies to the Supreme Court if

the High Court certifies that the case involves a substantial question of law as to the
interpretation of the Constitution. If the High Court refuses to give the certificate, the

m
Supreme Court may grant special leave for appeal under Article 136 if it is satisfied
that the case does involve such a question.

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(2) Civil Matters - Under Article 133(1), an appeal lies to the Supreme Court from

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any judgment, decree or final order in a civil proceedings of a High Court if it
certifies -
• That the case involves a substantial question of law of general importance; and

Supreme Court.

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• That in the opinion of the High .Court, the said question needs to be decided by the

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Thus, no appeal in a civil matter lies to the Supreme Court as a matter of right. It lies

a
only when the High Court issues a certificate on the above two conditions being
fulfilled.

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8Q5Q1S
(3) Criminal Matters - Article 134 of the Constitution provides the following
provisions

tr-5E3B9A3F8C
T
as to appeal in criminal matters:
• An appeal lies from any judgment, final order or sentence of a High Court in a
criminal proceeding if ‘the High Court has on appeal, reversed an order of acquittal of
an accused person and sentenced him to death; or
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• If the High Court has withdrawn for trial before itself a case from a lower court and
in such a trial sentenced the accused to death; or
1S
3U8Q5Q to the Supreme Court.
• If the High Court certifies that the case is a fit one for9Oappeal
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The Parliament has further enacted the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970, further authorizing the Supreme Court to hear
appeals from the High Court in the following matters:

• If the High Court has on appeal reversed an order of acquittal of an accused and
sentenced him to imprisonment for life or for a period of not less than 10 years;
• The High Court after withdrawal of a case from a lower court has sentenced the
accused to imprisonment for life or for a period of not less than 10 years.
Appeal by Special Leave
 The Supreme Court under Article 136 enjoys the power of granting special leave to
appeal from any judgment, decree, order or sentence in any case or matter passed by
any court or tribunal in the country excepting court martial.

IV. Advisory Jurisdiction

One salient feature of the Supreme Court of India is its consultative role, Article~143
of ' the Constitution provides for the advisory role of the Supreme Court. The
President can refer to the Court either a question of law or a question of fact, provided
it is of public importance, However, it is not compulsory for the Court to give its
advice.
Further, the President is empowered to refer to the Supreme Court for its opinion
disputes arising out of any treaty, agreement, covenant etc., which had been entered
into or executed before the commencement of the Constitution. In such cases, it is
obligatory for the Court, under the Indian Constitution, to give its opinion to the

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President.

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In both the cases, the opinion expressed by the Supreme Court is only advisory in
nature. Hence, it is not binding on the President. It has been exercised 3 times.

V. Revisory Jurisdiction

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The Supreme Court under Article 137 is empowered to review any judgment or order

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made by it with a view to removing any mistake or error that might have crept in the
judgment or order. This means that even though all the judgments and orders passed

the Supreme Court.

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by the Supreme Court are binding on all the courts of India, they are not binding on

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VI. Supreme Court as a Court 9O3U8Q5Q1S
of3MRecord
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• Its records and judicial proceedings are of evidentiary value before any court;

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• has the power to punish for its own contempt; and
• has power to determine its own jurisdiction.

Contempt of the Court includes both civil and criminal contempt.

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Civil contempt means willful disobedience to any judgment, decree, order, direction,
or other processes of a court or willful breach of an undertaking given to a court.
Criminal contempt means the publication of any matter or doing of any act
whatsoever which scandalizes or tends to scandalize or9Olower 1S authority of the
3U8Q5Qthe
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court or tends to interfere with due course of any judicial proceedings or tends to
obstruct the administration of justice in any manner.
• innocent publication and distribution;
• fair and accurate report of judicial proceedings;
• fair criticism-of judicial act;
• complaints made in good faith of presiding officers of subordinate courts.

Other powers of Supreme Court

1. The Supreme Court is authorized to make rules regarding the practice and
procedure of the court with the approval of the President.
 2. The Supreme Court has complete control over its own establishment and can
appoint its officers and servants in consultation with UPSC and determine their
conditions of service in consultation with the President.
3. The Supreme Court decides disputes regarding the election of the President and the
Vice-President.
4. The Supreme Court recommends the removal of members of UPSC to the
President.

Curative Petition

Under Article 137 of the Constitution, a review petition may^ be filed in the Supreme
Court after the delivery of its judgment. The Court may review the case under its
inherent power but on very restricted grounds. The Court has laid down in Rupa
Ashok Hurra vs. Ashok Hurra (2002) that while certainty of law is important in India,
it cannot be at the cost of justice.

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The Court while not laying down an exhaustive list has laid down certain grounds and

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the procedure thereof on which a curative petition can be filed:

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final after dismissal of a review petition under Article 137.
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(1) A curative petition can be filed seeking review ef a decision which has become

(2) Only when very strong reason exists, should the court entertain such an

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application.

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(3) Some of the grounds on which such a petition can be entertained are:
• violation of the norms of natural justice;

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• disposal of the matter ex parte;
• abuse of the process of the court;

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Union of India vs.
Sankalchad Sheth, p tr-5Q3M9O3U
8Q5Q1S

Sankalchand Seth was transferred

from one HC to another without CJ’s
Art 222
Independence

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1977

5A1C
T approval, under art 222, which says,
“(1) The President may, after
consultation with the Chief Justice of
India, transfer a Judge from one High
Court to any other High Court.”
of the
Judiciary

In this case, SC held that

consultation does not mean that the
8Q5Q1S
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advice of the constitutional
functionaries is binding on the
President and that a Judge can be
transferred without his consent.
S P Gupta vs. Union of India SC unanimously with the meaning of Art 124(2)
(Judges Transfer the term “consultation” as Independence
Case I), determined in Sankalchand’s case of the
1982 and held that only ground on which Judiciary
the decision of the govt. regarding
appointment and transfer of a Judge
can be challenged is that if it is based
 on mala fide or irrelevant
consideration.
This hugely affected the
independence of the judiciary
because the control over appointed of
the judges went completely to the
executive branch.
SC Advocate on Record Overruled SP Gupta case and held Art 124(2)
Assoc. vs. UoI, the following: Independene
1993 Judges of SC and HCs must be of the
appointed in consultation with CJI. Judiciary
The consultation must be effective.
The opinion of CJI has primacy. The
CJI must be appointed on the basis of
seniority
re Presidential Reference,
1999 of the SC when the CJI gave his

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The President requested the opinion Art 124(2)
Independence

.
recommendation without consulting of the

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other judges of the SC. Judiciary
SC held that recommendation given

e
without consulting other judges is

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not binding on the President.

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V V Ramaswamy was in financial Art 124(4)
Ramaswamy’sImpeachment, irregularities. Removal of a
1990

p r a
Proceedings were started but did not
succeed because congress abstained
3U8Q5Q1S
3M9Ovoting.
from
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Judge of SC
or HC

To
C Ravi Chandran Iyer vs. A Bar Assoc. tried to pressurize the
M Bhattacharje,
1995
judge to resign for alleged financial
misbehavior. SC held that any such
coercion is invalid, affects the
independence of the judiciary and
Art 124(4)
Removal of a
Judge of SC
or HC

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tr-5E 3B9A 3F8C amounts to contempt court. Only
procedure to remove a judge is given
in 124(4) and (5).
It further held that if the misconduct
8Q5Q1S
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of a judge falls short of
impeachment, an action could be
taken in-house within the judiciary.
Further, only the CJI, being the first
among the judges can be the prime
mover of such an action.

THE HIGH COURTS- Article 214 to 232 (Part 5- State, Chapter 5)

The State Judiciary consists of a High Court and a system of subordinate courts). The
process of constituting High Courts was initiated in 1862 when under the Indian High
Courts Act, 1861, High Courts were established at Calcutta, Bombay and Madras. In
course of time, other High Courts also came to be established. The constitution builds
 the structure of the High Courts, on the preexisting foundations. Constitution provides
that there shall be a High Court in each State (Article 214) but

Parliament has the power to establish a common High Court for two or more States
(Article 231V

Article 214 High Court for states

Article 215 High Courts to courts of record
Article 216 'Constitution of High Courts
Article 217 Appointment and conditions of the office of a judge of High Court
Article 219 Oath or affirmation by Judges of the High Courts
Article 221 Salaries, etc. of Judges
Article 222 Transfer of a judge from one HC to another
Article 223
Article 224
Appointment of acting Chief Justice
Appointment of additional and acting Judges

c o m
Article 224A
Article 225
Appointment of retired Judges
Jurisdiction of existing High Courts

rs .
e
APPOINTMENT

Strength of a High Court

an k
A High Court consists of the Chief Justice and such other Judges as the President may

r
from time to time deem it necessary to appoint (Article 216). In this way, the number

p
of Judges jn a High Court unlike that of the Supreme Court is flexible and it can be
8Q5Q1S
tr-5Q3M9O3U
determined by the President from time to time keeping in view the amount of work

o
before a High Court.

T
Appointment of High Court Judges- - Article 217
While appointing a Judge of a High Court, the President shall consult the Chief
Justice of India, the Governor of the State and the Chief Justice of that High Court in
5A1C
tr-5E3B9A3F8C the matter of appointment of a Judge other than the Chief Justice. Due to the

combined effect of the decision of the Supreme Court in 1993 and 1998 with regard to
appointment of a High Court Judge, following is the present position:
8Q5Q1S
tr-5Q3M9O3U
• The process of the appointment of the Judges of the High Courts is an integrated
"participatory consultative process", where; all the constitutional functionaries must
perform this duty collectively.
• Initiation of the proposal for appointment in the case of High Court must invariably
be made by the Chief Justice of that High Court.
• A collegium of Judges comprising the Chief Justice of India and two senior most
Judges of the Supreme Court, giving fair importance to the opinion of the Chief
Justice of the concerned High Court should make a recommendation as to
appointment to the President. In addition, other Judges of the High Court and the
views of the other Judges of the Supreme Court who are conversant with the High
Court concerned can also be consulted. All these views should be expressed in writing
and be conveyed to the President along with the recommendation of the collegiums.
 • In the event of conflicting opinions by the constitutional functionaries, the opinion
of the collegiums would have supremacy.
• No appointment of any Judge of a High Court can be mgde unless it is in conformity
with the opinion of the Chief Justice of Indip.

Appointment of acting Chief Justice- Article 223

When the Office of the Chief Justice of a High Court is vacant or when any such
Chief Justice, by reason of absence or otherwise, is unable to perform the duties of his
office, the duties of the office shall be performed by such one of the other Judges of
the Court as the President may appoint for the purpose.

Appointment of additional and acting Judges- Article 224

In this context, the President may appoint,

m
• duly qualified persons as additional Judges for a period not exceeding 2 years, when

o
it appears to the President that because of temporary increase in the business of High
Court or arrears of work, the number of Judges should be increased (Article 224(1)).

rs .c
• an acting Judge when any Judge, other than the Chief Justice, is unable to perform
his duties due to absence or otherwise, or when a permanent Judge of the High Court
is appointed as its acting Chief Justice. An acting Judge holds office unfit the

e
permanent Judge resumes his duties (Article 224(2)).

k
But neither an additional nor an acting Judge can hold office beyond the age of 62
years.

Emergency Provisions

r an
o
Part 18- Article 352- 360
p tr-5Q3M9O3U
8Q5Q1S

overcome
9A3F8C5A1C
tr-5E3Bpowers
T
One of the most important and the chief characteristics of the Indian Constitution relates to
the enormous emergency powers vested in the Union Executive. Since a Federal Government
involves division of power, it is generally considered to be a weak Government. In order to
pitfalls of contingency situation, the Constitution concentrates the emergency
in the Centre. The emergency provisions are contained under Articles 352 to 360 in
Part XVIII of the Constitution. It empowers the President to promulgate three kinds of
emergencies:
8Q5Q1S
tr-5Q3M9O3U
1. Emergency caused by threat to the security of India by war or external aggression or
armed rebellion (Article 352);
2. Emergency caused by the failure of constitutional machinery in a State (Article 356);
and
3. Financial Emergency (Article 360).

The expression, "proclamation of emergency" as used in the Constitution, refers to

emergency of the first kind or National Emergency under Article 352. The second kind of
emergency under Article 356 is State emergency popularly known as the "President's Rule".
The third kind of emergency proclaimed under Article 360 is called "Financial Emergency".
 Article Effect of proclamation of emergency
353
Article Application of provisions relating to
354 distribution of revenues while a
proclamation of emergency is in
operation
Article Duty of the union to protect states against
355 external aggression and internal
disturbances
Article Exercise of legislative powers
357 under proclamation issued
under article 356
Article Suspension of provisions of
358 article 19 during emergencies
Article
359

o m
Suspension of enforcement of
rights conferred by part III

c
.
during emergencies

NATIONAL EMERGENCY (Article 352)

Grounds of Proclamation

k e rs
an
If the President is satisfied that a grave emergency exists whereby the security of India or any

r
part of it is threatened whether by war or external aggression or armed rebellion, he may

p
proclaim a state of emergency for the whole of3UIndia or a part thereof. A proclamation of
8Q5Q1S
tr-5Q3M9O
emergency can be made by the President even before the actual occurrence of war or external

o
aggression or armed rebellion, if he is satisfied that there is an imminent danger.

T
Such a proclamation of emergency can be varied or revoked by the President subsequently.
The President can issue a proclamation of emergency or vary it, only when the decision of the
Union Cabinet is conveyed to him in writing. The proclamation of emergency made by the
9A3F8C5A1C under Article 352 is subject to the judicial review and its constitutionality can be
tr-5E President
3B
questioned in a court of law on grounds of mala fide.

When a national emergency is declared on the grounds of ‘war’ or8Q‘external

5Q1S aggression’, it is
tr-5Q3M9O3U
known as the External Emergency. On the other hand, when it is declared on the ground of
‘armed rebellion’, it is known as the Internal Emergency. The national emergency has been
proclaimed three times so far - 1962 & 1971 (external emergency) and 1975 (internal
emergency).

Parliamentary Approval and Duration

Every proclamation made under Article 352 (except a proclamation revoking the previous
proclamation) should be laid before each House of Parliament and must be approved by them
within one month after the proclamation is made, by a majority of the total membership of
that House and by a majority of not less than two - thirds of the members of that House
present and voting.
 If Parliament fails to approve such a proclamation, then it ceases to be in operation on the
expiry of one month, after the proclamation is made. If Parliament approves such a
proclamation, then it will he in force, unless revoked earlier, tor six months from the date on
which it was approved by Parliament. It can be approved by Parliament any number of times,
but not beyond six months at a time.

If Lok Sabha stands dissolved before giving approval to the proclamation, then Rajya Sabha
needs to approve it within one month and thereafter should be ratified by Lok Sabha within

Revocation of Proclamation

If the Lok Sabha disapproves a proclamation of emergency or its continuance, the President
shall revoke the emergency. If not less than one-tenth of the MP of the Lok Sabha issue a
notice with the intention of disapproving an emergency to the President, if the Lok Sabha is
not in session or the Speaker, if the Lok Sabha is in session, a special sitting of the Lok Sabha

m
shall be held within fourteen days for the purpose of considering such a resolution.

o
CHANGES MADE BY 44TH AMENDMENT ACT

.c
The 44th Amendment Act, 1978 has introduced a number of safeguards in Article 352.

rs
(1) Prior to the 44th Amendment Act, 1978, a proclamation of emergency could be issued on

e
the grounds of war or external aggression or internal disturbances. The expression "internal

k
disturbances" was a vague one, and could be misused by the Executive, The Act, therefore,
introduced the expression "armed rebellion" in place of "internal disturbances".

an
(2) Earlier to the Act, the President could proclaim an emergency on the oral advice tendered

r
by the Prime Minister, as it happened in J975. Now the approval, of the, whole Cabinet is

o p
essential and it must be communicatedtr-to5Qthe 3U8Q5Q1S in writing.
3M9OPresident

(3) Before the Act became effective in 1978, a proclamation issued by the President had to be

approval
9A3F8C5A1C
tr-5E3Bmajority.
T
approved by Parliament within two months after the proclamation is made.
Now it must be approved within one month. Once approved, earlier, it could remain in force
for an indefinite period. But after the Act, it can remain in force for six months only. The
was to be on the basis of a simple majority, but at present it needs a special

(4) There was no parliamentary control, once a proclamation of emergent; approved by it. But
now a special sitting of the Lok Sabha can be held for the purpose 1S
of5Qconsidering disapproval.
tr-5Q 3M9O3U8Q
th
(5) Linder Article 358, before the 44 Amendment Act came into force, the Fundamental
Rights enumerated under Article 19 were automatically suspended, whether the Rational
emergency proclaimed was on the basis of war or external aggression or internal disturbances
But after the Act, under Article 358, Article 19 is automatically suspended only when an
emergency is declared on the basis of war or external aggression. This means that Article 19
cannot be suspended automatically during an emergency if it is proclaimed on the basis of
armed rebellion.

(6) After the 44lh Amendment Act, during an emergency, Articles 20 and 21 cannot be
suspended. Prior to the Act, any or all the Fundamental Rights could be suspended when an
emergency was in force.
IV. On Fundamental Rights
 Article 358 states that as soon as a proclamation of emergency is issued on grounds of war or
external aggression (but not on the ground of armed rebellion) the six fundamental rights '
enumerated under Article 19 are automatically suspended. The State is freed from the
limitations imposed by Article 19. The citizens cannot move the courts for the enforcement of
fundamental rights enumerated under Article 19.

Further, the President, under Article 359, may by order, suspend the operation of any of the
other fundamental rights when an emergency declared on grounds of war or external
aggression or armed rebellion is in force. However, the fundamental rights guaranteed under
Articles 20 and 21 cannot be suspended, even when a national emergency is in force. It is to
be noted that under Article 359, the operation of the fundamental rights is suspended and not
the fundamental rights as such. But under Article 358. Article 19 is suspended.

FAILURE OF CONSTITUTIONAL MACHINERY IN A STATE (ARTICLE 356)

Grounds of Proclamation

c o m
.
Article 356 says that if the President, on receipt of a report from the Governor of a State or

rs
otherwise, is satisfied that a situation has arisen in which the Government of the State cannot
be carried on in accordance with the provisions of the Constitution, he may issue a .

e
proclamation. By that proclamation;

k
(1) the President may assume to himself all or any of the powers vested in the Governor;
(2) the President may declare that the- powers of the Legislature of the State shall be
exercisable by the Parliament.

an
(3) make such incidental provisions as may appear to the President to be necessary or

r
desirable for giving effect to the provisions of the proclamation.

o p tr-5Q3M9O3U
8Q5Q1S
The President cannot, however, assume to himself, any of the powers vested in the High
Court or suspend the operation of any provisions of the Constitution relating to the High
Court.

himself.
T
Parliament can confer on the President the power to make laws for the State. Parliament may
also authorize the President to delegate such power to any other authority as specified by
If the Lok Sabha is not in session, the President may authorize expenditure from the
9A3F8C5A1C
tr-5E3BConsolidated Fund of the State, pending sanction of such expenditure by Parliament. It is to
be noted that under Article 356, the President acts on a report of the Governor or otherwise.
This means that the President can act even without the Governor’s report.
8Q5Q1S
tr-5Q3M9O3U
Parliamentary Approval and Duration

A proclamation issued under Article 356 must be laid before each House of Parliament. It
will cease to operate at the expiry of two months, unless before that period it has been
approved by both Houses of Parliament. A proclamation so approved unless resolved earlier,
be in operation for 6 months from the last of the days on which the Houses pass- resolutions
approving the same. It can be approved by Parliament for a further period of six months.

A proclamation issued under Article 356, can be in force normally for a maximum period of
one year only at a stretch. However, it can be extended by a resolution of Parliament beyond
one year period but in any case not beyond three years from the date of issue of proclamation,
if
 • a proclamation of emergency under Article 352 is in operation in whole of India or in the
whole or any part of the State at the time of passing of such a resolution; and
• the Election Commission certifies .that the continuancejnjorce of the proclamation beyond
one year period is necessary on account of the difficulties in holding general elections to the
Legislative Assembly of the State concerned.
Thus, it can be said that a proclamation issued under Article 356(1) expires in any of the
following modes:

(1) After 2 months of being imposed if not presented for approval before both Houses of
Parliament [Article 356(3)]
(2) Even before 2 months, if the proclamation on presentation to the House of Parliament
fails to get approval from any House [Article 356(3)].
(3) After 6 months, if a resolution for further continuance is no passed by Parliament.
(4) If the conditions for continuance beyond one year is not in existence and not beyond a

m
period of three years.

o
(5) By a proclamation of revocation issued by the President.

Minerva

rs .c
Proclamation of emergency by the president falls under judicial Art
Mills vs.
Union of

k e
preview. However, court's power is limited only to examining
whether the limitations conferred by the constitution have been
352

n
India, observed or not. It can check if the satisfaction of the president is
980 valid or not. If the satisfaction is based on mala-fide or absurd or

p r a
irrelevant grounds, it is no satisfaction at all.
State of Raj. Dissolution of 9 state assemblies
5Q3M9O3U8Q
in
5Q1977
1S was held valid. SC held that Art
vs. Union of it is a political decisiontr- and rests with the executive. Satisfaction of 356

To
India, 1977 the president can be reviewed by the court.
S R Bommai Secularism is a basic feature and a govt. may be dismissed on this
vs. Union of ground. It gave detailed guidelines on invocation of art 356.
India, 1994
Art
356

5A1C
tr-5E3B9A3F8C
AMENDMENT POWER: ARTICLE 368
Article 368 in part XX of the Constitution details the power of Parliament to amendment the
Constitution. An amendment may be initiated only by the introduction of a Bill for the
1S
8Q5Qof
purpose in either House of Parliament and the prior recommendation
tr-5Q3M9O3U the President is not
required for this. When the Bill is passed in each House separately, by a special majority
under Article 368 i.e. by a majority of that House and by a majority of not less than two-
thirds of the members of the House present and voting, it is presented to the President for his
assent. If the President accords his assent, the Constitution stands amended in accordance
with the terms of the Bill.

There is no provision of joint sitting (Article 108), in case there is any disagreement over a
Constitutional Amendment Bill between the two Houses of Parliament. Again, when a
Constitutional Amendment Bill, being duly passed by both Houses, goes to the President, it is
obligatory for him to give his assent. The President can neither withhold, nor can send the
Bill for the reconsideration of the Houses The obligatory aspect of the President giving assent
to an amendment Billvwas added by 24lh Constitutional Amendment Act, 1971 Then one
 amendment bill seeks to amend more than one Article of the Constitution, each clause of the
bill has to be passed by the special majority.

BASIC STRUCTURE OF THE CONSTITUTION

The theory of ‘Basic .Structure’ is sometimes also called ‘Basic Features’ or ‘Basic
Framework’ of the Constitution. This was nowhere mentioned in the original Constitution.
The doctrine of basic structure is, in fact, a judicial innovation which was propounded by the
Supreme Court in the famous Keshavnanda Bharti vs. State of Kerala case (1973). In this
context, it is to be noted that what realty constituted the basic structure was, however, not
explicitly made out by the majority judges. The doctrine simply states that any law enacted
by Parliament which destroys the basic structure of the Constitution, shall be declared void to
the extent of its destruction.
The basic aim of the Supreme Court was to maintain the constitutional superiority and also to

m
sustain a balance between the three organs of the State. Though the Court had not defined it
in precise terms but in a number of subsequent judgement’s, the Supreme Court made it clear

.c o
as to what parts of the Constitution constitute the basic structure of the Constitution. Some of
the concepts identified as the basic features of the Constitution are as follows:

rs
(1) Supremacy of the Constitution;

e
(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution.

(5) Judicial review.

(6) Rule of law

a k
(4) Separation of Powers between the three organs of the State.

n
(7) Sovereignty of the country.

p r
(8) Equality of Status and Opportunity. 5Q3M9O3U8Q5Q1S
tr-

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(9) Federal character of the Constitution.
(10) Unity and Integrity of the Nation

tr-5E3Bground
1C
9A3F8C5Athat
T
(11) Socialism and Social Justice etc.

Exercising the power of judicial review, the Supreme Court struck down the amended
provisions of Article 368 (introduced by the 42nd Amendment Act, 1976) on the simple
this amended provisions deprive the Supreme Court, of the very power of
‘judicial review which is itself a basic structure of the Constitution (Minerva Mills case,
1980 and Waman Rao vs. Union of India case 1981).
9O3U8Q5Q1S
5Q3M
Thus, it is evident from the above write-up that there hastr-been a tussle between the judiciary
and Parliament for supremacy. With an ever enlarging list of ‘basic structures in every major
decision, the Parliament’s power of amendment to the Constitution has been greatly narrowed
down. The irony is that both the amending powers of Parliament and power of judicial review
enjoy edisy the higher courts find place in the list of basic features.
However, so long as the decision of Keshavanand Bharati case is not overturned by another
Full Bench (consisting of more than thirteen judges) of the Supreme Court, any amendment
of the Constitution made by Parliament is certainly liable to be interfered by the Court on the
ground of affecting one or the other basic structure of the Constitution.
 1st made several changes to the Fundamental Rights provisions of the Indian
Constitutional constitution. It provided against abuse of freedom of speech and
(Amendment) expression, validation of zamindari abolition laws, and clarified that
Act, 1951 the right to equality does not bar the enactment of laws which provide
"special consideration" for weaker sections of society.
Shankari 1st amendment that inserted of Art 31-A and 31-B by was challenged. SC
Prasad vs. held that “Law” in Art 13 refers to ordinary law made under legislative
Union of India power and does not include amendment of the constitution. Art 368 gives
1951 complete power to the parliament to amend the constitution including
fundamental rights.
Sajjan Singh 17th amendment was challenged. SC followed the judgment in Shankari
vs. State of Raj. Prasad case and held that “amendment of the constitution” means
1965 amendment of all the provisions of the constitution.
Golak Nath vs. 17th amendment that inserted certain state acts in the 9th schedule was
State of
Punjab,
1971
again challenged.

o m
SC overruled the previous judgment and held that the parliament does not

c
have the power amend part III so as to take away fundamental rights. It

rs .
held that art 368 merely describes the procedure of amendment and the
actual power of amendment comes from art 245 and entry 97 of List 1.
“Amendment” is a “law” with in art 13 (1).
24th
Constitutional

k e
It was a retaliatory act of Parliament to neutralize the effect of the
judgement in the Golak Nath case. Hence, it affirmed the Parliament's
(Amendment)
Act, 1971

an
power to amend any part of the Constitution, including Fundamental
Rights by amending Articles 368 and 13. It also made it obligatory for the

r
President to give assent to Amendment Rills, when they are presented to

p
him. 3M9O3U8Q5Q
1S
tr-5Q

Keshavanand
Bharati vs.
Union of India,
1973 To In order to overcome difficulties posed by SC decision in Golak
Nath case, parliament added clause 13(3) by 24th amendment,
which says that art 13 will not apply to any amendments made
under art 368. Further, it added a new clause to art 368 saying
nothing in art 13 shall apply to amendment made under this
5A1C
tr-5E3B9A3F8C article.
In this case, this amendment was challenged.
SC overruled Golak Nath case and held the following –
 “Law” in art 13 meanstr-5Q ordinary law
3M9O3U8Q 5Q1Smade under
th
legislative power. 24 amendment is only clarifying that
point and so it valid.
 Parliament has wide power of amending the constitution
but it is not unlimited.
 The usage of the word “amendment” in the constitution
means that the basic framework of the constitution must
survive after the amendment. It does not allow destruction
of the basic structure of the constitution.
 Power to amend the constitution does not including
abrogating the constitution.
 C J Sikri said that basic features of the constitution include
–
 o Secular character
o Division of powers among judiciary, legislative, executive
 o Federal character of the constitution
o Supremacy of the judiciary
o Republic and democratic character

UNION-STATE RELATIONS

LEGISLATIVE RELATIONS

Articles 245 to 255 in Part XI, Chapter 1 of the Constitution deal with the legislative
relations between the union and the states.

Article 245 Extent of laws made by Parliament and by the Legislatures of states

states

c o m
Article 246 Subject matter of laws made by Parliament and by the Legislatures of

.
Article 246 Goods and Services Tax

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A
Article 247 Power of Parliament to provide for the establishment of certain
additional courts
Article 248 Residuary powers of legislation

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in the national interest

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Article 249 Power of Parliament to legislate with respect to a matter in,the State list

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Article 250 Power of Parliament to legislate with5Qrespect
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to any matter in the State
tr- 5Q3M9O3U8Q
list if a proclamation of emergency is in operation

o
Article 251 Inconsistency between laws made by Parliament under Articles 249 &

T
250 and laws made by the Legislatures of states
Article 252 Power of Parliament to legislate for two or more states by consent and
adoption of such legislation by any other state
Article
tr-5E3B9A 253
3F8C5A1C Legislation for giving effect to international agreements

Article 254 Inconsistency between laws made by Parliament and laws made by the
Legislatures of States 3M9O3U8Q5Q
1S
tr-5Q
Article 255 Requirements as to recommendations and previous sanctions to be
regarded as matters of procedure only

DISTRIBUTION OF LEGISLATIVE SUBJECTS

The Constitution divides legislative authority-between the Union and the States in three lists -
the Union List, the State List and the Concurrent List. The distribution is remarkably
elaborate and detailed.
The Union List consists of 100 items (originally 97 items). It demonstrates the vast extent as
well as the great importance of the powers vested in the Union Government. The Union
Parliament has exclusive authority to frame laws on subjects enumerated in the list. These
 include foreign affairs, defense, armed forces, communications, posts and telegraphs, foreign
trade, inter-state trade, commerce, etc. A number of items included in the list have an
important bearing on Union-State relations and some of them can enable the Union to expand
its area of operation and thereby extend its control over the sphere which falls under State
jurisdiction. For example, item number 52 which refers to industry places a powerful lever in
the hands of the Union to take any industry under its own control.

Both Parliament and the State Legislatures can make laws on subjects given in the
Concurrent List, but the Union has a prior and superior claim to legislate on concurrent
subjects. The list comprises of 52 items (originally 47 items) including criminal and civil
procedure, marriage and divorce, economic and special planning, trade unions, labour
welfare, electricity, newspapers, books and printing presses, population control and family
planning etc.
The State List consisting of 61 (originally 66 items) items contains subjects on which
ordinarily the States alone can make laws. These include public order, police, administration

m
of justice, prisons, local Government, agriculture etc. However, what makes the state

o
autonomy less real than it appears at first is the fact that under certain conditions the

c
Constitution authorizes the Union Government to extend its jurisdiction over matters

rs .
formally included in the State List. In fact, when a proclamation of emergency is in operation,
Parliament can legislate on matters enumerated in all the three lists. Under Article 356,
relating to the breakdown of constitutional machinery in the State, Parliament can take over
the legislative authority of the State.

k e
Article 249 empowers the Rajya Sabha to transfer any-matter in the State List to the

r an
legislative jurisdiction of Parliament by a resolution passed by a two thirds majority.
According to Article 252, if the Legislatures of two or more States pass resolution to the

o p
effect that it is desirable to have a law tr-
passed
5Q3M9Oby Parliament
3U8Q 5Q1S on any matter in the State List,
Parliament can make laws regulating the matter, Any other State may also adopt such a law
by passing a resolution to that effect. Such laws can be amended or repealed only by the
Parliament.

tr-5E even
3B9A3F8Cif
T
Article 253 empowers Parliament to make laws for the whole or any part of the territory of
India for implementing international agreements and conventions to which India is a party,
1C subjects covered by such treaties and agreements fall within the State List.
5Athe

Finally, the residuary powers have been placed under the Legislative jurisdiction of the
Parliament. This is a departure from the normal pattern of federalism. In the USA,
5Q3M 9O3U8Q5Q1S
Switzerland and Australia, the residuary powers vest in tr-
the component units. The Indian
Constitution makers preferred to follow the example of Canada in the assignment of
residuary powers.

CENTRAL CONTROL OVERSTATE LEGISLATION

In addition to the Parliaments power to legislate directly on the State subjects as mentioned
above, the Constitution also provides for the Union’s consent before a Bill passed by a State
legislature can become a law. A State law providing for compulsory acquisition of private
property shall have no effect unless it has received the consent of the President.
Article 31-A grants immunity to laws providing for agrarian reforms from Articles 14 and
19. The immunity of Article 31-A will not be-available to a State law unless it has received
 the consent of the President. The object of these provisions is to ensure uniformity in laws
providing for agrarian reforms.

Article 200 directs the Governor of a State to reserve a Bill passed by a State Legislature for
the consideration of the President if in his opinion, if passed into law, would derogate the
powers of the High Court.
Article 288(2) authorizes a State to tax in respect of water or electricity stored, generated,
consumed, distributed or sold by any authority established by law made hy Parliament. But
no such law shall be valid unless it has been resend for the consideration of the President and
has received his assent.
Article 304(b) authorizes a State Legislature to impose reasonable restrictions on the freedom
of trade, commerce and intercourse within the State in the public interest. But such laws
cannot be-introduced in the State Legislature without the previous sanction of the President.
In short, the States do not possess exclusive or inviolable legislative jurisdiction even in

m
matters formally recognized by the Constitution falling within the sphere of State autonomy. -

o
In the United States of America, federal legislation on any subject which falls within the

c
sphere reserved to the States is impossible without a constitutional amendment.

Doctrine of Pith and Substance

rs .
Under the Constitution of India, there is a division of legislative spheres between the Union

k e
and the States. Within their respective areas of authority, the union and the state legislatures
are supreme and they are not supposed to encroach upon the sphere reserved for the other. If

doctrine of pith and substance.

r n
a law passed by one encroaches upon the Held assigned to the other, the court will apply the

a
If it is found that the law in substance is within the subjects assigned to that legislature and

o p tr- 5Q 3M 9O3U8Q5Q1S
the intention of the law is genuine, the law shall be valid in its entirety, even though there is
some overlapping. The justification given for this is that since there cannot b.e water-tight

T
division of powers 'between the union and the states, a strict verbal, interpretation of any
provision would result in invalidation of many laws on the simple ground of overlapping.
The Supreme Court propounded this doctrine in the case of State of Rajasthan vs. G
Chawla in 1959. In the opinion of the Court, such encroachment is only incidental and hence
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the extent of invasion is immaterial.

Doctrine of Colorable Legislation

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It is very much applicable under a federal Constitution. In a federal government, the
transgression of its limits of power by a legislature may be either overt and direct or covert
and indirect. When the legislation is indirect and covert, it is called colorable legislation’. In
this case, although the subject on which the legislature makes laws falls within its legislative
competence in exterior appearance but its real motive is to transgress the power of other
Legislature covertly. In this case, applying the doctrine of colorable legislation, the court can
invalidate the entire law. The essence of this doctrine is that what the legislature cannot do
directly, it cannot do the same indirectly also.